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CHIEF JUSTICE ROGER B. TANEY: A TRANSITIONAL
FIGURE BETWEEN THE OLD AGRARIAN ORDER

AND THE INDUSTRIAL SYSTEM

BY

r. .-
H‘i- Hr. 1’1 {J

at! H {L’- ’

H.(Bill)Taylor

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS
Department of History

1963

‘*\

TABLE OF CONTENTS

Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . 1
Chapter

I. MARYLAND YEARS AND JACKSONIAN POLITICS . . . . 4
II. TANEY'S CHARACTER.AND POLITICAL VALUES . . . . 21
III. THE TANEY COURT . . . . . . . . . . . . . . . 31
IV. THE DEFENSE 0F SLAVERY . . . . . . . . . . . . 35
V. THE PROMOTION OF COMPETITIVE ENTERPRISE . . . 48
VI. SOUND CURRENCY, HONESTLY EXCHANGED . . . . . . 59
VII. CONCLUSION . . . . . . . . . . . . . . . . . . 66
LIST OF WORKS CONSULTED . . . . . . . . . . . . . . . 67

iii

INTRODUCTION

As Chief Justice of the United States Supreme Court
from 1837 to 1864, Roger Brooke Taneyl is an important figure
who deserves understanding. His decisions upholding the
right to hold property in slaves did much to solidify anti-
slavery sentiment in the North. And his defense of the public
interest against claims of monopoly was instrumental to the
growth of American business. Yet little attempt has been
made to understand the components of his judicial decision-
making process. The purpose of this monograph is to explain
Taney's judicial behavior in terms of a consistent set of
attitudes.

Three relatively recent attempts to explain Taney
are worthy of note. Charles W. Smith2 has attempted to
pattern Taney's judicial responses in terms of a consistent
judicial philosophy. To.Smith, Taney's concern was to
uphold popular sovereignty. He sought to safeguard it by

maintaining intact the intended division of powers between

 

lTaney is pronounced as if spelled T-a-w-n-e-y.

2Charles W. Smith, Roger B. Taney: Jacksonian Jurist
(Chapel Hill. 1936).

state and federal government.

To Fred Rodell Vthere is not one of hisdecisions
as Chief Justice . . . but can be traced. directly or in-
directly, to his big plantation birth and background."3
Rodell does relate Taney's experience in state banking to a
greater concern for that form of enterprise than the con—
ventional planter might have held.

Carl B. Swisher4 contends that Taney was personally
unsympathetic to slavery, but was devoted to most of the
other traditional Southern values. Taney's judicial favorit—
ism for slavery is seen to reflect a realization that the
institution was inseparably linked with those aspects of
the old order Which he loved. Swisher believes that Taney
shared the traditional distrust of his class for business
enterprise, but realized its inevitability and was prag—
matic enough to make occasional concessions to it.

Rodell and Swisher correctly realize that Taney's
judicial behavior must be explained in terms of socio-
economic values, not abstract principles of justice. But

even Swisher fails to entirely capture the complexity of

 

3Fred Rodell. Nine Men: A Political History of the
Supreme Court from 1790 to 1855 (New Ybrk, 1955), p. 170.

4Carl B. Swisher, Roger B. Taney (Hamden, Conn., 1961).

Taney's character. As Swisher has found, Taney was no
devotee of slaverprngsg. He opposed sudden emancipation
because he realized that it would destroy many aspects of
Southern Culture to which he was deeply attached. Taney

did share many of the traditional Southern agrarian values.
But the suggestion here is that Swisher portrays Taney as
more of an agrarian than he actually was. Taney's opinions
in cases involving corporations reflect a desire to encourage
business enterprise, not agrarian suspicion of an expanding
economy. In a sense Taney spanned the gap between the old

agrarian order and the coming industrial system.

CHAPTER I
MARYLAND YEARS AND JACKSONIAN POLITICS

Roger Brooke Taney was born in Calvert County in 1777
on the ancestral plantation of his old Maryland family.5
Tidewater Maryland society was patterned after that of the
English countryside. Prosperous planters such as the Taneys
prided themselves upon their resemblance to English country
gentlemen. They built great homes. They were socially
minded and loved the active life. Great English-style fox
hunts were regularly held in which the burdens of hospitality
were rotated between the plantations. And like the English
country gentry. they considered it their province to lead
the people in public affairs. Gradually they developed a
deep antipathy for the mercantile sharpness which drained
much of their wealth to the NOrth. And by the time of the
Revolution they accepted law as a respectable profession

for sons who chose to leave the land.

 

5Except where otherwise cited the source for all
specific material relating to Taney's life is Samuel Tyler's
Memoir of Roger Brooke Taney; LL.D. (Baltimore, 1872). The
portion of the book covering Taney‘s life up to 1801 is auto-
biographical.

Young Roger came to love this way of life, and he
assumed most of the values of the old order. He shared its
deep attachment to the land. And he cherished memories of
its warm hospitality as long as he lived. But he developed
a more tender, reflective character than most of the boys
brought up in the planter aristocracy. perhaps because of the
poor health and lack of bodily strength which plagued him
throughout his entire life.

Taney's higher education began in 1792 when he
entered Dickinson College in Carlisle, Pennsylvania. He
was only fifteen at the time. and his somewhat apprehensive
father had asked the head of the college. Dr. Charles Nisbet.
to take a personal interest in the boy. This request was
conscientiously complied with. and the evenings which Taney
spent in the home of his mentor were probably a greater
influence upon his mind than his more formal studies at
Dickinson. Nisbet had been brought to America from Scotland
by the college trustees. and like many other Britishers his
revulsion from the atrocities of the French Revolution had
made him an intense supporter of the concept of a ruling
elite which would govern for the benefit of all. The
informal discussions between the articulate headmaster and

his politically unsophisticated young pupil must have

strengthened within Taney the Federalist principles of his
family. And here too he must have been impressed with his
own position as a gentleman born and bred to rule.

After receiving his Bachelor of Arts Degree in 1795
Taney gratified his father by deciding upon a career in the
law. In terms of the family situation and planter values
this was a natural decision. The elder Taney was determined
to leave the entire family plantation to Roger's oldest
brother in the English manner. And he was not wealthy
enough to purchase estates for each of his remaining three
sons. He considered Roger able enough to establish himself
in a profession. and law was the common profession for
members of the aristocracy to pursue.

Taney entered into his study of jurisprudence at
Annapolis under the tutelage of Jeremiah Townley Chase. a
judge of the General Court of Maryland. At this time the
General Court had jurisdiction over all of the higher civil
and criminal cases. It met twice annually at Annapolis to
serve that portion of Maryland lying west of Chesapeake
Bay, and also twice at Easton to serve Eastern Maryland.
During his three years of study at Annapolis Taney repeatedly
heard the great lawyers of his day pleading before its bar,

and these experiences instilled in him a great respect for

the law. In 1799 Taney was admitted to the bar, and in
response to his father's wish he decided to return to Calvert
County to practice.

It was not the undistinguished legal career which
Calvert County might have afforded that the elder Taney now
had in mind for his son, however, but his own seat in the
Maryland House of Delegates. Michael Taney was impressed
with his son's abilities. And within the Maryland aristocracy
it was expected that able sons would enter politics. Further-
more. the elder Taney had reason to believe that Roger could
be elected even though he was relatively unknown in the
district. The formal governmental structure of Old Maryland
seems to suggest the existence of a broad base for political
participation. The state constitution provided a broad
suffrage franchise. and only a moderate amount of property
was required for holding office.6 But in practice state

government was controlled by an aristocratic oligarchy. Through

 

6The Maryland Constitution of 1776 extended the

franchise to all freemen of twenty-one years of age possessing
a freehold of fifty acres or property above the value of
thirty pounds. Members of both Hbuses of the legislature

were required to possess an estate in freehold of at least
five-hundred pounds, real or personal. Members of the Upper
House were elected indirectly through an electoral college.
Philip A. Crowl. fMaryland During and After the Revolution:

A Political and Economic Study.? Johns ngkins University
Studies in Historical and Political Science. LXI (Baltimore,
1943). 32-33.

8

tradition and an open form of ballot which allowed the wealthy
to exert a maximum of persuasion families of large fortune
dominated Maryland politics.

By Roger's self—admission his political ambitions
had become sufficiently whetted so that he was not annoyed
at the bit of duplicity used to induce him to return. In
rural Maryland state elections had historically been won
through personal popularity. family influence, and liberal
quantities of free beer. Taney entered the race for delegate
from Calvert County. and with ample assistance from these
conventional aids he was sent to Annapolis for the legis-
lative session which began in November of 1799.

The session was distinguished by the passage of a
bill providing for the construction of a canal connecting
Chesapeake Bay with Delaware Bay. The bill was popular in
the region lying along the Chesapeake. a region which could
hope to profit from allowing Philadelphia to compete for its
market. but it was opposed by the merchants of Baltimore
who wished to retain their existing advantage. Taney
actively supported the bill. and this contest is significant
as his first public struggle against what he considered to

be commercial avarice.

9

Taney's bid for re-election in 1800 was crushed
amidst a changing political scene. For the first time in
Calvert County history candidates for state office were
forced to campaign upon their political principles. and the
trend was strongly against the Federalist principles which
Taney attempted to uphold.7 By 1800 the average man was
demanding a greater share in government. And Maryland
Federalists had lent credence to the charge that they were
undemocratic by attempting to place the choice of presidential
electors in the hands of the legislature. Furthermore, ever
since the Federalist-controlled Congress of 1793 had passed
a direct tax on land and slaves there existed a growing feel—
ing in rural areas that agrarian interests would not be
served by a party dependent upon commercial and financial
support. Taney was heckled for being an aristocrat through—
out the campaign. In the election he was crushed.

Following this unexpected blow Taney turned in
earnest to the law. Michael Taney desired that his son
establish himself in Baltimore, but Roger cautiously chose

instead to practice before the less auspicious bar of

 

7In addition to Tyler see Edward G. Roddy. HMaryland
and the Presidential Election of 1800.? Maryland Historical
Magazine, LVI (1961), 221-278.

 

10

Frederick. He did not develop the ornate style of many of
his colleagues in the law, but the clear logic of his
presentations soon gained him admiration. To William Wirt
his mind was like the moonlight of the Arctic; it ”gave all
the light of day without its glare."8 By 1806 his practice
had become sufficiently lucrative to enable him to marry his
sweetheart. Anne Key. In 1823 his increasingly respected
abilities gave him the confidence to move to Baltimore,
where he established himself as one of Maryland's finest
lawyers. And in 1825 he argued his first case before the
Supreme Court of the United States.

Taney retained his interest in politics while pur-
suing his legal career, but even as he was becoming one of
the leading Federalists of his state he was steadily drifting
away from the mainstream of party thought. Americafs efforts
in the War of 1812 were opposed by many influential Federalists.
In Maryland, where war was less critical to the economy than
in commercial New England. a majority of the party remained
patriotic. But anti-government sentiment was sufficiently
strong so that the state party split into two bitterly

opposed factions. Taney regretted the declaration of war,

 

8Swisher. p. 109.

11

but once the country had been committed he assumed leader-
ship of the faction which supported Madison in the war
effort. Taney's brother-in—law. Francis Scott Key. belonged
to this faction. and his Star-Spangled Banner stands with
the near-treasonous Hartford Convention to reflect the split
in Federalist ranks. The Federalist Party was ruined as a
national organization by the Hartford Convention. But in
Maryland its strength lingered long enough for the party to
sweep the state elections of 1816. In the election of that
year Taney himself gained a seat in the Maryland Senate.

The material is not available for a thorough study
of Taney's political development. But it is possible to
sketch the maturation of his belief in a democratic theory
of equality. While in the Maryland Senate Taney fought
criticism from the opposing wing of his own party with an
appeal to the people much like those which came to character-
ize Jacksonianism. In this appeal he affirmed his own
belief in democracy while warning of enemies within the
Federalist Party who sought to rule without regard for the

people.9

 

9Taney. An Address to the People of Frederick
County. Feb. 27. 1817. quoted in part by Swisher. pp. 76-78.

12

While Taney was serving out his five year term in

the Maryland Senate the Federalist Party was expiring on
the national level. and the one-party presidential election
of 1824 marked the beginning of his drift into the legions
of Andrew Jackson. We can see how Taney chose Jackson over
John Quincy Adams on the strength of Jackson‘s image as the
champion of equal rights. After James Monroe‘s election as
president in 1816 Jackson had written to him of the many
Federalists who had remained loyal to the war effort. and
he had expressed the hope that Menroe would rise above
partisanship and consider these men for cabinet positions
on their merits.10 In 1824 Jackson published this correspondence
to attract the votes of old Federalists. Taney was impressed
with the appeal. and in a letter to an old friend he expressed
the reasons why he preferred Jackson:

He is honest. he is independent. is not brought

forward by a particular class of politicians, or any

sectional interest. He is not one of the Secretaries.

He is taken up spontaneously by the people, and if he

is elected will owe obligations to no particular

persons. It is a way in which a President ought to

come in. for he is then unfettered by secret promises

and may act independently. I am sick of all Secretary

candidates. and would be glad to see it understood that
a man might be elected without the patronage of the

 

10Jackson to Monroe. October 23. 1816; Monroe to
Jackson. November 14, 1816; Jackson to Monroe. January 6.
1817. Cited in Tyler, pp. 156-158.

13

President for the time being. or the power of
- members of Congress. or a combination of mercenary
presses or local interests.ll

Jackson was defeated by John Quincy Adams after the
election was thrown into the House of Representatives,
and Taney firmly supported Jackson in his 1828 campaign to
gain the office from which he believed he had been unjustly
deprived. Taney was resentful of Jackson's defeat in the
House after he had secured a popular and electoral majority
over Adams. but his open support of Jackson against Adams
in 1828 was based more upon ideological considerations
than upon righteous indignation. Although the election
largely turned on personalities. Jackson was trusted more
than Adams by those who were unsympathetic to the idea of
economic progress through corporate privilege.

Taney did not personally know either Jackson or his
running-mate. John C. Calhoun. But Taney and Calhoun had
a mutual friend in Virgil Maxcy of Tulip Hill. Maryland.
Maxcy worked closely with Calhoun throughout the campaign,
and in his reports of the efforts of the Jackson—Calhoun

supporters in Maryland he recorded Taney's open support.

He wrote Calhoun that Taney had ceased to be a Federalist

 

11Taney to William M. Beall, April 13, 1824.
Cited in Swisher. pp. 121-122.

14

and had become above all a Jackson man. He informed him
that Taney had been appointed chairman of the Maryland
Central Committee for Jackson by the state Jackson convention
held in Baltimore in May, 1827. And he speculated that Taney
could also have had the presidency of the convention if he
had desired it.12

There is no indication that Jackson ever considered
Taney in forming his original cabinet. and there is no
indication that Taney expected any consideration for the
part he played in Jackson's tremendous Victory of 1828.
But through a series of events the cabinet vacancy was
created without which. in all probability, Taney would never
have entered national politics. Jackson's original cabinet
members functioned smoothly together for a while, but by
1831 Calhoun's pursuance of an independent course in the
tariff crisis. Van Buren's guile. and the refusal of a number
of cabinet wives to accept Secretary of War John Eaton's
crass and reputedly immoral wife as a social equal had made
the association an intolerable one. In the spring of that

year Jackson determined to reorganize his cabinet. and

Attorney-General John M. Berrien was among those members

 

12Maxcy to Calhoun. May 7. 1829. J. Frank Jameson (ed.),
FCorrespondence of John C. Calhoun.? Annual Report of the
American Historical Association for the Year 1899 (Washington,
1900), II, 800-807.

15

whom he persuaded to resign.

On June 21, 1831 Jackson appointed Taney to the vacant
Attorney-Generalship. Certainly Taney's entry into national
politics was a matter of the merest chance in the sense that
Berrien would normally never have resigned the position.
but once the vacancy existed in 1831 Taney's appointment to
fill it was no shot—in—the dark. Taney's pre-eminent position
before the Maryland bar had been acknowledged in 1827 with
his appointment as state Attorney-General. He had been
unanimously recommended for that office by the Baltimore bar,
and named to it by a governor who belonged to the other
political faction. By this time Taney was also a familiar
advocate before the Supreme Court of the United States, and
as Justice Henry Baldwin reported to Jackson. the Court
held him in the highest regard. And, of course. in addition
to this unquestioned ability to fill the position Taney
was a Jackson man.

Once Taney was in the cabinet it was natural that
he and Jackson should become fast friends, for in the broad
structure of their temperaments they were very similar.

There was little element of doubt in the make-up of either.
Each tended to find things entirely right or entirely wrong.

Untroubled as both were by indecision they quickly became

l6

emotionally involved in issues. And once so involved they
were similarly inclined to defend their judgments without
regard for the personal consequences of their actions.

Furthermore both were followers of the Jeffersonian
tradition. They idealized the old values of self-reliance.
hard money. and equal opportunity for all. But they extended
Jeffersonian democracy to include an expanding society.
Jefferson had sought to maintain an essentially agrarian
economy. Taney and Jackson both had experience in business.
and did not fully share Jefferson's agrarian prejudices.
They favored business enterprise as long as it remained open
on an equal basis to all.

Taney's appointment to the cabinet was coincidental
with the beginnings of the struggle over the recharter of
the Second Bank of the United States. Among its other
functions the Second Bank served as a depository for
government funds. In this capacity it collected large amounts
of state bank notes. Normally these bank notes could
circulate for a long time before being turned in for
redemption. thereby allowing the state banks to operate with
a small specie reserve. The Bank of the United States made
it a practice to present these notes weekly for redemption.
This sometimes made it necessary for the state banks to

contract their loans, and in consequence diminished their

l7

profits. Therefore the Bank of the United States was
opposed by state-bank men and businessmen with a need for
easy credit. Farmers and planters who shared the traditional
agrarian aversion to all business enterprise comprised the
other element of the unlikely combination which rallied
behind Jackson to destroy the Bank. It was the Bank War
which drew Jackson and Taney together. Taney was Jackson's
staunchest supporter in the struggle. And the two men
opposed the Bank out of the same impulses. To both it was
an anti—republican monopoly. The language of their attacks.
however. appealed to agrarians who opposed all business
enterprise. For instance. in his official messages and
papers Jackson frequently referred to the Bank as a Fmonster
of corruption.” And in a letter to the Speaker of the House
of Representatives outlining the grounds for his opposition
Taney argued that:
It is a fixed principle of our political institutions.
to guard against the unnecessary accumulation of power
over persons and property in any hands. And no hands
are less worthy to be trusted than those of moneyed
corporations.l3
But Jackson and Taney were concerned with destroying the

Bank to encourage enterprise, not eliminate it. Years

later Taney prepared a manuscript account of the Bank War.

 

13December 4. 1833, cited in Tyler, p. 212.

18

In this manuscript he explained that he opposed the Second
Bank because it had used government resources to gain a
monopoly over all banking. He believed that if the Bank had
been rechartered it would ultimately have driven every state
bank out of existence.14 Jackson's veto message on the
recharter bill was prepared largely by Taney. After an
argument against the Bank's constitutionality it closed with
an appeal for free enterprise:

It is to be regretted that the rich and powerful too

often bend the acts of government to their selfish

purposes. . . . There are no necessary evils in

government. Its evils exist only in its abuses.

If it would confine itself to equal protection. and.

as Heaven does its rains. shower its favors alike on

the high and low. the rich and poor. it would be an

unqualified blessing.15

Jackson appointed Taney as Chief—Justice of the

Supreme Court in 1837. The appointment was. of course,
made in large part because of the close agreement between
the two men on constitutional principles. But strangely
enough the position was tendered to Taney and accepted more

as a financial reward than as a mark of prestige. As

United States Attorney-General Taney had been able to continue

 

l4Swisher. p. 169.

15A Compilation of the Messages and Papers of the
Presidents, 1789-1807. ed. James D. Richardson (Washington.
1901). II, p. 590.

19

his Baltimore legal practice. But he was forced to give it
up after he accepted a recess appointment as Secretary of
the Treasury in 1833 for the purpose of removing the

federal deposits from the Bank of the United States. In
removing the deposits Taney gained the enmity of some of the
financial, commercial, and manufacturing interests of the
nation. The Second Bank responded to Taney's move by
'sharply contracting credit. and this convinced the business
community that Taney's actions had dictated the curtailment.
Baltimore was especially hard hit by the money pressure.

and after the Senate rejected his appointment to the Treasury
in June of 1834 Taney found it very difficult to re-establish
his old legal practice. Jackson realized his difficulties
and determined to give him a federal position. In early

1835 he nominated Taney for the Supreme Court position made
vacant by Justice Duvall's resignation. It was later learned
that Chief Justice John Marshall had desired Taney's
approval,l6 but even if this had been known it would have
made no difference to the vindictive majority in the Senate.
On the very last day of the session Taney was again
humiliated by a rejection. In the following summer John

Marshall died. and with dogged resolution Jackson nominated

 

l6Tyler. p. 240.

20

Taney for his position. The administration had gained strength
in the Senate since the previous session. and on March 15,
1836, Taney was confirmed as Chief Justice.

In that role. as we shall see. Taney proved him-
self alert in the defense of slavery as a component of his
beloved Southern Culture. But he was no less alert in using
the power of the Court to sweep aside special privilege
entrenched in State Law. In doing so he contributed signi-

ficantly tx: the more rapid emergence of industrial America.

CHAPTER II

TANEY'S CHARACTER AND POLITICAL VALUES

Above all else, perhaps, Taney was a profoundly
sentimental person who held old memories in tender reverence.
While he resided at Frederick he daily pilgrimaged to the
grave of his mother. The partial autobiography which
appears in Samuel Tyler's account of his life remains un—
finished because following the death of his wife in 1855
Taney found it impossible to continue work on an account
which constantly brought to mind this inconsolable loss.

And in those last, crisis-torn years of his life his
only joy lay in writing and receiving letters from his
family and old friends.

Kindness and humility were other aspects of Taney's
gentle nature. These traits allowed him to hold the Negro
in sincere affection. In response to a general vilification
of Taney by the Nerth following the Civil War many of his
old friends attempted to convey a sense of his hatred of
slavery and genuine sympathy for the Negro. They pointed
out how Taney had freed the slaves Which he had inherited

from his father while continuing to look after their welfare.

21

22

They recalled how as a young lawyer Taney had defied popular

opinion to defend a Methodist minister from Pennsylvania

who had given an anti-slavery sermon in Hagerstown.17

In arguing the case of the Reverend Jacob Gruber he had not
been content to merely defend his client's freedom of speech,
but went on to give a ringing fulmination against slavery
itself:

A hard necessity, indeed, compels us to endure the
evil of slavery for a time. It was imposed upon us
by another nation, while we were yet in a state of
colonial vassalage. It cannot be easily, or

suddenly removed. Yet while it continues it is a blot
on our national character, and every real lover of
freedom confidently hopes that it will be effectively,
though it must be gradually, wiped away; and earnestly
looks for the means, by which this necessary object
may be best attained.18

Countless other examples of Taney's kindness to the Negro
were recollected to dispute the stereotype of a malevolent
old Negrophobe.19

Yet Taney shared the contemporary view that the

Negro was innately inferior. He considered emancipation to

be an act of benevolence, not an inalienable right which the

 

l7See Century Magazine, XXVI (1883), 957-958. Two

such letters appear here in dispute of an article appearing
in the July issue of the magazine which had castigated the
character of Taney.

 

18Tyler. pp. 130-131.

19Tyler, pp. 190, 476, 479.

23

Negro could demand as a white man might. Furthermore, the
preservation of the finer aspects of planter society was
more important to Taney than emancipation. He held memories
of the hospitality and charm of the old order in tender
reverence as long as he lived. Any plan for emancipation
had to be consistent with the preservation of this side of
planter life. For a brief while Taney believed that this
could be accomplished through Negro colonization. The
American Colonization Society was founded in 1816 for the
purpose of removing freed Negroes to Liberia. and Taney
served as vice-president of the local organization.

Within a few years it was clear that the movement was
a failure. It had proved economically unfeasible to trans—
plant any great number of Negroes. Furthermore, most freed-
men were determined to remain in America. In 1831 Nat Turner,
a Negro preacher. led a slave massacre of sixty white
persons in Southampton County, Virginia. The failure of the
colonization movement and the Nat Turner insurrection
destroyed Southern enthusiam for emancipation. New the
South saw that the only alternative to the firm defense of
slavery would be a gigantic race—adjustment problem which

would have to be borne solely by themselves, and which

 

20Swisher, p. 93.

24

would certainly destroy their old culture. It is significant
to note how slavery became more acceptable to Taney, as it
did to so many other Southerners, once this single alternative
to it became apparent. The ideas expressed in Jackson's
farewell address belonged to the new Chief Justice as well
as the outgoing President,21 and the message's warning against
abolitionist agitation serves to show how Taney had come to
resent outside judgments against slavery such as the one he
had defended two decades previously. The address recalled
that the states had exclusive control over their domestic
institutions. And it delicately cautioned the NOrth not to
judge Southern institutions by its own moral standards:
Motives of philanthropy may be assigned for this
unwarranted interference, and weak men may persuade
themselves for a moment that they are laboring in
the cause of humanity and asserting the rights of
the human race; but everyone, upon sober reflection,
will see that nothing but mischief can come from these
improper assaults upon the feelings and rights of
others.
There is no evidence that Taney ever accepted slavery as a
positive good in the manner that Calhoun and other Southern

leaders came to defend it. But by the time of the Dred

Scott decision slavery did not seem nearly the evil to

 

21Swisher, pp. 352—353.

22A Compilation of the Messages and Papers of the
Presidents, 1789—1897, ed. James D. Richardson, III, p. 298.
T

25

Taney that it had been four decades previously:

It is difficult for anyone who has not lived in a
slaveholding State to comprehend the relations which
practically exist between the slaves and their masters.
They are in general kind on both sides, unless the
slave is tampered with by ill-disposed persons; and
life is usually cheerful and contented, and free from
any distressing wants or anxieties. . . . Unquestion-
ably it is the duty of every master to watch over the
religious and moral culture of his slaves, and to

give them every comfort and privilege that is not
incompatible with the continuedexistence of the
relationship between them. And as far as my knowledge
extends, this duty is faithfully performed by the
great body of hereditary slaveholders in Maryland

and Virginia.

In this same letter written to a Northern clergyman who had
published a careful analysis of the slavery Conflict,

Taney reviewed the reasons why the South did not feel that
it could compromise upon the issue:

And if in the present state of things additional
restrictions were placed on the authority of the
master, or new privileges granted to them [the
slaves], they would probably be told that they were
wrung from the master by their Northern friends; and
be taught to regard them as the first step to a
speedy and universal emancipation, placing them

on a perfect equality with the white race. It is
"easy to foresee what would be the sad result of
such an impression upon the minds of this weak and
credulous race.

Taney was as determined as any of his colleagues on

the bench that the slavery interests should be respected.

 

23Taney to the Reverend Samuel Nott, August 19, 1857,
Massachusetts Historical Society Proceedings, XII (March,
1873), 446.

26

He was contemptuous of those Southerners who could not be
expected to stand to arms for the independence of their
section. In 1856 he wrote his son-in-law of his fear that
these persons would undermine Southern resistance, allowing
the North to rule the South through federal dominance:

There are many bold and brave men at the South who

have no vassal feeling to the North. And they will
probably stand to their arms if Fremont is elected, or
further aggressions made under Filmore. But what can
they do, with a powerful enemy in their midst? I grieve
over this condition of things, but it is my deliberate
opinion that the South is doomed, and that nothing but

a firm united action, nearly unanimous in every state,
can check northern insult and northern aggression.

But it seems this cannot be.24

Taney‘s personal correspondence and utterances following the
outbreak of civil war clearly reveal his antipathy to federal
dominance. As the two sections were drawing their Eastern
forces up along the Potomac he expressed to Ex-President
Franklin Pierce his hope that the North would allow the

South to depart in peace:

The paroxism of passions into which the country has
suddenly been thrown appears to me to amount almost
to delirium. I hope that it is too violent to last
long - and that calmer and more sober thoughts will
soon take its place - and that the North as well as
the South will see that a peaceful separation is

far better - than the union of all the present states
under a military government and reign of terror -
preceded too by a civil war with all its horrors and

 

24Taney to J. Mason Campbell, October 2, 1856,
cited in Swisher, p. 493.

27

which end as it may will prove ruinous to the victors

as well as the vanquished - But at present I grieve to

say - passions and hate sweep everything before them.25
The grandson of Revolutionary War hero John Eager Howard
stopped to see Taney before leaving for the Confederate army
and was given well-wishes and a sense of destiny: "The
circumstances under which you are going are not unlike
those under which your grandfather went into the Revolutionary
War."26

Unlike problems of slavery, Taney did not see problems

of business enterprise from the narrow point of view of a
Southern agrarian. As Secretary of the Treasury he had
observed that:

. . . there is perhaps no business which yields a

profit so certain and liberal as the business of

banking and exchange; and it is proper that it should

be open, as far as possible, to the most free competition

. - 27

and Its advantages shared by all classes of soc1ety.
The government funds which were "removed” from the Bank of
the United States had been deposited in a number of state

banks. Taney invited the presidents of these selected banks

to use the funds to encourage business enterprise, especially

 

25Taney to Pierce, June 12, 1861, Pierce MSS.,
Library of Congress.

26Swisher, p. 574.

27Bray Hammond, Banks and Politics in America from
the Revolution to the Civil War (Princeton, 1957): P. 338.

28

that of merchants in foreign trade, when this could be done
without prejudice to the needs of other social groups:

In selecting your institution as one of the fiscal
agents of the government, I not only rely on its
solidity and established character, . . . but I
confide also in its disposition to adopt the most
liberal course which circumstances will admit towards
other monied institutions generally. . . . The
deposits of the public money will enable you to
afford increased facilities to commerce and to extend
your accommodation to individuals. And as the duties
which are payable to the government arise from the
business and enterprise of the merchants engaged

in foreign trade, it is but reasonable that they
should be preferred, . . . whenever it can be done
without injustice to the claims of other classes of
the community.28

The traditional anti-corporate prejudices of Taney's
planter heritage had been modified by his own experiences in
business. Taney had served as counsel to the Baltimore and
Ohio Railroad.29 He had served for a time as the director
of the Frederick branch of the Farmer's Bank of Maryland.30
And he had served for years as the director of the Frederick
County Bank.31 By the time that he entered Jackson's
cabinet Taney viewed business questions from the standpoint

of a new set of capitalists who desired to get ahead, but

 

28Hammond, p. 420.
29 .

SWisher, pp. 115—116.
30Swisher, pp. 83-84.

31Swisher, p. 85.

29

found their ambitions stifled by corporate privilege.

Taney did retain the agrarian concern for a stable
circulating medium. While in the Maryland Senate he had
introduced a bill entitled "An act to prevent the passing
of bank notes within the state at a rate below their
nominal value,"32 Taney believed that banks which over—
extended themselves to the point where they could not
redeem their own notes at face value had no right to existence.
And he opposed all attempts to depreciate the value of
notes of sound banks. This belief in sound money ran far
deeper than economic self-interest. It was a moral
principle. It reflected his belief that the rewards of
industry should be certain.

In terms of his socio-economic valuesit.is not sur-
prising that as Chief Justice, Taney usually upheld the
authority of the states over their internal social and
economic institutions. It was essential to the new set of
capitalists with which he Videntified? that the states should
be allowed to modify grants of special privilege in old
corporate charters. With the destruction of the Bank of the

United States, furthermore, the responsibility for maintaining

 

32Swisher, p. 86.

30

a stable currency rested with the states. But states'
rights were also the great bulwark against Northern
interference with slavery. To a large extent, therefore,
the same means proved useful in the realization of two

sets of values, one agrarian, the other business.

CHAPTER III
THE TANEY COURT

In a number of instances the full import of
positions assumed by Taney on the Court can be appreciated
only in comparison with positions taken by his Southern
colleagues. Some idea of the composition of the Court is
therefore necessary to understand the significance of its
split decisions. The Court which sat with Taney in his
first term on the bench was a heterogeneous mixture of
inimical political and social values. Joseph Story of
Massachusetts had been on the bench since 1811. He had
been Marshall's closest colleague, and he mourned the
passing of the old Federalist order as Taney would later
mourn the final passing of the Jeffersonian-Jacksonian
spirit. Smith Thompson of New York was a Monroe Republican.
John McLean of Ohio had been Jackson's first appointment
to the Court, but he revealed himself to be more of a Whig
than a Republican. Henry Baldwin generally upheld the
Jacksonian principles for which he had been appointed, but
the Pennsylvanian suffered from occasional mental breakdowns

that made his behavior unpredictable. James Wayne of

31

32

Georgia was typically Southern on questions of slavery, but
he was assympathetic as anyone on the Court to corporate
interests. Although appointed as a Republican, he must
properly be considered a Whig. Philip Barbour of Virginia,
the final Jackson appointee, consistently upheld the old
Republican values. Van Buren appointed John Catron of
Tennessee and John McKinley of Alabama to the bench early
in 1837. Catron had risen from a poor white family to become
Chief Justice of the Tennessee Supreme Court. MeKinley

had recently lost his seat in the United States Senate.
Like Catron, and unlike the other Southern Democrats who
sat on the Taney Court at one time or another, McKinley did
not have a planter background.

Only two of the justices who represented the five
Southern circuits in 1837 passed from the Court in the next
two decades. Barbour died in 1841. Van Buren's appointment
to the vacancy, Peter Daniel, proved to be as staunch a
champion of Virginia agrarianism as Barbour had been.

Daniel was born to a family of average wealth but married
into the landed aristocracy. He developed a strong attach-
ment to it and came to resist everything that threatened it.
McKinley disd in 1852, and Pierce appointed John Campbell

to the vacancy. Campbell was very similar in background

33

and outlook to Taney. He had also been born into a wealthy
planter family, and'like Taney, he had manumitted the slaves
he inherited. He was a much younger man than Taney, and when
the Civil War broke out he left the Court to aid his section.
On the other hand only McLean survived from the four
Northern circuits. Following Thompson's death in 1843
Samuel Nelson was raised to the Court from the Chief-Justice-
ship of the New Yerk Supreme Court by Tyler. Baldwin died
in 1844, and Polk appointed Robert Grier of Pennsylvania to
the vacancy. Story died in 1845 and the New England circuit
which he had represented for so long was given to Levi
Woodbury of New Hampshire. Woodbury died in 1851, and
Fillmore appointed Benjamin Curtis, a Whig lawyer from
Boston, to the vacancy. With the exception of Curtis all of
these replacements were Democrats. Table l classifies by

party and section the justices of the Taney Court.

34

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CHAPTER IV
THE DEFENSE OF SLAVERY

As Chief Justice, Taney assumed the Southern poSition
in every important case relating to the domestic institution
of slavery. Taney had no desire to extend slavery into
states which opposed it. But he believed that property
rights to slaves in states which wished to retain the instié
tution should be protected. Where this required local control
Taney defended states' rights. Where it required national
control Taney advocated federal supremacy.

One of the most troublesome of the slavery problems
was that relating to slaves who escaped from their masters
and fled northward. In 1842 the Court was forced to define
the permissible extent of state authority over fugitive
slaves. The immediate question before the Court in Priggs
versus Pennsylvania33 was the constitutionality of a Pennsyl-
vania statute which had become a means of defeating any
attempt to recover fugitive slaves in the state under the

federal Fugitive Slave Law. Section D of Article 4 of the

 

3316 Peters, 539 (1842).

35

36

Constitution provides that fugitives from the laws of one
state that escape into another state "shall be delivered up,
on claim of the party to whom service or labor may be due."
This clause was assented to by the framers in response to
the demands of the slaveholders for a specific guarantee of
their right to have fugitive slaves returned from other
states. The federal Fugitive Slave Law had been passed to
give effect to this provision.

Justice Baldwin believed that the constitutional
provision was so complete in itself that all state or federal
legislation on the matter was unnecessary. The rest of the
Court agreed that legislative enactment was essential to
enforce the provision, and that Congressional authority on
the subject was supreme over state authority.

This ruling supported the Southern position. It
prohibited the NOrthern states from interfering with the
rendition of fugitive slaves within their own borders. And
it was the only ruling that was necessary to resolve the
case. But in writing the opinion of the Court Story went
on to assert the exclusiveness of the national power over
fugitive slaves. Under this doctrine any state regulation
pertaining to the rendition of fugitive slaves was illegal,
even if in complete harmony with the intent of the Fugitive

Slave Law. There were not enough federal officers to enforce

37

the Fugitive Slave Law. Its effectiveness depended upon
the cooperation of state officers. The practical effect of
denying state officers the right to assist in enforcing the
measure would be to negate it.

Justice wayne wrote a concurring opinion in which he
specifically agreed with Story that the states could not aid
in the enforcement of the federal Fugitive Slave Law. McKinley
and Catron silently concurred with all points of Story's
decision. Justices McLean, Thompson, Daniel, and Taney
assented to the ruling that state laws in conflict with the
federal measure were void, but contended that the states
could pass supplementary legislation. Taney went on to
declare that the states were obligated to pass supplementary
legislation:

And the words of the article which direct that the
fugitive Vshall be delivered up,? seem evidently
designed to impose it as a duty upon the people
of the several states to pass laws to carry into
execution, in good faith, the compact into which
they thus solemly entered with each other.34
Taney thus believed that state legislation was legal, but
only if it reinforced the U. S. Constitution's provision
regarding fugitive slaves.

A second constitutional question relating to slavery

arose out of the determination of the South to isolate its

 

34
16 Peters, 628.

38

slaves from the presence of free Negroes. The South feared
that these persons would incite rebellions among the
slaves. This anxiety led South Carolina, Georgia, and
Louisiana to pass laws which forbade the entry of free
Negroes into their states. The constitutionality of these
laws was never challenged before the Supreme Court, but in
two separate cases the Court was forced to pass upon the
validity of laws closely analagous to them. Taney may well
have viewed these cases in terms of the right of the South
to safeguard itself against slave insurrection.

The first of these cases involved a New YOrk statute
designed to protect the state from foreign paupers by re-
quiring each vessel entering New York Harbor to report the
age, health, and other data pertaining to its passengers.

This statute was challenged in New York versus Miln (1837)35

 

on the grounds that it interferred with Congressional authority
over commerce.

Taney assented to the position of the majority of
the Court. Speaking for the Court, Barbour discussed the
costs which streams of immigrants lacking means of support
imposed upon New York. The Court was impressed with an
obvious need for regulation to ease the burden on the state.

Deeming the problem of foreign pauperism to be critical to

 

3511 Peters, 102 (1837).

39

the welfare of the state, the Court ruled that the subject
was more properly a matter of police than commerce regulation.
Therefore, it resided within the powers belonging to the
state:
New York, from her particular situation, is, perhaps,
more than any other city in the Union, exposed to the
evil of thousands of foreign emigrants arriving there,
and the consequent danger of her citizens being
subjected to a heavy charge in the maintenance of
those who are poor. It is the duty of the State to
protect its citizens from this evil; they have
endeavored to do so, by passing, amongst other things,
the section of the law in question. We should, upon
principle, say that it had a right to do 30.36

Certainly this ruling upholds the right of a state
to deny entry to aclass of persons deemed undesirable by
it. The lone dissent was registered by Justice Story.

The Passenger Cases37 of 1849 were similar in many
respects to New York versus Miln. They involved attempts
by New York and Boston to tax foreign immigrants arriving
in their ports. These immigrants commonly became public
charges, and ostensibly the money raised by the statutes
was to be used to assume these costs. The laws were

challenged on the grounds that they infringed upon Congressional

treaty-making and commerce authority.

 

36II Peters, 141.

377 Howard, 283 (1849).

40

In their arguments before the Supreme Court the
state counsels, Martin Van Buren for New York and John
Davis for Massachusetts, cited the similarities between the
laws in question and the laws of Southern states regulating
the admission of free Negroes. For example, John Davis
asked, if Massachusetts cannot exclude immigrants likely
to become paupers, ”on what principle can the laws expelling
or forbidding the introduction of free Negroes be sustained?"38

In the opinion of the Court the statutes were void.
McLean and Wayne held that any imposition upon passengers was
a regulation of commerce. McLean defended the Whig position
that all matters relating to commerce were denied to the
states. Wayne found but one exception to this principle:
states which recognized slavery could exclude free Negroes.
On these grounds they ruled that the state laws in question
were illegal.”

Catron, McKinley, and Grier joined with MeLean and
Wayne to void the contested statutes, but they avoided the
broad question of whether a state could ever regulate immi-
grants. They ruled that in these particular cases the taxes
were regulations of commerce, not police measures. They
found that the legislatures had been less concerned with the

costs of supporting immigrants than with excluding them for

 

38Charles Warren, The Supreme Court in United States
History (Boston, 1922), II, p. 455.

41

entirely different reasons. Furthermore, some of the revenue
derived from the statutes was to be distributed to institutions
not directly related to the immigrant problem. As acts to
regulate commerce the statutes were unconstitutional

because they were in direct conflict with existing federal
measures and commercial treaties. Sidestepping the question

of federal exclusiveness in the regulation of commerce, they
presumably believed that under certain circumstances a state
tax on immigrants could be a legitimate exercise of the

police power.

Taney, Daniel, Woodbury, and Nelson dissented from
the opinion of the Court. They maintained that immigrants
must be regarded as persons, not as subjects of commerce.
Therefore the states possessed broad powers over immigrants.
Taney argued that the Court should exercise restraint in
reviewing state laws passed as health or security measures:

And it must, therefore, rest with the State to deter-
mine whether any particular class or description of
persons are likely to_produce discontent or insurrection
in its territory or to taint the morals of its citizens
or to bring among them contagious diseases, or the

evils and burdens of a numerous pauper population . . .
and to remove from among their people and to prevent
from entering the State, any person or class of

persons, whom it may deem dangerous or injurious to
the interests of its citizens.39

 

97 Howard, 467. The underscoring is mine.

42

The words underscored clearly suggest the probable relation-
ship in Taney's mind between the right of a state to control
the entry of undesirables in general, and its right to exclude
free Negroes.

The final slavery problems to confront the Taney
Court involved the right to hold slaves in the territories.
Taney did not favor the extension of slaverpr rigs, but he
did fear that if the free-soil section of the country was
allowed to become disproportionately powerful enough to
dominate the South it would show no respect for Southern
slavery interests. By the terms of the Missouri Compromise
of 1820 slavery was prohibited in the Louisiana Purchase
north of the parallel 36°30'. In Dred Scott versus Sandford4O
Taney declared the Compromise to be unconstitutional.

The case of the Negro Dred Scott began inauspiciously.
It originated in a lower court of Missouri, where in 1846
Scott brought suit for his freedom against the widow of his
deceased master. A number of years previously he had, as a
slave, accompanied the master, Dr. John Emerson, to Rock

Island in Illinois, and also to Fort Snelling, in present-

day Minnesota. Illinois was free-soil by state law and the

 

4019 Howard, 393 (1856).

43

Northwest Territories Ordinance of 1787. Fort Snelling was
considered free—soil by the terms of the Missouri Compromise.
After four years of residency in the North, Scott was
returned to the slave-state of Missouri. Here he continued
to be held as a slave by Emerson, and then following his
death, by the widow. He brought suit on the grounds that by
virtue of Illinois law, the NOrthwest Territories Ordinance
of 1787, and the Missouri Compromise he had been a free man
while residing in the North, and still retained this status.

In 1852 the Missouri Supreme Court ruled that what-
ever Scott's status had been while he resided in the North,
he automatically subjected himself to Missouri law once he
voluntarily returned to that state. An anti-slavery interest
appealed this decision through the federal court system up
to the United States Supreme Court. In March, 1857, Taney
delivered the formal decision.

Taney ruled that Scott could not sue in federal court
because he was not a citizen of the United States. To be
included under the term ficitizen of the United States? a
native-born individual had to belong to a class of persons
who were recognized as citizens of the several states at the
time of the adoption of the Constitution. And Taney showed

in a lengthy historical narrative that Negroes had not then

44

been acknowledged as citizens.41 If he had stopped here the
case would have attracted little attention. But he went on
to review Scott's claim to freedom based on residency in
land declared free-soil by the Missouri Compromise.

Taney first averred that Congressional authority
over the existing territories was not the power toflmake
all needful rules and regulations? seemingly spelled out by
Article IV of the Constitution. This clause, he explained,
had been intended to apply only to the lands which the federal
government would receive from the confederated states. To
prove this he presented a discourse tracing the history of
the original territory and the Constitutional clause in
question.4

There was no express definition of the power which
Congress might exercise over citizens in territories acquired
under its authority to erect new states. Therefore, reasoned
Taney, the Court had to 100k to the general principles of
the Constitution for its powers of regulation here. Under
these principles Congress was prohibited from interfering
with the ennumerated rights of person and property. It

could not, for instance, establish a religion in the

 

4119 Howard, 404-427.

4219 waard, 432-445.

45

territories, deny settlers trial by jury, or force them to
quarter troops in their homes. Neither could it arbitrarily
deprive settlers of their personal property. And under

the Constitution slaves were a form of property. Upon

these considerations Taney declared the Missouri Compromise
unconstitutional.

Curtis presented the ablest dissent from the decision
of the Court. He acknowledged that Congress could not
deprive a citizen of his property in the territories without
due process of law. But he reasoned that an act barring
slavery from the territories could not possibly impair a
citizen's right to his property because slaves were not
property except where positively protected by law. As soon
as the master removed his slaves from a slave-state he lost
all rights of property in them.44 Therefore, the Missouri
Compromise had been constitutional, and under its terms
Scott had been free while he resided at Fort Snelling.

Curtis' argument on the vital territorial question

was no more conclusive than Taney's. Disagreement centered

upon the abstract question of whether or not slavery was

contrary to natural law and required the protection of

 

4319 Howard, 450—452.

4419 Howard, 624-625.

46

municipal law to exist. Each perceived natural law in
terms of its ability to substantiate his personal viewpoint
on slavery in the territories.

MbLean agreed with Curtis on the constitutionality
of the Missouri Compromise, while Grier, Wayne, Campbell,
Catron, and Daniel concurred with Taney's ruling that it was
unconstitutional. Significantly, Taney's reasoning on the
territorial question was not entirely convincing even to some
of the justices who shared his conclusion. Catron found
Congress to be vested with much broader powers over the
territories than Taney had visualized. His basis for declaring
the Compromise unconstitutional were the terms of the Louisiana
Purchase. The third article of the purchase agreement pro-
vided that until the inhabitants of the ceded territory could
be made citizens of the United States they should be pro-
tected in the Ffree enjoyment of their liberty, property,
and religion.” Slaves were a lawful form of property in the
old province of Louisiana. And its inhabitants could not
become United States citizens until states were carved from
the area.45 Therefore, said Catron, it had been unconsti-

tutional for Congress to interfere with slavery in the area.

 

4519 waard, 524-525.

47

In Campbell's opinion Congress possessed no juris-
diction in the territories which it did not possess in the
Union. And he pointed out that Congress could do nothing to
destroy the bond between master and slave within the limits
of the Union.46

Daniel saw that the power of regulation in the
territories had been given to Congress as a trust for all
of the people of the United States. It would be a breach
of that trust to give one class of citizens, such as
Northern free-farmers, a special advantage in the territories.47

In a large number of cases, it seems, ranging from
questions of state authority over immigrants and fugitive
slaves to the power of Congress in the territories, Taney
placed the power of judicial decision-making on the side
of slavery. But defense of this ingredient of an older
agrarian way of life was not the only set of values which

he was prepared to defend.

 

4619 Howard, 515-517.

4719 Howard, 489-490.

CHAPTER V
THE PROMOTION OF COMPETITIVE ENTERPRISE

Taney's corporation decisions provided one necessary
foundation for the development of American business enter-
prise. Early corporation charters granted by the states
often contained exclusive privileges. It had been the
(principle of the Marshall Court to scrupulously uphold these

privileges. As Chief Justice, Taney almost immediately

7"”. 4'

established a principle by which these old corporations could

be divested of many advantages which precluded the entry of

new enterprise. At the same time Taney favored corporate

/

claims which were divorced from special privilege or ir-

responsible banking procedures. His voting responses in

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corporation cases relate to a desire to expand business

enterprise, not to limit it in the way that many agrarians

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Significantly, the first decision which Taney wrote
as Chief Justice represents a major step forward in freeing
business enterprise from the old corporate monopolies. The

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origins of Charles River Bridge versus Warren Bridge dated

 

48
11 Peters, 420 (1837).

48

49

back to the early history of Massachusetts state. In 1785
the Charles River Bridge Company was chartered by the state
legislature to erect a bridge across the Charles River from
Charlestown to Boston. The Company was authorized to collect
tolls on the bridge for forty years, at the end of which time
it would revert to the state. The bridge was completed in
the following year. In 1792 the state chartered another
bridge across the Charles, at Cambridge, and placated the
Charles River Bridge Company by extending its charter to
seventy years.

As the population of Boston increased the public
began protesting the continued payment of tolls after the
original investment had been paid off several times. In
1828 Massachusetts chartered the Warren Bridge, which was
to revert to the state as soon as its original investment
was paid off. It was so close to the Charles River Bridge
that after it became free a few years later, it practically
deprived the original bridge of any revenues. The Charles
River Bridge Company sought an injunction against the new
bridge from the Massachusetts courts, and then from the
United States Supreme Court, on the grounds that in destroying
the value of its franchise the state had committed a breach

of contract.

50

This request appeared to be in line with Marshall' 3

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that if state charters were allowed to carry implied contracts:
we shall be thrown back to the improvements of the
last century, and obliged to stand still, until the
claims of the old turnpike corporations shall be
satisfied, and they shall consent to permit these
States to avail themselves of the lights of modern
science, and to partake of the benefits of those
improvements which are now adding to the wealth and
prosperity, and the convenience and comfort of every
other part of the civilized world.50

 

49Dartmouth College v. Woodward, 4 Wheaton, 625 (1819).

50II Peters, 553.

51

In words alarming to vested corporate interests

he pronounced the doctrine that as an obligor in a contract

‘- -c- - -vqa—r

a state was bound only to those obligations which it had

. .n. a-r—

I”; u
“rl~'"q"‘m

expressly made. Taney turned to the English common law for
precedents. He relied largely on a clause from the decision

J ....—.ow-“~ "F‘
W.

in Stourbridge Canal versus Wheeley, a recent case involving

MHrJr 4 I a .- --.- A- . ‘
-rv" 1.1 v 4

' rights granted to a canal by Parliament:

_/ This, like many other cases, is a bargain between a
_ I cofipéfiY"6f adventurers and the public, the“term9nof
( which are expressed in the statute; and the rule of
‘ construction in all such cases, is now fully estab-
lished to be this; that anyambiguity_in the terms

of the contract, must operate against the adVenturers,
: and_in favor of the public, and the plaintiffs can
@411 .‘claiglnothing that is not clearly given them by the

act.

Story, Thompson, and McLean dissented from Taney's

reasoning. In a lengthy opinion Story d1§puteduthelprincip1e

. --.n— ,1...“
.«.-V- e

.‘H ~-----

on implied rights which Teas! h§9_§99spts -H1§9 also examined
Stourbridge Canal versus Wheely, and found a critical clause_
which Taney had neglected to cite;

”a -
_ .—
~M-- "

now, it is quite certain, that the company has no
right expressly given to receive any compensation,
except & c.; and therefore it is incumbent uppn them
to show, that they have a right, c1ear1y,givenflbym»
‘inference from some other of the causes.52

 

512 Barn. & Ad01., 793.

522 Barn. & Adol., 793.

52

From this and a number of older English decisions Story

reached the opinion that a state could contract away rights

“M.--.. n-
._...-0"‘
I 9.4,

a... r
-M“"'"' ‘

by implication.) On this basis he defended the claim of the

 

‘Charles River Bridge Company:

Mew-'“ ‘In 1851 Taney utilized the principle of the Charles
River Bridge Case to open another area of enterprise to free
competition. The case of Richmond Railroad versus Louisa
Railroad53 arose out of the fierce railroad building competition
of the period. The Richmond, Fredericksburg, and Potomac
Railroad had been chartered by the Virginia legislature in

1834. The charter contained an express promise by the state
that with the completion of the line from Richmond to Washington
no other railroad would be chartered over Vany portion of the
said distance of the route, the effect of which would be to
diminish the number of passengers traveling between the

one city and the other" on its line. In 1836 the Louisa
Railroad Company was chartered to construct and operate a

line which would traverse some of the points on the Richmond
Railroad. This charter was challenged by the original rail-
road on the grounds that it would tend to reduce passengers

on its line in violation of a state obligation in its own

charter.

 

5313 Howard, 71 (1851).

53

Taney concurred with the majority of the Court in
upholding the new charter. The Court accepted the doctrine
that a state was expected to observe the express obligations
imposed upon it by legislative contracts, but nothing more,
as the basis for its judgment. It found the only express
obligation upon Virginia in the charter of the Richmond
Railroad to be the promise that no other railroad would be
allowed to carry passengers from Richmond to Washington, or
from Washington to Richmond. In its charter the Louisa
Railroad was specifically denied the right to transport
passengers the entire distance between these two cities.
Hence even though it did allow the new railroad company to
carry passengers from Richmond to other cities on the Richmond
.Railroad's line the charter was constitutional.54

To the three Whigs on the Court, McLean, Wayne, and
Curtis, the Court's interpretation of the charter clause was
not ”consistent with the substantial object of the parties,-
or with the language they have employed to make known their
agreement.9 In their opinion the practical object of the
clause was to prevent the Richmond Railroad from losing any

passengers to other lines, not just those passengers who

 

54l3 Heward, 82.

 

54

wished to travel the entire distance from Richmond to
Washington.55 Therefore, they argued in dissent, the
Louisa charter was unconstitutional.

In these cases involving claims of corporate privilege
the Southern Democrats on the Court voted as a bloc. But
they did not all necessarily perceive the fundamental question
involved to be the same. The suggestion here is that Taney

W

was opposing privileged business, while McKinley, Daniel,

‘.- -.L."

W-~m~« n—f, ”3,—0- ... .11-..’ - y<~

land Campbell were opposing all business, with the possible
exception of local banks. The breakdown of the voting of the
Court in cases involving the rights of corporations where
special privilege was not at issue seems to reflect this
dichotomy.

‘gggk g: Augusta versus Earle (1839)56 involved the
power of a corporation to make a contract outside of the
state in which it was chartered. The case arose out of the
refusal of debtors to pay bills of exchange purchased from
the Bank of Augusta, the Bank of the United States (then
existing under a Pennsylvania charter), and the Carrollton
Railroad Company. The bills had all been purchased in
Alabama, and the plaintiffs were all corporations of other

states. The debtors contended that they were not obligated

 

5513 Howard, 84.

5613 Peters, 519 (1839).

55

to pay because corporations could not conduct business out-
side of their home states. They argued that because cor-
porations are creatures of the law, they have no right to
existence beyond the limits of the state which chartered
them. This contention was upheld by Justice McKinley in
federal Circuit Court.

Fundamentally at issue in the case was the question
whether the American economy would be allowed to expand on
a broad base, or return to one of agrarian simplicity. The
full significance of the case was widely realized. Mbst of
the business community was distressed at the suggestion that
no business could be conducted across state lines. On the
other hand many of the forces which had backed Jackson in
the Bank War supported MbKinley's position. State-bank
men who were desirous of gaining the business of the Bank
of the United States favored it, as did the anti—corporation
wing of the Democrat Party. Van Buren's official organ, the

‘Washington Globe, praised MCKinley for his ”strikingly just

 

" . . 57
and proper. dec151on.
Speaking for the Court, Taney ruled that a corporation

could do business in any other state which had not expressly

 

57February 1, 1839, cited in Warren, p. 329.

56

denied entry to it. He agreed with MCKinley that a state
could prohibit or qualify the entry of a corporation of
another state, but held that a foreign corporation's right
to do business there would be assumed unless the state
expressly prohibited it.
MCKinley alone argued that all interstate business

was illegal. Whig newspapers hailed the repudiation
of his doctrine. The Madisonian (Washington, D.C.) said:

we are rejoiced that the march of agrarianism which

had reached the ermine, has been stayed by the

Supreme Court in the reversals, by that tribunal of

Judge McKinley, who is of the Globe and C. J.

Ingersoll School, in his hostility to banks. . .

The decision will give great satisfaction to the

business community at large.58

In the 1853 term Taney concurred with the majority

of the Court in acknowledging that a corporation was a
legal citizen. The narrow point at issue in the case of
Marshall versus the Baltimore and Ohio Railroad59 was
whether the plaintiff, a citizen of Virginia, could sue the
railroad company in federal court, the railroad being a
corporation chartered in Maryland. The Constitution specifies

that jurisdiction of the federal courts includes controversies

between citizens of different states. The plaintiff was

 

58March 13, 1839, cited in Warren, p. 333.

5916 Howard, 314 (1853).

57

allowed to bring suit against the railroad with the ruling
that a corporation was a legal citizen of the state which
had chartered it.

Taney's position here appears to qualify the rights
of corporations. Actually his response reflects his
favorable attitude towards corporations whenever they were
not claiming special privileges. With their recognition as
citizens, corporations received rights outside of the state
of their origin.

The decision of the Court was unacceptable to Catron,
Campbell, and Daniel. They had no objection to allowing a
corporation to be sued, but feared the broader implications
of corporate citizenship. Campbell's dissent reflects
agrarian anti-corporate intransigence.

It may be safely assumed that no offering could be
made to the wealthy, powerful, and ambitious
corporations of the populous and commercial States
of the Union so valuable, and none which would so
serve to enlarge the influence of these States, as
the adoption, to its full import, of the conclusion,
”that to all intents and purposes, for the objects
of their incorporation, these artificial persons are
capable of being treated as a citizen as much as a

natural person.f’60

Daniel's dissenting opinion voices the suspicion of the old

agrarian order that corporate enterprise could not produce

 

60l6 HOward, 353.

58

a superior society. In reference to the Court's recognition
of corporation citizenship he said:

Thus does it appear to me that this court has been led
on from dark to darker, until at present it is
environed and is beaconed onward by varying and deceptive
gleams, calculated to end in a deeper and more dense
obscurity. In dread of the precipices to which they
would conduct me, I am unwilling to trust myself to
these rambling lights: and if I cannot have reflected
upon my steps the bright and cheering day-spring of
the constitution, I feel bound nevertheless to remit
no effect to halt in what, to my apprehension, is the
path that terminates in ruin.61

 

6116 Howard, 345.

CHAPTER'VI
SOUND CURRENCY, HDNESTLY'EXCHANGED

While the Second Bank of the United States existed
as a restraint few state banks overextended themselves to
the point where the value of their notes were jeopardized.
Believing as he did in money of stable value, Taney might
well have sympathized with this function of central banking.
It is possible he did not understand the important role of
the Bank in this respect. Yet had he fully comprehended it,
it remains doubtful he would have approved the existence of
the institution. The nub of the difficulty was that the Bank
could not have performed the function of restraining the
issue of state banks without at the same time curtailing
their profit-making opportunities., From this dilemma there
could have been no easy exit. At any rate, following the
destruction of the Second Bank a flood of state banks
poured notes of doubtful value into circulation. As Chief
Justice, Taney sought to impose fiscal integrity on state
banks, both private and public.

One means by which banks could overextend themselves

and continue in operation was to refuse to accept their own

59

6O

bank-notes in payment of debts due them. In an attempt to
correct this practice Mississippi enacted a statute compelling
its state banks to accept their own notes. The Planters'

Bank of Mississippi found that it could circumvent the

measure by assigning bills payable to it to an agreeable
third party prior to the time the bills became payable.

This third party being under no obligation to receive payment
in the depreciated bank-notes of the Planters' Bank, the
debtor was forced to pay his bill in currency more valuable
than that which he had originally received for it.

In response to this practice Mississippi enacted a
law making it illegal for a state bank to transfer any note
or bill receivable. In its charter the Planters? Bank had
been given the right to discount bills and notes, and dispose

of its property to its best interest. In Planters? Bank 2;

 

Mississippi versus Sharps2 it argued that the state's
attempt to interfere with its right totransfer property
impaired a contract in its charter.

A majority of the Court held the Mississippi statute
to be unconstitutional. Taney and Daniel refused to accept
the decision, with Daniel delivering the dissent. Daniel

interpreted the bank's charter strictly and held that the

 

626 Howard, 301 (1848).

61

power to dispose of effects did not include the power to
assign notes. Furthermore, he considered it an established
right of a debtor to be able to pay off a promissory note
in the currency of the bank that held it. These principles,
he concluded, were sufficient to vindicate the Mississippi
legislation . . .

if legislation can need vindication or apology: the

purpose of which are to prevent, if possible, the

paper of these corporations, spread over the community

by them, from utterly perishing on the hands of the

note-holder, and to disappoint dishonest combinations

to set the public laws at defiance, and, further, to

oppress and ruin the note—holder by taking his property,

and leaving him the worthless and false and simulated

representatives of an equivalent.

Taney was less concerned with abstract principles

of states' rights than with preventing the holders of bank

notes from being defrauded. In Planters' Bank 9: Mississippi

 

versus Sharp Taney found it necessary to construe state
authority broadly to favor the note—holders of an irresponsible
bank. In WOodruff versus Trapnell (1850)64 on the other hand,
he construed state authority narrowly to defend the claim of
a note—holder.

The Bank of Arkansas had been chartered in 1836 as
a public corporation in which the state was the sole stock-

holder. Its charter carried a promise by the state that

 

636 H0ward, 343.

6410 H0ward, 190 (1850).

62

"bills and notes of said institution shall be received in

all payments of debts due to the state of Arkansas.” This
section of the charter was repealed in 1845, shortly before
the bank failed. In Woodruff versus Trapnell the Court was
faced with the question whether the refusal of the state to
accept payment in bank notes that had been in circulation
previous to the repeal was a violation of the contract clause
of the Constitution.

William E. WOodruff was the state treasurer of
Arkansas from 1836 through 1838. In this official capacity
he received large sums of money from the secretary of the
treasury of the United States. Allegedly he did not turn
all of these funds over to the state. In 1847 judgment was
reached against him for $3,359 and costs. The case arose out
of his attempt to pay the judgment in notes of the then
insolvent Bank of Arkansas, notes which had been issued prior
to 1845.

Taney concurred in the judgment of the Court.
Speaking for the Court, McLean ruled that Arkansas' pledge
to the holders of the notes at issue was a binding contract.
On this basis the state was directed to accept payment from
woodruff in the disputed bank notes.

Justices Catron, Daniel, Grier, and Nelson dissented

in favor of the state's position. The dissenters founded

63

their construction upon a judgment that the statefs guarantee
to accept the notes of the bank had not been a contract, but
a gratuitous offer.

In 1853 the ill—fated Bank of Arkansas was involved

0 O I I 65
in another important dec131on. In Curran versus Arkansas

 

the Court was forced to decide on the constitutionality of
state acts interfering with creditor claims on the assets
of the insolvent bank. The case arose out of state laws
passed to settle the affairs of the bank. At the time that
the doors of the bank were closed to creditors it possessed
over one million dollars worth of assets, including ninety
thousand dollars in Specie. By an old state law the
corporation was required to distribute these assets to its
creditors. The plaintiff in the case was one of these
creditors.

The Arkansas legislature settled the affairs of the
bank in a series of acts from 1843 through 1846. Two of
these acts appropriated its specie to pay the legislature.
A third transferred to the state titles of property received
on debts due to the bank. In his suit Curran demanded
that his claim against the bank be satisfied out of the

assets which had been taken by the state. The case was

 

6515 HOward, 304 (1853).

64

brought before the United States Supreme Court on appeal from
the Arkansas Supreme Court, the state tribunal having ruled
against Curran.

Again Taney limited the authority of the state in
order to uphold theclaim of a note-holder. With Taney's
concurrence the Court ruled that Arkansas had impaired an
obligation of the plaintiff's contract with the bank.
Speaking for the Court, Curtis reasoned that the state had
provided capital for the bank in the character of a stock-
holder, just as if it had been a private individual. When
the bank became insolvent the state could not change its
character to that of a creditor any more than an individual
might. On the basis of state law the plaintiff had reason
to expect that if the bank became insolvent its assets would
become a fund for the payment of its debts. He had parted
with his property with this understanding. Therefore,
reasoned the Court, the state had impaired a contractual
obligation existent in the bills of the bank by requiring
the bank to distribute its assets to its stockholders rather
than its creditors.

Justices Catron, Daniel, and Nelson dissented from
the opinion of the Court. Without developing their

reasoning they held that the state was a legitimate creditor

65

of the bank. Perhaps, they admitted, the state had distri-
buted the assets of the bank unfairly among the creditors,

but this charge could not be reviewed by the United States

Supreme Court.

In opposing attempts of banks and states to circum-
vent their promises to pay Taney helped provide a legal
buttressing for jrules of the game? in the absence of which
it would have been next to impossible for business or any
other enterprise to Fplay.9 He helped make it clear that
law would not condone violations of promises to pay.
Certainly this increased the degree of security enjoyed by
men in their commercial dealings with each other, and with
states and state-chartered corporations. It is difficult
not to believe that this increased sense of security
contributed significantly to the mushroom growth of

business enterprise.

CHAPTER VII
CONCLUSION

A leading figure in an acute age of transition,
with one foot in the old order and one in the new, Taney's
judicial responses reflect the attitudes of both. While
Southern agrarianism is evidenced in his decisions relating
to slavery, he at the samewtimewutilized the authority of -

Mw_

the Court to defend economic egalitarianism;

9%.- _.
p..- 'NCd—‘w-l ‘V. “q.“ y-«m

_ -. m
4"" ° -I-——.__._._._,_,,’ mx
--—~.,.,_. ,,._¢..:
M’— “- nun-n...»- . .vud'

Taney's death in 1864 coincided with that of the Old
South he loved. But he is not-a tragic figure in the sense
that Calhoun is. All that he struggled for did not perish

in the Civil War. His opposition to economic privilege and

www-

 

 

 

Wm», M
his defense of essential corporate rights and stable currency

._ _ w , ' - ~ ‘ JAMW~Ivi~A~V—a ..
" - " .- ~'... “m.
_ _..,

were vital to the development of American business.

.- - u- 7
N.‘ _._- _ ‘ .

66

LIST OF WORKS CONSULTED

United States Supreme Court Reports

Bank of Augusta v. Earle, 13 Peters, 519 (1839).

Charles River Bridge v. Warren Bridge, 11 Peters, 257 (1837).
Curran v. Arkansas, 15 Haward, 304 (1853).

Dartmouth College v. Wbodward, 4 Wheaton, 625 (1819).

Dred Scott v. Sandford, l9 HOward, 393 (1857).:

Marshall v. Baltimore and Ohio Railroad, l6 waard, 314 (1853).
New Ybrk v. Miln, ll Peters, 102 (1837).

Passenger Cases, 7 waard, 283 (1848).

Planters' Bank of Mississippi v. Sharp, 6 H6ward, 301 (1845).
Prigg v. Pennsylvania, 16 Peters, 539 (1842).

Richmond, Fredericksburg, and Potomac Railroad v. Louisa
Railroad, 13 Howard, 71 (1851).

Woodruff v. Trapnell, 10 Edward, 190 (1850).

 

Manuscripts

Franklin Pierce MSS., Library of Congress.

67

68

Books and Periodicals

"Chief Justice Taney in Relation to the Dred Scott Case.”

Letters to the editor, Centurngagazine, XXVI (1883),
957-958.

Crowl, Philip A. rMaryland During and after the Revolution:
A Political and Economic Study,9 Johns prkins
University Studies in Historical and Political
Science, LXI (1943), I-185.

 

Hammond, Bray. Banks and Politics in America from the
Revolution to the Civil War. Princeton, 1957.

Jameson, J. Frank (ed.). FCorrespondence of John C.
Calhoun,? Annual Report of the American Historical
Association for the Year 1899, 2 vols. Washington,
1900.

Richardson, James D. (ed.). A Compilation of the Messages
and Papers of the Presidents, 1789-1897. 11 vols.
Washington, 1896-1899.

Roddy, Edward G. 9Maryland and the Presidential Election
of 1800,? Maryland Historical Magazine, LVI (1961),
221-278.

Rodell, Fred. Nine Men; A Political History of the Supreme
Court from 1790 to 1855. New YOrk, 1955.

Smith, Charles W. Roger B. Taney: Jacksonian Jurist.
Chapel Hill, 1936.

Taney, Roger B. A letter from Taney to the Reverend Samuel
Nott, August 19, 1857, Massachusetts Historical
Society Proceedings, XII (1873), 445-447.

 

Tyler, Samuel. Memoir of Roger B. Taney, LL.D. Baltimore,
1872.

Warren, Charles. The Supreme Court in United States History.
3 vols. Boston, 1922.

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