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.

Connecticut’s Hartford Times of November 7, 1860, after referring to the danger that the Southern States would “form a separate confederacy, and retire peaceably from the Union,” proceeds to say “If they do decide and act, it will be useless to attempt any coercive measures to keep them within the voluntary co-partnership of States . . . We can never force sovereign States to remain in the Union when they desire to go out, without bringing upon our country the shocking evils of civil war, under which the Republic could not, of course, long exist.”

The misunderstanding of “treason” is noted in the text below, but its actual definition is found in Article II, Section 3 of the United States Constitution: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is clear then, whoever waged war upon the several seceding States (them) was guilty of treason. Outgoing President James Buchanan understood this and admitted no authority to wage war against a State, as did his Attorney-General.

A Civil War in the North?

“Prominent supporters of Mr. Lincoln asserted that “secession is treason, and must be treated by the government as treason,” and that “the government has the right and the power to compel obedience.” A considerable number of Republicans, while they emphatically denied the right of secession, questioned the policy of forcibly preventing it. They held, that, if an undoubted majority of the adult population of any State deliberately pronounced for separation, the rest of the States, though they might legally compel that State to remain, would do better to assemble in national convention, and acquiesce in her departure from the Union. Withdrawal under these sanctions is the only secession ever deemed valid or permissible by any number of the supporters of Mr. Lincoln. Many who had voted against him also concurred in this view.

Some of the opponents of the President-elect denied the right of secession, but claimed there was no constitutional remedy against it. The greater part held that the recusant States were theoretically if not practically right; that the United States was simply a confederation of sovereign States, any one of which possessed a constitutional right to withdraw whenever it should consider the arrangement no longer profitable. They deemed an attempt to coerce a State, in order to vindicate the supreme authority of the Federal Government and to preserve the territorial integrity of the Union, to be both illegal and useless.

The opponents of Mr. Lincoln . . . asserted that the Southern people had abundant provocation for their . . . conduct. They . . . declared that the conservatives of the North would never consent to coercion; adding the not infrequent menace, that, “if war is to be waged, that war will be fought in the North.”

(History of Connecticut During the War of 1861-1865; W.A. Croffut and John M. Morris, Ledyard Bill Publisher, 1869, pp. 30-32)

Before the war, Senator Judah P. Benjamin of Louisiana was insulted by a Boston newspaper which wrote: “We ask whether the Jews, having no country of their own, desire to put other nations in the same unhappy condition.”  He shrugged off anti-Semitic comments of other Northern critics as he did a reference to him as one of the “Israelites with Egyptian principles.”

Senator G.G. Vest of Kentucky quoted Benjamin’s response to a Senate opponent: “It is true that I am a Jew and when my ancestors were receiving their Ten Commandments from the immediate hand of the Deity, amidst the thunderings and lightning of Mount Sinai, the ancestors of the distinguished gentleman who is opposed to me were herding swine in the forest of Scandinavia.”

No Indissoluble Union

“Benjamin’s reasoning, with that of most of the other conservatives who saw no alternative but secession, was that upon the North American continent were two peoples, one building an industrial empire and the other content to remain a race of planters and staple producers.

Each could best work out its own destiny . . . And as long as the two were bound into one country, there would be strife. Since they had so little in common, the sensible solution to the impasse they had reached would be the severance of political ties. Certainly he felt he was not without precedent in holding the federal compact to be terminable at the will of its member States. He saw scarcely any evidence that it was intended by those who wrote it to be anything more.

The simple truth is that he aligned himself against the North at least partly because he felt he could not subscribe to the principle of an indissoluble Union. The North embraced the principle of nationality – the South sought, in Benjamin’s words, divorcement “from a compact all the obligations of which she is expected scrupulously to fulfill, from the benefits of which she is ignominiously excluded.” It was as simple as that to him.”

(Judah Benjamin: Mystery Man of the Confederacy, S.I. Neiman, Bobbs-Merrill Company, 1963, excerpt pp. 92-93)

Dudley Mann was appointed as one of three Special Commissioners to Europe in 1861, to represent the interests of the Confederate States of America. He met with Pope Pius IX in mid-November 1863 to explain the actions of the Confederate States in seeking independence. When the wisdom of gradual emancipation was suggested, Mann properly advised the Pontiff that the States themselves were the ones to decide this, not the Confederate government. He could have further explained that this is precisely how African slavery had been abolished in the Northern States by the action of individual States, not the federal government. In March 1865, with the agreement of the States, the Confederate Congress authorized the enlistment of 300,000 emancipated black men.

His Holiness and the Civil War

“His Holiness now stated, to use his own language, that Lincoln and Company had endeavored to create an impression abroad that they were fighting for the abolition of slavery, and that it might perhaps be judicious in us to consent to gradual emancipation. I replied that the subject of slavery was one over which the Government of the Confederate States, like that of the old United States, had no control whatever; that all ameliorations with regard to the institution must proceed from the States themselves, which were as sovereigns in their character in this regard as were France, Austria, or any other Continental power . . .

I availed myself of [Lincoln’s emancipation] declaration to inform His Holiness that it was not the armies of Northern birth which the South was encountering in hostile array, but that it was the armies of European creation, occasioned by the Irish and Germans, chiefly by the former, who were influenced to emigrate (by circulars from Lincoln and Company to their numerous agents abroad) ostensibly for the purpose of securing high wages, but in reality to fill up the constantly depleted ranks of our enemy, that those poor unfortunates were tempted by the high bounties amounting to $500, $600 and $700 to enlist and take up arms against us; that once in the service they were invariably placed in the most exposed points of danger in the battlefield; that in consequence thereof an instance had occurred in which almost an entire brigade had been left dead or wounded upon the ground; that but for foreign recruits the North would most likely have broken down months ago in the absurd attempt to overpower the South.

His Holiness expressed his utter astonishment, repeatedly throwing up his hands at the employment of such means against us and the cruelty attendant upon such unscrupulous operations.”

(A Compilation of the Messages and Papers of the Confederacy, Including the Diplomatic Correspondence 1861-1865, James D. Richardson, editor, US Publishing Company, 1905, excerpt pg. 594)

“The flag of the United States preserves the truth as to the “one people” doctrine. On June 14, 1777, the Congress which submitted the Articles [of Confederation] to the States, passed this resolution: “That the flag of the thirteen United States be thirteen stripes, alternate red and white, with thirteen stars, white in a blue field, representing a new constellation.”

Afterwards the stars in the “new constellation” were increased as new States were added to the Union, the first act of the Congress providing for such increase being passed April 4, 1818.

It was a union of separate and sovereign States, bound together by the ties of mutual interest and for mutual defense, the same ties which bound them under the Articles, and under the Constitution. Such was the significance of the flag and in the beginning, and nothing has happened since to impart any other significance to it.

If this is not true, the stars should have been long ago removed from it and the population of the “Nation” substituted for them, the thirteen strips remaining to remind us of the time when the United States “were.”

(The Case of the South Against the North, Benjamin Franklin Grady, Edwards & Broughton, Publishers, 1899, pg. 68)

James William Fulbright, 1905-1995, was born in Missouri and reared in Arkansas, which he eventually represented both in the House and Senate. He signed the Southern Manifesto which declared the Supreme Court’s 1954 Brown v. Board of Education ruling as “a clear abuse of judicial power” as only Congress can legislate; in 1964 and 1965 he opposed both the Civil Rights Act and Voting Rights Acts as unconstitutional invasions of clear State authority.

Fulbright additionally questioned the reasons why the Army, Navy and Air Force each spent “millions of tax dollars annually on persuasion of the public that its particular brand of weaponry is the best.” At the conclusion of the 1861-1865 war, Lee wrote to Lord Acton that “The consolidation of the States into one vast empire, sure to be aggressive abroad and despotic at home, will be the certain precursor to ruin which has overwhelmed all that has preceded it.” 

A Militaristic and Aggressive Nation

“Violence is our most important product. We have been spending nearly $80 billion a year on the military, which is more than the profits of all American business, or, to make another comparison, is almost as much as the total spending of the federal, State, and local governments for health, education, old age and retirement benefits, housing, and agriculture. Until the past session of the Congress, these billions have been provided to the military with virtually no questions asked.

Many people looked on [the Sentinel ABM program] as they now look on Safeguard, not as a weapon but as a means of prosperity. For the industrialist it meant profits; for the worker new jobs and the prospect of higher wages; for the politician a new installation or defense order with which to ingratiate himself with his constituents.

Military expenditures today provide the livelihood of some ten percent of our work force. There are 22,000 major corporate defense contractors and another 100,000 subcontractors. Defense plants or installations are located in 363 of the country’s 435 congressional districts. Even before it turns its attention to the public at large, the military has a large and sympathetic audience for its message.

These millions of Americans who have a vested interest in the expensive weapons systems spawned by our global military involvements are as much a part of the military industrial complex as the generals and the corporation heads.  In turn they have become a powerful force for the perpetuation of these involvements, and have had an indirect influence on the weapons development policy that has driven the United States into a spiraling arms race with the Soviet Union and made us the world’s major salesman of armaments.

A Marine war hero and former Commandant of the Corps, General David M. Shoup, has said: “America has become a militaristic and aggressive nation.”

(The Pentagon Propaganda Machine, J.W. Fulbright, Liveright Publishing, 1970, excerpt pp. 12-13)

Alexander H. Stephen’s criticism of President James Polk sending American troops to the Rio Grande in July 1845 and threatening Mexico, inspired his arraignment of Lincoln in 1861 for leading the country into an avoidable war.

In Lincoln’s case, his party’s governors provided the troops for his unconstitutional actions and invasion of Southern States, and subjugated a free people with an “oath of allegiance administered at the point of a bayonet.” Stephens foresaw the treatment the South would receive.

Only Congress May Draw the Sword

“From [his] first speech in Congress to his last before the war, his straight line of endeavor was to preserve the Union under the Constitution. His opposition to Texan annexation was not pleasing to the South . . . and the first to bring him into national prominence, contained the oft-quoted sentences which revived against him at the South the charges of abolitionism while at the North he was accused of laboring for slavery extension:

“My reason for wishing it [the slavery limit] settled in the beginning, I do not hesitate to make known. I fear the excitement growing out of the agitation hereafter may endanger the harmony and even existence of our present Union . . . I am no defender of slavery in the abstract. I would rejoice to see all the sons of Adam’s family in the enjoyment of those rights set forth in the Declaration of Independence as natural and inalienable . . .”

The right of the Union to “acquire territory” and the wisdom of doing so were questioned. He declared for expansion but against imperialism: “This [annexation] is an important step settling the principle of our future extension. We are reminded of the growth of the Roman Empire which fell of its own weight; and of England, who is hardly able to keep together her extensive parts. Rome extended her dominions by conquest, she compelled provinces to bear the yoke; England extends hers upon the principle of colonization; her distant dependencies are subject to her laws but are deprived of the rights of representation.

With us, a new system has commenced, characteristic of the age. It is a system of a Republic formed by the union of separate independent States, yielding so much of their sovereign powers as are necessary for national and foreign purposes, and retaining all others for local and domestic objects. Who shall undertake to say how far this system may not go?”

He said, speaking of Mexican territory:

“No principle is more dangerous than that of compelling other people to adopt our form of government. It is not only wrong in itself, but contrary to the whole spirit and genius of liberty we enjoy.”

Asking if the Mexican war was waged for conquest:

“If so, I protest . . . I am no enemy to the extension of our domain . . . but it is not to be accomplished by the sword. We can only properly enlarge by voluntary accessions.”

In his denunciation of [President James] Polk’s abuse of power . . . :

“Only Congress can constitutionally draw the sword. The President cannot. The war was brought upon us while Congress was in session and without our knowledge. The new and strange doctrine is put forth that Congress has nothing to do with the conduct of the war; that the President is entitled to uncontrolled management; that we can do nothing but vote men and money to whatever extent his folly and caprice may dictate.

Neighboring States may be subjugated, extensive territories annexed, provincial governments erected, the rights of conscience violated, and the oath of allegiance administered at the point of the bayonet . . .”

(Recollections of Alexander H. Stephens, Myrta L. Avary, editor, LSU Press, 1998, excerpts pp. 31-32)

The Founders were wary of a standing army and gave only to Congress the power to raise troops and declare war. Should a sitting president venture to call for troops at his whim, as did Lincoln, the republic of those Founders was at an end.

Lincoln and the governors of Pennsylvania, Massachusetts and New York who supplied him with troops for the purpose of waging war against other States and adhering to their enemies, were all were guilty of treason according to Article III, Section 3 of the United States Constitution.

There was a peaceful alternative which was not pursued by Lincoln and his party, and Southern Unionists pleas for peaceful diplomacy and compromise were ignored in favor of intentional duplicity at Charleston.

Exercising All the War Powers of Congress

“The day after Fort Sumter surrendered President Lincoln called on the several States for seventy-five thousand militia for ninety days service. The troops were to suppress “combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law, a curiously legalistic phraseology probably adopted in an attempt to bring the proclamation under the Acts of 1795 and 1807 governing the calling out of the posse comitatus.

Amid immense enthusiasm, the established militia regiments in the eastern cities moved at once. Pennsylvania troops, a few companies, reached Washington the next day; Massachusetts troops came within four days, in spite of the violent resistance to the transfer of the regiment across Baltimore between the railroad stations; New York’s first regiment was but a day behind Massachusetts.

The Governors of Maryland, Virginia, North Carolina, Kentucky, Tennessee, Arkansas and Missouri sharply declined to honor the President’s requisition for troops to be used against the seven States of the Confederacy. The Governor of Delaware reported that he had no authority for raising troops.

Neither, for that matter, had President Lincoln, under strict construction of the laws. In his first proclamation he called Congress into special session, but not to meet until the Fourth of July, more than two and a half months later.

In the meanwhile, free from interference, he drove ahead to organize his war, making laws or breaking them as he had need to, creating armies, enlarging the Navy, declaring blockades, exercising all the war powers of Congress.

Before the guns spoke at Sumter and the President answered with his call for troops, there was everywhere, in the North, in the Border States unhappily torn between loyalties, and even in those States which had seceded, a strong party for peace. The fire of Sumter swept away all that in the North; the call of Lincoln for troops, in the South.

The New Orleans True Delta, which had opposed secession and sought peace, “spurned the compact with them who would enforce its free conditions with blood” — an attitude that was general among those who were not original secessionists.”

(The Story of the Confederacy, Robert Selph Henry, Bobbs-Merrill Company, 1931, excerpts pp. 34-35)

Alexander Hamilton was no friend of the Articles of Confederation and the decentralized republic it represented, but he did know the limits of newly-created federal power within the new constitution. His view was that States retained any authority not specifically delegated, and that State troops, as in 1861-1865, would constitutionally resist any invasion to preserve their independence and sovereignty.

James Madison wrote of this as well, stating that more than one State might band together, as in the later Confederate States of America, to resist any and all encroachments on State sovereignty by the federal agent created by the States.

Alexis de Toqueville, the French traveler in the America of 1831-32, saw firsthand the powers of “this strange new democratic monster” that would within thirty years gain control of the federal government and consolidate all, by force, into one common mass.

Saddled with Another Absolutist Regime

“In Toqueville’s opinion, the many levels of responsibility acted as buffers against the tyranny of the majority that ordinarily characterized democracy. Then United States possessed a centralized government but not a centralized administration.

To what extent American self-government was an outgrowth of the federal constitution, or merely a by-product of their habits and experiences, remains to be seen. This much, however, is clear: no subject so agitated the founding fathers as the possible loss of local responsibility under a federal government. The new constitution had to be designed in a way that maximized State autonomy.

As Hamilton put it in Federalist 62, “The equal vote allowed to each State [i.e. in the Senate] is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residual sovereignty.”

Although Hamilton favored a centralized economic authority, he argued that the federal government could not legitimately use the taxing power as an excuse to interfere in the internal government of the States. In Federalist 28, he argued that State militias would be called out to resist invasions of sovereignty.

[James] Madison concurred, and in Federalist 46 suggested that the States would band together to prevent such encroachments. Even the arch-federalist John Marshall declared (in McCulloch v. Maryland) that “no political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”

Interference in the life of local communities had been one of the complaints against the royal government. The anti-Federalists were afraid that, by adopting the Federal Constitution, they were saddling themselves with another absolutist regime. Mass democracy, as Toqueville realized, was dangerous.”

(The Politics of Human Nature, Thomas Fleming, Transaction Publishers, 1988, excerpts pg. 200)

The northeastern United States of the late 1820s were sufficiently prosperous to have a large group of “substantial citizens” . . . manufacturers and journalists interested in the cause of domestic industry, and their purpose was to influence the passage of a new tariff act.” For the most part these men were industrialists and focused on increased profits, not national stability.

The South was in economic distress at the time and the new, higher tariff “seemed to end once and for all any prospect of relief, and many [Southerners] were ready for outright rebellion, even as New England had been in 1814.”

For South Carolina to nullify a federal law it viewed as obnoxious and injurious to its citizens, was a full expression of the Tenth Amendment — inserted into the Constitution for an obvious purpose. The next logical step of an injured State would be peacefully withdrawing from a political union which no longer fulfilled the purposes for which it was formed. And if withdrawal was met with violence, revolution was next.

The American Right of Revolution

“Controversial as Nullification was in the absence of original records before 1828-1833, Americans still continued to believe in federalism and States’ rights. In the words of Alexander Johnston, “Almost every State in the Union in turn declared its own sovereignty and denounced as almost treasonable similar declarations by other States.”

Herman V. Ames in fact compiled a “collection of documents on the relation of the States to the Federal Government” in 1911. They were “selected especially,” he observed, “with a view to illustrate the development of the “compact theory” of the Constitution and the doctrine of “State Rights,’ State opposition to the Federal Judiciary, and the different phases of the slavery controversy, culminating in the secession movement.”

That we believe otherwise today, in Nullification’s unconstitutionality and [John C.] Calhoun’s and the South’s apostasy from the beliefs of the founders and framers, is explained by another and longer era of historical amnesia by which original intentions as described herein in length were not so much forgotten as between 1789 and 1819, but purposely misinterpreted both to nullify the Nullifiers of South Carolina and to establish a mythical history for a new nation in the making that was the central development of the years after the War of 1812 and until the Civil War.

While this more liberal-democratic-egalitarian-nationalist America was yet inchoate as the confused politics of the 1820s and 1830s inform us, it was there nonetheless in Jacksonian Democracy and nationalism and radical abolitionism which were, it is forgotten, minority movements. The union of the States persisted with the 18th century Whig-republican ideology still extant as the core set of beliefs within the misnamed Democratic party that was really republican with a small “r.”

The liberal-in-a-neo-Hamiltonian sense-Whigs of the 19th century co-existed long enough to make party politics interesting and popular and the preserve the old union of the States. If not republicans, most Americans before the Civil War remained at least federalists. Nullification may have come and gone, but the “right of revolution” continued to be accepted as an original intention and the ultimate means to preserve liberty.”

(Nullification, A Constitutional History, 1776-1833, Volume II: James Madison and the Constitutionality of Nullification, 1787-1828, W. Kirk Wood, University Press of America, 2009, excerpts pg. 105)