Lincoln and Taney

[L Verge]

I don't remember ever reading this before; is it true? When Lincoln suspended habeas corpus, Chief Justice Roger B. Taney demanded to know by what authority Lincoln could do this.

Instead of citing Article I, Section 9 of the Constitution, Lincoln ordered the arrest of the 84-year-old justice. The warrant was never carried out because Lincoln could not find a U.S. marshal willing to arrest the highest-ranking judge in the nation.

[RJNorton]

As far as I know this story is not included in the majority of history books due to lack of evidence. I believe the only source for it is Ward Hill Lamon. I do not believe Lamon said no one could be found to carry it out. No arrest warrant has ever been found. Of course anything is possible, but I think we would need more evidence to say this really happened. Laurie, is there a footnote in the source in which you read about this? If so, does the footnote point to Lamon?

[HerbS]

I have always learned that Taney could not be trusted! He pushed the fugitive slave act through the Supreme Court.

[L Verge]

(02-04-2015 05:04 AM)RJNorton Wrote:  As far as I know this story is not included in the majority of history books due to lack of evidence. I believe the only source for it is Ward Hill Lamon. I do not believe Lamon said no one could be found to carry it out. No arrest warrant has ever been found. Of course anything is possible, but I think we would need more evidence to say this really happened. Laurie, is there a footnote in the source in which you read about this? If so, does the footnote point to Lamon?

I wish there were a footnote, but there is not.

[Wild Bill]

I am not sure how much Taney had to "push" the case over the fugitive act through the US Supreme Court It was a 9-0 decision (Abelman v. Booth, 1859). It was based on Art. IV, Sec 2, Cl. 3 of the US Constitution of 1789. The injustice of the act was a problem for Congress to solve, not the court. Congress did act in 1862 to negate the fugitive act. If I remember correctly, Lincoln pledged to enforce the act before the war's beginning. The war changed that and a lot of other things, too.

As to Laurie's question, Taney's rationale was that habeas corpus was under Art. !, the section that refers to powers of Congress, not Art. II, which refers to the powers of the President. I am unaware that Lincoln ever thought of arresting Taney, who ruled in the case (ex pre Merryman, 1861) on circuit, not in front of the whole court. Lincoln simply ordered his military commander at Ft. McHenry to ignore Taney's ruling which was done.

Interestingly, the Confederate Constitution had the exact same wording. Unlike Lincoln, Jeff Davis did ask his Congress to suspend habeas corpus, which it did several times during the war.

[STS Lincolnite]

(02-04-2015 05:04 AM)RJNorton Wrote:  As far as I know this story is not included in the majority of history books due to lack of evidence. I believe the only source for it is Ward Hill Lamon. I do not believe Lamon said no one could be found to carry it out. No arrest warrant has ever been found. Of course anything is possible, but I think we would need more evidence to say this really happened. Laurie, is there a footnote in the source in which you read about this? If so, does the footnote point to Lamon?

I have never heard this story before. I have no doubt that before he initiated his first suspension of habeas corpus, Lincoln had clearly thought out the drawbacks and benefits as well as what his legal standing was in having done so. If I recall, his reasoning was the Congress was not in session and so he had to act with immediacy or risk great harm to the nation . Then he would then have Congress uphold or strike down his actions when back in session. Therefore, I believe there is no reason he would not or did explain his legal basis for having done so to Taney or anyone else who would ask (whether those individuals agreed with him or not is of course anothe story).

To Laurie's question about an arrest order, I highly doubt Lincoln would have given an immediate order to arrest Taney because of a question of his authority to suspend...that would be inconsistent with his history. He gave a lot of latitude. He kept Seward on his cabinet after an initial run in, he kept Chase on his staff in spite of lots of backdoor manuevering, he kept McClellan in charge even after multiple disagreements, he even took a while to sack the likely corrupt Cameron. Lincoln was not prone to make rash moves like an arrest would have been in this case especially without careful and deliberate thought. He was too politically savy. To have issued an arrest order and have it carried out would have alienated too many important people and created an even greater political firestorm. Lincoln just sort of ignored Taney as Bill articulated. Politically, that seems to be the best move he could have made at the time.

[Rick Smith]

(02-04-2015 09:15 AM)Wild Bill Wrote:  I am not sure how much Taney had to "push" the case over the fugitive act through the US Supreme Court It was a 9-0 decision (Abelman v. Booth, 1859). It was based on Art. IV, Sec 2, Cl. 3 of the US Constitution of 1789. The injustice of the act was a problem for Congress to solve, not the court. Congress did act in 1862 to negate the fugitive act. If I remember correctly, Lincoln pledged to enforce the act before the war's beginning. The war changed that and a lot of other things, too.

As to Laurie's question, Taney's rationale was that habeas corpus was under Art. !, the section that refers to powers of Congress, not Art. II, which refers to the powers of the President. I am unaware that Lincoln ever thought of arresting Taney, who ruled in the case (ex pre Merryman, 1861) on circuit, not in front of the whole court. Lincoln simply ordered his military commander at Ft. McHenry to ignore Taney's ruling which was done.

Interestingly, the Confederate Constitution had the exact same wording. Unlike Lincoln, Jeff Davis did ask his Congress to suspend habeas corpus, which it did several times during the war.

In other words, Taney was just upholding the Constitution. What a novel concept.

[L Verge]

(02-04-2015 07:10 AM)HerbS Wrote:  I have always learned that Taney could not be trusted! He pushed the fugitive slave act through the Supreme Court.

Roger B. Taney was from Maryland, so I will admit to be prejudiced in his favor. However, I believe every one of my teachers and professors who talked about him considered him one of the most brilliant jurists that America has ever produced.

I remember one account that said the abolitionists attempted to ruin his reputation in the 19th century and the politically correct civil rights liberals of the 20th century finished the job.

[HerbS]

Taney was the Author of the Fugitive Slave Law,was he not.If not, I stand corrected with my thoughts about him being a racist.

[L Verge]

Taney was not the author of the Fugitive Slave Law. He was the fifth Chief Justice of the Supreme Court at the time (1836-1864) that the Law was written. The judicial branch does not write laws; it only interprets them according to Constitutionality.

Dred Scott took advantage of his situation to appeal his case for freedom all the way to the Supreme Court in 1857. Under Taney's court, it was ruled (Bill, the vote was 7 for and 2 dissenting) basically that African Americans were considered inferior when the Constitution was being drafted and equated basically with personal property if enslaved and non-citizens if free. People of the Negroid race were, therefore, not entitled to the rights of citizens -- and Dred Scott, himself, did not have legal standing to even petition the court for his freedom. I would say that the Court's decision was based on Constitutionality, not racism.

BTW: Like most Marylanders, Taney believed in states' rights, but did not want to see the Union dissolved. He remained a Unionist and as Chief Justice throughout the war. He had also manumitted his slaves long before the new Maryland state constitution outlawing slavery in our state went into effect on November 1, 1864. He had died on the day that the state ratified that new constitution (sometime in October of 1864). Despite his long service to his country, I don't believe that Lincoln recognized his death. I know he did not attend his funeral. Only Attorney General Bates attended.

I learned a lot about Taney when I included him on a panel in one of the Civil War exhibits we have done over the past five years. I have had a soft spot for him for about twenty years - ever since his longstanding name was removed from one of the schools in our county and replaced with that of Thurgood Marshall. No reflection on Marshall, but that stuck in my craw as being a tad racist also. They then went to work on trying to get his impressive statue removed from the State House grounds in Annapolis. I think that is still firmly entrenched.

Here's a trivia question: Who was the wife of Roger B. Taney? And, don't say "Mrs. Taney..."

[Rick Smith]

(02-04-2015 07:23 PM)L Verge Wrote:  Taney was not the author of the Fugitive Slave Law. He was the fifth Chief Justice of the Supreme Court at the time (1836-1864) that the Law was written. The judicial branch does not write laws; it only interprets them according to Constitutionality.

Dred Scott took advantage of his situation to appeal his case for freedom all the way to the Supreme Court in 1857. Under Taney's court, it was ruled (Bill, the vote was 7 for and 2 dissenting) basically that African Americans were considered inferior when the Constitution was being drafted and equated basically with personal property if enslaved and non-citizens if free. People of the Negroid race were, therefore, not entitled to the rights of citizens -- and Dred Scott, himself, did not have legal standing to even petition the court for his freedom. I would say that the Court's decision was based on Constitutionality, not racism.

BTW: Like most Marylanders, Taney believed in states' rights, but did not want to see the Union dissolved. He remained a Unionist and as Chief Justice throughout the war. He had also manumitted his slaves long before the new Maryland state constitution outlawing slavery in our state went into effect on November 1, 1864. He had died on the day that the state ratified that new constitution (sometime in October of 1864). Despite his long service to his country, I don't believe that Lincoln recognized his death. I know he did not attend his funeral. Only Attorney General Bates attended.

I learned a lot about Taney when I included him on a panel in one of the Civil War exhibits we have done over the past five years. I have had a soft spot for him for about twenty years - ever since his longstanding name was removed from one of the schools in our county and replaced with that of Thurgood Marshall. No reflection on Marshall, but that stuck in my craw as being a tad racist also. They then went to work on trying to get his impressive statue removed from the State House grounds in Annapolis. I think that is still firmly entrenched.

Here's a trivia question: Who was the wife of Roger B. Taney? And, don't say "Mrs. Taney..."

This reflects pretty poorly on Mr. Lincoln.

And of course, history looks favorably on the martyred Lincoln and Taney is a white supremacist. How very nice.

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Branding Taney as a racist is a false argument. It is looking at a 19th century issue through a 21st century lens. If you do this, be prepared to apply the same sobriquet to Lincoln.

With many of the not so favorable things he said regarding blacks, Lincoln would certainly be labeled a racist by today's standards.

[STS Lincolnite]

(02-04-2015 07:23 PM)L Verge Wrote:  Despite his long service to his country, I don't believe that Lincoln recognized his death. I know he did not attend his funeral. Only Attorney General Bates attended.

True, Lincoln made no public statement regarding Taney's death. However, it has been documented that Lincoln along with Seward, Bates and Postmaster General Dennison attended a memorial/funeral service for Taney at his home on Indiana Avenue in Washington, DC at about 6 a.m. on the morning of 15 October 1865. Lincoln was among those who participated in a procession accompanying the deceased Taney from his Indiana Avenue home to the railroad station. Only Bates attended the funeral and burial held in Frederick, MD. An excerpt from Bates' diary: “The Prest. Sec.y Seward and the P.M. Genl. Gov Denison, attended the body, from the dwelling to the cars.” He added about the Frederick funeral and burial: “Mass was sung in the Jesuits’ church at Fredk. And I saw his body placed in the grave (beside his mother, as he had ordered) in the old church yard there.”

[HerbS]

I stand corrected! However,I was taught that Taney was the worst Chief Justice in American History!See you can teach an old dog new tricks! Thanks-Everyone.

[Wild Bill]

Laurie, Dred Scott was not fugitive slave. He has nothing to do with the fugitive slave law or its constitutionality. His case ruled on on the extraterritoriality of slavery, that Missouri slave law followed Scott no matter where he lived and that slavery could not be denied in the treaties until after that territory became a state. It was a 7-2 ruling, but irrelevant to this argument. One can argue, as did Lincoln, that this was stretching the fugitive clause of the Constitution. But Scott remained a slave nom matter whee he went until his owner freed him, which Mrs. Emerson did after the case decision.

The relevant case here is Sherman Booth v. US Marshal Ableman and was decided 2 years after Dred Scott and did concern a runaway slave or a fugitive slave, if you prefer, under the 1850 Fugitive Slave Law. Here the court ruled that the fugitive clause applied 9-0, and that Booth (no relation to JWB) violated the law by aiding the slave in question too escape to Canada, for which Ableman arrested him. Lincoln never argued that this case was a misapplication of the Constitution, just that it was unfair in its effects.

Taney is a very complicated man. We emphasize his 1850 cases on slavery but he was really best known for his insertion of Jacksonian Democracy into the cases decided earlier by Federalist John Marshall. This opened up the democratic notion of economic freedom to the general populace that the more elitist Federalists had stifled.

[L Verge]

(02-04-2015 09:03 PM)STS Lincolnite Wrote:  

(02-04-2015 07:23 PM)L Verge Wrote:  Despite his long service to his country, I don't believe that Lincoln recognized his death. I know he did not attend his funeral. Only Attorney General Bates attended.

True, Lincoln made no public statement regarding Taney's death. However, it has been documented that Lincoln along with Seward, Bates and Postmaster General Dennison attended a memorial/funeral service for Taney at his home on Indiana Avenue in Washington, DC at about 6 a.m. on the morning of 15 October 1865. Lincoln was among those who participated in a procession accompanying the deceased Taney from his Indiana Avenue home to the railroad station. Only Bates attended the funeral and burial held in Frederick, MD. An excerpt from Bates' diary: “The Prest. Sec.y Seward and the P.M. Genl. Gov Denison, attended the body, from the dwelling to the cars.” He added about the Frederick funeral and burial: “Mass was sung in the Jesuits’ church at Fredk. And I saw his body placed in the grave (beside his mother, as he had ordered) in the old church yard there.”

Thanks for the correction regarding Lincoln accompanying the body to the rail cars. I'll give him an extra point for at least that.

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(02-05-2015 08:05 AM)Wild Bill Wrote:  Laurie, Dred Scott was not fugitive slave. He has nothing to do with the fugitive slave law or its constitutionality. His case ruled on on the extraterritoriality of slavery, that Missouri slave law followed Scott no matter where he lived and that slavery could not be denied in the treaties until after that territory became a state. It was a 7-2 ruling, but irrelevant to this argument. One can argue, as did Lincoln, that this was stretching the fugitive clause of the Constitution. But Scott remained a slave nom matter whee he went until his owner freed him, which Mrs. Emerson did after the case decision.

The relevant case here is Sherman Booth v. US Marshal Ableman and was decided 2 years after Dred Scott and did concern a runaway slave or a fugitive slave, if you prefer, under the 1850 Fugitive Slave Law. Here the court ruled that the fugitive clause applied 9-0, and that Booth (no relation to JWB) violated the law by aiding the slave in question too escape to Canada, for which Ableman arrested him. Lincoln never argued that this case was a misapplication of the Constitution, just that it was unfair in its effects.

Taney is a very complicated man. We emphasize his 1850 cases on slavery but he was really best known for his insertion of Jacksonian Democracy into the cases decided earlier by Federalist John Marshall. This opened up the democratic notion of economic freedom to the general populace that the more elitist Federalists had stifled.

I'm apologizing to you also, Bill. I just realized that I overlooked the fact that you were discussing a case totally separate from Dred Scott's when you mentioned the 9-0 decision. Mea culpa. I never want to get into a spitting contest with you in the history field. I know I'll get drenched, no matter how far back I stand.