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.

When the Articles of Confederation were put to the States for ratification in November, 1776, the preparatory debates revealed very strong warnings of sectionalism. These clear and distinct divisions eventually produced threats of New England secession in 1814, economic fissures by the 1820s, talk of Southern secession by 1850, and eventually an all-out shooting-war in 1861 which ended the experiment in free government.

The South Delivered Up to the Care of the North

“The Congress debated the Articles throughout the summer of 1776. There were three main arguments. One was on whether each colony should have a single vote, and issue of large versus small States. The second was States’ rights, whether the confederation had authority to limit territorial expansion of individual States. Third was the method of apportioning taxation. The North wanted to tax according to total population. The South was opposed to taxing slaves.

The latter issue began one of the enduring sectional debates of the first American century. Were slaves part of the general population? Or were they property? The South held for property and Rutledge of South Carolina said that if ownership of slaves was to be taxed, then so should the ownership of the Northern ships that carried the slaves.

There were several strictly sectional votes on the subject with the bloc of seven Northern States lined up against the six-State Southern bloc. It was finally compromised that taxes would be apportioned according to the private ownership of land and the improvements thereon.

In November 1776 the Articles were sent to the States for ratification. The hottest opposition came from the Southern States (with the exception of Virginia) . . . The reaction of William Henry Drayton, chief justice of South Carolina, was typical of the eighteenth-century South. Drayton felt the Articles gave too much power to the central government and States’ rights would be run over roughshod. He observed that there was a natural North-South division among the States, arising “from the nature of the climate, soil and produce.”

He felt the South’s opportunities for growth would be crippled by the Articles because “the honor, interest and sovereignty of the South, are in effect delivered up to the care of the North.”

(The Natural Superiority of Southern Politicians, David Leon Chandler, Doubleday and Company, 1977, pg. 74)

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)

In the first Congress under the United States  Constitution, Josiah Parker of Virginia attempted to insert a clause in the Tariff Bill to levy a ten dollar tax on every slave brought into this country on foreign ships, and especially those of New England.  Parker was supported in this by two other Virginians, Theodoric Bland and James Madison.  In a March 1790 Virginia petition to Congress, the slave trade was denounced as “an outrageous violation of one of the most essential rights of human nature.”

In an unclean bargain to extend the slave trade until 1808, the commercial interests of New Hampshire, Massachusetts and Connecticut allied with South Carolina and Georgia rice planters – while Virginia strenuously protested. The slave traders of New England continued their nefarious traffic until the eve of the Civil War.

Virginia’s Efforts to Abolish the Slave Trade

“Despite Virginia’s failure to secure the immediate suppression of the foreign slave trade, her sons were active in their efforts to restrict its growth and at the earliest possible moment to drive the slave ships from the seas.

“ . . . James Madison [declared] . . . By expressing a national disapprobation of that trade it is hoped we may destroy it, and so save ourselves from reproaches and our posterity from the imbecility ever attendant on a country filled with slaves.”

In his message to Congress, at its session 1806-07, Mr. Jefferson, then President, brought to the attention of that body the fact that under the Constitution the time was at hand when the African slave trade could be abolished, and urged a speedy enactment of such a law. He said:

I congratulate you, fellow-citizens, on the approach of a period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have so long been continued on the unoffending inhabitants of Africa, and which the morality, the reputation and the best interests of our country have long been eager to proscribe.”

[Later], In his message to Congress, December 5, 1810, President [James] Madison declares: “Among the commercial abuses still committed under the American flag . . . it appears that American citizens are instrumental in carrying on the traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country.”

(Virginia’s Attitude Toward Slavery and Secession, Beverly Munford, L.H. Jenkins, 1909, excerpts pp. 33-35)

Lord Macaulay on American Institutions

“On May 23, 1857, he stated: “You are surprised to learn that I have not a high opinion of Mr. Jefferson, and I am surprised at your surprise. I am certain that I never . . . uttered word indicating an opinion that the supreme authority in a state ought to be to be entrusted to a majority of citizens told by the head, in other words the poorest and most ignorant of society.

I have long been convinced that institutions purely democratic must, sooner or later, destroy liberty or civilization, or both . . . I have not the smallest doubt that if we had a purely democratic government [in England] . . . Either the poor would plunder rich, and civilization would perish; or order and prosperity would be saved by a strong military government, and liberty would perish . . .

Your fate I believe to be certain, though it is deferred by a physical cause.  As long as you have a boundless extent of fertile and unoccupied land, your laboring population will be far more at ease than the laboring population of the Old World, and, while that is the case, the Jefferson politics may continue without causing any fatal calamity.

But the time will come when New England will be as thickly populated as old England . . . then your institutions will be fairly brought to the test . . . I seriously apprehend that you will, in some such season of adversity as I have described, do things that will prevent prosperity from returning . . . There will be, I fear, spoliation. The spoliation will cause distress. The distress will produce fresh spoliation. There is nothing to stop you. Your Constitution is all sail and no anchor.

Your republic will be as fearfully plundered and laid waste by the barbarians in the twentieth century as the Roman Empire was in the fifth . . . your Huns and Vandals will have been engendered within your own country by your own institutions. Thinking thus, of course, I cannot reckon Jefferson among the benefactors of mankind . . .”

On October 9, 1858, Macaulay continued: “I am perfectly aware of the immense progress which your country has made, and is making in population and wealth. But I see no reason for attributing these things to the policy of Jefferson. The progress which you are now making is only a continuation of the progress which you have been making ever since the middle of the seventeenth century . . . enjoyed by your forefathers, who were loyal subjects of the kings of England . . . I do not admit that the prosperity which your country enjoys arises from those parts of your polity which may be called, Jeffersonian.” [The Life and Letters of Lord Macaulay, Sir George Trevelyan, Vol. II, New York, 1875, pp. 407-412]

(The Correspondence Between Henry Stephens Randall and Hugh Blair Grigsby, 1856-1861, Frank J. Klingberg and Frank W. Klingberg, editors, Volume 43, University of California Press, 1952, excerpts pp. 185-186)

Jeffersonian Democracy embraced republicanism which meant opposition to the artificial aristocracy of merchants, manufacturers and bankers, and corruption which accompanied it. The insistence on virtue and support for the farmer and plain people of America was the hallmark of this system of government.

New Deal Front

“The Southern Committee for Jeffersonian Democracy has made some very keen observations. The Committee points out that Mr. Roosevelt has gained control of the National Democratic Party, using it as a front party for the New Deal as Herr Hitler gained control of what was the National Labor Democratic Party in Germany. 

And the Committee further observes that today both of those Democratic parties, as exemplified by Mr. Roosevelt here and Herr Hitler over there, have no resemblance in principle or purpose to the original party.”

Rep. Fred L. Crawford, (R., Michigan), Congressional Record, October 2, 1940, pg. 19677.

(The Illustrious Dunderheads, Rex Stout, editor, Alfred A. Knopf, 1942)

General Winfield Scott’s (1786-1866) view of peacefully allowing the American South pursue independence aligns with that of Thomas Jefferson’s regarding State sovereignty and newer States formed out of Louisiana.

In a letter to John C. Breckinridge in August 1803, Jefferson wrote: “[We] see their happiness in the union, and we wish it. Events may prove otherwise . . . God bless [both old and new States], and keep them in union, if it be for their good, but separate them, if it be better.”

Scott’s war cost estimates below were very low. The direct financial cost of the war’s operation was about $8 billion, which, eventually increased to $30 billion factoring in the destruction of property, derangement of the labor power, the Northern pension system and other economic losses. In human cost: one soldier, North and South, died for every six slaves freed and for every ten white Southerners saved for Lincoln’s union.

In addition, “The money spent to field the two armies would have purchased the liberty of the four million slaves five times over. (Tombee, Portrait of a Cotton Planter, Theodore Rosengarten, Morrow & Company, 1986, page 212.)

General Scott’s Fearful Forebodings

“[Scott’s] opinion on the 3rd of March [1861 was sent by letter] to Secretary [William] Seward. In this he exclaims: “Conquer the seceded [cotton] States by invading armies. No doubt this might be done in two or three years by a young and able general – a Wolfe, a Dessaix, a Hoche, with three hundred thousand disciplined men, estimating a third for garrisons, the loss of yet a greater number by skirmishes, sieges, battles and Southern fevers.

The destruction of life and property on the other side would be frightful, however perfect the moral disciple of the invaders. The conquest completed, at that enormous waste of human life to the North and the Northwest, with at least $250,000,000 added thereto, and cui bono [who benefits]?

Fifteen devastated provinces! [Not] to be brought into harmony with their conquerors, but to be held for generations by heavy garrisons, at an expense quadruple the net duties or taxes it would be possible to extort from them, followed by a protector or emperor.” In view of these fearful forebodings, we are not surprised that he should have despaired of the Union, and been willing to say to the cotton States, “Wayward sisters, depart in peace.”

Nor that he should have fallen back on his opinion in the “Views” (29 October 1860), that “a smaller evil [than such a civil war] would be to allow the fragments of the great Republic to form themselves into new Confederacies.” [Scott] advises Mr. Lincoln’s administration “to throw off the old [sectional Republican party] and assume a new designation – the Union party; adopt the conciliatory measures proposed by Mr. Crittenden, or the Peace Convention, and my life upon it, we shall have no new cases of secession, but, on the contrary, an early return of many if not all of the States which have already broken off from the Union.”

(Mr. Buchanan’s Administration on the Eve of Rebellion, James Buchanan, D. Appleton and Company, 1866, excerpts pp. 172-173)

The writer below asks the question: “Should the South become a replica of the industrialized North, with all the advantages and disadvantages that go with that way of life? Or does the South have something essential and unique which is worth preserving? Does Birmingham want to be another Pittsburgh, Richmond another Chicago, Raleigh another Newark, or Charleston another Detroit?” Calhoun biographer Margaret Coit pondered “Whether the South of today [1950], in the throes of warborn prosperity, will sacrifice the remaining values of its way of life by accepting the industrial democracy against which Calhoun fought . . .?”

Capitalism Instigated by the Devil

“The not quite immoveable object is, of course, the Southern way of life. It arises more from instinct than philosophy; back of it are the ancient traits and ingrained habits of a people who are notoriously set in their ways.

Suspicion of the Calvinistic-Puritanical-Yankee notion of “work for work’s sake” is one of those traits. A Calhounistic “wise and masterly inactivity” is more to the Southern taste as a general rule. When Southerners read the tributes of Northern poets to work, such as James Russell Lowell’s “and blessed are the horny hands of toil,” they doubt whether either writer had enough callouses on his hands to know what he was talking about.

Such pep talk makes Southerners tired; they have to go somewhere and lie down to digest it. One reason the South loves cotton farming so much is that it gives them about six months of each year to loaf and invite their souls. If the soul refuses the invitation, they just loaf.

The South has had a long and deep-seated suspicion of industrialization. It wants the fruits of industry, but not the tree. This attitude goes back to Thomas Jefferson, if not further. Southerners have always been convinced that the planter is the nobler work of God than the manufacturer, the farmer than the mill hand. While the Southerner may not remember the exact words which Jefferson used in the Notes on Virginia in 1785, the sentiment is bred in his bone:

“Those who labor the earth are the chosen people of God . . . while we have land to labor then, let us never wish to see our citizens occupied at a work-bench or twirling a distaff. Carpenters, masons, smiths are wanting in husbandry, but, for the general operation of manufacture, let our workshops remain in Europe . . . The mobs of great cities add just so much to the support of pure government as sores do to the strength of the human body.”

In the 1850s Southerners talked about the evils of capitalism with its “wage slaves” as bitterly as if they had been Karl Marx and Friedrich Engels, though to be sure it was not the capitalism of the Southern planter, but the capitalism of the Northern manufacturer to which they objected.

This is the South which not only likes the Negro “in his place” but likes every man in his place and thinks there is a certain place providentially provided for him. To this South, industrialism, with its shift from status to contract and its creation of a new-rich, rootless and pushing class of people, is plainly instigated by the devil.”

(Southern Accent: From Uncle Remus to Oak Ridge, William T. Polk, William Morrow and Company, 1953, excerpts pp. 243-245)

“From 1811 to 1850,” writes Dr. Clyde Wilson, South Carolinian John C. Calhoun served “as representative from that State, secretary of war, vice-president, twice presidential contender, secretary of state, and senator for fifteen years – Calhoun was a central figure in the American experience.

This simply-educated American “had a major if not always decisive influence on every issue of the period – in regard to not only State-federal conflict and slavery . . . but also to free trade and tariff, banking and currency, taxation and expenditures, war and peace, foreign relations, Indian policy, and public lands, internal improvements, the two-party system, and the struggle between congressional and presidential power” – all of which were causations of the fratricidal war he could see on the horizon, but did not live to see.

The Education of a Remarkable Statesman

“Calhoun’s education was wholly remarkable. “There was not an academy within fifty miles,” says one account. “At the age of thirteen he was placed under the charge of his brother-in-law, Moses Waddel, a Presbyterian clergyman in Columbus County, Georgia.”

In fourteen weeks, it is said, he had read Rollins Ancient History, Robertson’s Charles V, and South America, and Voltaire’s Charles XII. Cook’s Voyages (small vol.) Essays by Brown and Locke’s Essay as far as the chapter on Infinity.

“Sawney” [a young African boy], we learn, was his constant companion and playmate in these days. No more is heard of books until five years later, when there seems to have developed a unanimous consensus that this young man should have the benefit of higher education. Thus young Calhoun entered upon the higher education when many are about to leave it. “In [nature’s] school, remarks Calhoun’s most discrimination eulogist, “he learned to think, which is a vast achievement.”

The academy, which had now been established by this same Dr. Waddel, near Calhoun’s home, was selected for the first stage. “The boys boarded at farmhouses in the woods near the academy, furnishing their own supplies. At sunrise, Dr. Waddel was wont to wind his horn . . . At an early hour, the pupils made their appearance at the log cabin schoolhouse.

After prayers, the pupils, each with a chair bearing their name sculpted in the back of it, retired to the woods for study, the classes being divided into squads according to individual preference.

At the same time Calhoun launched for the first time into “amo” and “penna,” a batch of timorous freshmen were tapping at the doors of Yale. In two years’ time, Calhoun joined those freshmen at the junior class, and two years later graduated with them, in 1804. None of the accounts fail to mention that the subject of his graduation essay was “The qualifications necessary to constitute a perfect statesman.” It was an appropriate text for the life that followed.

Eighteen months now at a law school in Connecticut, and eighteen more in lawyers’ offices in Charleston and Abbeville, and seed time is past, the harvest begins. Two years later he was sent to the State Legislature, whence, in turn . . . he was transferred to the House of Representatives in Washington.

Looking back, Calhoun at thirteen starts at books, but is choked off; five years’ hunting, fishing and farming, at eighteen to Waddel’s Academy; at twenty to Yale; twenty-two graduates; twenty-five lawyer; twenty-seven State Legislature; twenty-nine, Congress.”

(Life of John C. Calhoun, Gustavus M. Pinckney, Walker, Evans & Cogswell Co., 1903, excerpts pp. 14-18)

Frenchman Alexis de Tocqueville observed that the democratic revolution in America was an irresistible one, and that to attempt to stop it “would be to resist the will of God.” The elevation of Andrew Jackson to the presidency in 1829 pushed the democratic revolution forward – in the North the friction became one between the commercial-financial aristocracy and the working men, and in the South the planters and the yeoman farmers. Against simple majority rule and “the tyranny of king numbers” stood John C. Calhoun and Abel P. Upshur in the South, as well as James Kent, Joseph Story and Orestes Brownson of the North.

Broadening the Base of Democracy

“To what extent was aristocracy weakened and democracy strengthened by the work of the [State constitutional] conventions of the 1830s? In the first place, property qualifications for voting were abolished . . . except Virginia, North Carolina, [New Jersey and Rhode Island], and with Louisiana [Connecticut, Massachusetts, Pennsylvania and Ohio] still requiring the payment of taxes. The last of the religious restrictions were also abolished.

In still another way these changes broadened the base of democracy. For the first time the people had been consulted as to the revision and amendment of their constitutions. The conventions were called directly or indirectly by action of the people. The revised constitutions were in turn submitted back to them for ratification or rejection.

In one matter there was a definite reactionary movement. This was the issue of Negro suffrage. Delaware, Connecticut, New Jersey and Pennsylvania took the ballot from the Negro. And New York in 1821 limited Negro suffrage by requiring that he possess a freehold valued at two-hundred fifty dollars over and above all indebtedness. Hence only five of the Northern States granted equal suffrage to Negroes.

Whether or not Jefferson, Mason, and other Revolutionary proponents of natural rights philosophy intended to include Negroes in the statement that “all men are created equal and endowed with certain inalienable rights” is a debatable question; but in actual practice the American people had decided by their constitutional provisions that Negroes were not included in the political people.”

(Democracy in the Old South, Fletcher M. Green; The Journal of Southern History, Volume XII, Number 1, February 1946, excerpts pp. 15-16)