Circa1865

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17^th and 18^th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.

Prior to 1861 the American union was a federation of member States which jealously guarded their own territory and sovereignty to decide upon their own internal affairs. This also included determining whether or not to continue membership in that federation and departing it for another as was done in 1789. Also, by 1861 the North had become a far different region that the American South through industrialization and the relentless immigration of foreigners lacking an understanding of American republicanism.

The Triumph of Industrialism

“The ordeal which beset the United States in 1861 was related to the upheaval on the continent in 1848, and to the spasm which shook England in 1832. In a veiled and confused yet crucial way it, too, was a test of strength between the industrial way of life and the agrarian.

When the Machine first reached this country it took root in the North, and there alone it was able to make even slow headway. The ruling elements in the South were inclined to despise the innovation, for they had black slaves to do their hard labor. In this they were merely repeating history.

The slave owners in ancient Greece had had a similar attitude toward machinery; so had the slave owners in ancient Rome and China and Mexico. These, it must be realized had not lacked the cunning to invent mechanical devices. A Greek mathematician named Hero who lived in the First Century actually built a working steam engine. But did it occur to him to put the contraption to practical use? It did not.  Instead, he installed it in a temple to amaze the worshippers by the way it worked the doors.

That was typical. The clock and the compass, gunpowder and the printing press – these were all invented in relatively ancient times. Yet until relatively modern times they were kept as mere playthings. Ingenious patricians with time on their hands were continually thinking up cunning devices; but never with the idea of applying them to save toil. They themselves did not toil, neither did any of their friends. They had slaves for that. So why bother? And that was precisely the attitude of the white gentry of the South and in their eyes an interest in machinery was vulgar.

In the North, however, the very opposite held true. Bondage had long since been outlawed in that section in part for climatic and other reasons it had too obviously failed to pay. Having no slave labor, the Northerners had naturally been forced to try to save labor. Since this could be done more easily in industry than agriculture, there had been an equally natural compulsion to favor the factory over the farm. The great boom of the 1850s was almost entirely confined to the North and it equipped that region with so much new machinery that it was able to manufacture six times as much merchandise as the South. As a result, the interests of the North, especially New England, became increasingly wrapped up in the fortunes of industrialism.

But as the collapse of that boom had revealed, those fortunes were increasingly insecure. When the Panic of 1857 finally waned and the Yankee industrialists began to pick themselves up from the dust, there was blood in their eyes.

They felt they had been betrayed. For years the industrialists had been complaining that their foreign rivals had them at a disadvantage and pleaded with Congress to come to their aid. They demanded these things: higher tariff walls to keep out cheap foreign merchandise; lowered immigration standards to admit cheap foreign labor; increase subsidies to shippers carrying Northern merchandise overseas; advance more generous loans to railroad companies; create one currency to replace the various State bank notes; and lastly, change the African slave into a free consumer who would spend his money buying Northern products.

But the Southerners had opposed that program to a man. Moreover, being superior politicians, they had always been able to make Congress vote their way. Now, however, the Northerners had their dander up and forged a political alliance with the radical farmers of the West and elected a cagey frontier lawyer named Abraham Lincoln to the presidency. Whereupon, there was war.

The South decided to secede from the 1789 Union. They decided they would rather have half a continent of their own than a whole one run by damn Yankees. Like agrarians everywhere else, their outlook on life had remained essentially provincial. They believed that a citizen’s first loyalty belonged not so much to his country as to his immediate countryside.

Rather than let the South gain independence, the North was ready to lay it to waste. With the Government furnishing the capital, and patriotism the incentive, they rushed to lay hold of more and more machinery. At the time it was called the “Civil War,” and later this somewhat sinister name was softened to the “War Between the States.” In effect, however, it was the “Second American Revolution.” The first had secured the triumph of republicanism on these shores; the second insured the triumph of industrialism.”

(Something Went Wrong: A Summation of Modern History, Lewis Browne, MacMillan Company, 1942, excerpts pp. 113-116)

Scourging Republicans from the Temple of Freedom

As the Democratic party split into North and South factions in early 1860, it paved the way for the new, sectional Republican party — comprised of former Whigs, abolitionists, transcendentalists, and anti-Catholic Know-Nothings — to triumph in November with a 39% plurality. Aware of the extreme danger Republicans posed to the Union, rational Southern men traveled northward to alert their Democratic brethren.

One voice was William L. Yancey, born at Warren County, Georgia but educated at Williams College in northwestern Massachusetts, where he likely absorbed that State’s tradition of threatening secession from the 1789 union should that State’s equality in the federation be threatened. He relocated to Elmore County, Alabama in 1837 and eventually represented his district in the United States House of Representatives.

Aware of the extreme danger to the Union should the Democratic party fragment in 1860, he joined “Southern men of all parties who came north in an effort to arouse the masses to the danger of the situation.” He was then prevailed upon to make an extended campaign from Memphis to Boston, speaking to many audiences.

In a speech at Nashville on August 14, 1860 and published in the Nashville Union and American shortly afterward:

“Yancey denied that he was a disunionist per se; but declared that in the event of a Republican victory, “I hope to God there will be some man or set of men, whom Providence will rear in our midst . . . that there will be some great Washington [to] arise who will be able to scourge them from the temple of freedom, even if he is called a traitor – an agitator, or a rebel during the glorious process.”

(Source: The Secession Movement: 1860-1861, Dwight L. Dumond, The MacMillan
Company, 1931, pg. 110)

Michigan Senator Lewis Cass was born in New Hampshire in 1782 and quite possibly had seen President George Washington as a young man. A lifelong Democrat and devoted Northwestern man who watched the latter territory develop, he longed to see the sectional troubles developing in the 1850’s resolved with faithful compromise. The nascent Republican party was not to be compromised with, and after electing its first president with a small plurality in 1860, plunged the country into a war it never recovered from.

Passing in 1866, he lived long enough to witness Washington’s republic perish in the flames of sectional warfare.

Republicans, Sectionalism and War

During the deliberations of the Compromise of 1850, Lewis Cass believed slavery to be a misfortune to the South, but only “the passage of ages” could bring about emancipation without the destruction of both races.

On the date July 6, 1854, the Whigs and Free-Soilers, or the “Free Democracy” of Michigan, met and formed a new party. The name Republican was adopted with old party trammels soon cast aside and all bent to the task of forming a party upon the cornerstone of unionism and freedom. This new party was opposed to State sovereignty as well as constitutional interpretations which were contrary to their views, and gave their strength to this party which advocated nationalism.

Though claiming to be a party of Americans for America, its absorption of the fiercely anti-Catholic Know-Nothings meant that only Protestants were to be tolerated.

It was a source of regret to Cass that a party with a “sectional” aim should find support in the country. For above all else he loved the Union, hoping against hope that harmony would be restored. But Michigan, so long faithful to him gave Fremont a popular plurality and elected a Republican legislature with an overwhelming majority.

“You remember, young man,” Lewis Cass said to James A. Garfield in 1861, “that the Constitution did not take effect until nine States had ratified it. My native State [of New Hampshire] was the ninth. So I saw the Constitution born, and I fear I may see it die.”

Though only nine of thirteen States ratified the third Constitution in June, 1788, the others remained fully independent States. And logically, should conventions of any of the thirteen (or subsequent States admitted) revoke or rescind their ratifications to resume their full-independent status and pursue another political arrangement, any lover of freedom and liberty would applaud this.

Lewis Cass, Andrew C. McLaughlin, Houghton Mifflin Company, 1891, pp. 301-324)

Two young visitors from the Old World who briefly studied America, Alexis de Tocqueville of France and Russian Alexandr Lakier, were historians, jurisprudents, and both involved in public service careers. It is said that Alexis de Tocqueville was fascinated by the idea of political equality in America and wished to obtain first-hand knowledge of this. While Tocqueville, the philosopher, spoke with the upper classes, Lakier was a better reporter on the typical American. Tocqueville arrived in 1831, Lakier in 1857.

Cultural Mediocrity and Majority Tyranny Sweeping the Globe

“Tocqueville came with overpowering credentials. He was able to see everybody who was anybody – presidents, senators, judges, university presidents, scholars, men of letters. He managed, in the brief time he was here, to interview statesmen like Albert Gallatin, John Quincy Adams and Edward Livingston; jurists like Chancellor Kent and Joseph Story; scholars like Edward Everett, Francis Lieber and Jared Sparks; luminaries like Daniel Webster and William Ellerry Channing, and his thinking was profoundly influenced by what these distinguished men told him.

Lakier came on his own, and depended on fortuity for his interviews. He talked with the most miscellaneous people – shipboard acquaintances, workingmen, petty officials, farmers, fur traders, and newly arrived immigrants – a pretty good cross-section of American society.

There was a pervasive melancholy in much that Tocqueville wrote, a conviction that though democracy was indeed the wave of the future, that wave would drown out much that was precious – that democracy would expose every Old World society to the threat of cultural mediocrity, majority tyranny, and the ultimate subversion of liberty.

Lakier, who was by nature more sanguine and more buoyant, looked with confidence to the future – a future that would see the triumph of equality and a closer friendship between the United States and his own nation.

Lakier saw too, that the example of America could not be confined to the Western Hemisphere, but would sweep around the globe . . . “They will have an influence on Europe, but they will use neither arms nor sword nor fire, nor death and destruction. They will spread their influence by the strength of their inventions, their trade, and their industry. And this influence will be more durable than any conquest.”

(A Russian Looks at America: The Journey of Aleksandr Lakier Borisovich in 1857, University of Chicago Press, 1979, excerpts x-xiii)

Though Massachusetts created the first statutes in America establishing African slavery, Catholics were found to be far worse and unwanted strangers prior to the Civil War. A power-base for the nativist Know-Nothing party of the mid-1800s, the Massachusetts legislature desegregated its public schools in order to exclude Catholics, with one observer commenting that “the legislature might appear to have acted inconsistently, opening Massachusetts schools to one minority group while proposing discriminatory statutes against another. However, blacks were Protestants and native-born, and posed no threat to the Protestant curriculum that Know-Nothings found so important.” By 1856, the Know-Nothing party was absorbed by the new Republican party.

Catholics and Know-Nothings

“As Irish Catholic immigration to New York City and other northeastern cities skyrocketed during the Irish potato famine (1846-1850), and prelates like [Archbishop of New York, John] Hughes began to succeed in obtaining State funds for Catholic schools, nativist political resolve increased. Another factor that increased nativist hostility was the Catholic hierarchy’s refusal to condemn slavery and its [later] apparent support for the Confederacy. In his recent book “Catholicism and American Freedom,” John T. McGreevy . . . argues that the acceptance of slavery among Catholic intellectuals “rested upon the pervasive fear of liberal individualism and social order that so shaped Catholic thought during the nineteenth century, along with the anti-Catholicism of many abolitionists.”

By 1854 the earlier political manifestations of the nativist movement had matured into a full-fledged political party. The American, or Know-Nothing,” party enjoyed short-lived success in the 1854 election, when it won six governorships and achieved majorities in the State legislatures of Massachusetts, New Hampshire, Connecticut, Rhode Island, Pennsylvania, Delaware, Maryland, Kentucky, and California. Despite the low concentration of immigrants in western Pennsylvania, the Know-Nothings did well there . . . attributed to the high percentage of Anglo-Saxon residents in that area combined with “the belief that the Know-Nothings would advance the temperance and anti-slavery movements.”

The main object of Know-Nothing State legislatures was to introduce legislation that would prevent Catholic immigrants from voting. Massachusetts, Connecticut, Rhode Island and Maine passed laws prohibiting State judges from naturalizing immigrants . . . [and] including the first literacy tests for voting, were passed in order to disenfranchise the Irish.

The party’s platform focused on voting rights . . . and requiring the exclusion of foreigners and Catholics from public office. In Massachusetts, where Know-Nothings were strongest, they passed legislation which prohibited the disbursement of public funds to private schools, required that all public school children, including Catholics, read daily from the Protestant King James Version of the Bible, and desegregated the public school system.”

(Breach of Faith: American Churches and the Immigration Crisis, James C. Russell, Representative Government Education Press, 2004, excerpt pp. 26-27)

Though the British discovered a peaceful path to end African slavery in its empire, no practical or peaceful solutions to end slavery in the United States came from New England abolitionists. Rather than look back at their section’s role in the transatlantic slave trade which brought Africans traded for Yankee notions and rum to the West Indies and the South, Massachusetts inventor Eli Whitney’s gin and New England cotton mills which perpetuated slavery, and New England’s threatened secession since 1804, blaming the South for slavery became popular. They would also have found that New England’s financial basis for its industrial revolution was acquired through its African slave trade, which helped Providence, Rhode Island surpass Liverpool as the center of that transatlantic slave trade by 1750.

Slavery and Secessionists

“Soon after the assassination of President Lincoln, the Rev. Daniel C. Eddy of the Baldwin Place Congregational Church in Boston spoke of the fundamental differences he perceived between the South and the North:

“Argue as we may, our Southern people are a different race. Slavery has given them a different idea of religion . . . Slavery has barbarized them, and made them a people with whom we have little in common. We had an idea of Southern civilization when Judge Hoar was driven out of Charleston . . . when Sumner was bleeding in the Federal Senate . . . when ornaments were made for Southern ladies of the bones of the brave soldiers killed at Bull Run . . . in the atrocities perpetrated upon our poor soldiers . . . And now we have another exhibition of it in the base, wanton, assassination of the President.”

In the antebellum years some Northern clergy looked upon the South as a distasteful part of the Union that they advocated the Garrisonian position whereby the South should separate itself from the South. In 1851 Charles G. Finney, coming to the realization that revivalism was not going to bring an end to slavery, suggested “the dismemberment of our hypocritical union.” Finley detested the thought of living in a nation where slavery existed. It was better to separate from such an evil.

In two sermons delivered in 1854, Eden B. Foster, a Congregationalist minister from Lowell, Massachusetts, proposed the secession of the North from the Union as a last resort to check the spread of slavery. Inherent in the slavery system, said Foster, were such evils as cruelty, ignorance immorality and sin. On April 4, 1861, less than two weeks before the cannons at Charleston began to bombard Fort Sumter, [Boston preacher] . . . Eddy urged the North to free itself from the burden of Union with the South so that the North might more fully “develop all those forces of a high-minded Christian civilization.”

Later that month, on April 28, after the surrender of Fort Sumter, Eddy changed his mind and advocated war to save the Union.”

(God Ordained This War: Sermons on the Sectional Crisis, 1830-1865, David B. Chesebrough, University of South Carolina Press, 1991, excerpt pp. 58-59)

In addition to the Seminole tribe, the Cherokee, Chickasaw and Creeks all held slaves prior to the arrival of Europeans, acquiring African slaves from the latter. The tribes were often brutal toward their slaves, established their own “black codes” and lived in segregated villages.

Though African slaves were emancipated in the postwar South, the sovereign status of the tribes exempted them from US legislation. A treaty of 1866 freed the black slaves of Indians.

Seminole Slave Property

“During our war with the Seminoles in Florida, in 1837 and 1838, a large number of those Indians were emigrated west of the Mississippi river. They carried with them a “considerable number of Negroes, who had been claimed and lawfully held as slaves by Indians of the tribe,” the attorney-general for the United States tells us.  At its expense, the government moved both the Indians and their “property of great intrinsic value,” and settled the tribe in the Western Territory.

There the Negroes continued “in the possession and service of their Indian masters” until 1846. A large number then went into the Federal fort pursuant to an offer of qualified freedom made by an officer in command of Federal troops. In June 1848 J.Y. Mason, former attorney-general and then attorney-general ad interim, having consideration of this case and the case of slaves captured in that [Seminole] war both by our troops and by Indians acting as our allies, said:

“The legal principles applicable to the subject appear to me to be free from difficulty. Regarded as persons, the Negro slaves had no power to contract, and therefore could not enter into any treaty or convention. Regarded as property when captured, they were to be treated as any other moveable property captured from an enemy in a land war . . .”

He then pointed out that our government had restored all captured slaves to their former masters where their “status ante bellum” was established. And in the case of the others he held that they must be returned to their former masters, saying, “I do not perceive on what principles you can interfere or deprive the Seminoles of their property, to give to their slaves any qualified freedom.”

Again in 1855 Negro slave property belonging to Indians outside of the municipal regulations of any State, was recognized and protected by the Federal Government. Look into the adjudications in any of the Northern States and there we find that the slave was property no matter where found, and that the rules of litigation concerning property interests in him differed in no respect from those applied to any other property.”

(The Legal & Historical Status of the Dred Scott Decision, Elbert William R. Ewing, Cobden Publishing Company, 1909, excerpts pp. 176-177; 180)

Author Philip Leigh below writes that in late March 1860 as Lincoln wrestled with the question of whether to abandon Fort Sumter and preserve peace, or commit to war, he was visited by a group of New York merchants. Their desire for profits prevailed as it was “better to pay for armed conflict now than suffer prolonged economic disaster in a losing trade war.”

War for Mercantile Greatness

“[A] low tariff Southern Confederacy was an economic threat to a truncated Federal Union, particularly considering the North’s growing expectations for economic hegemony as the South lost influence in the Government. About a month before Fort Sumter surrendered, the Boston Transcript concluded on March 18, 1861 that the South did not seceded to protect slavery, but to become the North’s economic competitor:

“Alleged grievances in regard to slavery were originally the causes for the separation of the cotton States, but the mask has been thrown off, and it is apparent that the people of the seceding States are now for commercial independence . . . the merchants of New Orleans, Charleston and Savannah are possessed with the idea that New York, Boston and Philadelphia may be shorn . . . of their mercantile greatness by a revenue system verging upon free trade. If the Southern Confederation is allowed to carry out a policy by which only a nominal duty is laid upon imports, no doubt the businesses of the chief Northern cities will be seriously injured.

The difference is so great between the tariff of the Union and that of the Confederacy that the entire Northwest [present day Midwest] must find it to their advantage to purchase imported goods at New Orleans rather than New York. In addition, Northern manufacturers will suffer from the increased importations resulting from lower duties . . .”

More than a month before South Carolina started the secession trend and about two weeks after the election, outcome was known, the Boston Herald concluded on November 12, 1860: “[Should South Carolina secede] she will immediately form commercial alliances with European countries [that] . . . will help English manufacturing at the expense of New England. The first move the South would make would be to impose a heavy tax upon the manufacturers of the North, and an export tax on the cotton used by Northern manufacturers. In this way she would seek to cripple the North. The carrying trade, which is now done by American [Northern] vessels, would be transferred to British ships.”

(Causes of the Civil War, Philip Leigh, Shotwell Publishing, 2020, excerpt pp. 133-134)

Andrew Jackson thought of himself as not an innovator or man of ideas, but that he must revive and continue Jeffersonian principles in the federal government. He was a man hostile to the clamoring abolitionist radicals and in general to the various “isms” of the North, sure to cause strife where none should be. His conception of patriotism included a determination to uphold the national honor and interests, even at the risk of war.

An Invigorating Spirit of Patriotism

“[The] Age of Jackson appears to have been characterized by a high degree of patriotism – the patriotism of a provincial people who were virtually untouched by the internationalism of our own day and who as a whole lived close to nature and therefore perhaps had a child’s love for the homeland.

The Italian Count Francesco Arese, who traveled in the United States in 1837-38, described this invigorating spirit of patriotism, which he witnessed during a Fourth-of-July celebration in Lexington, Virginia.

After the usual fireworks, marching of the militia, and playing by the band of “Hail, Columbia” and “Yankee Doodle,” the townspeople sat down to an elaborate banquet. “There were 160-odd people,” the Count relates in his journal, “and though Americans are accused of being not too sober, I am forced to say that not a soul got drunk. After the dinner, which didn’t last over ½ hour, several toasts were drunk. The first was to “the 4^th of July, 1776,” the next to General George Washington, the third to General Lafayette; and many others followed.

Among the banqueters were two old veterans that had served under Washington, one of whom was a Negro who had gone everywhere with the brave general, and for that reason, a half-century later, he was allowed the honor once every year of sitting down to the table with white men!

There was nothing, absolutely nothing in this celebration that suggested in the remotest degree that trumped-up joy, that official gaiety they gratify us with in Europe, quite contrary to our desire. Here the joy, the enthusiasm were real, natural, heartfelt. Each individual was rightly proud to feel himself an American.

Each one believed himself to share the glory of Washington, Jefferson, Marshall and all the other illustrious men whom not only America but the whole world has the right to be proud of. Oh. God, when shall my own beautiful and wretched country be able to celebrate a day like that?”

(The Leaven of Democracy: The Growth of the Democratic Spirit in the Time of Jackson, Clement Eaton, editor, George Braziller Publishers, 1963, excerpt, pp. 10-11)