Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers (Simon & Schuster Lincoln Library) - Softcover

INTRODUCTION

President Abraham Lincoln and Chief Justice Roger Brooke Taney bitterly disagreed on three fundamental issues -- slavery, secession, and Lincoln's constitutional authority during the Civil War. But had they known each other in less perilous times, they might have been friends, or at least respectful adversaries. In fact, they had much in common.

Lincoln and Taney were homely physical specimens -- tall, gaunt, slightly cadaverous figures, usually attired in drab, ill-fitting clothes. Each man believed in a divine design that guided him, though Lincoln shirked organized religion while Taney was a devout Catholic. Both men were known for their personal integrity, fairness, and compassion for those less fortunate than themselves. Self-effacing in public, they possessed an unrelenting will to succeed.

In their prime, Taney and Lincoln were among the best litigators in their respective states of Maryland and Illinois. Without flourish, Taney demonstrated the extraordinary ability to lay the facts and law of a case bare before a judge or jury. Lincoln often embroidered his major legal points with folksy stories, but he never lost sight of the argument that would win the case for his client.

Both men disapproved of the institution of slavery. As a young lawyer, Taney freed his slaves and pronounced slavery immoral in a Frederick, Maryland, courtroom. Since childhood, Lincoln had considered slavery wrong and never wavered in his conviction. Taney and Lincoln were actively involved in colonization societies whose purpose was to remove free blacks (including, they hoped, an increasing number of emancipated slaves) from the United States to be resettled in a self-governing colony in Africa. But as lawyers, they defended the property rights of slaveowners under state laws that protected slavery.

Taney and Lincoln agreed on the need for a strong Union. Each was active in state politics and was considered a moderate, though they followed national leaders with very different philosophies. Taney campaigned vigorously for the populist Democrat Andrew Jackson in 1828. Like Jackson, Taney was suspicious of vested corporate interests. After Jackson was elected president, he appointed Taney to be his Attorney General and, later, Secretary of the Treasury. Together, Jackson and Taney fought the Second Bank of the United States, which they believed symbolized autocratic corporate power. When Chief Justice John Marshall died, Taney was Jackson's choice to replace him.

Lincoln's political hero, Kentucky's Henry Clay, challenged Jackson in his reelection bid for the presidency in 1832. The twenty-three-year-old Lincoln (who was a generation younger than Taney) supported Clay's American System, which defended the Bank of the United States as essential to the economic prosperity of the country. After Clay lost the 1832 election, Lincoln served four terms in the Illinois legislature and became a successful Springfield lawyer. Throughout those years, he remained loyal to Clay, supporting him in two more losing efforts to win the presidency.

The issue of slavery did not dominate the national political debate during the 1840s, as it would the next decade. Taney and Lincoln took cautious public positions on slavery in the forties. As Chief Justice, Taney carefully steered the Court away from expansive decisions when slavery was an issue, insisting that the relevant state law governed. In his single term in the House of Representatives in the late forties, Lincoln did not take a leadership role on the slavery issue. His only initiative on the subject was to propose a referendum for the District of Columbia that abolished slavery, but enforced the Fugitive Slave Law and compensated slaveowners who freed their slaves. His compromise proposal did not satisfy either abolitionists or pro-slavery members of Congress and was never formally introduced.

During the 1850s, Taney and Lincoln moved to center stage in the increasingly rancorous national debate over slavery. In his Dred Scott opinion, Taney declared that the U.S. Constitution did not grant the black man any rights that the white man was bound to honor. Taney also held that Congress could not prohibit the spread of slavery in the western territories. Shortly after Taney announced the Court's Dred Scott decision in 1857, Lincoln attacked it as a warped judicial interpretation of the framers' intent. Lincoln made his opposition to the Court's decision a major theme in his campaign for the Senate in 1858. In the famous Lincoln-Douglas debates, Lincoln denounced the Dred Scott decision and accused Douglas and Taney of being members of a pro-slavery national conspiracy.

In his presidential inaugural address in 1861, Lincoln insisted that the South had no legal right to secede. Chief Justice Taney disagreed. He not only believed that secession was legal, but also that a peaceful separation of North and South, with each section forming an independent republic, was preferable to civil war. Once eleven states in the South had seceded, Lincoln broadly interpreted his constitutional powers as commander in chief to prosecute the war. Chief Justice Taney vociferously dissented, accusing Lincoln of assuming dictatorial powers in violation of the Constitution.

This book will trace the long, sometimes tortuous journeys that brought Lincoln and Taney to their final judgments, and actions, on the issues that threatened the survival of the United States.

Copyright © 2006 by James F. Simon

EPILOGUE

Taney's estate was so meager that it did not provide even the basic amenities for his two dependent daughters: Ellen, now chronically ill and a spinster, and Sophia, widowed with a small child. At Taney's death, they were left with a trust fund composed primarily of a $10,000 life insurance policy (whose premiums during the Chief Justice's last years had been paid by David Perine) and a batch of devalued Virginia bonds. The two women were forced to take low-level clerical jobs at the Treasury Department. Years later, Taney's heirs were refunded the amount he had been taxed on his salary by Secretary of the Treasury Chase. One of Chase's successors at the Treasury Department concluded, as did Taney, that the government had illegally taxed the salaries of Supreme Court justices.

Taney was punished by spiteful abolitionists in the Senate even after his death. Early in 1865, after the House of Representatives had passed a bill to appropriate funds for a bust of Taney to be displayed in the courtroom of the Supreme Court, the Senate Judiciary Committee reported the bill to the full Senate for approval. An indignant Senator Sumner rose to oppose the bill, objecting "that now an emancipated country should make a bust to the author of the Dred Scott decision." He added, "[I]f a man has done evil during life, he must not be complimented in marble." Sumner proposed that a vacant space, not a Taney bust, be left in the courtroom to "speak in warning to all who would betray liberty."

Lyman Trumbull, the anti-slavery senator from Illinois who was the bill's sponsor, responded that it was time to heal the wounds created by Taney's Dred Scott opinion. No man was infallible, said Trumbull. Taney was a learned and able Chief Justice, who should be recognized for his contributions to the nation as the leader of the Supreme Court for a quarter of a century. He compared Taney to Chief Justice Marshall, stating that both were "great jurists, and each has shed luster upon the judicial tribunal over which he presided."

Sumner roared in rebuttal: "An emancipated country will fasten upon him [Taney] the stigma which he deserves. The Senator says that he for twenty-five years administered justice. He administered justice at last wickedly, and degraded the judiciary of the country, and degraded the age." Sumner vowed that Taney would not be "recognized as a saint by any vote of Congress if I can help it." He was successful; the bill did not pass.

Another Massachusetts anti-slavery advocate, former Associate Justice Benjamin Curtis, came to Taney's defense. Curtis, as much as Sumner, had reason to resent Taney's Dred Scott opinion. He had written a persuasive dissent in the case and became embroiled in an acrimonious exchange of letters with the Chief Justice after he requested a copy of Taney's unpublished opinion. Despite that rancorous episode, which led to Curtis's resignation from the Court, he spoke of the late Chief Justice with deep respect. In judicial conference, he remembered Taney's "dignity, his love of order, his gentleness." He also recalled the Chief Justice's extraordinary command of the facts and law in the cases before the justices. His power of legal analysis, said Curtis, exceeded that of any man he ever knew. Curtis credited Taney and his predecessor, Chief Justice Marshall, with bringing "stability, uniformity, and completeness of our national jurisprudence."

Which portrait of Taney, Sumner's or Curtis's, survives? Both, actually, though Sumner's has proved to be the more enduring image. Certainly Sumner, vitriol aside, accurately forecast that Taney's place in history would be inextricably bound to his disastrous Dred Scott opinion. In Dred Scott, Taney abandoned the careful, pragmatic approach to constitutional problems that had been the hallmark of his early judicial tenure in favor of a rigid march to his doctrinaire conclusions. He expected that his opinion would be the final constitutional word on the subject of slavery and that, as a result, the warring factions in North and South would engage in more productive pursuits. He was, of course, wrong, and his tragic miscalculation cost the nation and the Supreme Court dearly.

Though Taney would have denied it, his most controversial judicial opinions, beginning with Dred Scott, were influenced by his southern heritage. He was a proud member of his region's landed aristocracy, and when his class was attacked, he vehemently defended it. He bristled a...