Lincoln and Taney

[Thomas Thorne]

I think we're mixing up some of Roger Taney's Supreme Court decisions.

In Dred Scott in 1857 he wrote the plurality opinion denying Congress's constitutional authority to prohibit or regulate slavery in the territories. This would have been news to the Framers who selectively did so at various times and places.

In Ableman in 1859 he and a unanimous court invalidated a Wisconsin Supreme Court decision which stated that Wisconsin courts had the authority to impede enforcement of the Fugitive Slave Act which owed its legal legitimacy to the constitutional obligation to return fugitives.

Various northern states which had passed Personal Liberty Laws to prevent enforcement of the Fugitive Slave act of 1850 had a very different view of defiance of Federal authority when done by persons with Southern accents in 1860-61.

In Merryman in 1861 Taney acted in his capacity as Federal circuit course judge, a function Supreme Court justices no longer have. The history of Merryman is fascinating.

I'm sure everyone remembers Baltimore pro Confederate persons-dare we call them mobs-attacked the 7th Massachusetts as it marched thru Baltimore after Sumter. The Maryland legislature subsequently voted to remain in the Union but tried a form of neutrality totally unacceptable to the Lincoln Administration. The Maryland lawmakers prohibited troop movements by rail to Washington. In pursuance of this the Governor of Maryland ordered the state militia to demolish state owned railroad bridges. Lt Merryman of the Maryland militia was arrested by Federal troops for destroying 6 railroad bridges and certain telegraph lines.

Justice Taney in his circuit court capacity made the very narrow but correct ruling that only Congress and not the President could suspend Habeas Corpus.

But the United States government was not through with Lt Merryman. A Federal grand jury indicted him for treason. But one of the 2 trial judges assigned to his case serially delayed the trial for over 3 years when finally the judge died.

That judge was Roger Taney.

Taney's blatant sabotage of a judicial proceeding was in marked contrast to his other Southern born Supreme Court colleagues in similar cases. Justice Catron of Tennessee won Northern applause when he instructed a jury that armed resistance to the United States was treason.
Tom