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MEMOIR 
 
 OF 
 
 Roger Brooke Taney, LL.D. 
 
 C^wf lustkt of t\}t Sapwrnt $,anxt of llje ffiitittb Stales. 
 
 By SAMUEL TYLER, LL.D. 
 
 ,, OPTHEMARYLANDBAR. 
 
 Qm nihil in vitd nisi laudandum, aut fecit, aut dixit, aut sensit. 
 
 BALTIMOEE: 
 
 Published by John Mtjephy & Co. 
 
 182 Baltimore Street. 
 
 1872. 
 
I- 
 
 3 ^ ^^ 
 
 % 
 
 Entered, accot\diiig to Act of Congress, in the year 1872, by 
 
 JOHN MURPHY, 
 
 in the OflBce of the Librarian of Congress, at Washington. 
 
 (^o^CB 
 
 JOHN MURPHY h CO., 
 
 PRINTBRS AND PUDUSHERBj 
 
 BALTIMORS. 
 
TO THE 
 
 How. Richard H. Marshall, 
 
 AND 
 
 Hon. James M. Coale, 
 
 OF THE Frederick Bar. 
 
 Gentlemen: 
 
 Because of ouk fbiendship kunnino thkouqh so many yeaks, 
 and the fact that tou have signalized youk veneration foe the 
 Memory of Chief Justice Taney, by erectinq, with the permission 
 
 OF HIS FAMILY, A MONUMENT OVER HIS GRAVE, I INSCRIBE THIS MbMOIR 
 
 to you. Yours, faithfully, 
 
 , SAMUEL TYLER. 
 
 Mat, 1872. v 
 
 Frederick City, * 
 
 Mahyland 
 
PREFACE. 
 
 ABOUT two years before the death of Chief-Justice Taney,* 
 in a conversation with him on the Lives of the Chief 
 Justices of England, by Lord Campbell, he expressed a wish 
 that I would write his life. It was accordingly agreed 
 between us that I would do so; though I was fully aware 
 of the difficulty and the delicacy of the undertaking. And 
 how, almost entirely, I have had to rely upon my own re- 
 sources for the materials of the life, will ajjpear by the follow- 
 ing letters from Mr. Campbell, the son-in-law of the Chief 
 Justice, and a distinguished member of the Baltimore Bar. 
 
 Baltimoke, JSfovember 4, 1864. 
 My DkjVR Sie : 
 
 I this morning received your favor of the 3d. It gives me and tlie family- 
 great satisfaction to learn that you intend writing the Chief Justice's life, and 
 have been for some time making collections with that view. I shall be very 
 happy to contribute any information to you which I possess. I do not know 
 whether you have ever seen Van Santvoord's Lives of the American Chief 
 Justices. The volume was published by Scribner, of New York, in 1854. 
 Many of the facts in it, and particularly those relating to his English ances- 
 tors, were communicated to the author by me, ex relatione of the Chief Justice. 
 Van Santvoord says that the name Taney is of Welsh extraction, but I think 
 that a mistake. There is a church known as Taney in Ireland, and I think 
 in the county Dublin ; and the name appears in the Rolls of Letters Patent 
 and Closed in the years 1203 and 1221, published by the English Record 
 Commission. I have a copy of a pedigree of the Brookes beginning in 1602 
 and ending in 1717. It records the aspect of the Planets at the time of the 
 births of several of the children. If you think it would be worth while, I 
 will send you a copy. I will also send Van Santvoord's book, if you have 
 not got it. 
 
 Great men have often simple tastes, and the Chief Justice was no excep- 
 tion. He was passionately fond of flowers, and always thought well of one 
 who liked them. 
 
 Yours, very truly, J. MASON CAMPBELL. 
 
 Samuel Tylee, Esq., Frederick City, Md. 
 
 * Taney is pronouuced Taicnt/. 
 
X Pbeface. 
 
 Baltimore, November 29, 1864. 
 My Deae Sib : 
 
 I received your letter of the 26tli, and to-day send you the Lives of the 
 Chief Justices. 
 
 The Chief Justice kept no copies of the letters he wrote, and, with very 
 few exceptions, destroyed all he received. I have not yet examined his pri- 
 vate papers, of which he left very few, but have no idea that any which he 
 did leave would be of any service to his biographer. The Supplement 
 which he wrote to the Dred Scott case was copied by Mr. William J. Stone 
 of Washington, and sent to Bishop Hopkins, to be used by him in his then 
 forthcoming work on Slavery. He made no use of it that I am aware, and 
 would no doubt return it to Mr. Stone on his application. 
 
 I will send you a copy of the Brooke pedigree, and I will also send you a 
 copy of a protest which he addressed to Secretary Chase, against the taxation 
 of the salaries of the Judges of the Supreme Court. Although the other 
 Judges did not unite with him in it, it received their approbation so far, at 
 least, that they directed it to be recorded on the minutes of the Court. I 
 shall bear in mind the necessity of furnishing you with everything available 
 for your work, which I am glad to know is in such fit hands. 
 
 Yours, very truly, J. MASON CAMPBELL. 
 
 Samuel Tylek, Esq. 
 
 With the small aid furnished by Mr. Campbell, my long 
 intimacy with the Chief Justice enabled me to inquire at the 
 projier sources for the information which I have given in the 
 Memoir. It is all perfectly authentic. I spared no pains in 
 verifying everything. To vindicate one who had been so 
 misrepresented, so hated, even after he had gone to his grave, 
 has necessarily imposed upon his biographer the duty of 
 dealing somewhat harshly with his political enemies. I have 
 forborne to speak of some public men, who deserve censure, 
 because I feel that I have sufficiently vindicated the character 
 of the Chief Justice without doing so. 
 
 Get but the truth once uttered, and 'tis like 
 A star new born, that drops into its place, 
 And which, once circling in its placid round. 
 Not all the tumult of the earth can shake. 
 
 N0TE.-Th6 engraved likeness of the Chief Justice, in this volume, is a perfect representa- 
 tion of him m his eighty-fltth year. It was thought best to represent him as a private citizen 
 as he appeared every day. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 Eaely Life and Education, written by Mr. Taney himself. — A.D. 1777-1801. 
 
 Reasons for writing his own life — His father, Micliael Taney — The Home- 
 stead in Calvert County — Hia forefathers on his father's side — They were Ro- 
 man CathoUcs — The disabilities of Roman Catholics in Maryland, under William 
 and Mary — Poor schools — His father educated at St. Omer's and at Bruges, 
 Jesuit Colleges in France — Returns home before the American Revolution — Mar- 
 ries the daughter of Roger Brooke, a wealthy farmer on Battel Creek — Roger 
 Brooke's genealogy given according to the superstition of Astrology — His mo- 
 ther — He goes to a school when eight years old — The queer teacher — The 
 Bible and Dil worth's spelling-book the only books — The illiterate condition of 
 the people — Barring the teacher out of school — Goes to another school — The 
 teacher imagines himself a disembodied spirit ; is drowned attempting to walk 
 over the river more than two miles wide — David English becomes tutor in the 
 family — Goes to Dickinson College — An assiduous and successful student — 
 Graduates with high honors, 1795 — Specimen of an acrostic on his own name, by 
 a teacher who wrote a geography in rhyme — His college friends — The election 
 of Mr. Taney by the students to a literary honor — Delivers an oration — His view 
 of the rewards of ambition — Returns home in the Fall of 1795 — The state of 
 society — Fox-hunting a chief amusement — The hunters breakfast on hominy, 
 bacon, and egg-nogg — Himself a fox-hunter — In 1796, begins the study of law 
 at Annapolis — The General Court — Its jurisdiction — The able judges — The 
 able bar — His studies — Objects to Moot Courts — His fellow-students — The 
 leaders of the Maryland Bar ; Martin, Pinkney, Johnson, Key, Mason, Shaaf, 
 Harper, and others — Portraits of Martin and Pinkney — Pinkney the greatest 
 advocate he ever heard — Admitted to the bar in 1799 — His first case in the 
 Mayor's Court of Annapolis — Very much embarrassed — His constitutional 
 sensibility and melancholy — Elected to the Legislature — The mode of con- 
 ducting the election — Death of General Washington — The deep impression 
 made on the Legislature — Returns home — His love of the country — Love of 
 the romantic — Candidate for re-election to the Legislature — Is defeated — The 
 reasons for his defeat — Takes up his residence in Frederick — His first speech 
 in Court there 17-95 
 
xii Contents. 
 
 CHAPTER II. 
 
 Life in Fkedekick. — A. D. 1801-1823. 
 
 Description of Frederick — The business of the place — The refined soci- 
 ety — Thomas Johnson, upon whose nomination General Washington was 
 chosen Commander-in-Chief of the American forces — The kind of law busi- 
 ness in Frederick — His diligence as a student — His studies miscellaneous — 
 A candidate, on the Federal ticket, for the Legislature — Is defeated — Marries 
 Miss Key, the sister of the author of " The Star-Spangled Banner " — The 
 romantic residence where Miss Key was born — The charming mode of life on 
 Maryland Plantations — Happily married — He aiEliated with society in all 
 its relations — Trustee of the Academy — Director of a Bank — His punctuality 
 in the discharge of duties — His festive relaxations on the shady banks of the 
 Monocaoy — Fond of excursions on horseback — In the summer at Arcadia, the 
 residence of Mr. Shaaf — Mrs. Taney participates in his love of nature — Coun- 
 sel for General Wilkinson — Refuses to receive a fee for defending the General — 
 The war of 1812 — Against the declaration of war — After war is declared, sup- 
 ports it with zeal — Denounced by a portion of the Federal party — Alienated 
 from Mr. Thomas — Their reconciliation at the death-bed of Mr. Thomas — The 
 history of the origin of " Star-Spangled Banner " — Nominated for a seat in the 
 House of Representatives — Is defeated — His spirit of toleration of difference 
 of opinion — Elected to the Senate of Maryland — Serves with distinction — An 
 amusing anecdote of Mr. Martin and Mr. Taney — Mr. Martin, Mr. Taney, and 
 Mr. Shaaf in a great ejectment cause — Defends the Rev. Mr. Gruber charged 
 with attempting to incite slaves to insurrection — His speech — The impartiality 
 of the administration of law in Maryland — A Marylander murdered in Penn- 
 sylvania in attempting to recover by law his fugitive slave — A gentleman mur- 
 dered by his slaves in Frederick County — The slaves receive a fair trial at law — 
 Mr. Taney attains such eminence, that he argues causes, from every county in 
 the State, in the Court of Appeals — His training as a lawyer — His skill and 
 manner in the trial of causes — Always advises amicable adjustment of dis- 
 putes — His marked deference to the Bench and courtesy to the Bar — Anec- 
 dotes of Mr. Eoss and Mr. Palmer — His character as a lawyer, by Mr. Schley 
 of Baltimore — The death of William Pinkney — Mr. Randolph's speech in the 
 Senate of the United States on the occasion — Chief-Justice Marshall's opinion 
 of Mr. Pinkney — Mr. Walter Jones's opinion — The last days of Mr. Martin — 
 The grave of Mr. Taney's mother, at Frederick — His pious devotions — Re- 
 quest that he shall be buried by the side of his mother, whenever he dies. 
 
 96-143 
 
 CHAPTER III. 
 
 Life in B.^ltimore.- A. D. 1823-1836. 
 
 Takes up his residence in Baltimore — The origin and character of the 
 Federal Government — The history of its working — The origin and history 
 of the two great political parties traced through every administration down 
 to the election of General Jackson- The policy and principles of the two par- 
 ties — Many of the great stiitesmen as they appeared as actors on the politi- 
 
Contents. xiii 
 
 cal stage — The great measures of the different administrations — General 
 Jackson's correspondence with Mr. Monroe — The Virginia resolutions — Mr. 
 Wirt — An amusing anecdote of the Duke of Saxe-Weimar and Mr. Taney — 
 Mr. Taney's eminence as a lawyer — Is leader of the Maryland Bar — Letter 
 from Mr. Wirt to Mr. Taney — Appointed Attorney - General of Maryland — 
 James Dixon, one of his deputies — The trial of Markley for murder — Mr. Dix- 
 on's speech — General Jackson's administration — Mr. Taney appointed jittor- 
 ney-General of the United States — The reason for his selection — He accepts 
 reluctantly — Letters from Mr. Key t^ him giving conversations with General 
 Js.ckson, and with members of the Cabinet — Mr. Livingston's letter informing 
 Mr. Taney of his appointment — Mr. Taney's answer — The issues presented at 
 General Jackson's election — The policy of his administration — Mr. Taney be- 
 comes a member of the Cabinet to support this policy — Jackson's inaugural — 
 His first annual message — The Bank of the United States — The veto of the 
 Maysville Road Bill — Nullification — Jackson's celebrated toast — Jackson 
 vetoes the bill for rechartering the Bank of the United States — Mr. Taney aids 
 in preparing the message — General Jackson's re-election — His first message — 
 Nullification — The Proclamation against South Carolina — The history of its 
 preparation — Jackson repudiates some of its principles — Mr. Taney never saw 
 it until it was in print — His opinion of its principles — The compromise bill of 
 Mr. Clay — Nullification at an end — Mr. Calhoun's doctrines — Is the most 
 trusted friend of Jackson — Is appointed Secretary of the Treasury — The Bank 
 of the United States — A full history of the contest between it and the Execu- 
 tive department — Mr. Taney, the great actor in the matter — Correspondence 
 between Mr. Taney and General Jackson — Many new facts disclosed — The 
 "Cabinet Paper" written by Mr. Taney — Mr. Taney baffles the Senate by his 
 Report to their inquiries — The Bank of the United States perishes — Its last 
 end — Mr. Taney rej ected by the Senate as Secretary of the Treasury — The cor- 
 respondence between him and General Jackson — Returns to Baltimore — Great 
 demonstration of citizens — At a public dinner — Mr. Van Buren's letter and 
 toast — Public dinner at Frederick — His speech — Public dinner at ELkton— Re- 
 proves Mr. Webster with great severity in his speech — Is nominated as an Associ- 
 ate Justice of the Supreme Court of the United States — Chief- Justice Marshall 
 favors his confirmation in a letter to a Senator — Is rejected — His opposition 
 against his own party in two important matters in the State of Maryland. 
 
 144-248 
 
 CHAPTER IV. 
 
 Judicial Life. — A. D. 1836-1856. 
 
 Appointed Chief Justice of the Supreme Court of the United States — 
 Letters of congratulation — The character of the Court as a co-ordinate de- 
 partment of the Federal Government— Its jurisdiction, and the various classes 
 of cases belonging to it — His qualifications for the office — His predecessors, 
 Jay, Rutledge, Ellsworth, and Marshall — Their respective views of the Consti- 
 tution of the United States, as manifested in their judicial decisions — Chief-Jus- 
 tice Taney takes his seat first in the Circuit Court at Baltimore— Declines to 
 instruct grand juries, as a useless form — Takes his seat in the Supreme Court 
 
xiv Contents. 
 
 for the first time — His judicial administration a reaction against the later tendency 
 of that of Chief- Justice Marshall — Mr. Justice Story — The influence of Chief- 
 Justice Taney on the worliing of the Federal Government shown by an analysis 
 of his leading opinions on constitutional questions — High opinion of Chief- Jus- 
 tice Taney entertained by Mr. Justice Story — Death of Mr. Justice Story — 
 Death of President Harrison — Chief-Justice Taney invited by Mr. Webster to 
 come from Baltimore to advise the Cabinet on the occasion — His answer — He 
 builds up the practice of the Supreme Court — His remarkable ability as a Judge 
 in the Circuit Courts — A letter from J. V. L. McMahon — Amusing case in the 
 Circuit Court at Baltimore — A letter to Mrs. Taney on the forty-sixth anniversary 
 of their marriage — The high estimate of the Chief Justice by great men — Clay 
 and Webster — A letter from W. H. Seward — The answer of the Chief Jus- 
 tice — Inauguration of President Taylor — Correspondence between him and the 
 Chief Justice on the occasion — His opinion on Law-reform — Quoit Club at 
 Eichmond — Death of Mrs. Taney and their youngest daughter — Letters of 
 condolence on his heavy bereavement 249-330 
 
 CHAPTER V. 
 
 Judicial Life. —A. D. 1856-1860. 
 
 Antagonism in politics between the Southern States and the New England 
 States — Anti- slavery — Slave-trade with Africa carried on by New Eng- 
 landers — Declaration of Independence and a sale of negroes published in the 
 same paper in Massachusetts — Slavery especially recognized by the Constitu- 
 tion — John Quincy Adams accuses New England Federalists of a design to 
 break up the Union — Character of Mr. Adams — Tlie abolitionists — The nature 
 of radicalism — Abolition petitions in Congress — Mr. Adams's jubilee oration — 
 Chief-Justice Taney's letter on the occasion — President Van Buren — Both 
 political parties ignore great men for the Presidency — Mr. Webster — President 
 Buchanan — The Dred Scott case — The accusation of Chief-Justice Taney by 
 William H. Seward — Letters from Mr. Justice Campbell and Mr. Justice Nel- 
 son in regard to the Dred Scott case — Letter from Reverdy Johnson in regard 
 to the case — Chief-Justice Taney's opinion of Mr. Seward — The State of Wis- 
 consin by its Supreme Court nullifies the process of the Supreme Court of the 
 United States ; and by its Legislature declares nullification to be a right of a 
 State — Chief-Justice Taney's opinion in regard to the conduct of Wisconsin. 
 
 331^00 
 
 CHAPTER VI. 
 
 Jttdiciai. Life. — a. D. 1860-1864. 
 
 A new political era — Southern civilization superseded by New England 
 civilization in the policy of the Government — The means by which this was 
 eifected — Mr. Lincoln and other candidates for the Presidency — A letter 
 from Chief-Justice Taney in regard to the canvass — The issue in the canvass 
 was whether the Dred Scott decision should stand — The pernicious doctrine 
 of President Lincoln's inaugural — Secession — The peace Congress — The Mer- 
 
Contents. xv 
 
 ^yman case — Civil war — The Governor of Ohio disregards the Constitution of 
 Die Unitea'Btates, and also a decision of the Supreme Court — Legislation of 
 Ohio, Illinois, and Indiana against free negroes — A letter from Chief -Justice 
 Taney to the Secretary of the Treasury iu regard to the tax upon the salaries of 
 the Judges — His opinion in a case in the Circuit Court at Baltimore on the em- 
 ployment of detectives by the Government — Letter from the Secretary of the 
 Smithsonian Institution relative to the conduct of the Chief Justice as Chancel- 
 lor of the Institution 401-446 
 
 CHAPTER VII. 
 
 Peivate Lifb. 
 
 The delicacy of the attempt to portray the private life of the Chief Justice — 
 The intercourse of the Chief Justice with the ofiicers of the Supreme Court — 
 Their love and veneration for him — Anecdotes of the Marshal and the 
 Librarian of the Court expressive of their admiration of the Chief Justice — 
 A letter from the Chief Justice to the Judges of the Court of Appeals of 
 Maryland, In answer to one from them on his birthday — Letter from Judge 
 Morsell, who had been a playmate of the Chief Justice when they were boys, 
 thanking him for his photograph — Letters from the Chief Justice to his friend 
 Mr. Ferine of Baltimore — A letter to Mr. Perine's son — Letters to S. Teackle 
 "Wallis, Esq. — Letter to Conway Robinson, Esq., about the Merryman case — The 
 Chief Justice a peacemaker between the Clerk and the Pi,eporter of the Supreme 
 Court — A letter to Mrs. George H. Pendleton — A letter from General K. E. 
 Lee — His domestic circle — Letter to Mrs. Taney — Letter to his cousin Ethel- 
 bert Taney — His religious character — Letter from Father McElroy — Kindness 
 to domestic servants — Refuses the interest due on his Virginia stock as a pre- 
 ferred creditor — Letter about his mother's grave, and his purpose to be buried 
 by her side — A reader to the last of general literature — His death — Proceed- 
 ings of the Bar of the Supreme Court — Speech by Judge Curtis at Boston, on 
 the character of the Chief Justice 447-616 
 
 APPENDIX. 
 
 Opinion in the Dred Scott case — A supplement to the opinion — Opinion in 
 the case of Ableman vs. Booth — Opinion in the case of Kentucky vs. Ohio — 
 Opinion in the Merryman caae 517-659 
 
MEMOIR 
 
 OF 
 
 ROGER BROOKE TANEY, LL.D. 
 
 CHAPTEK I. 
 
 EAELY LIFE AND EDUCATION. 
 
 (Written by Mr. Taney himself.) 
 A. D. 1777—1801. 
 
 I BEGIN this account of my life at Old Point Com- 
 fort, Virginia, on the 16th of September, 1854. 
 It is late to begin it, for, if I live until to-morrow, 
 I shall be seventy-seven years and six months old. I 
 may not live to finish it, and, if finished, it may not 
 be thought worthy of publication. Of that, however, 
 my executors must judge. 
 
 The work is undertaken without much deliberation. 
 Ten days ago, I had never thought of it. But I received 
 at that time Mr. Van Santvoord's Lives of the Chief 
 Justices of the U. States, and among them is a sketch 
 of my own. The work is full of interest, and obviously 
 prepared with much labor and industry. 
 
 My life is, therefore, to form a part of the history 
 
 2 17 
 
18 Memoir of Eogee B. Taney. 
 
 of the country. The high offices I have filled, and 
 the stirring and eventful political scenes in which I 
 was engaged before I received the ap^iointment I now 
 hold, and in which my position compelled me to take 
 a 25rominent part, may naturally create a desire to 
 know more about me than can be found in Mr. Van 
 Santvoord's life. Yet I am sensible that he has written 
 it in the kindest S2:)irit, and has used every means in 
 his power to obtain information from those whom he 
 suj)posed might be able to give it. 
 
 The truth is, that scarcely any one living could do 
 much moi'C than Mr. Van Santvoord has done. I have 
 survived all my early associates and companions, and 
 most of those also with whom I was acting in maturer 
 life. At the moment I am writing, the names of dear 
 and valued friends who are now in their graves come 
 crowding on my memory, and I begin this work in 
 sadness and sorrow. 
 
 But if there is any curiosity to know more about 
 me than Mr. Van Santvoord narrates, it cannot be grati- 
 fied, unless I write my own biography. Indeed, upon 
 thinking the matter over, I have come to the conclusion 
 that, if the public should be indifferent and careless as 
 to my life and character, the work may derive some 
 interest from its connection with men and things as 
 they existed in the generation which has now passed 
 away. I belong to that generation, and lived and acted 
 in it and with it. And the history of my life is ne- 
 
Memoir of Koger B. Taney. 19 
 
 cessarily associated with the manners, hahits, pur- 
 suits, and characters of those witii whom I lived and 
 acted. 
 
 I am sensible of the delicacy of this undertaking. 
 An autobiography is hardly ever impartial, and I can- 
 not hope that I am free from the general infirmity of 
 self-love. But I will try to write my own life as if it 
 were that of a third person. 
 
 My situation at Old Point Comfort is some induce- 
 ment to begin the work at this time. 
 
 The labors of the last term of the Supreme Court 
 imj)aired my health seriously, and I have spent the 
 summer with my family at this place for the benefit 
 of the sea-air and salt-water bathing. It will be six 
 weeks more before my official duties require me to 
 return home. While I remain here, I am free from 
 the calls of business. And to one whose life has been 
 spent in the active concerns of life, and whose mind 
 has been constantly exercised, a long-continued state 
 of perfect idleness, without books, cannot be good for 
 the mind or the body. And an hour or two every 
 day passed in recalling to memory times gone by, and 
 putting down my recollections, will afford me an 
 agreeable occupation without fatigue, useful, perhaps, 
 to the mind and the body. Constant thought about 
 one's health, and watching its changes, is not a very 
 pleasant occupation, nor the best way of restoring it. 
 
 But to begin my task. I have no family papers or 
 
20 Memoir of Eoger B. Taney. 
 
 memoranda with me. The life must, therefore, be 
 written altogether from memory. 
 
 I was born on the 17th of March, 1777, in Calvert 
 County, in the State of Maryland. My father, Michael 
 Taney, owned a good landed estate, on which he always 
 resided, and slaves. His j^roperty was sufficient to 
 enable him to live comfortably, and to educate his 
 children. His plantation was situated on the banks 
 of the Patuxent River, about twenty miles from its 
 mouth, where the river is more than two miles broad, 
 and navigable for vessels of the largest size. The 
 British fleet anchored opposite to his house during 
 the War of 1812, in the expedition against the city 
 of Washington. 
 
 The situation, for all social purposes, was a very 
 retired one. It was bounded, as I have said, on one 
 side by the river, and on another by a deep tide-water 
 creek, called Battel Creek, which runs into the country 
 for several miles at a right angle to the river. The 
 families which we visited by land were several miles 
 distant from us, and our chief social intercourse was, 
 in boats across the river or the creek, with families 
 who resided on the opposite shores. 
 
 My forefathers, on my father's side, Avere among the 
 early emigrants to Maryland, and had owned and lived 
 upon this estate for many generations before I was 
 born. We have no family record showing the pre- 
 cise time of their coming to Maryland, or the country 
 
Memoir of Eogek B. Taney. 21 
 
 from whicli tliey migrated. They were Roman Catho- 
 lics. After the accession of William and Mary to 
 the throne of England, the severe penal laws of that 
 country against Roman Catholics were introduced into 
 Maryland ; and, among others, every Roman Catholic 
 was prohibited from teaching a school in the province. 
 Parents were naturally unwilling to send their children 
 to a school where their religion would be scoffed at, 
 and the children subjected to humiliation and insult. 
 The education of Roman Catholics, therefore, whose 
 parents could not afford to send them abroad, was 
 generally nothing more than their parents could teach, 
 with occasional aid secretly given by the priest. 
 
 It was, consequently, usually confined to reading, 
 writing, and a little arithmetic, just enough to enable 
 them to transact their ordinary business, as planters, 
 without inconvenience. The children, whose fortunes 
 would afford it, were sent to France to be educated. 
 And my father was accordingly sent to the English 
 Jesuits' college at St. Omer's, and removed with it to 
 Bruges when it was expelled from St. Omer's. He 
 had finished his education, and returned home, some 
 years before the commencement of the American 
 Revolution, and his father being dead, he took pos- 
 session of his estate, and married my mother, Monica 
 Brooke, about the year 1770. 
 
 My mother was the daughter of Roger Brooke, who 
 owned a large landed estate on Battel Creek, directly 
 
22 Memoik of Eoger B. Taney. 
 
 opposite to that which belonged to my father. He 
 was lineally descended from Kobert Brooke, who left 
 a written memorandum of his family, and of the time 
 of his settlement in Maryland, which has been pre- 
 served by his descendants. It is in the following 
 words : 
 
 " Eobert Brooke was born at London, 3d June, 
 1602, being Thursday, between 10 and 11 of the 
 clock in the forenoon, being Corpus Christi Day. 
 
 " Mary Baker, born at Battel in Sussex. 
 
 " Kobert Brooke and Mary Baker intermarried 1627, 
 the 25th of February, being St. Matthias' Day and 
 Shrove Mondiiy. 
 
 "1. Baker Brooke, eldest son to Eobert and Mary 
 Brooke, was born at Battel, November the 16th, being 
 Sunday, at half hour past 9 o'clock in the morning, 
 being new moon the night before, and was baptized 
 the 2d day of December following, his Uncle Thomas 
 Brooke, and his Grandfather Baker, his Godfathers, 
 and his Aunt Foster, wife to Mr. Eobert Foster, his 
 Godmother, 1628. 
 
 " 2. Mary Brooke, eldest daughter to Eobert Brooke 
 and INlary his wife, was born 1630, at Battel, the 19th 
 day of February, being Saturday, between 2 and 3 
 of the clock in the afternoon, the moon being new 
 the next day, and was baptized the Sunday fol- 
 lowing, her Godftither Mr. Thomas Foster, of Battel, 
 and her Godmothers her Grandmother Baker and her 
 Cousin Heath. 
 
Memoir of Koger B.Taney. 23 
 
 " 3. Thomas Brooke, second son to Robert Brooke 
 and Mary his wife, was born at Battel, 1632, the 23d 
 day of June, being Saturday, a quarter of an hour 
 past 2 o'clock in the morning, and was baptized the 
 3d day of July following, his Godfathers Mr. Chris- 
 topher Dow Dean, of Battel, and Mr. Thomas Bryan, 
 of Battel, his Godmother Mrs. Eliza Foster, wife to 
 Mr. Goddard Foster. 
 
 " 4. Barbara Brooke, second daughter to Robert 
 Brooke and Mary his wife, born at Whickham. 
 
 "May the 11th, 1635, Robert Brooke (aforemen- 
 tioned) was married to Mary, second daughter to 
 Roger Mainwaring, Doctor of Divinity and Dean of 
 Worcester, which Mary was born at St. Giles-in-the- 
 Fields, London. 
 
 " 1. Charles Brooke, eldest son of Robert Brooke 
 and Mary his wife, was born at St. Giles-in-the-Fields, 
 Middlesex, 3d April, 1636, between 11 and 12 o'clock in 
 the forenoon, being Sunday, and was baptized the day 
 following, his Grandfather, the Bishoj) of St. David's, 
 and his Uncle Townley, his Godfathers, and his Aunt 
 Stedney his Godmother, under % Jupiter 3 min. 
 
 " 2. Roger Brooke was born the 20th September, 
 1637, at Bretnock College, between 11 and 12 o'clock 
 at night, it being Wednesday, and was baj^tized the 
 following day, his Godfathers the Bishop of St. David's 
 and his Uncle Stevens, and his Aunt Sarah Main- 
 waring his Godmother, % under Juj^iter. 
 
24 Memoir of Eogee B. Taney. 
 
 "3. Robert Brooke was born at London, in St. Brides' 
 Parish, April 21st, 1639, half an hour before 1 of 
 the clock in the morning, it being Sunday and new 
 moon two days after, his Godfather my Cousin Thomas 
 Foster (t; under Jupiter), son to Serecant Foster and 
 my Cousin William Brooke, and his Godmother my 
 sister Elizabeth. 
 
 " 4. John Brooke, born at Battel, the 20th Sep- 
 tember, 1640, being Sunday, between 1 and 2 o'clock 
 in the afternoon, his Godfather William Jackson, 
 D. P., and his Godmother Mrs. Jackson. 
 
 " 5. Mary Brooke was born at Battel the 14th day 
 of April, being Thursday, 1642, after 1 o'clock in 
 the morning, the moon being in the last quarter the 
 Tuesday before, her Godfather Mr. Jackson, and her 
 Godmother old Mrs. Beneford. 
 
 " 6. William Brooke, born at Battel the 1st day of 
 December, 1643, between 11 and 12 o'clock at night, 
 the moon being new in the morning at 5, and bap- 
 tized the same day, his Godfather Mr. March and his 
 Godmother Mrs. Pound. 
 
 " 7. Ann Brooke, born at Bretnock, 22d Jan- 
 uary, 1645, between 5 and 6 of the clock at night, 
 being Thursday, her Godfather the Bishop of St. 
 David's, his Deputy her Uncle Henry Mellyne, her 
 Godmothers Mrs. Mary Mainwaring and Mrs. Jones, 
 5 under Venus. 
 
 " 8. Francis Brooke, born at Horwett in Hantshire, 
 
Memoik of RoaEE B. Taney. 25 
 
 the 30th May, 1648, being Tuesday, between 11 and 
 12 o'clock at noon, D under Luna. 
 
 " The before-named Kobert Brooke, Esquire, arrived 
 out of England in Maryland the 29th day of June, 
 1650, in the 48th year of his age, with his wife and 
 ten children. He was the first that did seat the 
 Patuxent, about twenty miles up the river at Dela- 
 brook, and had one son there, born in 1651, called 
 Basil, who died the same day. In 1652 he removed 
 to Brooke Place, being right against Delabrook ; and 
 on the 28th of November, 1655, between 3 and 4 
 o'clock in the afternoon, had two children Eliza and 
 Henry, twins. He departed this world the 20tli day 
 of July, and lieth buried at Brooke Place Manor ; and 
 his wife, Mary Brooke, departed this life the 29th 
 November, 1663." 
 
 I give this memorandum in full, not merely to show 
 his family and the time of his immigration, but as a 
 curious historical fact, showing how deeply the delu- 
 sions of astrology at that time influenced the minds 
 of intelligent men. For the j)recision of his entry as 
 to the times of the birth of his children, and the jDOsi- 
 tion of the planets at the moment, are evidently noted 
 in this memorandum to enable an astrologer to foretell 
 their fortunes. 
 
 I speak of Kobert Brooke as a man of intelligence 
 because the offices he held show that he was so con- 
 sidered by his contemporaries. For soon after his 
 
26 Memoie of Eogee B. Taney. 
 
 arrival he was appointed by Lord Baltimore Com- 
 mander of Charles County, and was chosen by the 
 commissioners, appointed by Cromwell for the re- 
 ducing the Plantations, Governor of Maryland. He, 
 as well as my father's ancestors, originally settled in 
 St. Mary's County, on the banks of the Patuxent, 
 nearly opposite to their Calvert dwellings ; and within 
 my recollection some of their descendants were still 
 residing on the same places. 
 
 I do not know what was the religion of Robert 
 Brooke, but my grandfather Roger Brooke was a 
 Roman Catholic; and, for the reasons I have stated, 
 my mother's education, as far as mere matter of 
 human learning was concerned, was a very limited 
 one. But her judgment was sound, and she had 
 knowledge and cpialities far higher and better than 
 mere human learning can give. She was pious, 
 gentle, and affectionate, retiring and domestic in her 
 tastes. I never in my life heard her say an angry or 
 unkind word to any of her children or servants, nor 
 speak ill of any one. When any of us or the ser- 
 vants about the house who were under her immediate 
 control (all of whom were slaves) committed a fault, 
 her reproof was gentle and affectionate. If any of 
 the plantation-servants committed faults, and were 
 about to be punished, they came to her to intercede 
 for them ; and she never failed to use her influence in 
 their behalf, nor did she ever hear of a case of distress 
 
Memoir of Rogee B. Taney. 27 
 
 ■within her reach, that she did not endeavor to relieve 
 it. I remember and feel the effect of her teaching to 
 this hour. 
 
 So much for my parents and parentage. My 
 parents both lived to an advanced age. Tliey had 
 several children, — four sons and three daughters. I 
 was the third child and the second son. 
 
 The Revolution had removed all difficulty in our 
 education upon the score of religion. For the consti- 
 tution established by the State of Maryland in 1776 
 placed all persons j)rofessing the Christian religion on 
 an equal footing. But the situation in which we lived 
 was, as I have said, a retired one ; and there was no 
 school within ten miles of us except one, which was 
 distant three miles, kept in a log-cabin by a well- 
 disposed but ignorant old man, who professed to teach 
 reading, writing, and arithmetic as far as the rule of 
 three. The reading and writing, as may well be sup- 
 posed, were poor enough ; but, for want of a better, I 
 was sent to it, when not more than eight years of age, 
 with my elder brother and sister. We walked every 
 day to and from the school when the weather was 
 good, and when it was unfavorable we stayed at home. 
 Our attendance, therefore, was not very regular. JMy 
 father had no taste for teaching, and did not very 
 often assist us in our lessons. He was fond of read- 
 ing, and I believe read every work he could obtain in 
 the then scant libraries of the country. But he soon 
 
28 Memoie of Eogee B. Taney. 
 
 wearied with the lessons of children, and became im- 
 patient if we did not learn as fast as he thought we 
 should. He took far more pleasure in teaching my 
 elder brother and myself how to ride and swim, and 
 to fish, and to row and sail in the summer, and to 
 skate and to shoot ducks and wild geese in the winter. 
 I cannot remember the time when I could not ride on 
 horseback, and but faintly remember my first efforts 
 at swimming. 
 
 With all these disadvantages we however got along 
 in due time as far as our humble teacher could carry 
 us. Our only school-books were Dillworth's spellin g- 
 book and the Bible ; and these, I believe, were the 
 only books our teacher had ever read. I remember 
 yet the pleasure I felt when I was able to read and 
 understand the fable of the boys and the frogs, and 
 the wagoner praying to Hercules, etc., etc., in the 
 spelling-book, and admired the wretched wood-cuts 
 with which it was embellished. As for the Bible, it 
 was used merely as a book to teach us how to spell 
 words and pronounce them. Our teacher professed 
 to belong to the Episcopal Church ; but the nearest 
 church was ten miles distant, and as he was poor, and 
 his two horses were worked hard in cultivating a few 
 acres of poor land which he owned, and were not, 
 from their appearance, very well fed, I doubt whether 
 he went to church more than once or twice a year, if 
 so often. He was, however, a kind man, upright and 
 
Memoik of Rogee B. Taney. 29 
 
 conscientious, and faithfully performed his duty to the 
 best of his power. How he happened to obtain the 
 little learning he had, I do not know. For at the 
 time of which I am speaking, I believe the one-half 
 of the men in the county, of his humble rank in life, 
 could not write their own names. But it must be 
 recollected that this was soon after the conclusion 
 of the Revolutionary War, and the men of whom I 
 am speaking had grown up under the English Gov- 
 ernment. And the parents in our neighborhood, who 
 could not read themselves, eagerly sent their children 
 to this school. It had generally about thirty scholars, 
 — which was a large number considering its retired 
 situation and the sparse population about it. 
 
 The only exciting event which occurred while I was 
 at this school was barring-out the school-master. I 
 mention it to show the usages and the habits of the 
 times in the part of the State in which my family 
 lived. It was the custom of the school to have a fort- 
 night's holiday at Christmas; and the day it was to 
 commence was always announced by the school-master 
 a week beforehand. The object of barring him out 
 was to compel him to begin the holidays some days 
 sooner. But it was not so much for the purpose of"l 
 gaining a few more days of idleness, as for the pleasure J 
 and excitement of the feat. And, strange as it mayi 
 appear at this day, the parents of the scholars all 
 knew of the plan, and were always ready to advise as 
 
30 Memoir of Kogee B. Taney. 
 
 to the best mode of defence, and encouraged the chil- 
 dren to fight bravely and conquer ^e niastfix, if he 
 should prove obstinate and break in. 
 
 The barring-Qui to wliich I was a party, was care- 
 fuUy planned among the boys some days before it was 
 executed. It was the custom of the school-master to 
 give us a recess every day from twelve o'clock until 
 one, to give us an opportunity of eating our dinners, 
 (which we all brought with us,) and for recreation. 
 This hour was technically called in the school, play- 
 time, during which the teacher always went to his own 
 house, distant a few hundred yards, for his own dinner, 
 and never returned to the school-house until playtime 
 was over. When the hour was out, he soon appeared 
 at the door and shouted with a loud voice, " Come to 
 books," and, upon this signal, it was the duty of the 
 scholars to hasten to their places. The boys deter- 
 mined that on the appointed day the barring-out 
 should take place at playtime. Accordingly, as soon 
 as the recess commenced, and the school-master was 
 out of hearing, the benches were heaped against the 
 door, and the window nailed up, and a strong fire 
 made, to prevent him from ascending the low roof of 
 the cabin and coming down the chimney ; and after 
 eating our frugal dinners, we awaited witli some anxiety 
 his return. The girls who belonged to the school 
 were of course excluded from the garrisohT"" 
 
 He returned at the usual hour, and appeared sur- 
 
Memoik of Eogek B. Taney. 31 
 
 prised wlien he found the door closed against him. 
 He ordered us to open it. We refused unless he 
 would agree that the holidays should commence on 
 that day. He seemed offended, and threatened us ; 
 and after trying to force the door by his own strength, 
 and failing, he took a rail from a fence at hand and 
 began striking the door with considerable force, as if 
 he was determined to break in. We began to think 
 there would be a real fight. But after thumping the 
 door for some time, and trying the window, and threat- 
 ening to keep us confined there all the ensuing night 
 unless we surrendered, he finally yielded to our de- 
 mands, and we unbarred the door and let him in. 
 After some good-natured conversation on both sides, 
 we took leave of him in our usual respectful manner, 
 calling him " Master," as was the usage of the tmae, 
 and returned to our homes in triumph. 
 
 But I doubt whether he intended to do more than 
 he supposed to be necessary for the purjDose of show- 
 ing that he did not connive in our attempt to gain an 
 addition to the customary holiday, by which he would, 
 in truth, iDrofit as well as ourselves. For the school- 
 house belonged to him, and any injury done to it 
 would have been his own loss ; and, moreover, he 
 knew very well that if he broke in, and any of the 
 scholars were injured in the fight, it would be resented 
 by the parents and injure his school; yet it some- 
 times happened in the country that the master of the 
 
32 Memoir of Kogee B. Taney. 
 
 school lost his temper, and a serious fight ensued. 
 Our master, however, was a good-natured man, and 
 saw the folly of such a conflict, when he must have 
 been sure that the scholars were abetted by their 
 parents. As for my part of the business, then a 
 child of eight or nine years of age, I had very little 
 in forming the plan, and should have been of very 
 little service if it had come to blows. B ut every boy 
 on such occasions was expected to be present to share 
 the fortunes of his comrades, unless excused on the 
 score of sickness or near relationship to the master. 
 This was to show that it was the united jtction of the 
 school, and not of a part only, and to prevent favor- 
 itism after the holidays, if the master should take 
 offence at what was done. And any boy, however 
 small, would have lost caste with his fellows if he had 
 absented himself, unless his absence was jDreviously 
 sanctioned by them. UiDon the occasion of which I 
 am speaking, there were several small boys present as 
 well as myself; but there were several well-grown lads 
 in the school, well advanced in their teens, who would 
 have been able to manage the master if he had proved 
 obstinate and forced his way in. 
 
 When it was found useless to send us longer to this 
 school, my elder brother and myself were placed at a 
 grammar-school in the county, about ten miles off, 
 which was kept by a man by the name of Hunter, 
 and in which the pupils never exceeded a certain 
 
Memoik of Rogee B. Taney. 33 
 
 number : I think twenty. He was a Scotchman, and 
 had been, on his arrival in this country, employed as 
 tutor in the family of one of the wealthy gentlemen 
 of the county. He had the reputation of being an 
 accomplished classical scholar ; and his school, which 
 had been established some years before I went to it, 
 enjoyed a high reputation. The pujjils all boarded in 
 his house. Here I began the study of the Latin 
 grammar. But I had made very little progress before 
 the school was broken up. We had not been there 
 more than two or three months before the conduct 
 of the teacher struck the scholars as much altered 
 and strange. He absented himself more than usual 
 from the school, was observed to be often talking to 
 himself as he walked about the grounds, and was 
 often absent and odd when hearing our lessons. And 
 one day, soon after the scholars had assembled, he 
 came in and dismissed us, telling us to go home. 
 He gave no reason for what he did ; but we supposed 
 he found himself too sick to attend to the school, and 
 supposed we should all return again in a short time. 
 But it turned out that his mind had become dis- 
 ordered, and he was drowned in the Patuxent Kiver 
 a few weeks afterwards. It was said that he fancied 
 himself a disembodied spirit, and that he could walk 
 on or through water without danger, and was drowned 
 in attempting to walk across the river where, in the 
 channel, it was deep enough to float large ships. 
 
34 Memoir of Eogek B. Taney. 
 
 After this disappointment, my father determined to 
 employ a private tutor for his own family, who should 
 reside in .the house. It was the only waj in which 
 he could educate his daughters^ and, indeed, it was 
 the usual way at that time in the county we lived in, 
 where the family was large and the parent could 
 afford the expense of a tutor. Besides, it was no part 
 of my father's plan to give my elder brother a classi- 
 cal education. He was, at that period of his life, 
 strongly imbued with the English notion of per- 
 petuating the family estate in the eldest son. And 
 he gave us all to understand, as early as we were 
 capable of understanding it, that his landed estate 
 would go to my elder brother.; and that his younger 
 sons would have a liberal education aud the means of 
 studying a profession, and, after that, we must rely,^ 
 ourselves for supjoort. And carrying out this plan, 
 which proved to be an unfortunate one for my 
 elder brother, he designed to give him nothing more 
 than a good English education, that would fit him for 
 the business of a landed gentleman cultivating his 
 own estate, and qualify him to associate upon equal 
 terms, as to education and information, with the gentle- 
 men of the county. All this would be accomplished 
 by a private tutor. Accordingly one was engaged. 
 He was an Irishman, who, I believe, was a ripe 
 scholar, and who was certainly an amiable and accom- 
 plished man in his disposition and manners. But he 
 
Memoir of Roger B. Taney. 35 
 
 died o f consumption before liis first year was out. 
 The second was an American, a native of the State, 
 who was a good English scliolar, but whose knowledge 
 of Latin was very slender, and who was altogether 
 ignorant of Greek. He remained with us a year, 
 and at the end of that time a third was engaged, 
 David English, wdio afterwards edited a paper in 
 George Town, and was for many years emjjloyed as 
 an officer in one of the banks of that place. He was, 
 I believe, a native of New Jersey, and had graduated 
 at Princeton, and was in every respect a fortunate 
 selection ; for he was undoubtedly an accomplished 
 scholar, and seemed to take pleasure in teaching us, 
 and was altogether an agreeable inmate in the family. 
 At the end of the year he advised my father to send 
 me at once to college, and encouraged him to do so by 
 the very favorable accounts he gave of my progress. 
 His advice was followed ; and I went to Dickinson 
 College, (^arlislejjvbenj^was little more than fifteen 
 years of age. I recall with j^'easure now the un- 
 wearied attention and kindness of my old preceptor 
 when I was under his care. He died a few years ago 
 at an advanced age ; and it is pleasant to remember 
 the interest he took in my fortunes as long as he lived. 
 He was residing in George Town, retired from busi- 
 ness, when I was appointed Chief Justice of the Su- 
 preme Court. I had not seen him for a great many 
 years. But as soon as I went to Washington to take 
 
36 Memoib of Roger B. Taney. 
 
 my seat on the bench, he came to see me, and we met 
 one another full of old recollections and mutual kind- 
 ness. And day after day I have seen him take his seat 
 on a bench outside of the bar in front of the court, with- 
 out any business to bring him there or any interest in 
 the case under argument, but solely, as it seemed to 
 me, for the pleasure of seeing his old pupil presiding 
 in that court. I was sensibly touched by these tokens 
 of enduring interest in my fortunes, and never failed 
 to go up to him and converse with him for a few mo- 
 ments, whenever I saw him in court, unless the engage- 
 ments of the court made it impracticable. 
 
 My father was induced to select Dickinson College 
 from the circumstance that two young men, a few years 
 older than myself, were already there, with whose fami- 
 lies he was intimately acquainted, and who gave very 
 favorable accounts of the institution. It certainly 
 deserved it while Dr. Nisbet was at its head, and the 
 other departments were in the hands in which I found 
 them. 
 
 I went in company with one of the young gentle- 
 men of whom I have spoken, when he returned after 
 the spring vacation in 1792. It was no small under- 
 taking, however, in that day, to get from the lower 
 part of Calvert County to Carlisle. We embarked on 
 board one of the schooners employed in transporting 
 produce and goods between the Patuxent River and 
 Baltimore, and, owing to unfavorable winds, it was 
 
Memoir of Roger B. Taney. 37 
 
 a week before we reached our port of destination ; and, 
 as there was no stage or any other public conveyance 
 between Baltimore and Carlisle, we were obliged to stay 
 at an inn until we could find a wagon returning to 
 Carlisle, and not too heavily laden to take our trunks 
 and allow us occasionally to ride in it. This we at 
 length accomplished, and in that way proceeded to 
 Carlisle, and arrived safely, making the whole journey 
 from our homes in about a fortnight. And what 
 made the whole journey more unpleasant was that we 
 were obliged to take, in specie, money enough to pay 
 our expenses until the next vacation. The money was 
 necessarily j^laced in our trunks, and they were often 
 much exposed in an open wagon in a public wagon- 
 yard, while the wagoner and ourselves were somewhere 
 else. But, in truth, we were not very anxious on that 
 score, for a robbery in that day was hardly to be thought 
 of as among the hazards of travel. But times are 
 greatly changed in that respect, although certainly 
 much improved as to travelling itself I remained at 
 college until the fall of 1795, when I graduated, and 
 received the diploma of Bachelor of Arts. The dif- 
 ficulties of the journey were so great that I went home 
 bjitjtwice, and, upon both occasions, walked from Car- 
 lisle to Baltijiiore with one of my school-companions, 
 performing the journey in a little over two days. We 
 came to Owing's Mill, within twelve miles of Balti- 
 more, on the evening of the second day. The dis- 
 
38 Memoik of Eogek B. Taney, 
 
 tance from Carlisle to Baltimore was then said to be 
 eighty-five miles. But estimated distances are often 
 overstated, and in tliis instance the true distance may 
 be less. 
 
 I have not a great deal to say of my college life. 
 It was, taken altogether, a pleasant one. None of us 
 boarded in the college, but at different private board- 
 ing-houses about town, — for the present edifice was not 
 then erected, and the building used was a small and 
 shabby one, fronting on a dirty alley, but with a large 
 open lot in the rear, where we often amused ourselves 
 with playing bandy. After the first six months I 
 boarded with James McCormick, the professor of 
 mathematics. There were generally eight of us in 
 the house, which were as many as it could accommo- 
 date. Mr. McCormick and his wife were as kind to 
 us as if they had been our j^arents. He was un- 
 wearied in his attentions to us in our studies, full of 
 patience and good-nature, and sometimes seemed dis- 
 tressed when, upon examining a puj^il, he found him 
 not quite as learned as he was himself 
 
 I took a letter from my father to Dr. Nisbet, 
 asking him to stand in the place of a guardian to me 
 on account of my youth and distance from home and 
 friends, and the retirement and seclusion in which I 
 had so far been educated. He cheerfully took upon 
 himself the duty, and invited me to visit him often. 
 I did so. And many a pleasant evening have I spent 
 
Memoir of Roger B. Taney. 39 
 
 at his house. He did not worry or fatigue me by 
 grave and solemn lectures and admonitions. But 
 although his conversation was always intended, as I 
 afterwards saw, for my benefit and instruction, yet it 
 did not seem so at the time. It was cheerful and 
 animated, full of anecdote and of classical allusions, 
 and seasoned with lively and playful wit. The class 
 under his immediate instruction always became warmly 
 and affectionately attached to him ; yet, if he saw .con- 
 duct that merited reproof, his sarcasm was sometimes 
 bitter, and cut deep at the time. But I never saw it 
 used towards a pupil unless he deserved it. 
 
 In my visits in the evening I always met Mrs. 
 Nisbet, who was far advanced in life, but in good 
 health. She, as well as Dr. Nisbet, took an interest 
 in me from my youth and the manner in which 
 I had been placed under his care; and she never 
 failed, when she had an opportunity, to give me a 
 regular course of motherly instruction and advice. I 
 always listened to her with feelings of real resjoect. 
 But, unfortunately, her dialect was so broadly Scotch, 
 that I never understood the half of what she said, and 
 could do nothing therefore but bow in assent. Per- 
 haps I may sometimes have given this sign when she 
 was putting a question that I ought to have answered 
 " No," if I had exactly understood what she was saying. 
 
 Dr. Nisbet's share of the college duties was Ethics, 
 Logic, Metaphysics, and Criticism. His mode of in- 
 
40 Memoir of Kogee B. Taney. 
 
 struction was by lectures written out and read to the 
 class slowly, so that we might write it down ; yet it 
 required a j^retty good penman and fixed attention to 
 keep up with him ; and with all my efforts, I was sen- 
 sible that his idea was not always expressed with perfect 
 accuracy in my copy. But it was always sufficiently 
 full to enable me to recall the substance of what he 
 had said, when, in order to impress it upon my mind, 
 I read it over. In addition to these lectures, there was 
 a compendium of each science, in the form of question 
 and answer, which each of the class was required to 
 co])j. It was a good - sized octavo volume closely 
 written. But although the answers were written out 
 by him, yet he always showed most pleasure when the 
 pupil gave the answer in different words from those 
 in the book, even if the answer was not strictly exact 
 and scientific. He would, on such occasions, go over 
 what the student had said, comment kindly upon it, 
 and say how far it was correct, and in what respect it 
 was not full enough or diffuse. His object was to 
 teach the pupil to think, to reason, to form an opinion, 
 and not to depend merely upon memory, and repeat 
 what had been written for him without, perhaps, 
 exactly understanding what he was talking about. 
 He undoubtedly succeeded in fastening our attention 
 upon the subject on which he was lecturing, and in- 
 duced us to think upon it and discuss it, and form 
 opinions for ourselves. These opinions were, of course, 
 
Memoik of Kogee B. Taney. 41 
 
 greatly influenced by what he had said. But there 
 was one subject upon which the class was unanimously 
 opposed to him. In his lectures on Ethics, he, of 
 course, introduced the laws of nations, and the moral 
 principles upon which they should be governed. And 
 political questions, and the different forms of govern- 
 ment existing in different nations, were therefore 
 within the scope of his lectures. Ui^on these sub- 
 jects he was decidedly anti-Republican. He had 
 no faith in our institutions, and did not believe in 
 their stability, or in their capacity to protect the 
 rights of person or property against the impulses of 
 popular passion, which combinations of designing 
 men might continue to excite. These opinions were 
 monstrous heresies in our eyes. But we heard them 
 with good humor, and without offending him by any 
 mark of disapprobation in his jjresence. We sup- 
 posed they were the necessary consequence of his 
 birth and education in Scotland. Yet many, I believe 
 a majority of the class, would not write down those 
 portions of his lectures ; and, if the opinions had 
 been exj^ressed by any other professor, the class would 
 probably have openly rebelled. Dr. Robert David- 
 son, the Vice-Principal, was not so popular. Indeed, 
 he was disliked by the students generally, and some 
 of them took no pains to conceal it. Yet he was not 
 harsh or ill-natured in his intercourse with us. But 
 he was formal and solemn and precise, and, in short, 
 
42 Memoir of Kogek B. Taney. 
 
 was always the pedagogue in school and out of school. 
 He lectured on History, Natural Philosophy, and 
 Geography. He had written a rhyming geography, 
 which, as well as I remember, contained about fifty 
 jjrinted images, printed in octavo, and was an enumer- 
 ation of the countries and nations of the world, and 
 the principal rivers, mountains, and cities in each of 
 them. 
 
 Tliis little book we were all required to buy, and to 
 commit to memory, and repeat to him in lessons. It 
 filled our minds with names of places and general 
 descriptions, without giving us any definite idea of 
 their position on the globe, or their relation to one 
 another ; and, as may well be supposed, some of the 
 lines and rhymes were harsh and uncouth enough to 
 be the subject of ridicule. But he was very vain of 
 it, and always showed his displeasure if any one was 
 not master of the lesson, and could not repeat it 
 readily, word for word, as he had written it. And 
 what rendered the whole thing more absurd in the 
 eyes of the students, he had composed what he called 
 an acrostic upon his own name, by way of introduc- 
 tion, and this he required us to commit to memory, 
 and to repeat to him with the rest of the book. 
 Nothing lessens the respect of young men for a 
 teacher more than a display of vanity, and they are 
 always prompt in seeing it and amusing themselves 
 with it. And nothing, I think, impaired the respect 
 
Memoir of Eogee, B. Taney. 43 
 
 of the class for Dr. Davidson more than his acrostic ; 
 especially as he required us to commit it to memory 
 as part of our lessons in geography. It was so often 
 and habitually repeated among us in derision that, 
 although I have not thought of it for forty or fifty 
 years, yet, in recalling the scenes of my college life, I 
 find I can still repeat all of it but the last four lines. 
 I give what I remember, from which the reader may 
 judge of the whole performance, and of the literary 
 character and taste of the professor : 
 
 " Round the globe now to rove, and its surface survey, 
 Oh, youth of America, liasten away ; 
 Bid adieu for awhile to the toys you desire. 
 Earth's beauties to view, and its wonders admire ; 
 Refuse not instruction, improve well your time, 
 They are happy in age who are wise in their prime. 
 Delighted we'll pass seas, continents, through. 
 And isles without number, the old and the new; 
 Vast oceans and seas, too, shall have their due praise, 
 Including the rivers, the lakes, and the bays." 
 
 ^- -X- -K- y'r * * ■*: 
 
 The rest has dropped from my memory. The only 
 remaining professor in the college, when I entered 
 it, was Charles Huston, and his province was to 
 teach the Latin and Greek languages. There was no 
 teacher of French or any other modern language, nor 
 was there any teacher of the English grammar. We 
 were expected to make ourselves masters of it by the 
 study in the Greek and Latin, and reading the best 
 authors in the English language. I completed my 
 studies of the Latin and Greek under Mr. Huston. 
 
44 Memoir of Eogek B. Taney. 
 
 He was studying law at tlie time he was teaching in 
 the college, and resigned when the class to which I 
 belonged became the senior class. He remained in 
 Carlisle a year or more afterwards in order to com- 
 plete his legal studies. I need not speak of his char- 
 acter and capacity ; for he afterwards became one of 
 the first jurists in the country, and was for many 
 years one of the Judges of the Suj^reme Court of 
 Pennsylvania. He was an accomjDlished Latin and 
 Greek scholar, and hajopy in his mode of instruction. 
 And when he saw that a boy was disj)osed to study, 
 his manner to him was that of a companion and 
 friend, aiding him in his difficulties. The whole 
 school under his care were much attached to him. 
 
 Under these professors I studied the different 
 branches of science which I have enumerated. I 
 studied closely, was always well prepared in my les- 
 sons, and, while I gladly joined my companions in 
 their athletic sports and amusements, I yet found time 
 to read a great deal beyond the books we were re- 
 quired to study. And as my course of reading was 
 selected by myself, and governed by the impulse or 
 taste of the moment, it was rather desultory, and some 
 of it not wisely selected. It was perhaps fortunate 
 for me, when I entered college, that I was not far 
 enough advanced to be placed in the junior class, but 
 yet farther advanced than the next class below it; 
 for I found there a youth about my own age, who had 
 
Memoir of Roger B. Taney. 45 
 
 just entered before me, aud was in the same situation 
 in this respect with myself. His name was John 
 Lyon, and his family lived within a mile or two of 
 Carlisle. We were both, in the first instance, placed 
 in the inferior class. But as we had read, before we 
 entered the college, the books which that class were 
 studying, and they would not for six months reach 
 the point we had attained, Mr. Huston saw that we 
 had almost nothing to do, and would be idle and 
 unemployed for the greater part of our time, if we 
 were held back and confined to the duties of that 
 class. Perhaps, too, he formed a favorable ojoinion 
 of our capacity and disposition to study. And he 
 proposed to put us in a class by ourselves, and give 
 us an opportunity, by close application, to overtake 
 the junior class, so as to be ready to enter with 
 them the senior, and to graduate with them. We 
 gladly accepted his proposition. My classmate was a 
 youth of fine genius, and, at that time, a close student. 
 We were, perhaps, both a little flattered by the good 
 opinion of our teacher which this arrangement indi- 
 cated, and we were anxious not to disappoint him. We 
 studied hard, helped one another, and found ourselves 
 gaining on the class before us. We got over the 
 ground they had passed in less time than they had 
 done. And when we were examined with them, pre- 
 paratory to our admission to the senior class, we were, 
 by no means, the worst scholars. Our professor was 
 
46 Memoir of Eogek B. Taney. 
 
 evidently pleased with the vigor and success with 
 which we had pressed forward ; was always ready to 
 aid us, and, after he resigned and remained in Car- 
 lisle studying law, he kept up his intercourse with us, 
 and always treated us with marked kindness. 
 
 Mr. Lyon afterwards studied law, but died while 
 quite a young man. Our relation to one another in 
 the school had made us intimate and attached friends, 
 and I sincerely deplored his death. If he had lived, 
 he was undoubtedly ca2:)able of attaining a high and 
 leading position at the bar. 
 
 The time of examination and of conferring diplomas 
 must always be an anxious and exciting one to the 
 students ; and every circumstance connected with it is 
 most commonly so deejoly impressed upon the memory 
 that it is never forgotten. They come back to my 
 memory freshly at this day, although they took place 
 fifty-nine years ago. 
 
 The examination was public. It was generally 
 attended by most of the trustees, or visitors who were 
 in town, and sometimes by other gentlemen of literary 
 taste who took an interest in the success of such insti- 
 tutions. When the examination was over, and the 
 professors had decided who were entitled to the degree 
 of Bachelor of Arts, another day, about three or four 
 weeks distant, was fixed on, when the Commencement 
 was to be held with more ceremony, and speeches 
 made by some of the graduates, and diplomas con- 
 
Memoir of Eogee B. Taney. 47 
 
 ferred. Our class consisted of about twenty or thirty, 
 
 I think : but I have no catalogue before me ; none 
 
 were rejected, although there were certainly some very 
 
 indifferent scholars among us. Those who desired 
 
 to return home as soon as the examination was over, 
 
 without waiting for the public Commencement, were 
 
 always permitted to do so by the professors ; and those 
 
 who remained were not all required to deliver speeches. 
 
 In a large class it would take up too much time, and 
 
 weary the audience. Each of those who intended to 
 
 speak had a subject selected for him by Dr. Nisbet, 
 
 and with it what was called a skeleton, that is, brief 
 
 notes of the manner in which it might be handled ; 
 
 the skeleton generally covering about half a page of 
 
 small letter-paper closely written. There were two 
 
 honors conferred. The first was the Salutatory oration 
 
 in Latin, the second the Valedictory. Wliat I am 
 
 inclined to think was a peculiarity in that college, 
 
 these honors were not conferred by the professors or 
 
 trustees, but were left to the decision of the graduates. 
 
 In other words, the students were to elect the persons 
 
 on whom these honors should be conferred ; and the 
 
 election was made by ballot. 
 
 These elections naturally created much interest; 
 yet, in the class to which I belonged, they were con- 
 ducted with perfect good humor and kind feelings. 
 But they were more animated and exciting than usual 
 upon this occasion, because it was uncertain who 
 
48 Memoir of Kogee, B. Taney. 
 
 would be designated until all the ballots were counted. 
 This difficulty arose from the following circumstances. 
 There were two societies among the students, each of 
 which had existed for many years, — the "Belles-Let- 
 tres," and the " Philosophical." There was always a 
 rivalship between the two societies for the graduating 
 honors ; and, as they were conferred by the class with- 
 out any interposition by the professors, if one of the 
 societies had a majority of the whole class, it generally 
 took the two honors to itself, much to the mortifica- 
 tion of its rival. But it often haj^pened that neither 
 society had this majority, and the selection depended 
 upon the votes of outsiders, who belonged to neither 
 society, and who voted according to their individual 
 preferences. There was, moreover, sometimes a con- 
 test in the society itself. Both of these difficulties 
 arose on this occasion. The two societies were about 
 equal in numbers, and there were three or four of the 
 class who belonged to neither, and upon whose votes 
 the election depended. And in the Belles-Lettres 
 Society, to which I belonged, there was a serious 
 division among ourselves as to both honors. It was 
 rumored among us that there was a like difficulty in 
 the Philosophical Society. But whether the rumor 
 was well founded or not, I do not know, as it was the 
 duty of the members of each to keep secret what 
 passed in it. And the impression among us, as to the 
 division in the rival society, arose from expressions 
 
Memoir of Eogee B. Taney. 49 
 
 inadvertently dropped in conversation, or something 
 accidentally overheard. 
 
 Be this as it may, there was much difficulty in our 
 society both as to the first and second honor. The 
 selection of the candidates was to be made by the 
 majority of the society, and the minority were con- 
 sidered as bound in honor to support them in the 
 election by the class. My friends in the society 
 nominated me to deliver the Valedictory. My prin- 
 cipal opponent was Henry Williams, of Pennsylvania, 
 who afterwards became a distinguished clergyman of 
 the Presbyterian Church. Pie was a man of fine 
 talents, a good scholar, very much respected by the 
 class, and we regarded him as an eloquent speaker. 
 The contest was a very animated one, and both of tlie 
 candidates not a little anxious. I was selected by a 
 majority of the society, and became its candidate for 
 the honor. Why I was selected in preference to Mr. 
 Williams, I can hardly now say. He was several 
 years older than myself, and his mind more matured, 
 and would very probably have performed the duty 
 better. But he entered college in the senior class, 
 and came there, it was understood, merely to obtain a 
 diploma in order to qualify him to become a minister 
 of the church to which he belonged. His age (for 
 he had arrived at the age of manhood before he came 
 among us) and his pursuits and destination j)re- 
 vented him from mingling as much as I did among 
 
50 Memoie of Roger B. Taney. 
 
 tlie students, and partaking in tlieir amusements and 
 athletic exercises. Besides, I had been much longer 
 in the college, and much longer associated with the 
 society to which we belonged. And as I now look 
 back to what may be called my first entrance into 
 public life in this little republic, the " Belles-Lettres 
 Society," I am persuaded that the strong attachments 
 which boys of good feelings form to one another, when 
 they have been long daily companions in study and 
 in play, must have contributed quite as much to the 
 earnestness displayed in my behalf as any supposed 
 superior fitness on my part. Mr. Williams and his 
 friends faithfully supported the nomination at the 
 election by the class. 
 
 This election, as I have said, was doubtful until the 
 ballots were counted. The outsiders kept their in- 
 tentions to themselves. But I succeeded by a close 
 vote ; I think a majority of two only. This result 
 was mainly due to my classmate John Lyon, who, I 
 found afterwards, had not only voted for me, but taken 
 au interest in my behalf among those who were not 
 members of either society. We, however, lost our can- 
 didate for the Salutatory oration. Mr. McConaughy, 
 the nominee of the Philosoiihical Society, was selected, 
 and delivered the oration. He was a very fine scholar, 
 and worthy of the honor conferred upon him. He 
 was amiable and kind in his disposition, and modest 
 and retiring in his habits. He, like Mr. Williams, 
 
Memoir of Kogee B. Taney. 51 
 
 became a minister of the Presbyterian Church. I 
 met him often afterwards, and we renewed our college 
 friendship ; and I had the j)leasure of voting for him 
 as the Principal of the Frederick Academy, of this 
 State, when I resided in that town, and was a trustee 
 of the school. 
 
 It may well be supposed that I was much gratified by 
 my success. It could not, I suppose, be otherwise with 
 a boy between eighteen and nineteen years of age, to 
 whom the college was as yet his world, and whose name, 
 by this election, was inscribed upon its record as one 
 of its honored sons ; but, as most commonly happens 
 to successful ambition in a wider world, I soon found 
 that success had brought with it troubles and anxieties 
 to which I had before been a stranger. 
 
 I had to write an oration, which, from its character, 
 would be more likely to attract attention and provoke 
 criticism than any other in the class. It was to be 
 submitted to Dr. Nisbet before it was delivered, and 
 I knew and felt the great superiority of his judgment 
 and taste, and feared he might find it all wrong. It 
 was to be delivered in the presence of a large and 
 highly intelligent audience of ladies and gentlemen, 
 who always attended the college Commencement ; and 
 I was unaccustomed to composition. For in tlie 
 Belles-Lettres Society our exercises consisted of de- 
 bating a question agreed on, or of delivering an 
 oration selected from some speech and committed to 
 
52 Memoik of Koger B. Taney. 
 
 memory, or in reciting passages from a poem or play. 
 The manual labor of writing was always unpleasant 
 to me ; and, although some of the members of the 
 society occasionally wrote out their speeches and read 
 them in the debate, and sometimes read an essay upon 
 some subject selected by themselves, yet I never had 
 done so. My speeciies in the debate were always 
 made from very brief notes, unintelligible and un- 
 meaning to everybody but myself — consisting of the 
 heads and order of the argument I intended to offer, 
 each head containing only a few words to recall to 
 my memory the point I meant to urge. And when I 
 sat down to write this valedictory oration, I had never 
 written a paragraph of my own composition, except 
 familiar and unstudied letters to my family. 
 
 This oration cost me much trouble and anxiety. 
 I took great pains with it, and perhaps should have 
 done better if I had taken less. I remember well 
 that my greatest difficulty was how to begin it ; and 
 the first two or three sentences gave me nearly as 
 much trouble as all the rest of it put together. I am 
 quite sure that I spent hours upon them, and wrote 
 them over at least a dozen times. However, the speech 
 was worked out at last, and submitted to Dr. Nisbet ; 
 and I was much relieved when he returned it to me 
 with only one or two slight verbal alterations. 
 
 But now came my severest trial. The Commence- 
 ment was held in a large Presbyterian church, in 
 
Memoie of Eogee B. Taney. 53 
 
 which Dr. Nisbet and Dr. Davidson preached alter- 
 nately. A large platform of unplaned plank was 
 erected in this church in front of the pulpit, and 
 touching it, and on a level with its floor. From this 
 platform the graduate spoke, without even, I think, a 
 single rail on which he could rest his hand while 
 speaking. In front of him was a crowded audience 
 of ladies and gentlemen ; behind him, on the right, 
 sat the professors and trustees in the segment of the 
 circle ; and on the left, in like order, sat the graduates 
 who were to speak after him ; and in the ^lulpit, con- 
 cealed from public view, sat some fellow-student, with 
 the oration in his hand, to prompt the speaker if his 
 memory should fail him. I evidently could not have 
 been very vain of my oration, for I never called on 
 my prompter for it, and have never seen it since it 
 was delivered, nor do I know what became of it. I 
 sat on this platform, while oration after oration was 
 sjioken, awaiting my turn, thinking over what I had 
 to say, and trying to muster up courage enough to 
 speak it with composure. But I was sadly frightened, 
 and trembled in every limb, and my voice was husky 
 and unmanageable. I was sensible of all this, much 
 mortified by it ; and my feeling of mortification made 
 matters worse. Fortunately, my speech had been so 
 well committed to memory, that I went through with- 
 out the aid of the prompter. But the pathos of leave- 
 taking from the professors and my classmates, which 
 
54 Memoir of Eogee B. Taney. 
 
 had been so carefully worked out in the written 
 oration, was, I doubt not, spoiled by the embarrass- 
 ment under which it was delivered. 
 
 Perhaps it may be thought that the honor of speak- 
 ing the Valedictory, in the manner in which the task 
 Avas executed, was hardly worth the pain and mortifi- 
 cation which it brought witli it. Philosophically con- 
 sidered, this is true ; for I might have gone home, 
 after my examination, without further labors, or trials, 
 or mortifications. 
 
 And as a mere calculation of interest, my college 
 honor was of no consequence in my future pursuits. 
 I doubt whether a dozen j^ersons out of my own family 
 connection, in the new world upon which I was after- 
 wards to enter, even knew that this mark of distinc- 
 tion had been awarded to me. Yet, in the little world 
 of a college, it is as much valued, and as much the 
 object of ambition, as the high oiSces of government 
 in the great political world. And I confess that I 
 would, at that time, have endured much more than I 
 did rather than not have obtained it. Such is ambi- 
 tion in the little world and the great, and so early do 
 our teachers and instructors plant it in our hearts. I 
 do not say that it is wrong. For when it is properly 
 regulated, and directed to proper objects, it often leads 
 the possessor to great personal sacrifices for the benefit 
 of otliers. But I doubt whether it promotes often his 
 own happiness, however successful he may be. 
 
Memoik of Eoger B. Taney. 55 
 
 Having graduated, I returned home to my family. 
 This was in the fall of 1795. I remained at home 
 during the eusuing winter, wliich was idly spent in 
 the amusements of the country. My father ke})t a 
 pack of hounds, and was fond of fox-hunting. It 
 was the custom to invite some other gentleman, who 
 also kept fox-hounds, to come with his pack on a 
 particular day, and they hunted with the two packs 
 united. Other gentlemen, who were known to he 
 fond of the sj)ort, were also invited, so as to make a 
 party of eight or ten persons, and sometimes more. 
 The hunting usually lasted a week. The party always 
 rose before day, breakfasted by candle-light, - — most 
 commonly on spareribs (or bacon) and hominy, — • 
 drank pretty freely of eggnog, and then mounted and 
 were in the cover, where they expected to find a fox, 
 before sunrise. The foxes in the country were mostly 
 the red, and, of course, there was much hard riding 
 over rough ground, and the chase apt to be a long- 
 one. We rarely returned home until late in the day ; 
 and the evening was spent in gay conversation on the 
 events and mishajos of the day, and in arrangements 
 for the hunt of the morrow, or in playing whist for 
 moderate stakes. There was certainly nothing- like 
 drunkenness or gambling at these parties. I myself 
 never played. By the end of the week the hunters 
 and dogs were pretty well tired, and the party sepa- 
 rated. But before they parted, a time was always 
 
56 Memoie of Eogek B. Taney. 
 
 fixed when my father was to bring his dogs to his 
 friend's house, or they were to meet by invitation at 
 the house of some other gentleman of the party, where 
 another week would be j^assed in like manner ; and 
 these meetings, with intervals of about a fortnight or 
 three weeks, were kept up until the end of the season. 
 I joined in all of them ; and when not so engaged, 
 my father, with my elder brother and myself, hunted 
 with his own dogs when the weather was fit. 
 
 It was an idle winter, and a very different one from 
 my winters at college. It was intended, I j^i'esume, to 
 give me a season of relaxation and amusement before 
 I entered on the study of the law ; and I liked it and 
 enjoyed it greatly. For although my health was 
 not robust, and eggnog was very apt to give me a 
 headache, yet, in the excitement of the morning, I 
 forgot the fatigues of the preceding day, and rode as 
 hard as anybody, and followed the hounds with as 
 much eagerness. By the end of the winter I was a 
 confirmed fox-huuter. But by this time I began to 
 feel tired of this idle life, and impatient to begin the 
 study of the law. It was the profession my father 
 had always desired me to follov/, and which I myself 
 preferred. Accordingly, in the spring of 1796, I 
 went to Annapolis, to read law in the office of Jere- 
 miah Townley Chase, who was, at that time, one of 
 the Judges of the General Court of Maryland. This 
 Court had original jurisdiction in all civil cases, 
 
Memoie of Eoger B. Taney. 57 
 
 throughout the State of Maryland, where the matter 
 in dispute exceeded £1 Maryland currency, ($2,661), 
 and in criminal cases of the higher grade. It sat 
 twice a year at Annai^olis for the Western Shore, and 
 twice at Easton for the Eastern Shore ; and jurors 
 from every county of the respective Shores were sum- 
 moned to attend it. This Court was abolished in 
 1805, and courts sitting in the several counties sub- 
 stituted in its place. It may now perhaps, at this 
 day, be a matter of surprise that it was continued so 
 long ; for it was exceedingly inconvenient to the 
 suitors who resided in the distant counties to attend 
 it, and the costs of bringing witnesses to Annapolis 
 and Easton, and keeping them there sometimes for 
 weeks together, was oj^pressive, and often ruinous to the 
 parties. There were no railroads or steamboats at that 
 time, and stages were almost in their infancy in Mary- 
 land ; and such as had been established were as rough 
 as a road-wagon, and found only between the prin- 
 cipal towns, and running then only once or twice 
 a week. Almost everybody came on horseback to 
 Annapolis, except those coming from Baltimore. 
 But the Court was maintained by the confidence the 
 people entertained in the ability and impartiality of 
 the tribunal, and their fear that, if a change was 
 made, and courts for each county constituted in its 
 place, that injustice, and not justice, would be brought 
 to their doors. They would have been shocked be- 
 
58 Memoir of Eogek B. Taney. 
 
 yoncl measure in that clay, at the idea of trying a 
 case, civil or criminal, out of doors, or in the news- 
 papers, before it was tried in Court, or while it was 
 under trial, or after it hud been there decided. 
 Young America was not then born. 
 
 The Court consisted of three judges, always selected 
 from the eminent men of the bar; the jurors from 
 each county were taken from the most respectable and 
 intelligent class of society ; and, generally speaking, 
 the juiy who tried the cause probably never heard 
 of it before they were empanelled, and had no 
 knowledge whatever of the parties, except what they 
 gathered from the testimony. There was every se- 
 curity, therefore, for an impartial trial. The extent 
 of its jurisdiction, and the importance of the cases 
 tried in it, brought together, at its sessions, all that 
 were eminent or distinguished at the bar on either of 
 the Shores for which it was sittino-. 
 
 The sessions at Annapolis were of course the most 
 important, from the great population, extent of terri- 
 tory, and commercial character of the Western Shore. 
 Several of the most eminent lawyers in the State re- 
 sided in the city. From the character of the Judges 
 of the General Court, of the bar who attended it, and 
 the business transacted in it, Annapolis was considered 
 as the place, of all others in the State, where a man 
 should study law, if he expected to attain eminence 
 in his profession. There were generally between 
 
Memoir of Roger B. Taney. 59 
 
 twenty and thirty students from different parts of 
 the State while I was there, some in our office, some 
 in another. It was there I first saw the distinguished 
 men of whom I shall hereafter speak. 
 
 Everything I saw, when this Court was in session, 
 was , calculated to stimulate my ambition. I deter- 
 mined not to go into society until I had completed 
 my studies, and I adhered to that determination. In 
 the midst of the highly-polished and educated society 
 for which that city was at that time distinguished, I 
 never visited in any family, and respectfully declined 
 the kind and hospitable invitations I received. I 
 associated only with the students, and studied closely. 
 I have for weeks together read law twelve hours in 
 the twenty-four. But I am conviuced that this was 
 mistaken diligence, and that I should have j^rofited 
 more if I had read law four or five hours, and spent 
 some more hours in thinking it over, and considering 
 the principle it established, and the cases to which it 
 might be applied. And I am satisfied, also, that it 
 would have been much better for me, if I had occa- 
 sionally mixed in the society of ladies, and of gentle- 
 men older than the students. My thoughts would 
 often have been more cheerful, and my mind refreshed 
 for renewed study, and I should have acquired more 
 ease and self-230Ssession in conversation with men emi- 
 nent for their talents and position, and learned from 
 them many things which law-books do not teach. I 
 
60 Memoir of Kogee B. Taney. 
 
 suffered much and often from this want of composure, 
 and from the consciousness of embarrassment, when I 
 emerged from my seckision and came into the social 
 and business world. 
 
 My reading in the office of a judge, instead of a 
 practising lawyer, had some advantages ; but, upon 
 the whole, was, I think, a disadvantage to me. It is 
 true it gave me more time for uninterrupted study, 
 but it gave me no instruction in the ordinary routine 
 of j)i'actice, nor any information as to the forms and 
 manner of pleading further than I could gather it 
 from the books. In the office of a lawyer in full 
 joractice, the attention of the student is daily called to 
 such matters, and he is employed in drawing declara- 
 tions and pleas, special and general, until the usual 
 forms become familiar to his mind, and he learns, by 
 actual practice in the office, the cases in which they 
 should be respectively used, and what averments are 
 material, and what are not. The want of this practi- 
 cal knowledge and experience was a serious inconve- 
 nience to me. And for some time after I commenced 
 practice, I did not venture to draw the most ordinary 
 form of a declaration or plea without a precedent 
 before me ; and, if the cause of action required a 
 declaration varying in any degree from the ordinary 
 money counts, or the defence required a special plea, 
 I found it necessary to examine the principles of 
 pleading which applied to it, and endeavored to find 
 
Memoir of Koger B. Taney. 61 
 
 a precedent for a case of precisely that cliaracter ; nor 
 was it so easy, in that clay, for an inexperienced young 
 lawyer to satisfy himself upon a question of special 
 pleading. Chitty had not made his aj^pearance, and 
 you were obliged to look for the rule in Corny n's 
 Digest, or Bacon's Abridgment, or Viner's Abridg- 
 ment, and the cases to which they referred; and I 
 have sometimes gone back to Lilly's Entries and 
 Doctrina Placitandi in searching for a precedent. 
 
 Although this deficiency gave me so much trouble, 
 it, jierhaps, in the end made me a better pleader ; for 
 the consciousness of my want of knowledge, and that 
 I had no office-experience to rely on, made me study 
 the subject the more carefully, whenever a case was 
 likely to present a question of pleading ; for in that 
 day strict and nice technical pleading was the pride 
 of the bar, and I might almost say of the Court. And 
 every disputed suit was a trial of skill iu pleading be- 
 tween the counsel, and a victory achieved in that 
 mode was much more valued than one obtained on the 
 merits of the case. 
 
 Some of the students, of whom I was one, formed a 
 debating society ; but the questions discussed were 
 rarely law questions. The object was to prepare our- 
 selves for the bar, by the practice of oral arguments 
 among ourselves. We had no moot court. My pre- 
 ceptor, Mr. Chase, did not encourage them, and in 
 this he agreed, I believe, with the leaders of the bar 
 
62 Memoir of Eogek B. Taney. 
 
 in Annapolis in whose offices there were students. 
 He thought that discussions of law questions by 
 students were apt to give them the habit of speaking 
 upon questions whicli they did not understand, or 
 of which they had but an imperfect and superficial 
 knowledge — that its tendency, therefore, was to accus- 
 tom them to make loose arguments, and to lay down 
 principles without the proper qualifications. He ad- 
 vised me to attend regularly the sittings of the Gen- 
 eral Court, to observe how the eminent men at that 
 bar examined the witnesses and brought out their 
 case, and raised and argued the questions of law, and 
 afterwards to write a rej)ort of it for my own use. He 
 thought that listening to such men, and making a 
 note of the arguments of counsel and the decisions 
 of the Court, and reading the cases referred to, would 
 be of more service to me than attempting to argue 
 such points myself, or listening to the arguments of 
 my fellow-students in a moot court or debating so- 
 ciety. I followed his advice, and reported a good 
 many cases ; but upon looking at them after I came 
 to the bar, and upon maturer experience, I threw 
 them into the fire. They satisfied me, when I read 
 them, that no one was fit for a reporter who was not 
 an accomplished lawyer. As I found that my report, 
 after all I had listened to, did not fully and with legal 
 precision bring out the points, I am inclined to think 
 that arguments upon them in a moot court would not 
 
Memoik of Koger B. Taney. 63 
 
 have tended to an increase or advance of legal knowl- 
 edge, and that Mr. Chase was right. No one im- 
 proves his own knowledge or capacity for argument 
 by habitually sj^eaking upon subjects which he does 
 not fully understand, or by listening to those who 
 speak under like circumstances. The danger is that 
 he will bring the habit with him to the bar, and he 
 will find it there a very bad habit. He will some- 
 times find that it would have been better to have been 
 silent than to have sjioken. All the lawyers of Mary- 
 land who have risen to eminence and leadership were 
 trained in the manner described and advised by Mr. 
 Chase. 
 
 I have always deemed it a fortunate circumstance 
 that William Carmichael, of the Eastern Shore of 
 this State, came to Annapolis to read law while I was 
 there. We became intimate friends, and roomed to- 
 gether for a year. We read in different offices ; but 
 we read the same books, and at the same time, and 
 every night we talked over the reading of the day, 
 and the principle of law it established, and the dis- 
 tinctions and qualifications to which they were subject. 
 We did not talk for victory, but for mutual infor)na- 
 tion, and neither of us felt or was entitled to feel any 
 superiority of genius or information over the other. 
 He afterwards became eminent at the bar ; but in- 
 heriting, by the death of his father, a large landed 
 estate, and attached to a country life, he gradually 
 
64 Memoie, of KodEE B. Taney. 
 
 withdrew himself from the profession, and finally, 
 while he was yet in the prime of life, abandoned it 
 altogether, and devoted himself to the pursuits of 
 agriculture. He died a few months ago. The friend- 
 shij:) formed between us when students continued un- 
 broken and undiminished to the hour of his death ; 
 and I could not write my biography without record- 
 ing our early associations, nor can I introduce his 
 name without expressing the cordial friendship 1 
 entertained for him. He was a frank, manly, high- 
 minded gentleman. 
 
 The first session of the General Court, after I went 
 to Annapolis, made a strong imj)ression upon me. 
 The three judges, wearing scarlet cloaks, sat in chairs 
 j^laced on an elevated platform; and all the distin- 
 guished laAvyers of Maryland were assembled at the 
 bar. I was familiar with their names and standing; 
 for many of my fox-hunting friends in Calvert County, 
 with whom I had spent the preceding winter, had 
 been jurors to the General Court, and, knowing that 
 I intended to study law, they frequently talked to me ■ 
 about the great lawyers they had seen and heard at 
 Annapolis. There I saw Luther Martin, Philip 
 Barton Key, John Thompson Mason, John Johnson, 
 Arthur ShaaflT, James Winchester, and others who 
 were highly respectable, but not so distinguished. 
 Pinkney was abroad, having been appointed a com- 
 missioner under the British treaty, and Harper had 
 
Memoie of Rogee B. Taney. 65 
 
 not then taken up his residence in Maryland. I 
 looked with deep interest upon the array of talent 
 and learning which I saw before me, and hoped (per- 
 haps in candor I ought to say believed) that the day 
 would come that I might occupy the like position in 
 the profession. There certainly was about me, at that 
 time, no want of ambition for legal eminence, not so 
 much for the emoluments it would bring, as for the 
 high rank and social position which were in that day 
 attached to it. 
 
 In the enumeration of the great men of the bar, I 
 have placed Luther Martin first. He was not only 
 much older than any of the other gentlemen, but he 
 was the acknowledged and undisputed head of the 
 profession in Maryland. He was so in the eye of the 
 public, he was so admitted by the bar. Nobody dis- 
 puted it with him until Mr. Pinkney returned from 
 Europe. Yet I confess, when I first heard Mr. 
 Martin, I was disappointed ; and, if I had followed 
 the dictates of my own inexperience and unformed 
 judgment, I should have awarded a higher place to 
 some others. Mr. Martin's habits, however, had at 
 that time become bad. He often appeared in Court 
 evidently intoxicated, and, perhaps, was not free from 
 the influence of stimulants when I first heard him. 
 His dress was a compound of the fine and the coarse, 
 and appeared never to have felt the brush. He wore 
 rujQSies at the wrists, richly edged with lace, — although 
 
66 Memoir of Eogee B. Taney. 
 
 every other person had long before abandoned them, — 
 and these ruffles, conspicuously broad, were dabbled 
 and soiled, and showed that they had not been changed 
 for a day or more. His voice was not musical, and 
 when much excited it cracked. His argument was 
 full of digressions and irrelevant or unimportant 
 matter, and his jjoints were mixed up together and 
 argued without order, Avitli much repetition, and his 
 speech was consequently unreasonably long. He was 
 an accomplished scholar, and wrote with classical cor- 
 rectness and great strength. But in his speech (and 
 what I say of this speech may be said of his speeches 
 generally) he seemed to delight in using vulgarisms 
 which were never heard excejst among the colored 
 servants or the ignorant and uneducated whites. For 
 example, I have heard him say he cotch him, in- 
 stead of caught him, and he sot down, instead of sat 
 down, and many other words and phrases not much 
 better. He seemed to take pleasure in showing his 
 utter disregard of good taste and refinement in his 
 dress and language and his mode of argument. He 
 was as coarse and unseemly at a dinner-table, in his 
 manner of eating, as he was in everything. 
 
 But with all these defects, he was a profound lawyer. 
 He never missed the strong points of his case ; and, 
 although much might generally have been better 
 omitted, everybody who listened to him would agree 
 that nothing could be added, but, unfortunately for 
 
Memoir of Eogek B. Taney. 67 
 
 him, lie was not always listened to. He introduced 
 so much extraneous matter, or dwelt so long on un- 
 important points, that the attention was apt to be 
 fatigued and withdrawn, and the logic and force of 
 his argument lost upon the Court or the jury. But 
 these very defects arose in some measure from the 
 fulness of his legal knowledge. He had an iron 
 memory, and forgot nothing that he had read ; and he 
 had read a great deal on every branch of the law, and 
 took pleasure in showing it when his case did not re- 
 quire it. His associates at the bar had, as I have said, 
 great respect for his legal learning. Many years after 
 I came to the bar, I remember on one occasion, when 
 I was engaged in an imjsortant case on the same side 
 with Mr. Shaaflf", and Mr. Martin was opposed to us, 
 Mr. Shaaff and myself went over the case together 
 very carefully ; and when we had done with the exami- 
 nation, he said, I think the case is with us, and I see 
 nothing in it to be afraid of; but I am always afraid 
 of Martin. Yet Mr. Shaaflf ranked then with the 
 foremost men in Maryland, was resolute and firm in 
 his opinions, and would, I am sure, have felt no ap- 
 prehension of being taken by surprise by any other 
 member of the bar. 
 
 Mr. Martin was Attorney-General of Maryland in 
 the war of the Revolution, and continued so for a 
 great many years. He did not resign until long after 
 I had entered upon the practice. His jjrosecutions 
 
68 Memoir of Kogee B. Taney. 
 
 were always conducted with great fairness to the ac- 
 cused, and the attention of the jury called to the 
 evidence which might operate in his favor as well as 
 that against him. Nor was any attempt made to take 
 from it by argument the weight to which it was justly 
 entitled. He was strong in his attachments, and ready 
 to make any sacrifice for his friends. This was proved 
 by the zeal with which he defended Mr. Chase when 
 he was impeached by the House of Representatives 
 of the United States, and still more in the time he de- 
 voted, and the money he spent, in defence of Colonel 
 Burr. In both of these cases he was a volunteer. 
 
 He certainly received, and would have taken, no 
 fee in the impeachment case ; and I doubt whether he 
 received any from Colonel Burr. He became one of 
 his securities for his appearance to answer the charge 
 of misdemeanor after his acquittal for treason. After 
 that recognizance was forfeited, Mr. Martin was har- 
 assed with proceedings against him to recover the 
 amount. How it ended, and whether Mr. Martin 
 paid it out of his own means or not, I do not know ; 
 but if it was in the end paid by Colonel Burr, no fee, 
 however liberal, could have remunerated him for his 
 sacrifices in behalf of his friend, whom he persisted 
 in believing, in spite of evidence, to be an innocent 
 and persecuted man, and a pure patriot ; for the case 
 withdrew him from all other practice, and the cases in 
 the Maryland Courts, in which he was engaged, were 
 
Memoir of Roger B. Taney. 69 
 
 tried in his absence by others. He was kind to young 
 members of the profession, and liberal, and indeed 
 profuse, in his charities, and easily imposed upon by 
 unworthy objects. Indeed his unfortunate habits 
 made him reckless in money matters ; and after a long 
 life of severe labor and ^arge profits, when late in life 
 he was struck with paralysis, which impaired his in- 
 tellect and rendered him incapable of business, he was 
 found to be utterly penniless, and dej)endent upon 
 charity for support. And the only good thing I know 
 of Colonel Burr is, that, soon after this happened, he 
 took Mr. Martin to his house and provided for his 
 wants, and took care of him until his death. 
 
 When William Pinkney returned from England, 
 and resumed the practice, the reign of Martin was at 
 an end. Mr. Pinkney had distinguished himself 
 from his first appearance in Court, and, although still 
 a young man when he accepted the appointment 
 of Commissioner under the British treaty, he was 
 already in the foremost rank of the profession ; and 
 when he had returned, and had been heard in some 
 important and difficult cases, his supremacy was uni- 
 versally acknowledged. He was a perfect contrast to 
 Martin. He was very attentive to his dress, indeed 
 more so than was thought suitable for his age and 
 station. It approached to dandyism, if it did not 
 reach it. He was always dressed in the extreme 
 of the newest fashion, and, for some time after his 
 
70 Memoib of Eogek B. Taney. 
 
 return, took notes at the bar and spoke with gloves 
 on nice enough to wear in a ball-room. His style 
 was metaphorical, but by no means turgid. And, 
 although on some occasions I thought it too ornate, 
 and his metaphors too gorgeous for a legal argu- 
 ment, yet it was impossible, not to listen to them 
 with pleasure. They were always introduced at the 
 right time and the right place, and seemed to grow 
 out of the subject of which he was speaking, and to 
 illustrate it. He was fastidiously correct in his lan- 
 guage, in its grammatical arrangement, in the graceful 
 flow and harmony of the sentences, and in the correct 
 and exact pronunciation of every word ; and I have 
 seen him writhe as if in pain when he was listening 
 to Martin speaking in his slovenly way, in broken 
 sentences, using the most indefensible vulgarisms, and 
 sometimes mispronouncing his words. Mr. Martin 
 seemed indifferent to everything else, provided he 
 impressed upon the Court the idea he wished to 
 convey, while Mr. Pinkney was as attentive to the 
 graceful and ornamental as he was to the logic of his 
 argument ; and, while it was often a labor to listen to 
 Martin, it was impossible not to listen to Pinkney, and 
 to follow him from the beginning to the end of his 
 argument. His arguments were syllogisms, and his 
 points clearly stated and carefully kept separate in 
 the discussion. He 'came to every case fully prepared, 
 
Memoik of Eogee B. Taney. 71 
 
 with his argument and authorities arranged ; and no 
 temptation could induce him to speak in a case, great 
 or small, unless he had time to prepare for it ; and he 
 argued every one as carefully as if his reputation de- 
 pended upon that speech ; while Martin would plunge 
 into a case when he had not even read the record, re- 
 lying on the fulness and readiness of his own mind ; 
 and, if he found unexpected difficulties, would waste 
 a day in a rambling, pointless, and wearisome speech 
 against time, in order to gain a night to look into the 
 case. 
 
 I have heard almost all the great advocates of the 
 United States, both of the past and present genera- 
 tion, but I have seen none equal to Pinkney. He 
 was a profound lawyer in every department of the 
 science, as well as a powerful and eloquent debater. 
 He always saw the strongest point in his case, and he 
 put forth his whole strength to support it, and en- 
 forced it by analogies from other branches of the law. 
 He never withdrew the attention of the Court from 
 this point by associating with it more questionable 
 propositions obviously untenable. He seemed to re- 
 gard such arguments as evidence of a want of legal 
 knowledge in the speaker ; and when replying to 
 them, he took particular ^^leasure in assailing the 
 weaker points, and dwelling u]Don them in a tone and 
 manner that sometimes made the adversary ashamed 
 
72 Memoik of Eogek B. Taney. 
 
 of tliem, and sometimes provoked his resentment. 
 There was, however, one defect in his mode of speak- 
 ing. His voice and manner and intonations did 
 not appear to be natural, but artificial and studied. 
 There were at intervals sudden and loud outbreaks 
 of vehemence with imjoassioned gesticulation, which 
 neither the subject matter nor the language actually- 
 spoken seemed to call for or justify. This want of 
 naturalness in tone and manner was unj)leasant to 
 those who heard him for the first time, and impaired 
 the effect of his oratory until you became accustomed 
 to it, and forgot it in attending to the argument. But 
 a man who, at the age of fifty, spoke in amber-colored 
 doeskin gloves, could hardly be expected to have a 
 taste for simple and natural elocution. His manner 
 was dressed up, — overdressed like his person. 
 
 I remember a conversation among some of us, one 
 evening (after we had been listening to Pinkney), in 
 which Mr. Johnson (father of Keverdy Johnson), 
 whom I have before mentioned as one of the leaders 
 of the bar, remarked that those who were not accus- 
 tomed to hear Pinkney, and had not heard him in a 
 great variety of cases, would not estimate him as 
 highly as he deserved, and would be apt to think we 
 had overrated him — that he would leave nothing be- 
 hind him to compare with the living proofs of great- 
 ness which he was daily exhibiting. 
 
 The latter part of the remark is undoubtedly true. 
 
Memoir of Eoger B. Taney. 73 
 
 He wrote nothing worthy of his living fame. His 
 diplomatic correspondence, when published, disap- 
 pointed those who admired him as a speaker; and 
 he gained no laurels in the discussion with Mr. Can- 
 ning. He may have been sensible that writing was 
 not his forte. But he was not apt to doubt his power 
 in anything, and whatever may have been the reason, 
 he never wrote out one of his speeches. He delivered 
 two arguments in Congress upon Constitutional ques- 
 tions, which are yet remembered, and which were 
 regarded at the time as among the ablest and most 
 brilliant ever delivered in those halls. One of them 
 was in the House of Rejaresentatives on the Treaty- 
 making power, and the other in the Senate upon the 
 famous Missouri question. Reporting for the news- 
 papers in that day was a very different thing from 
 what it is now, and the newspaper reports of these 
 speeches are utter failures ; yet he could not be pre- 
 vailed upon to write them out. The truth is he was 
 not a man for the closet. He needed the excitement 
 of the forum, and there was unrivalled. 
 
 Besides, I doubt very much whether he set much 
 value on posthumous fame, as compared with the 
 present enjoyment. He loved honors and distinc- 
 tion, and contended for them, and maintained them 
 after they were acquired, with unwearied energy. But 
 I incline to think he sought and loved them chiefly 
 for the present pleasure they gave him. He was 
 
74 Memoik of Koger B. Taney. 
 
 epicurean and self-indulgent in his tastes and habits ; 
 and, although far advanced in life, he was evidently 
 ambitious to have the reputation of high fashion and 
 ton, and to be listened to and received as its leader. 
 I am inclined to think he would not have bartered a 
 present enjoyment for a niche in the temple of Fame. 
 He was willing to toil for the former, but made no 
 effort to leave any memorial of his greatness behind 
 him. 
 
 The strong impression he made upon those who 
 were accustomed to hear him, may, I think, be dis- 
 covered in the language and style of the opinions 
 delivered in the Courts at that period. It will be 
 found, upon looking into them, that in many of the 
 cases argued by him the language of the oj^inion is 
 more ornate and embellished than usual at other 
 seasons. I speak of ojoinions delivered in the Su- 
 preme Court as well as in the State Courts. And the 
 remark applies even to some of the opinions of the 
 late Chief Justice, whose style at other times is not 
 less remarkable for its simplicity and judicial calm- 
 ness than for its perspicuity and force. Mr. Pink- 
 ney's speeches must have been much admired, or his 
 ornamented style would not have been imitated. 
 
 I have spoken more particularly of Martin and 
 Pinkney on account of the 2:)re-eminence they respec- 
 tively held at the Maryland bar among the lawyers 
 of the last generation. It is not my purpose to give 
 
Memoik of Roger B. Taney. 75 
 
 a particular description of the others whom I have 
 named, or to compare them with one another. It was 
 ray good fortune to commence the jjractice of the law 
 when they were all yet in the prime of life, and to 
 become familiarly acquainted with all of them, and to 
 be engaged in the practice in the same Courts. They 
 were all gentlemen of high attainments, courteous and 
 kind in their intercourse with each other, and of un- 
 blemished honor. They have now all passed away; 
 and I can truly say, when the recollection of them 
 has come back freshly to my memory, that each one of 
 them would have been eminent at any bar or in any 
 Court of justice. 
 
 I return to the history of my own life. I remained 
 in Mr. Chase's office studying closely for three years, 
 and in the spring of 1799 was admitted to the bar. 
 I had, by practice in our debating societies, become 
 caj)able of speaking before my companions without 
 any feeling of embarrassment ; but I remembered 
 what I had j^assed through in my Valedictory ora- 
 tion, which was the only speech I had made in public, 
 and I feared that I should break down in my first 
 essay at the bar. I could not write out a speech in a 
 Court of original jurisdiction, and depend upon my 
 memory to speak it ; for I could not know precisely 
 what the evidence would be, or what points might 
 arise. I knew I must be able to think and exercise 
 the power of reasoning while I was speaking, and 
 
76 Memoik of Rogee B. Taney. 
 
 while I was conscious that every one was looking at 
 me and listening to me. 
 
 I selected, therefore, a very humble forum for my 
 first effort. The Mayor's Court of Annapolis had 
 then jurisdiction of certain minor offences committed 
 within the jDrecincts of the city, and a grand and petit 
 jury, composed of citizens of the town, were regularly 
 summoned to attend at the stated terms of the Court. 
 I knew the mayor, who was a good-natured old gen- 
 tleman and had never studied law ; and I was quite 
 sure that I knew more law, and had more capacity, 
 also, than the mayor or any of the aldermen who sat 
 with him. Gabriel Duvall, who was then a Judge of 
 the General Court, and afterwards a Judge of the Su- 
 preme Court of the United States, was the Recorder ; 
 but he did not regularly attend the Court, and came 
 in only occasionally when the mayor and aldermen 
 wished his aid in a case of difficulty. The case I had 
 selected for my first trial was the defence of a man 
 indicted for an assault and battery, in which very little 
 mischief had been done to either party, and I had no 
 suspicion that Judge Duvall, for whom I had the 
 highest respect, would think it worth his while to pre- 
 side at the trial. I thought if I ever could speak with- 
 out confusion in any Court of justice, I should be able 
 to do so before the Court and jury I expected to meet. 
 One of my fellow-students, who, like myself, was about 
 to commence the practice, was associated with me in 
 
Memoir of Eogee B. Taney. 77 
 
 the defence; and just as we had empanelled the jury, 
 and felt quite brave, and men of some consequence in 
 the presence of those around us, to our utter dismay 
 in walked Kecorder Duvall, with his grave face and 
 dignified deportment, and took his seat on the bench. 
 
 I do not know whether my associate or myself was 
 the more frightened. We had both been accustomed 
 to see him administering justice in the General Court, 
 and listening to the first lawyers of the State, and we 
 thought he would hardly, in his own mind, fail to 
 contrast our eiforts with theirs. There was no draw- 
 ing back, however, for the jury was empanelled, and 
 the examination of witnesses about to begin. I think 
 he saw our embarrassment, for his manner was kind 
 and encouraging. 
 
 The case turned out to be a very good one for a 
 speech. As almost always happens when a fight takes 
 place in an excited crowd, there was much contradic- 
 tory testimony, and it was difiicult to say whether our 
 client committed the assault or struck in self-defence. 
 
 I watched the testimony carefully as it was given 
 in, turning in my own mind the use that might be 
 made of it. I took no notes, for my hand shook so 
 that I could not have written a word legibly if my 
 life had depended on it ; and when I rose to speak, I 
 was obliged to fold my arms over my breast, pressing 
 them firmly against my body ; and my knees trembled 
 under me so much that I was obliged to press my 
 
78 Memoik of Eogee B. Taney. 
 
 limbs against the table before me to keep me steady- 
 on my feet ; yet, under all these disadvantages, I de- 
 termined to struggle for composure and calmness of 
 mind, and by a strong effort of the will I managed 
 to keep possession of the reasoning faculties, and made 
 a pretty good argument in the case, but in a tremu- 
 lous and sometimes discordant voice, and inferior to 
 what I could have made under more auspicious cir- 
 cumstances. A verdict in favor of my client hardly 
 consoled me for the timidity I had displayed and the 
 want of physical firmness, which seemed,! thought, to 
 be little better than absolute cowardice. 
 
 This morbid sensibility, of which I am speaking, 
 has, upon many occasions throughout my professional 
 life, given me deep pain and mortification. It was the 
 struggle of my life to keep it down ; but, long as that 
 professional life was, I was never able entirely to con- 
 quer it. And although I had been some years in the 
 practice when I made my first speech in the Court of 
 Apjoeals of Maryland, and many more when I first 
 appeared in the Supreme Court of the United States, 
 I felt it on each of these occasions nearly as much as 
 when I tried the case in the Mayor's Court. Even in 
 the Courts in which I was familiar, and where I had 
 risen to the first rank of the profession, and tried 
 almost every case of importance, I have sometimes 
 felt it at the beginning of a term, although I had so 
 mastered it that nobody perceived it but myself. It 
 
Memoik of Roger B. Taney. 79 
 
 depended in a great degree on tlie state of my health ; 
 but I never knew whether it would harass me or not 
 until I rose to speak ; and it is chiefly on account of 
 the consciousness of this weakness, that I have uni- 
 formly refused to make a Fourth-of-July oration, or 
 to speak upon any of those occasions where an orator 
 of the day is a part of the ceremony ; and, perhaps, 
 have refused sometimes where those who requested 
 me to make the speech regarded my refusal as dis- 
 obliging and unkind. 
 
 Indeed, this morbid sensibility was so painful to me, 
 in the first years of my practice, that I am not sure 
 that I should not have abandoned it, if I had been 
 rich enough to have lived without it ; but, as things 
 were, I never for a moment thought of engaging in 
 any other pursuit. I knew that my father and family 
 had formed high hopes of my future eminence, and 
 that a good deal of money had been spent on my 
 education. So I determined from the first to march 
 forward in the path I had chosen, and, whatever it 
 might cost me, to speak on every occasion, professional 
 or political, when my duty required it. A firm and 
 resolute will can do a great deal, yet I knew in many 
 instances I fell far short of what I was capable of 
 performing, had I been perfectly calm and self-pos- 
 sessed. 
 
 The source of this misfortune was my delicate 
 health. It was infirm from my earliest recollection ; 
 
80 Memoie of Rogek B. Taney. 
 
 my system was put out of order by slight exposure; 
 and I could not go througli the excitement and 
 mental exertion of a Court, which lasted two or 
 three weeks, without feeling, at the end of it, that 
 my strength was impaired and I needed repose. 
 
 With the burden of this constitutional weakness 
 upon me, I entered on the practice of the law ; and, 
 soon after my speech in the Mayor's Court at An- 
 napolis, I returned to Calvert County, where my 
 father desired I should commence the practice, attend- 
 ing also the Courts in the adjoining counties. It was 
 not a very desirable theatre for a lawyer, for the 
 counties were small and the j^opulation agricultural, 
 so that there were but few controversies of much mo- 
 ment, and a lawyer, confined to those counties, even 
 in full ]Dractice, could hope for little more than a mere 
 support. 
 
 But my father had ulterior objects in wishing me to 
 settle in Calvert. His frequent election to the House 
 of Delegates of Maryland had given him a taste for 
 public life, and an ambition for jjolitical eminence. 
 He looked upon distinction in the profession of the 
 law as a stepping-stone to political power. He had 
 formed a higher opinion of my capacity than I had 
 myself, and higher than I deserved. And he sup- 
 posed I could more readily make my way into public 
 life from that part of the State than from any other, 
 and might then select a more suitable theatre for the 
 practice of the law. 
 
Memoir of Eogee, B. Taney. 81 
 
 Acting upon this principle, soon after I returned to 
 the county he proposed to me to become a candidate 
 for the House of Delegates. I was, at that time, 
 sufficiently imbued with political ambition to be quite 
 willing to go at once into public life, and was, per- 
 haps, not a little flattered at the idea of becoming a 
 member of the General Assembly at the age of twenty- 
 two years; for while I was reading law at Annapolis, 
 I had seen every year some of the most distinguished 
 men of the State members of that body, and had often 
 listened to the debates, and estimated highly the honor 
 for which my father desired me to become a candidate. 
 I was afraid, however, that I could not be elected, 
 and told him so ; for I had been absent fi'om the 
 county, with short intervals, from my boyhood, and 
 was personally known to very few of its inhabitants. 
 I was unwilling to begin my political career with a 
 defeat. He, however, thought there was no danger of 
 that, and upon a conference with some of his friends, 
 they agreed with him, and I was announced as a can- 
 didate. The election proved to be a very contested 
 one. There were five candidates, and only four could 
 be elected, and each candidate had active personal 
 friends. Parties in the affairs of the general Gov- 
 ernment had already been formed, and almost every- 
 body had taken his side. My family and friends gen- 
 erally were Federalists, and so was I. But at the 
 time of which I am speaking, it was not thought ex- 
 
 6 
 
82 Memoie of Eoger B. Taney. 
 
 pedient, or right in j^rinciple, to carry these party 
 divisions and conflicts into the concerns of the State, 
 and the election of the candidate depended on his 
 personal weight and supposed fitness for the station, 
 and the influence of friends who took an interest in 
 him. Nothing, therefore, was said as to whether the 
 candidate was a Federalist or Repuhlican, — which were 
 the party names of that day, — but whether he was 
 better qualified for the place than his competitor. 
 The whole county voted at the court-house, and the 
 election lasted four days. The votes were viva voce, 
 and the sheriff held the election, and when the polls 
 were closed, and the votes added up, he proclaimed in 
 a loud voice the names of those who were chosen. 
 The candidates, during the election, sat on a raised 
 bench immediately behind the sheriff, so that each of 
 them could see and be seen by every voter. It was 
 an exciting scene to an inexperienced young man like 
 myself When a voter came up, every candidate be- 
 gan to solicit his vote, and j^ress his own name upon 
 him ; and, as many of the voters cared very little 
 about the candidates, except the particular favorite 
 he came to support, I think it very likely that the 
 skilful in these struggles sometimes obtained votes 
 that would otherwise have been given to another. 
 These scenes were occasionally enlivened by sallies 
 of wit between the voter and the candidate, and 
 sometimes the voter gave a pretty hard hit to a can- 
 
Memoib of Eoger B. Taney. 83 
 
 didate whom he happened to dislike. But, however 
 hard the hit, the candidate was obliged to take it in 
 good humor, and treat it as a joke. I made no great 
 figure in this part of the contest, for I was not ex- 
 perienced in it, nor hardened to it, and knew very 
 few of the voters even by name. Some of my friends 
 saw my deficiency, and often stood near me and spoke 
 for me. 
 
 These four days were days of no small anxiety to 
 me, — the poll-books being open before us and the 
 voting viva voce, and we were always aware of the exact 
 number of votes that each candidate had received, 
 and the ebbs and flows in his 2^rospects, as his friends 
 or the friends of other candidates came in. The 
 election Avas closer than my friends had anticipated ; 
 and I felt relieved when the polls were closed, and I 
 saw that I was elected. I need not say that I was 
 gratified, greatly gratified, at the result ; yet I was not 
 over-elated, for I saw plainly enough that I did not 
 owe my election to the speeches I had made during 
 the canvass, but to the energetic and active suppoi't 
 of a few personal and popular friends, who had deter- 
 mined to carry me through. Under the influence of 
 these feelings, when the successful candidates had been 
 proclaimed to a crowded court-house, I very modestly 
 returned thanks in a brief speech. It must, I think, 
 have been pretty well done for the occasion, for it was 
 received with loud hurrahs, and I was immediately 
 
84 Memoir of Kogee B. Taney. 
 
 placed in a chair, raised upon the shoulders of the 
 crowd, and marched in triumph about the court- 
 house green. The other successful candidates were 
 also cheered. But it was manifest that my friends were 
 most numerous and far more elated. I was the only 
 one accustomed to public speaking, and the only one 
 who made a speech. And they seemed to think they 
 had achieved a triumph, in electing a man who had 
 shown himself capable of supporting the interests of 
 his constituents on the floor of the House of Dele- 
 gates. 
 
 The session of the Assembly to which I was elected 
 began on the first Monday of November, 1799. It is 
 not my purpose to give a history of the proceedings 
 of the session. Some very interesting questions came 
 before it, and, among others, the law authorizing a 
 canal between the Chesapeake and Delaware Bays, 
 which has now become such an important channel of 
 trade. This law was strongly opposed by the Balti- 
 more interest, and brought out a great deal of discus- 
 sion, and was carried through with much difficulty. I 
 took an active part in favor of it, and a fair share in 
 the other business of the House, and felt, before the 
 close of the sessiou, that I was listened to with respect 
 and attention. 
 
 General Washington died while the Legislature was 
 still in session. The news reached Annapolis in the 
 evening, and the next morning, when the House met, 
 
Memoik of Eogee B. Taney. 85 
 
 almost every countenance looked sad, and nothing else 
 was sj)oken of. Immediately after the Houses were 
 organized, the Senate sent down a message to the House 
 of Delegates, proposing to pay appropriate honors. 
 Charles Carroll, of CarroUton, and John Eager 
 Howard, two of the most distinguished men in Mary- 
 land, were appointed by the Senate to bring the mes- 
 sage ; and I never witnessed a more impressive scene. 
 The two honored Senators with their gray locks stood 
 at the bar of the House with the tears rolling down 
 their cheeks. The Speaker and members rose to re- 
 ceive them, and stood while the message was delivered. 
 It was no empty formal pageant. It was the outward 
 sign of the grief within, and few were present who 
 did not shed tears on the occasion. My eyes, I am 
 sure, were not dry. 
 
 This session was certainly of much advantage to 
 me in my future life. The discussions, in which I 
 took part, enabled me to speak with less sense of em- 
 barrassment, and to diminish the morbid sensibility 
 which I had before experienced on such occasions. 
 It also brought me into familiar association with the 
 most distinguished men of the State in debate, and in 
 the conduct of public aifairs, and gave me more con- 
 fidence in myself. I laid aside my solitary habits and 
 mixed freely in the society of the place, which, at that 
 period, was always gay during the session of the Gen- 
 eral Assembly, and highly cultivated and refined. Yet 
 
86 Memoir of Eogee B. Taney. 
 
 I cannot say that I was always at ease in it. In my 
 lonely and retired student's life I had not acquired a 
 talent for that light and playful conversation which 
 usually prevails at such assemblies, and I felt more at 
 home in the business scenes of the House of Delegates 
 than in the gayer scenes of the drawing-room. Be- 
 sides, my vision was unfortunately defective. I could 
 not recognize the face of a man or woman unless I 
 had seen it frequently, or there was something striking 
 about it. And I felt awkward and uncomfortable on 
 entering a room, from the consciousness of this defect, 
 and the apprehension that I might pass without notice 
 some lady or gentleman whom I had been introduced 
 to, and whom, of course, I desired to treat with re- 
 spect. 
 
 This imperfection of vision is a most unfortunate 
 infirmity for a man in public life, who must unavoida- 
 bly become acquainted with a multitude of people 
 whose good-will he desires to preserve. And there 
 is no readier way to lose it than to pass, without a sign 
 of recognition, one to whom perhaps you were intro- 
 duced the day before, and familiarly conversed with. 
 Yet I have no doubt this has hajjpened to me hun- 
 dreds of times in the streets of Baltimore and AVash- 
 ington ; and that I have passed, without knowing them, 
 men for whom I entertained a real respect and regard, 
 and whom I should at all times have been glad to 
 meet, and meet as friends, if I had known who they 
 
Memoir of Roger B. Taney. 87 
 
 were. I can now read ordinary print, or write, by the 
 light of a single candle; but I sometimes pass my 
 own children in the street without knowing them until 
 they speak to me. 
 
 I returned to Calvert after the session ended. I had 
 gained a standing in the State and in the county 
 which seemed to leave no doubt of my re-election ; 
 and I was to be a candidate, of course. The first part 
 of the summer was passed idly. There was very little 
 professional business to occupy me, and I read very 
 little law, and not a great deal of anything else. What 
 I did read was chiefly belles-lettres or political and 
 historical writings. I mixed but little in the society 
 of the county, and returned again very much to my 
 retired domestic life, spending my time with my own 
 family. Indeed, I have always loved the country and 
 country scenes too much to study, except in the long 
 nights of winter. When the weather j^ermitted, I 
 was always out, wandering on the shore of the river 
 or in the woods, much of the time alone, occupied 
 with my own meditations, or sitting often for hours 
 together under the shade, and looking almost listlessly 
 at the prospect before me. There was always a love 
 of the romantic about me, and my thoughts and imag- 
 inings when alone were more frequently in that direc- 
 tion than in the real business of life. When I did 
 work in earnest, my chief business was to make my- 
 self familiar with the interests of the State, in order 
 
88 Memoir of Eogek B. Taney. 
 
 that I might qualify myself for taking a leading part 
 at the next session. 
 
 But about the middle of the summer a new political 
 question arose which blighted all these plans. It was 
 seen that the next election was not (like the former) 
 to turn upon the personal popularity of the candidate. 
 A question as to the mode of choosing Electors of 
 President was started, upon which the whole State 
 became agitated, and the election of the candidate in 
 every county was supported, or opposed, according to 
 his opinions on this question. Tickets on each side 
 were brought out, u]Don which the two parties respec- 
 tively rallied. 
 
 The question arose in this way. At the previous 
 elections of President and Vice-President, the Electors, 
 both in Maryland and Virginia, were chosen by dis- 
 tricts. This mode was adopted upon the principle 
 that the rights of the minority as well as the majority 
 were to be respected and protected; and that when 
 the people of the State were divided in opinion, the 
 electoral body ought to represent it as it was, as far as 
 practicable, and not merely speak the opinion of the 
 majority. Upon this mode of voting, although the 
 great majority of the Legislature which passed the 
 law dividing the State into districts belonged to 
 the Federal party, it was well known that two or 
 three of the districts would choose Electors favorable 
 to Mr. Jefferson. One district, as well as I recollect, 
 
Memoik of Eoger B. Taney. 89 
 
 had, at the former election, voted for Mr. Adams ; and 
 it was confidently believed that at the ensuing election 
 two or three districts would vote in like manner. 
 About the end of the session of the Legislature, the 
 contest between Mr. Adams and Mr. Jefferson had 
 become more animated ; and it was understood by both 
 parties that the election would be very close, and proba- 
 bly decided by two or three votes. In this state of 
 affairs, the Legislature of Virginia passed a law re- 
 quiring the Electors to be chosen by a general ticket ; 
 thus securing to Mr. Jefferson, past dispute, the entire 
 vote of that State, and depriving Mr. Adams of the 
 two or three votes upon which his friends had confi- 
 dently counted. When this fact came to the knowl- 
 edge of the Maryland Federalists, they determined, if 
 possible, to counteract it, and, as Maryland was a 
 federal State, to give to Mr. Adams the entire vote. 
 
 The Maryland Legislature had adjourned, and the 
 district law could not be altered without calling an 
 extra session of the Legislature. This would have 
 subjected the State to an expense which could hardly 
 be justified in a mere party question relating exclu- 
 sively to the general Government. If it had been 
 called, and a general ticket substituted for the district 
 system, I do not know how it would have resulted. I 
 think it would have been very doubtful ; for, although 
 a great majority of the counties were in favor of Mr. 
 Adams, the vote of Baltimore City was very large, and 
 
90 Memoir of Eogek B. Taney. 
 
 tlie numerical majority in favor of Mr. JeflPerson a 
 heavy one. 
 
 The leaders of the party, however, I believe, were 
 very confident that they could carry the State Ijy a 
 general ticket. I was too young and too little accus- 
 tomed to electioneering calculations and tactics to 
 have any opinion about the matter ; but, judging 
 from subsequent counts, I think the leaders of the 
 party in Maryland were always too sanguine, and 
 that, in this instance, a general ticket would have 
 gone against them. But, however that may be, a 
 general ticket in the then state of public feeling was 
 out of the question. The political power of the State 
 was in the liands of the counties, and the jiopulation 
 of the counties was agricultural. They were very 
 jealous of the growing influence of Baltimore, and 
 unwilling to give the commercial interest any increase 
 of power, fearing it would be used in a manner that 
 might prove injurious to the landed interest. And if 
 a Legislature composed of a majority of Federalists, 
 had passed a law by which the majority in the counties 
 might be overwhelmed by a sweeping majority in 
 town, they would have been inevitably ruined in the 
 counties, and lost all influence in the State Govern- 
 ment. We now elect our Governor by general ticket ; 
 but, at the time of which I am speaking, nothing 
 could have induced the counties to consent to it. 
 
 Under these circumstances, the gentlemen who were 
 
Memoir of Eogee B. Taney. 91 
 
 at the head of the Federal party determined to put 
 it to the people, at the approaching election, to say 
 whether the Legislature should not elect the Electors, 
 so as to secure the entire vote for Mr. Adams, and in 
 that manner counteract the movement in Virginia. 
 In this way it was put to the people as organized in 
 the State Governa:ient, and not to the numerical ma- 
 jority. 
 
 Who first suggested this plan, I do not know. It 
 was brought before the public in a pamphlet signed 
 " A Bystander," which was avowedly written by Kobert 
 Goodloe Harper. He had become a resident of Balti- 
 more only a few months befoi-e, and hence the signa- 
 ture he adopted. Although he had but recently come 
 among us, he was well known to the people of the 
 State from the distinguished rank he had held in 
 Congress as a Representative from South Carolina; 
 and he was personally and intimately acquainted with 
 most, if not all, of the Maryland statesmen who at 
 that time took the lead in public affairs. I take for 
 granted he consulted them, and received their appro- 
 bation before he acted. I, of course, was too young, 
 and had too little influence in the State, to make it 
 necessary to send to Calvert to consult me. Indeed, 
 I was not personally acquainted with Mr. Harper at 
 that time, and his pamphlet, which I received through 
 the post-office, was the first intimation of the contem- 
 plated movement. It was sent to many gentlemen of 
 
92 Memoir of Koger B. Taney. 
 
 the county, and soon became a subject of conversation. 
 The pamphlet was written with all the force and elo- 
 quence for which Mr. Harper was distinguished in 
 public life and at the bar. It convinced me ; and I at 
 once openly took ground in favor of the measure. 
 Some of the Federalists objected to it ; and it was, of 
 course, vehemently attacked by the friends of Mr. 
 Jefferson. But the great body of Federalists through- 
 out the State supported the proposed change, and ad- 
 verse tickets were formed in Calvert and in every 
 other county upon that issue. But the relative merits 
 of Mr. Adams and Mr. JeiFerson were also necessarily 
 involved in the controversy, and votes for one ticket 
 or the other were, in many instances, undoubtedly in- 
 fluenced by the voters' preferences for the Presidential 
 candidate. 
 
 The ground constantly j)ressed in opposition to the 
 plan was that it took away the rights of the people. 
 And I am satisfied that some men, who wished for the 
 election of Mr. Adams, voted against a legislative 
 choice of Electors on that ground. For myself, I did 
 not see the force of this objection. So far as the voter 
 was concerned, his intention would be as fully carried 
 out by Electors chosen by the Legislature as by an 
 Elector voted for immediately. His vote for the 
 Electors, or for members of the Legislature, desig- 
 nated the person whom he wished to be President; 
 and his share of the sovereign power was equally 
 
Memoik of Koger B. Taney. 93 
 
 exercised, whether he accomjolished his object by 
 voting immediately for the President preferred, or 
 appointing an agent or several agents to execute his 
 wishes. 
 
 I was the only speaker on the Federal ticket, and 
 supported and defended the legislative choice of Elec- 
 tors upon these grounds and those herein-before stated. 
 During the canvass, I addressed three or four meetings 
 of the people, and we went into the election very con- 
 fident of success. To our surprise, we were beaten. It 
 was a close vote, so close that we elected one of our can- 
 didates. But I was among the defeated ; and when the 
 news came in from the other counties, we found that 
 many of them, upon which we confidently counted, 
 had gone against us, and that the Federalists, who 
 were two to one in the House of Delegates of 1799, 
 were in a minority in that of 1800. The majority 
 against us was a large one, and the power of the State 
 jjassed from the hands of the Federalists, and was in 
 the hands of the Republican party. 
 
 The unpopularity of Mr. Adams no doubt con- 
 tributed greatly to this result. The Federalists of 
 Maryland had lost confidence in him. The letter 
 of General Hamilton, which was published on the 
 eve of our election, increased their dissatisfaction with 
 Mr. Adams, and he was supported from necessity, in 
 order to prevent the general Government from falling 
 into the hands of the opposing party. Indeed, I 
 
94 Memoir of Eoger B. Taney. 
 
 heard many who voted for him say they felt no great 
 anxiety about his election ; that they took him in pref- 
 erence to Mr. Jefferson, but should care very little if 
 he was defeated. When we knew that such opinions 
 prevailed extensively in the party, and the only object 
 of the proposed measure was to secure the election of 
 Mr. Adams, I think we were over-sanguine in looking 
 so confidently for success. 
 
 My father and myself, as may be supposed, were 
 sufficiently mortified at this defeat. It put an end to 
 any prospect of immediate political elevation. And 
 as it never had been intended that Calvert should be 
 my permanent place of residence, there was no object 
 to be gained by continuing there any longer. As I 
 have said, there was not business enough in the county 
 to make the profession of the law worth pursuing, and 
 any hopes of political distinction must be postponed 
 to a future day. We expected, to be sure, that the 
 Federalists would soon recover their lost power in the 
 county and the State. But I was not willing (nor did 
 he wish that I should) to remain there another year, 
 doing nothing to advance me in my pi'ofession, but 
 wasting my time in small contests for county ascendency. 
 
 As I was not in public life, it was desirable that I 
 should at once select a place for my permanent resi- 
 dence and the pursuit of my profession. We had 
 many consultations upon the subject. He suggested 
 Baltimore. But I had scarcely any personal acquaint- 
 
Memoir of Eogek B. Taney. 95 
 
 ances there, and I feared I should be lost in a large 
 city, without any friends to give me an opportunity 
 of coming forward. I therefore proposed Frederick. 
 My inducement for selecting Frederick was that, next 
 to Annapolis and Baltimore, it was, with a view to 
 profit, the best point of practice in the State. The 
 two lawyers who had been for years at the head of 
 the jDrofession in that place were John Thomson 
 Mason and Arthur Shaaff The former had re- 
 cently retired from practice, and the latter removed 
 to Annapolis; and the bar was a young one, most of 
 the members being but a few years older than myself 
 Besides, I had at Annapolis formed friendships with 
 some young men near my own age who resided in 
 Frederick. And I felt that I should not there be as 
 lonely and without friends, on my first arrival, as I 
 should have been in Baltimore. 
 
 My father yielded to these considerations, and in 
 March, 1801, I took up my residence there, and ap- 
 jDeared in Court and made my first speech. It was a 
 volunteer speech : Mr. Shaaff, who still practised in 
 Frederick, having invited me to take part in one of 
 his cases, in order to give me an opportunity of ap- 
 pearing before the public. 
 
 Thus far Mr. Taney wrote his own life, but no 
 farther. 
 
CHAPTER II. 
 
 LIFE IN FREDERICK. 
 
 A. D. 1801—1823. 
 
 FREDERICK, now usually called Frederick City, 
 where Mr. Taney had taken up his residence, is 
 the seat of justice in Frederick County, and contained, 
 at that time, about three thousand inhabitants. It is 
 situated in a valley remarkable for fertility, salubrity, 
 and picturesque scenery. On the east, at a distance 
 of eight miles, the Linganore hills, with their gentle 
 slopes, are seen stretching from north to south. On 
 the west, at a distance of three miles, is the Catoctin 
 Mountain, with its woody sides and undulating sum- 
 mits, running parallel with the Linganore hills. At 
 the north, the valley seems closed by the converging 
 mountain and hills, and at the south stands the Sugar 
 Loaf Mountain, with its solitary summit in the blue 
 distance. Not many miles from the town, in all 
 directions, were fine country - seats, owned and oc- 
 cupied by wealthy farmers. The society of the town 
 and tlie neighborhood was intellectual, refined, and 
 hospitable. 
 
 The business of the place was, for that early period, 
 very considerable. During the Revolutionary War, 
 there sprang up in the neighborhood a variety of 
 
 96 
 
Memoir of Kogek B. Taney. 97 
 
 manufactures. Even powder and cannon were manu- 
 factured there. In the town, and throughout the 
 county, there were tanneries and flour-mills. The 
 manufacture of hats and shoes, and saddles and har- 
 ness, and carriages, wagons, ploughs, and all kinds of 
 farming-implements, constituted a large business in 
 the town. Coopering of casks and barrels was also a 
 profitable employment. There were also in the neigh- 
 borhood a manufactory of glass, and works for smelt- 
 ing and casting iron. Here and there throughout the 
 county were distilleries for making whiskey and flit- 
 tening hogs. Horses and cattle of all kinds were 
 raised for sale. Books, as well as newspapers, were 
 printed in the town. So, too, there were looms for 
 weaving coarse cloths, and potteries for making earth- 
 enware. Dry-good stores, groceries, and hardware 
 stores abounded ; and banks and money-lenders gave 
 life to business. As Frederick was situated on the 
 Cumberland Boad, the great highway from Baltimore 
 and Washington to the West, it was always enlivened 
 by stage-coaches and by wagons, and the entry and 
 exit of travellers. During the early history of the 
 State, and until 1776, Frederick County embraced 
 what are now Montgomery and Washington and 
 Alleghany Counties, and a part of Carroll ; and Fred- 
 erick was the county town. It continued to be the 
 great western town of the State. Not only were 
 lawyers attracted to it, but also physicians who had 
 
98 Memoir of Roger B. Taney. 
 
 received a Euroi^ean education. Among tlie lawyers 
 who resided there at the time, and for many years pre- 
 vious, was Thomas Johnson — on whose nomination, 
 the 15th of June, 1775, as a delegate from Maryland 
 to the Continental Congress, General Washington was 
 chosen commander-in-chief of the American forces ; 
 and who was the first Governor of Maryland after the 
 Declaration of Independence; and to whom President 
 Washington offered, first a seat on the bench of the 
 Supreme Court of the United States, which was ac- 
 cepted, but was resigned after a service of two years, 
 and afterwards, the Secretaryship of State, which 
 was declined. He stood in the first rank of Maryland 
 lawyers, but was now retired from j)ractice. Being 
 born in the same county with Mr. Taney, and an inti- 
 mate friend of his father, he often went to his office 
 and advised him in matters of his profession, and 
 talked of the men and events of the Revolution. His 
 conversations made so much impression on the mind 
 of Mr. Taney that often, in the last years of his life, 
 he narrated some of them to me, in regard to the men 
 of that period, especially Mr. Madison. 
 
 Such was the professional field where Mr. Taney 
 now appeared. In the transactions of such various 
 business as I have described, there was much need of 
 the aid of lawyers for direction, as well as conducting 
 lawsuits that inevitably arise out of the disputes of 
 l)usiness. And as at that early day the boundaries 
 
Memoie of Eogee B. Taney. 99 
 
 and the titles to estates were unsettled, a very lucrative 
 practice in actions of ejectment and of trespass had 
 sprung up ; and lawyers practised in other counties 
 than the one in which they resided. Besides the 
 County Courts, the Court of Chancery and the Court 
 of A[)peals were open to Mr. Taney. The bar of 
 Frederick was an able one ; and the leading lawyers 
 of other bars practised there. 
 
 I studied law at Frederick under Mr. John Nelson, 
 afterwards Attorney-General of the United States, 
 and one of the ablest of American lawyers, and from 
 him, and others of Mr. Tnney's contemporaries at the 
 Frederick bar, I learned, during the earlier years of 
 my practice at that bar, the history of his professional 
 career during his residence at the place. I learned, 
 too, from all classes of citizens of the town, and of 
 the county, their estimate of him, and how he ap- 
 peared to them in all his relations, professional and 
 private. What I shall now relate will therefore be 
 upon the testimony of those with whom he lived and 
 acted, confirmed by indisputable facts. 
 
 From his first appearance at Frederick, Mr. Taney 
 was a diligent student. Law was his chief study ; but 
 he devoted much time to the study of history and of 
 letters. The notes which he took of Dr. Nisbet's 
 lectures at Dickinson College, mentioned by himself 
 in the first chapter of this memoir, were very full and 
 very accurate. They were preserved in bound manu- 
 
100 Memoir of Roger B. Taney. 
 
 script volumes, which I have examined with some care, 
 and they might be published as good treatises on the 
 respective subjects. The notes on moral philosophy- 
 cover two hundred and forty-eight closely written 
 pages. Those on the dead languages and classical 
 education, and the character of the principal classic 
 authors, beginning with Homer and ending with 
 Seneca, cover one hundred and twelve pages. Those 
 on criticism cover two hundred and ninety-six pages, 
 and those on logic, one hundred and seventy-eight 
 pages. Upon these foundations, laid in his collegiate 
 studies, he now built with untiring zeal. He not only 
 studied thoughts, but he studied words and style with 
 uncommon care. He cultivated a simple and severe 
 taste. 
 
 In 1803, Mr. Taney became a candidate on the 
 Federal ticket for the House of Delegates. He can- 
 vassed the county, and made a deep impression by his 
 speeches. But at this early period in J\Ir. Jefferson's 
 administration, Frederick County was very decidedly 
 Republican, and he was defeated. 
 
 Though it was only in the fifth year of his residence 
 in Frederick, Mr. Taney had acquired such a position 
 at the bar, and his practice was so lucrative, that he 
 was about to be married. Francis Scott Key, after- 
 wards, as we shall see, the author of " The Star- 
 Spangled Banner," was Mr. Taney's fellow law-student 
 at Annapolis. Mr. Key and a sister were the only 
 
Memoir of Kogee B. Taney. 101 
 
 children of their jjarents. Mr. Taney had met Miss 
 Key in Annapolis, and her beauty and bright mind 
 and womanly graces won his heart. Mr. Key was 
 practising law in Frederick when Mr. Taney went 
 there, but had lately removed to George Town, Dis- 
 trict of Columbia. John Eoss Key, the father of 
 Miss Key, was a lieutenant in the first artillery 
 which went to Boston from Maryland at the outbreak 
 of the Revolutionary War, owned a large estate in 
 Frederick County, where Miss Key was born and was 
 now living with her parents. The mansion was of 
 brick, with centre and wings and long jDorches. It 
 was situated amidst a large lawn, shaded by trees, and 
 an extensive terraced garden adorned with shrubbery 
 and flowers. Near by flowed Pipe Creek, through a 
 dense woods. A copious spring of purest water, where 
 young people loved to retire, and sit under the shel- 
 tering oaks in summer, was at the foot of the hill. A 
 meadow of waving grass spread out towards the Catoc- 
 tin Mountain, which could be seen at sunset curtained 
 in clouds of crimson and gold. It was at this happy 
 home that Mr. Taney was, the seventh day of January, 
 1806, married to Anne Phebe Charlton Key. For 
 years afterwards Mr. Taney and Mr. Key, and their 
 families, met annually at this parental home, to enjoy 
 together all those pleasures which belong to family re- 
 unions. At evening, when the labors of the farm 
 were over, the negroes were summoned to prayers 
 
102 Memoir of Eogee B. Taney. 
 
 witli the family, whicli were usually conducted by 
 Francis Scott Key when he was there, and by his 
 mother when he was away. After prayers, almost 
 every night, as was common on plantations in Mary- 
 land, music and dancing might be heard at the quar- 
 ters of the negroes, who are a mirth-loving people. 
 
 No man was ever more happily married than Mr. 
 Taney. And the happy circumstances of this period 
 shed a benign influence over his studious and con- 
 templative life, and nurtured that bland suavity of 
 manner which so distinguished him, while they made 
 the home circle the sphere of his happiness. 
 
 Mr. Taney did not stand on the outskirts of society, 
 connected with it only by professional relations. He 
 was affiliated with society in all relations, and was 
 scrupulously faithful in discharging every duty. He 
 was, for years, a director in the Frederick County 
 Bank, and hardly ever missed a meeting of the board 
 of directors. He was also a Visitor of the Frederick 
 Academy, a State institution of some note ; and as I 
 have been, for many years, the President of the Board 
 of Visitors, and know how seldom Visitors are punc- 
 tual at meetings, as a matter of biographical curiosity, 
 I wrote to the present Principal of the Academy, and 
 received the following answer : 
 
 Feedeeick City, Maeyland, 
 March 1, 1871. 
 
 My Dear Sir: — In the minutes of the Board of 
 Visitors I find the following: "Oct. 30, 1802. The 
 
Memoie of Roger B. Taney. 103 
 
 chairman informed the Board that Mr. Wni. Camp- 
 bell, heretofore appointed a Visitor, declined serving ; 
 whereupon the Visitors proceeded to fill the vacancy, 
 and Boger Brooke Taney was appointed." 
 
 "February 1, 1822. Boger B. Taney having re- 
 signed his seat at the Board, Dr. William Tyler was 
 elected to fill the vacancy." 
 
 It thus appears that Judge Taney was a member 
 of the Board for twenty years. I have gone over the 
 minutes for all those years, and find that, with one or 
 two exceptions, he was never absent from the meetings 
 of the Visitors — an example worthy of imitation. 
 Yours truly, J. S. Bonsall. 
 
 Samuel Tyler, Esq. 
 
 Though, during his life in Frederick, Mr. Taney 
 was strict in his religious observances, he was, never- 
 theless, fond of festive relaxations. It was common 
 for gentlemen to dine together, the Fourth of July, 
 under the shade of the beach-trees on the banks of 
 the Monocaey Biver, which flows between wooded 
 banks two miles from Frederick. Some of his com- 
 panions, who lived until a few years ago, have often 
 narrated to me how much he contributed to the pleas- 
 ure of such occasions. As Mr. Taney was, like all 
 southern Marylanders, a good horseman, he took 
 much pleasure in horseback excursions in the coun- 
 try, when i^rofessional duties required him to go into 
 the country to try cases before juries upon view. In 
 these excursions, the picturesque aspects of the Ca- 
 
104 Memoir of Eoger B. Taney. 
 
 toctin Mountain had become so familiar to him, that 
 when, in after years, he would speak of them, his de- 
 scrijjtions were so accurate, that they seemed as if 
 frescoed on his memory. In the summer Mr. Taney 
 would sometimes retire, with his family, a few miles 
 from Frederick to Arcadia, the country-seat of the 
 eminent lawyer Arthur ShaafF, a bachelor, and a 
 cousin of Mrs. Taney, to recruit the exhausted energies 
 of his body, and refresh his overtasked mind in the 
 serenities of the country. In all his love of nature, 
 Mrs. Taney participated with the romantic ardor of a 
 woman, who, like her brother, was inspired, by the 
 beauties of nature, with " thoughts that voluntary 
 move harmonious numbers." 
 
 In 1811, General Wilkinson, then Commander-in- 
 Chief of the United States Army, was tried on a 
 series of charges before a military court convened 
 at Frederick. He was a Marylander by birth, and 
 knew the professional reputation of Mr. Taney. He 
 selected Mr. Tauey and John Hanson Thomas, of 
 whom I shall have occasion to speak presently, as his 
 counsel. General Wilkinson labored under much 
 public odium. He was suspected of having been an 
 accomplice of Aaron Burr in his supposed treasonable 
 enterprise ; and to cover his guilt had turned State's 
 evidence against him upon his trial at Kichmond. 
 Conduct so flagitious as his was supposed to have 
 been, could not but make the community, in which 
 
Memoik of Eogek B. Taney. 105 
 
 he was tried, feel that his counsel shared some of his 
 infamy in defending him. This feeling, though wholly 
 unwarrantable, ignoring as it does the duty of a law- 
 yer, is, nevertheless, more or less ever entertained, as 
 all lawyers know who have been engaged in the defence 
 of unpopular culprits. Mr. Taney labored for several 
 months, with singular zeal and ability, against Walter 
 Jones, of Washington City, the Judge Advocate, the 
 subtlest of the most casuistic of lawyers. General 
 Wilkinson was acquitted, and his sword restored to 
 him. Both Mr. Taney and Mr. Thomas had shared 
 in the general suspicion of Wilkinson's treachery to 
 Burr; and, because of their conviction of the injustice 
 they had done him, refused to receive a fee for their 
 professional services, communicating the fact to him, 
 and begging him to acquiesce in their course, as it 
 would gratify their feelings. This manifestation of a 
 high sense of honor, and desire to atone for an unin- 
 tentional wrong, was a pre-eminent trait in the char- 
 acter of Mr. Taney. 
 
 In the terrible struggle between the nations of 
 Europe to preserve their independence and their in- 
 stitutions, which originated in the French Revolution, 
 England, in her extremity, claimed that every man 
 of British birth was her subject by an inextinguisha- 
 ble allegiance, and that she had a right to his services 
 as a soldier in the wars in which she was engaged. 
 Acting upon this doctrine, she assumed the right, and 
 
106 Memoir of Kogee B. Tatey. 
 
 acted upon it, to board our ships upon the ocean and 
 seize any man of British birth, whether lie claimed 
 to be an American citizen, and was such by our laws 
 of naturalization, or not, and to carry him off and 
 impress him into her service. A claim so abliorrent 
 to American notions of allegiance, and so defiant of 
 the protection which international law extends over 
 the watery highways of nations, making the ships of 
 every nation as inviolable as its territory, could not 
 but awaken intense resentment in the United States, 
 where the enmity of the Revolutionary War still burnt 
 in the national breast. So persistent was the British 
 Government in her claim of search and impressment, 
 and she was guilty of so many provocations, that the 
 United States, in June, 1812, declared war against 
 Great Britain. 
 
 From the outbreak of the French Revolution, which 
 became a struggle of democracy to extirpate aristoc- 
 racy and monarchy, not only from France but from 
 all Europe, two parties were formed in the United 
 States in regard to the contest. The Republican party 
 sympathized with France, and the Federal party 
 sympathized with England. Mr. Jefferson, when in 
 France, had become inoculated with the radical phi- 
 losophy of that country, and infected with its political 
 doctrines. And though, when he became President 
 of the United States, he maintained the neutrality in 
 the European wars which Washington had originated, 
 
Memoir of Eogee B. Taney. 107 
 
 his predilection for France and antipathy to England 
 still animated both himself and his party. And the 
 Federal party was animated by predilection for Eng- 
 land and antipathy to France. When, tlierefore, the 
 Republican party, wliich was now in possession of the 
 Federal Government, proi)Osed war against Great 
 Britain, the Federal party opposed it, both from party 
 feeling and from considerations of prudence, and to a 
 great extent from sectional interest in commerce which 
 would be broken up by war. Mr. Taney was of the 
 Federal party, and shared in its opposition to a decla- 
 ration of war ; but, as soon as war was declared, he 
 gave his support to the Government; and so did most 
 of the Federalists of Maryland. Mr. Taney, and the 
 Federalists in Frederick County who followed his lead 
 in sujjporting the Government, were nicknamed, by 
 the other wing of his party. Goodies, and he, because 
 of his great influence, was called King Goody. John 
 Hanson Thomas, an able lawyer of the Frederick bar, 
 was the leader of the other wing of the Federal party. 
 Such was the bitterness of feeling between the two 
 wings of the Jiarty, and such was the estrangement 
 between Mr. Thomas and Mr. Taney, that it was not 
 until Mr. Thomas was on his death-bed that he could 
 forgive Mr. Taney for his course. But now that all 
 rivalry between them must cease, and the memories 
 of their early friendship and the great qualities of Mr. 
 Taney came before his magnanimous soul, he felt that 
 
108 Memoir of Roger B. Taney. 
 
 their old friendshij) must be restored. He sent for Mr. 
 Taney, who hastened to the bedside of his rival, and 
 gave him a greeting so generous and so tender that 
 their reconciliation was consecrated by mutual tears. 
 Mr. Thomas died May, 1815, and few followed him to 
 the grave in deeper sorrow, or with more sincere ad- 
 miration for his high qualities, than Mr. Taney. 
 
 The spirit which animated Mr. Taney and the 
 Federalists in Maryland who acted with him in the 
 War of 1812, is manifested in "The Star-Spangled 
 Banner," and the circumstances in which it was writ- 
 ten. It was the song of Maryland Federalism, which 
 became the song of the nation because of its patriotism 
 and its origin in the midst of battle. Never did a 
 national song have so glorious a birth. It was written 
 by a Maryland Federalist wliile on board of a cartel- 
 ship, as he witnessed the fruitless attack upon Fort 
 McHenry, and the flag of his country still waving in 
 triumph. The song will live in the American heart 
 until the stars fall from the national flag, or are ab- 
 sorbed in one imperial star, which has quenched the 
 glory of the States. In a letter to Charles Howard, 
 of Baltimore, who married the eldest daughter of Mr. 
 Key, the author of the song, Mr. Taney has given the 
 history of its origin. The letter was intended only as 
 a family memorial. 
 
Memoik of Eoger B. Taney. 109 
 
 Washington, D. C, March 12, 1856. 
 
 My Dear Sir : — I promised some time ago to give 
 you an account of the incidents in the life of Mr. 
 F. S. Key which led him to write "The Star-Spangled 
 Banner," and of the circumstances under which it was 
 written. The song has become a national one, and 
 will, I think, from its great merit, continue to be so, 
 especially in Maryland ; and everything that concerns 
 its author must be a matter of interest to his children 
 and descendants. And I proceed to fulfil my promise 
 with the more pleasure, because, while the song shows 
 his genius and taste as a poet, the incidents connected 
 with it, and the circumstances under which it was 
 written, will show his character and worth as a man. 
 The scene he describes, and the warm spirit of patriot- 
 ism which breathes in the song, were not the offspring 
 of mere fancy or poetic imagination. He describes 
 what he actually saw. And he tells us what he felt 
 while witnessing the conflict, and what he felt when 
 the battle was over and the victory won by his country- 
 men. Every word came warm from his heart, and 
 for that reason, even more than for its poetical merit, 
 it never fails to find a response in the hearts of those 
 who listen to it. 
 
 You will remember that in 1814, when the song 
 was written, I resided in Frederick and Mr. Key 
 in George Town. You will also recollect that soon 
 after the British troops retired from Washington, a 
 squadron of the enemy's ships made their way ujd the 
 Potomac, and aj)peared before Alexandria, which was 
 eompelled to cajDitulate ; and the squadron remained 
 
110 Memoie of Eoger B. Taney. 
 
 there some days, plundering the town of tobacco and 
 whatever else they wanted. It was rumored and 
 believed in Frederick, that a marauding attack of tlie 
 same character would be made on Washington and 
 George Town before the ships left the river. Mr. 
 Key's family was in George Town. He would not, 
 and indeed could not, with honor, leave the place 
 while it was threatened by the enemy ; for he was a 
 volunteer in the Liglit Artillery, commanded by Major 
 Peter, which was composed of citizens of the District 
 of Columbia, who had uniformed themselves and 
 offered their services to the Government, and who had 
 been employed in active service from the time the 
 British fleet appeared in the Patuxent preparatory to 
 the movement uj)on Washington. And Mrs. Key re- 
 fused to leave home while Mr. Key was thus daily ex- 
 posed to danger. Believing, as we did, that an attack 
 would probably be made on George Town, we became 
 very anxious about the situation of his family. For 
 if the attack was made, Mr. Key would be with the 
 troops engaged in the defence ; and as it was impossi- 
 ble to foresee wliat would be the issue of the conflict, 
 his family, by remaining in George Town, might be 
 placed in great and useless peril. When I speak of 
 we, I mean Mr. Key's father and mother and Mrs. 
 Taney and myself But it was agreed among us that 
 I sliould go to George Town and try to persuade Mrs. 
 Key to come away with her children, and stay with 
 me or with Mr. Key's father until the danger was 
 over. When I reached George Town, I found the Eng- 
 lish ships still at Alexandria, and a body of militia 
 encamped in Washington, which had been, assembled 
 
Memoir of Kogek B. Taney. Ill 
 
 to defend the city. But it was then believed, from in- 
 formation received, that no attack would be made by 
 the enemy on Washington or George Town ; and pre- 
 parations were making, on our part, to annoy them by 
 batteries on shore, when they descended the river. 
 The knowledge of the preparations probably hastened 
 their departure; and the second or third day after 
 my arrival, the ships were seen moving down the 
 Potomac. 
 
 On the evening of the day that the enemy disap- 
 peai'ed, Mr. Richard West arrived at Mr. Key's, and 
 told him that after the British army passed through 
 Upper Marlbro oa their return to their ships, and had 
 encamped some miles below the town, a detacliment 
 was sent back, which entered Dr. Beanes's house about 
 midnight, compelled him to rise from his bed, and hur- 
 ried him off to the British camp, hardly allowing him 
 time to put his clothes on; that he was treated with 
 great harshness, and closely guarded ; and that as soon 
 as his friends were ajiprised of his situation, they 
 hastened to the head-quarters of the English army to 
 solicit his release; but it was peremptorily refused, and 
 they were not even permitted to see him ; and that he 
 had been carried as a prisoner on board the fleet. 
 And finding their own efforts unavailing, and alarmed 
 for his safety, his friends in and about Marlbro 
 thought it advisable that Mr. West should hasten to 
 George Town, and request Mr. Key to obtain the sanc- 
 tion of the Government to his going on board the 
 admiral's ship, under a flag of truce, and endeavoring 
 to procure the release of Dr. Beanes before the fleet 
 sailed. It was then lying at the mouth of the Po- 
 
112 Memoir of Roger B. Taney. 
 
 tomac, and its destination was not at that time 
 known with certainty. Dr. Beanes, as perhaps you 
 know, was the leading physician in Upper Marlbro, 
 and an accomplished scholar and gentleman. He was 
 highly respected by all who knew him ; was the family 
 physician of Mr. West, and the intimate friend of Mr. 
 Key. He occupied one of the best houses in Upper 
 Marlbro, and lived very handsomely ; and his house 
 was selected for the quarters of Admiral Cockburn, 
 and some of the principal officers of the army, when 
 the British trooj^s encamped at Marlbro on their 
 march to Washington. These officers were, of course, 
 furnished with everything that the house could offer; 
 and they, in return, treated him with much courtesy, 
 and placed guards around his grounds and out-houses, 
 to prevent dei^redations by their troops. 
 
 But on the return of the array to the ships, after 
 the main body had passed through the town, stragglers, 
 who had left the ranks to plunder, or from some other 
 motive, made their apjoearance from time to time, 
 singly or in small squads ; and Dr. Beanes put him- 
 self at the head of a small body of citizens to pursue 
 and make prisoners of them. Information of this 
 proceeding was, by some means or other, conveyed to 
 the English camp ; and the detachment of which I 
 have spoken was sent back to release the prisoners 
 and seize Dr. Beanes. They did not seem to regard 
 him, and certainly did not treat him, as a prisoner of 
 war, but as one wlio had deceived, and broken his 
 faith to til em. 
 
 Mr. Key readily agreed to undertake the mission in 
 his favor, and the President promptly gave his sane- 
 
Memoir of Kogee B. Taney. 113 
 
 tion to it. Orders were immediately issued to the 
 vessel usually employed as a cartel, in the communica- 
 tions with the fleet in the Chesapeake, to be made 
 ready without delay ; and Mr. John S. Skinner, who 
 was agent for the Government for flags of truce and 
 exchange of prisoners, and who was well known as 
 such to the ofiicers of the fleet, was directed to accom- 
 pany Mr. Key. And as soon as the arrangements 
 were made, he hastened to Baltimore, where the vessel 
 was to embark ; and Mrs. Key and the children went 
 with me to Frederick, and thence to his father's on 
 Pipe Creek, where she remained until he returned. 
 
 We heard nothing from him until the enemy re- 
 treated from Baltimore, which, as well as I can now 
 recollect, was a week or ten days after he left us ; and 
 we were becoming uneasy about him, when, to our 
 great joy, he made his appearance at my house, ou his 
 way to join his family. 
 
 He told me that he found the British fleet at the 
 mouth of the Potomac, preparing for the expedition 
 against Baltimore. He was courteously received by 
 Admiral Cochrane and the ofiicers of the army, as 
 well as of the navy. But when he made known his 
 business, his application was received so coldly that 
 he feared it would fail. General Boss and Admiral 
 Cockburn — who accompanied the expedition to 
 Washington — particularly the latter, spoke of Dr. 
 Beanes in very harsh terms, and seemed at first not 
 disposed to release him. It however happened, for- 
 tunately, that Mr. Skinner carried letters from the 
 wounded British ofiicers left at Bladensburg; and in 
 these letters to their friends on board the fleet they 
 
114 Memoir or Roger B. Taney. 
 
 all spoke of the humanity and kindness with which 
 they had been treated after they had fallen into our 
 hands. And after a good deal of conversation, and 
 strong representations from Mr. Key as to the char- 
 acter and standing of Dr. Beanes, and of the deep 
 interest which the community in which he lived took 
 in his fate, General Ross said that Dr. Beanes de- 
 served much more punishment than he had received ; 
 but that he felt himself bound to make a return for 
 the kindness which had been shown to his wounded 
 officers, whom he had been compelled to leave at 
 Bladensburg, and upon that ground, and that only, he 
 would release him. But Mr. Key was at the same 
 time informed that neither he, nor any one else, would 
 be permitted to leave the fleet for some days, and 
 must be detained until the attack on Baltimore, which 
 was then about to be made, was over. But he was 
 assured that they would make him and Mr. Skinner 
 as comfortable as possible while they detained them. 
 Admiral Cochrane, with whom they dined on the day 
 of their arrival, apologized for not accommodating 
 them in his own ship, saying that it was crowded 
 already with officers of the army ; but that they would 
 be well taken care of in the frigate Surjjrise, com- 
 manded by his son. Sir Thomas Cochrane. And to 
 this frigate, they were accordingly transferred. 
 
 Mr. Key had an interview with Dr. Beanes before 
 General Ross consented to release him. I do not re- 
 collect whether he was on board of the admiral's ship, 
 or the Surprise, but I believe it was the former. He 
 found him in the forward part of the ship, among the 
 sailors and soldiers ; he had not had a change of clothes 
 
Memoir of Rogee B. Taney. 115 
 
 from the time he was seized ; was constantly treated 
 with indignity by those around him, and no officer 
 would speak to him. He was treated as a culprit, 
 and not as a prisoner of war. And this harsh and 
 humiliating treatment continued until he was placed 
 on board of the cartel. 
 
 Something must have passed, when the officers 
 were quailered at his house on the march to Wash- 
 ington, which, in the judgment of General Ross, 
 bound him not to take up arms against the English 
 forces until the troops had re-embarked. It is im- 
 possible, on any other grounds, to account for the 
 manner in which he was spoken of and treated. But 
 whatever General Ross and the other officers might 
 have thought, I am quite sure that Dr. Beanes did not 
 think he was in any way pledged to abstain from 
 active hostilities against the public enemy. And when 
 he made prisoners of the stragglers, he did not con- 
 sider himself as a prisoner on parole, nor suppose him- 
 self to be violating any obligation he had incurred. 
 For he was a gentleman of untainted character and a 
 nice sense of honor, and incapable of doing anything 
 that could have justified such treatment. Mr. Key 
 imputed the ill usage he received to the influence of 
 Admiral Cockburn, who, it is still remembered, while 
 he commanded in the Chesapeake, carried on hostili- 
 ties in a vindictive temper, assailing and plundering de- 
 fenceless villages, or countenancing such proceedings 
 by those under his command. 
 
 Mr. Key and Mr. Skinner continued on board of 
 the Surprise, where they were very kindly treated by 
 Sir Thomas Cochrane, until the fleet reached the 
 
116 Memoir of Eogek B. Taney. 
 
 Patapsco, and preparations were making for landing 
 the troops. Admiral Cochrane then shifted his flag 
 to the frigate, in order that he might be able to move 
 farther up the river and superintend in person the 
 attack by water on the fort ; and Mr. Key and Mr. 
 Skinner were then sent on board their own vessel, 
 with a guard of sailors or marines, to prevent them 
 from landing. They were permitt^ to take Dr. 
 Beanes with them ; and they thought themselves for- 
 tunate in being anchored in a position which enabled 
 them to see distinctly the flag of Fort McHenry from 
 the deck of the vessel. He proceeded then, with 
 much animation, to describe the scene on the night 
 of the bombardment. He and Mr. Skinner remained 
 on deck during the night, watching every shell from 
 the ijioment it was fired until it fell, listening with 
 breathless interest to hear if an explosion followed. 
 While the bombardment continued, it was sufficient 
 proof that the fort had not surrendered. But it sud- 
 denly ceased some time before day, and, as they had 
 no communication with any of the enemy's ships, 
 they did not know whether the fort had surrendered 
 or the attack had been abandoned. They paced the 
 deck for the residue of the night in painful suspense, 
 watching with intense anxiety for the return of day, 
 and looking every few minutes at their watches to see 
 how long they must wait for it; and as soon as it 
 dawned, and before it was light enough to see objects 
 at a distance, their glasses were turned to the fort, un- 
 certain whether they should see the Stars and Stripes or 
 the flag of the enemy. At length the light came, and 
 they saw that " our flag was still there." And, as the 
 
Memoir of Roger B. Taney. 117 
 
 day advanced, they discovered, from the movements 
 of the boats between the shore and the fleet, that the 
 troops had been roughly handled, and that many 
 wounded men were carried to the ships. At length 
 he was informed that the attack on Baltimore had 
 failed, and the British army was re-embarking, and 
 that he and Mr. Skinner and Dr. Beanes would be 
 permitted to leave them, and go where they pleased, 
 as soon as the troops were on board and the fleet ready 
 to sail. 
 
 He then told me that, under the excitement of the 
 time, he had written the song, and handed me a 
 printed copy of "The Star-Spangled Banner." When 
 I had read it, and expressed my admiration, I asked 
 him how he found time, in the scenes he had been 
 passing through, to compose such a song ? He said 
 he commenced it on the deck of their vessel, in the 
 fervor of the moment, when he saw the enemy hastily 
 retreating to their ships, and looked at the flag he had 
 watched for so anxiously as the morning opened ; that 
 he had written some lines, or brief notes, that would 
 aid him in calling them to mind, upon the back of a 
 letter which he happened to have in his pocket ; and 
 for some of the lines, as he proceeded, he was obliged 
 to rely altogether on his memory; and that he finished 
 it in the boat on his way to the shore, and wrote it out, 
 as it now stands, at the hotel on the night he reached 
 Baltimore, and immediately after he arrived. He said 
 that, on the next morning, he took it to Judge Nichol- 
 son, to ask him what he thought of it ; that he was so 
 much pleased with it that he immediately sent it to a 
 printer, and directed copies to be struck off in hand- 
 
118 Memoir of Rogek B. Taney. 
 
 bill form; and that he, Mr. Key, believed it to have 
 been favorably received by the Baltimore public. 
 
 Judge Nicholson and Mr. Key, you know, were 
 nearly connected by marriage, Mrs. Key and Mrs. 
 Nicholson being sisters. The Judge was a man of 
 cultivated taste; had, at one time, been distinguished 
 among the leading men in Congiess, and was, at the 
 period of which I am speaking, the Chief Justice of the 
 Baltimore-Court, and one of the Judges of the Court of 
 Appeals of Maryland. Notwithstanding his judicial 
 character, which exempted him from military service, 
 he accepted the command of a volunteer company of 
 artillery ; and when the enemy approached, and an 
 attack on the fort was expected, he and his company 
 offered their services to the Government to assist in 
 the defence. They were accepted, and formed a part 
 of the garrison during the bombardment. The Judge 
 had been relieved from duty, and returned to his 
 family, only the night before Mr. Key showed him 
 his song ; and you may easily imagine the feelings 
 with which, at such a moment, he read it and gave it 
 to the public. It was, no doubt, as Mr. Key modestly 
 expressed it, favorably received. In less than an hour 
 after it was placed in the hands of the printer, it was 
 all over town, and hailed with enthusiasm, and took 
 its place at once as a national song. 
 
 I have made this account of " The Star-Spangled 
 Banner" longer than I intended, and find that I have 
 introduced incidents and persons outside of the subject 
 I originally contemplated. But I have felt a melan- 
 choly pleasure in recalling events connected in any 
 degree with the life of one with whom I was so long 
 
Memoik of Eogek B. Taney. 119 
 
 and so closely united in friendship and aflfection, and 
 whom I so much admired for his brilliant genius, and 
 loved for his many virtues. I am sure, however, that 
 neither you, nor any of his children or descendants, 
 will think the account I have given too long. 
 With great regard, dear sir. 
 
 Your friend truly, 
 
 K. B. Taney. 
 Chaeles Howard, Esq. 
 
 Besides the historical interest of this letter, it 
 illustrates the warm affection Mr. Taney had for his 
 friends. No man ever had a warmer heart. Mr. 
 Howard, to whom the letter is written, is a son of 
 Col. John Eager Howard, who was so distinguished 
 at the battle of the Cowpens, and other hard conflicts 
 of the Eevolutionary War. 
 
 While the division in the Federal party produced 
 by the war was at its height, Mr. Taney was nomi- 
 nated by his friends for a seat in the House of Repre- 
 sentatives of the United States ; and, notwithstanding 
 the great strength of the Republican party in the 
 congressional district, he was defeated by only three 
 hundred majority. 
 
 Mr. Taney was of a most vehement and passionate 
 nature, which, though under the most perfect control, 
 gave great decisiveness to his opinions on all subjects, 
 and on none more than on politics. But such was his 
 consideration for opinions differing from his own, that 
 
120 Memoir of Kogee B.Taney. 
 
 no one ever felt his judgment disparaged by Mr. 
 Taney's dissent. It was not long, therefore, before 
 the Federalists, whose opinions in regard to the War 
 of 1812, differed from his, affiliated with him with the 
 sincerity of their old party relations. In 1816 he 
 was, with the approbation of all, elected a member of 
 the State Senate. By the Constitution of the State at 
 that time, and ever since 1776, the Senate consisted 
 of fifteen members, whose term of service was five 
 years. They were selected by a college of electors, 
 composed of two members chosen in each county by 
 the people, and one from each of the cities Baltimore 
 and Annajjolis. Mr. Taney was one of the electors 
 from Frederick County. As the Electoral College 
 could choose Senators from their own members as well 
 as from the State at large, they chose Mr. Taney. 
 Though preferring professional life, he yet yielded to 
 the wishes of his friends, and served out his term in 
 the Senate to the great benefit of the State. The 
 period is marked by some of the most important legis- 
 lation in regard to the courts, of law, of equity, the 
 orphans' courts, and all tribunals that administer law. 
 Many of the statutes were drawn by him, and all 
 others, probably, received his aid. The mode of 
 electing the Senate by electors sworn to select men 
 most distinguished for their wisdom, talents, and 
 virtues, and their term of service for five years, con- 
 stituted the Senate such a body, that Mr. Taney 
 
Memoir of Eogeb B. Taney. 121 
 
 always talked of liis service in it with singular pleas- 
 ure. Upon several occasions the integrity and firm- 
 ness of the Senate withstood the unwise course of the 
 more popular branch. Before the adoption of the Con- 
 stitution of the United States, Samuel Chase proposed, 
 in the House of Delegates of Maryland, the issue of 
 paper money, and the House approved it ; but the 
 Senate, under the lead of Thomas Stone and Charles 
 Carroll, of Carrolllon, rejected the bill. General 
 Washington, in a letter to Thomas Stone, approved 
 the action of the Senate. Dugald Stewart, in his 
 Lectures on Political Science, edited by Sir AVilliam 
 Hamilton, and for the first time not long since pub- 
 lished, bears testimony to the signal excellence of the 
 Maryland Constitution of 1776. 
 
 Mr. Taney lived before the introduction of codes 
 permitting lawyers to state causes of action and de- 
 fences, without any regard to the rules of common law 
 pleading, which, wherever introduced, have made a 
 Babel of the court-room. When he came to the bar, 
 Maryland lawyers were especially distinguished for 
 their knowledge of the science, and their skill in the 
 practice, of special pleading. Without such knowl- 
 edge and skill, it was impossible to attain even a re- 
 spectable position at the bar. And, owing to the 
 peculiar organization and practice of the Land Office, 
 in a proprietory government like that of Maryland, 
 and the manner in which original grants of land were 
 
122 Memoir of Eogee B. Taney. 
 
 made, the boundaries of estates had become very uncer- 
 tain, and, consequently, in suits involving title, ex- 
 tensive re-surveys had to be made to ascertain boun- 
 daries. Out of this grew up, under the direction of 
 technical lawyers and judges, the most subtle princi- 
 ples and the most complex forms of pleading in actions 
 of ejectment known to the history of administrative 
 justice. Luther Martin had been a forerunner in this 
 form of pleading ; and Mr. Taney learned from him, 
 in cases in which they were employed together as 
 counsel, the mystery of jolots and their function in 
 actions of ejectment. In a suit of great magnitude, 
 as to the interests involved, in which he was employed 
 with Mr. Martin, he had to study the case and prepare 
 for trial without Mr. Martin's aid. The case was in 
 Washington County Court at Hagerstown ; and he 
 and Mr. Martin started from Frederick, the evening 
 before the day set for the trial, in a stage-coach, to be 
 at Court in time. The distance is twenty-six miles. 
 At every relay of horses, which was every five miles, 
 Mr. Martin drank at the tavern — whiskey when he 
 could get it, and when he could not, he drank ale, and 
 when he could get neither, he drank buttermilk. On 
 their arrival at Hagerstown, they took supper ; and 
 Mr. Taney told Mr. Martin that, after he had smoked 
 a cigar and rested, he would come to his room and go 
 over the case with him. At eleven o'clock he went to 
 Mr. Martin's room, and found him, with his hat on 
 
Memoir of Eogee B. Taney. 123 
 
 and one boot and all his clotlies, lying across the bed, 
 asleep from his various potations on the road and what 
 he had taken since his arrival. He tried, by words, 
 to awaken the slumbering jurist, but, finding them 
 unavailing, he dared not use other means, though he 
 knew, from Mr. Martin's habits, that, when once awak- 
 ened, there would not be a cloud or a shadow over his 
 legal reason. Though much disturbed, but not daunted, 
 he retired to his room and studied the case until nearly 
 day ; as Mr. ShaafF, who, in legal technicalities was a 
 match even for Mr. Martin, was an opjoosing counsel. 
 At the opening of the Court Mr. Taney was in his seat, 
 fearing that Mr. Martin would not be in Court, as he 
 found his door locked when he called for him before 
 leaving the hotel. But just as the case was called, in 
 walked Mr. Martin ; and in none of his forensic efforts 
 did he excel his skill in the mauagement of this cause. 
 A chief point in the case was a spring of water, that 
 had been located to determine the boundary in dis- 
 pute. Mr. Taney told me that Mr. Shaaff" showed 
 the most extraordinary ingenuity in bringing before 
 the jury evidences of the change that the location of 
 the spring might have undergone, from its topograjahi- 
 cal relations and physical causes ; but that Mr. Martin 
 met it all with the same sort of sagacity ; and that 
 from the trial he, a comparatively young man, got a 
 new insight into ejectment causes. 
 
 At the March Term, 1819, in Frederick County 
 
124 Memoik of Koger B, Taney. 
 
 Court, Mr. Taney was counsel for the defence in a 
 cause which throws light over his whole subsequent 
 life, enabling men to form a just estimate of his con- 
 duct in regard to a matter about which the most 
 erroneous opinions have been entertained. 
 
 Because, by the public law of Europe, the right to 
 property, by Christian white men, in pagan African 
 negroes was recognized, and African slave-labor was 
 available and the trade in slaves profitable, in the 
 American colonies, African slaves were, at an early 
 period, introduced into Maryland. Marylanders were, 
 therefore, from the beginning, born with negro 
 slavery before their eyes as a lawful institution. 
 Neither the public nor the private conscience revolted 
 at an institution which, because of the inferiority of 
 the negro, seemed natural to those familiar with it 
 from their birth. In every one of the colonies it was 
 recognized as lawful. The New England colonies 
 were the importers, and the Southern colonies the pur- 
 chasers, in a traffic that was profitable to both parties. 
 Slave-labor became the only labor in the Southern 
 colonies ; and therefore slavery became incorporated 
 in the whole fiibric of society. The slaves rocked the 
 cradle and dug the graves of their masters; and the 
 masters, from the birth to the death of the slaves, in 
 sickness and health, sheltered and protected them. 
 Out of this mutual dej^endence and association grew 
 a mutual regard and kindness. My ancestors, for two 
 
Memoir of Roger B. Taney. 125 
 
 centuries, were slave-holders on a plantation in Mary- 
 land, where I was born ; and often in that neighbor- 
 hood have I seen slaves shed as sorrowful and affec- 
 tionate tears at the funerals of members of the white 
 family as their own kindred did. In the working of 
 society, moved by its changed opinions and its j^assions 
 and prejudices, it was inevitable that an institution 
 like African slavery would sooner or later perish : but 
 that, by no means, justifies condemnation of it, either 
 as an evil, or a crime, or a sin, while it lasted. For a 
 long period, if not through its whole duration, the re- 
 lation of master and slave was best for both races, and 
 especially for the negro, as it raised him from pagan 
 barbarism to a j^hase of Christian civilization. In the 
 divine decrees by which nations are marshalled in the 
 grand procession of the human races, negroes have 
 performed their part as slaves in the march of the 
 United States towards their destiny; it remains for the 
 future to reveal what part they will j)erform as citizens 
 under a Government and institutions formed solely by 
 white men and for white men only. 
 
 As legislation did not originate the relation of 
 master and slave, there was not even any recognition 
 of it by statute in Maryland until 1663, when a 
 statute was passed regulating it. 
 
 While slaves were in every house in Maryland, and 
 could murder the whites by poison in their food, or 
 by fire, or by open violence, a Mr. Jacob Gruber, a 
 
126 Memoik of Eogee B. Taney. 
 
 minister of good standing in the Methodist Church, 
 preached, at a camp-meeting in Washington County, 
 to about three thousand persons, of whom four hun- 
 dred were negroes. After addressing tlie audience 
 generally, he addressed to them such words as these : 
 " But are there not slaves in our country ? do not 
 sweat and blood and tears say there are ? The voice 
 of my brother crieth blood. Is it not a reproach to 
 a man to hold articles of liberty and independence in 
 one hand and a bloody whip in the other, while a 
 negro stands and trembles before him, with his back 
 cut and bleeding ? " 
 
 " We Pennsylvanians think it strange, and it seems 
 curious, to read the prints or newsj)apers, from some 
 States, and find — For sale, a plantation, a house and 
 lot, horses, cows, sheep, and hogs; also, a number of 
 negroes — men, women, and children — some very valu- 
 able ones ; also, a pew in such and such a church. In 
 this inhuman traffic and cruel trade the most tender 
 ties are torn asunder, the nearest connections broken." 
 
 What aggravated Mr. Gruber's conduct was that he 
 came over from Pennsylvania, and in his harangue 
 threw a slur upon Maryland in contrast with the ele- 
 vated civilization of his own State. 
 
 For preaching this sermon, Mr. Gruber was indicted 
 by the grand jury of Washington County, as intend- 
 ing thereby, unlawfully and maliciously, to incite the 
 slaves who heard him to insurrection and rebellion 
 
Memoir of Rogeb B. Taney. 127 
 
 for the disturbance of the peace of the State. The 
 case was, at Mr. Gruber's request, removed to Fred- 
 erick County Court, and Mr. Taney appeared as his 
 principal counsel. 
 
 Mr. Taney 023ened the case to the jury, on the part 
 of Mr. Gruber, and the following extracts from his 
 opening statement will show the grounds upon which 
 he rested the defence of his client. These grounds he 
 elaborated and enforced with all his power in his ar- 
 gument before the jury, which was not reported as the 
 other parts of the trial were. 
 
 "The statement," said Mr. Taney, "made by the Dis- 
 trict Attorney has informed the jury of the interest- 
 ing principles involved in the trial pending before 
 you. It is, indeed, an important case, in which the 
 community, as well as the accused, has a deep interest. 
 The prosecution is without j)i"ecedent in the judicial 
 proceedings of Maryland; and as the jury are judges 
 of the law as well as the fact, it becomes my duty 
 not only to state the evidence we are about to offer, 
 but to show you the grounds on which we mean to 
 rest the defence. 
 
 " I need not tell you that, by the liberal and happy 
 institutions of this State, the rights of conscience and 
 the freedom of speech are fully protected. No man 
 can be prosecuted for preaching the articles of his re- 
 ligious creed ; unless, indeed, his doctrine is immoral, 
 and calculated to disturb the peace and order of society. 
 
128 Memoir of Roger B. Taney. 
 
 And subjects of national policy may at all times 
 be freely and fully discussed, in the pulpit or else- 
 where, without limitation or restraint. Therefore, the 
 reverend gentleman, whose cause I am now advocating, 
 cannot be liable to prosecution, in any form of pro- 
 ceeding, for the sermon mentioned by the District 
 Attorney, unless his doctrines were immoral and cal- 
 culated to disturb the peace and order of society. The 
 sermon, in itself, could in no other way be an offence 
 against the laws. If his doctrines were not immoral, 
 if the principles he maintained were not contrary to 
 the peace and good order of society, he had an un- 
 doubted I'ight to 23reach them, and to clothe them in 
 such language, and enforce them by such facts and 
 arguments, as to him seemed proper. It would be 
 nothing to the purpose to say that he offended or 
 that he alarmed some or all of his hearers. Their 
 feelings, or their fears, would not alter the character 
 of his doctrine, or take from him a right secured to 
 him by the Constitution and laws of the State. 
 
 " But, in this case, he is not accused of preaching 
 immoral or dangerous doctrine. It is not the charge 
 contained in the indictment. The preaching of such 
 a sermon is not laid as the offence. He is accused of 
 an attempt to excite insubordination and insurrection 
 among our slaves ; and the intention of the preacher 
 is the essence of the crime. On this indictment, no 
 matter what doctrines he preached, no matter what 
 
Memoir of Roger B. Taney. 129 
 
 language lie used, yet his doctrines or his language 
 could not amount to the crime now charged against 
 him. They could be evidence, I admit, to show his 
 intention ; but they would be nothing more than evi- 
 dence, and could not constitute the offence itself. . . . 
 
 " You have already been told that Mr. Gruber is 
 a minister of the Methodist Episcopal Church. It 
 is well known that the gradual and jjeaceable aboli- 
 tion of slavery in these States is one of the objects 
 which the Methodist society has steadily in view. 
 No slave-holder is allowed to be a minister of that 
 Church. Their preachers are accustomed, in their 
 sermons, to speak: of the injustice and oppressions of 
 slavery. The opinions of Mr. Gruber on the subject 
 no one could doubt ; and if any slave-holder believed 
 it dangerous to himself, his family, or the community, 
 to suffer his slaves to learn that all slavery is unjust 
 and oppressive, and persuade himself that they would 
 not, of themselves, be able to make the discovery, it 
 was in his power to prevent them from attending the 
 assemblies where such doctrines were likely to be 
 preached. Mr. Gruber did not go to the slaves : they 
 came to him. They could not have come, if their 
 masters had chosen to prevent them. . . . 
 
 " Mr. Gruber feels that it is due to his own character, 
 to the station which he fills, to the respectable society 
 of Christians in which he is a minister of the gospel, 
 not only to defend himself from this prosecution, but 
 
130 Memoir of Rogee B. Taney. 
 
 also to avow, and to vindicate here, the princij)les which 
 he maintained in his sermon. There is no law which 
 forbids us to speak of slavery as we think of it. Any 
 man has a right to publish his opinions on that sub- 
 ject whenever he pleases. It is a subject of national 
 concern, and may, at all times, be freely discussed. 
 Mr. Gruber did quote the language of our great act of 
 national independence, and insisted on the principles 
 contained in that venerated instrument. He did re- 
 buke those masters, who, in the exercise of power, are 
 deaf to the calls of humanity ; and he warned them 
 of the evils they might bring upon themselves. He 
 did speak with abhorrence of those reptiles who live 
 by trading in human flesh, and enrich themselves by 
 tearing the husband from the wife, the infant from 
 the bosom of the mother ; and this, I am instructed, 
 was the head and front of his offending. Shall I con- 
 tent myself with saying he had a right to say this? 
 that there is no law to punish him ? So far is he 
 from being the object of punishment in any form of 
 proceeding, that we are prepared to maintain the same 
 principles, and to use, if necessary, the same language 
 here, in the temple of justice and in the presence of 
 those who are the ministers of the law. A hard ne- 
 cessity, 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 
 
Memoir op Eogee B.Taney. 131 
 
 continues, it is a blot on our national character; and 
 every real lover of freedom confidently hopes that it 
 will effectually, though it must be gradually, wiped 
 away, and earnestly looks for the means by which 
 this necessary object may be best attained." 
 
 Upon such grounds did Mr. Taney rest the defence 
 before a slave-holding jury and before slave-holding 
 judges. Thejury retired, and in a few minutes brought 
 in a verdict of not guilty. And a report of the trial 
 was immediately published in Frederick, with a let- 
 ter from Mr. Gruljer, in which, among other severe 
 things, he says : " I hope, while I keep my senses, I 
 shall consider involuntary fer-petual slavery miserable 
 injustice; a system of robbery and theft." 
 
 A good many years after this trial, Mr. James 
 Kennedy, from the neighborhood in which the sermon 
 had been preached, in the exercise of a right guar- 
 anteed to him by the Constitution of the United 
 States, went to Pennsylvania, to bring back his run- 
 away slave under the provisions of the fugitive slave 
 law, and was murdered in the streets of Lancaster by 
 a mob encouraged, if not instigated, by an eminent 
 minister of the Methodist Church. I mention this 
 fact only to signalize the case of Gruber as a rare ex- 
 am2:)le of administrative justice against the prejudices 
 and the fears of a community. And while Mr. Taney 
 lived in Frederick, a Mr. Owings, a former, was mur- 
 dered in a brutal manner by several of his negro men, 
 
132 Memoik of Eoger B. Taney. 
 
 and liis body thrown into a well for concealment. 
 Tlae murderers were committed to the county jail, and 
 received as fair a trial, according to the common forms 
 of law, as the highest citizen in the State would have 
 done. There was no attempt at mob violence. Such 
 was the influence of Mr. Taney, and other eminent 
 lawyers on the bench and at the bar, in advocating 
 obedience to the law of the land, that the people of 
 that community never attempt to substitute violence 
 for law and murder for an execution by law after a 
 fair trial. They have learned that nothing so much 
 as an impartial administration of law gives vigor and 
 elevation to the moral life of a community. 
 
 Such was Mr. Taney's reputation, at this period, 
 that he argued apj^eals from every county on the 
 Western Shore of Maryland, as may be seen in the 
 re20orts of the cases. And when we see him, in 1821, 
 taken into the case of Brown vs. Kennedy, 5 Harris & 
 Johnson, 195, with Mr. Harper, against Pinkney and 
 Winder and Williams — as the case involved riparian 
 rights founded on the original proprietary title to 
 lands reclaimed from the navigable waters of Mary- 
 land, — we can understand that his reputation must 
 have been great, or he would not have been called 
 from Frederick to try the case. It is worthy of note, 
 that, among the authorities cited by Messrs. Harper 
 and Taney, in their brief, is the opinion of Daniel 
 Dulany. The opinions of this great Maryland lawyer 
 
Memoir of Eoger B. Taney. 133 
 
 had almost as mucli weight in courts in Maryland, and 
 hardly less with the crown lawyers of England, 
 than the opinions of the great Eoman jurists, that 
 were made authority by edict of the Emperor, had in 
 Eoman Courts. This was due, in some degree, to the 
 fact that there were no reports of Maryland decisions 
 until 1809 : 1 Harris & McHenry. In that volume, 
 the opinions of Daniel Dulany are published along 
 with the decisions of the General Court and the Court 
 of Appeals. The high reputation of this great lawyer 
 stimulated the ambition of the Maryland bar, while 
 his opinions were models of legal discussion for their 
 imitation. 
 
 When Mr. Taney came to the bar, and during his 
 life in Frederick, the old law treatises, like Coke upon 
 Littleton, had not been superseded by Indexes, and 
 Digests, and Treatises, which suj^ply thoughts without 
 cultivating the power of thinking. The Entries, 
 Brooke, and Coke, and Levincz, and Eastall had not 
 yet made their exits. He had studied law in the old 
 way, beginning with the fundamental law of estates 
 and tenures, and pursuing the derivative bi'anches in 
 logical succession, and the collateral subjects in due 
 order, considering the grounds and reasons of every- 
 thing as he proceeded, thereby acquiring a knowl- 
 edge of jjrinciples that rule in all departments of the 
 science, and knowing, thereby, what is in harmony 
 with those principles and what not. All his after 
 
134 Memoir of Koger B. Taney. 
 
 reading at once distributed itself at the various parts 
 of the system of jurisprudence where it belonged. He 
 became a thoroughly read and a thoroughly trained 
 lawyer. Pleading and evidence and the rules of prac- 
 tice, he had thoroughly mastered. Though technical, 
 as every great lawyer must be, he was not narrow and 
 confined to precedents, but was of large and original 
 speculation, always searching for princij^les and ap- 
 plying them by his great practical sagacity, through 
 settled forms, which, from his familiarity with them, 
 he knew were adapted to apply principles to every 
 possible combination of circumstances. He was 
 trained at the great Olympic of the early jjeriod of 
 administrative justice in Maryland. He acquired the 
 strength and the skill of the great lawyers with whom 
 he wrestled. But he was too original a man to imitate 
 any of them. He rose to eminence at the bar as one 
 marked by extreme individuality. 
 
 Though the General Court, where all the great 
 lawyers met, that had original jurisdiction over the 
 whole State, was abolished soon after Mr. Taney came 
 to the bar, yet the excellent judicial system which 
 took its place was hardly less fitted to raise up great 
 lawyers. The State was divided into six judicial dis- 
 tricts, each embracing three or more counties, accord- 
 ing to population and extent of territory. For each 
 district there were a chief judge and two associates, 
 who resided in the district, and held a court, at fixed 
 
Memoir of Eoger B. Taney. 135 
 
 terras in each county, called a County Court. The 
 chief judges of each district constituted the Court of 
 Appeals ; and all judges held their places during 
 good behavior. By this constitution of the judiciary, 
 all cases of importance were tried, in the first instance, 
 before a judge of the highest tribunal; and the chief 
 judge always brought down the latest decisions of the 
 Court of Appeals before they had been reported ; and 
 the judges of the Court of Appeals were kept familiar 
 with practice by sitting in tiisi prius trials. Mr. 
 Taney, therefore, from the first, argued causes before 
 judges learned in the law and trained in its techni- 
 calities. In trying cases before juries presided over 
 by such judges, prayers and bills of excerptions were 
 used with consummate skill, and by no one with more 
 tact than Mr. Taney. As able as he was in discussing 
 questions of law raised by the pleadings, because of his 
 o-rder and terse and perspicacious diction and perfect 
 knowledge of law, he rose, perhaps, to still greater 
 superiority in discussing the side questions raised by 
 prayers and bills of exceptions ; and when he got be- 
 fore the jury, he kept the facts so completely within 
 the issues presented by the pleadings that he made 
 the evidence tell with all its force in proof of his 
 points. With singular alacrity, he would so group 
 and collate the facts as to impart to the one on which 
 his argument turned an exaggerated significance, from 
 the unexpected relations it was shown to have to the 
 
136 Memoie, of Koger B. Taney. 
 
 other facts. And he would sometimes embody the 
 whole pith of his argument in a single terse sentence, 
 that would fix itself, like an arrow of truth, in the 
 hearts of the jury. In defending a person charged 
 with an assault, who, though first assailed, had so used 
 his privilege of self-defence as to make himself the 
 aggressor by the heavy blows he had dealt, he said, 
 " Gentlemen of the jury, if a man have a head like 
 a post, you must hammer him like a post." As he 
 progressed in his argument, every absurdity would 
 vanish that might, at first, have hidden the strength 
 of his side of the case. And when the morality of 
 a transaction came into view, his lofty sentiments of 
 honor, his magnanimity and scorn of sharp dealing 
 and trick, delivered with such earnest sincerity of 
 manner and in such persuasive tones, led a jury cap- 
 tive. He was a master in conducting a cause before a 
 court and jury. 
 
 It was Mr. Taney's habit to advise his clients to 
 settle their disputes amicably, in all cases where he 
 thought it could be effected. In 1813 there was a 
 notorious dispute between George Graff and Richard 
 Lee Head, partners in business at Frederick. They 
 had published each other in the newspapers. The 
 matter was referred to Mr. Taney by both parties as 
 their counsel. With the aid of a common friend of 
 the j)arties, the whole difiiculty was amicably arranged. 
 In his written opinion, closing the controversy, Mr. 
 
Memoir of Kogek B. Taney. 137 
 
 Taney said, " There is notliing in the settlement that 
 can impeach the integrity or impair the reputation 
 of either of you. My opinion was not given on the 
 ground that one has right and the other has wrong 
 on his side. Your differences had placed the partner- 
 ship property in a very perplexing situation to both 
 of you ; and the settlement was made, not by arbitra- 
 tion, but by the agreement of yourselves in all the 
 material points, on the principle of the mutual advan- 
 tage to be derived from mutual concession." By such 
 delicate treatment of the feelings of both parties, he 
 made those, who had been mutual enemies, mutual 
 friends. 
 
 No man's 23rofessional life was more marked by 
 deference to the bench, respect for the jury, and 
 courtesy towards his professional brethren. Mr. 
 William Ross, of Lancaster, Pennsylvania, married 
 a lady of Frederick, and settled there to practice law 
 in 1805. In speaking to me, when I was a mere 
 youth at the bar, he told me that, soon after he began 
 practice at Frederick, he was emj)loyed in an eject- 
 ment cause in wliich Mr. Taney was opposing counsel ; 
 that, when the case stood on the docket for trial, and 
 he was asked by the Court if he was ready for trial, 
 and answered yes, Mr. Taney said, in a whisper, that 
 his locations were all wrong ; and that, if he went to 
 trial, he must lose his case, whether the right was with 
 him or not. Thereupon Mr. Ross had his case con- 
 
138 Memoik of Roger B. Taney. 
 
 tinued. Mr. Ross, who was himself the soul of honor, 
 never forgot this courtesy, and told it once before the 
 Court of Appeals of Maryland, to shame a lawyer 
 who had been guilty of shar]:) practice in the case be- 
 fore the Court. And Joseph M. Palmer, whose name 
 appears so often in the reports of cases in the Court of 
 Appeals of Maryland, told me that not long after he 
 came from Connecticut, in 1817, to Frederick, a client 
 of Mr. Taney's mentioned his case to him, and that 
 he expressed his ojiinion as to the law of the case. 
 The client told Mr. Taney wliat the Yankee laivyer, 
 as he called him, had said. Mr. Taney saw the force 
 of Mr. Palmer's view, which diiFered from the one he 
 held, and at once sent for Mr. Palmer, and employed 
 him in the case to helji him forward in his p)rofession. 
 His kindness to the young members of the bar was a 
 distinguishing feature in his j^rofessional life. Mr. 
 William Price, a late member of the Baltimore bar, 
 who had been engaged in many cases as junior counsel 
 with Mr. Taney, while he practised in Frederick, thus 
 spoke of him ; " But few men of his eminence have 
 ever displayed so much kindness to the younger mem- 
 bers of the profession. Often have I left his room after 
 midnight, having gone through the authorities and 
 settled tlie points to be made at the trial, and always 
 believed that I was a better lawyer for the interview ; 
 for he never kejjt back from his younger associate a 
 single thought that occurred to his mind during the 
 
Memoir of Eogee B. Taney. 139 
 
 investigation. In a case of difficulty, he would tarry 
 to explain the law, and usually made it so plain that 
 no man could well fail to understand it. After our 
 labors were finished, he would invite me to remain 
 aud talk with him ; for, although his dignity was a 
 part of his nature, yet he was one of the most genial 
 persons I ever knew." 
 
 The professional character of Mr. Taney at this 
 period of liis life has been well drawn in outline by 
 Mr. William Schley, an eminent lawyer of the Balti- 
 more bar. 
 
 " I knew Mr. Taney from my early cliildhood. For 
 many years he resided in my native town — now 
 Frederick City. As a boy, as a youth, and afterwards, 
 as a student of law, I heard him very often, in causes 
 of magnitude in the Court of Frederick; and his argu- 
 ments and his manner made a deep impression upon 
 me. He sought no aid from rules of rhetoric, none 
 from the supposed graces of elocution. I do not re- 
 member to have heard him, at any time, make a single 
 quotation from any of the poets. Yet his language 
 was always chaste and classical, and his eloquence un- 
 doubtedly was great — sometimes persuasive and gentle, 
 sometimes impetuous and overwhelming. He spoke, 
 when excited, from the feelings of his heart, and, as 
 his heart was right, he spoke with prodigious effect. 
 And yet, perhaps above all other attributes, his ex- 
 alted j)rivate character gave him, with the honest, 
 
140 Memoir of Eogek B. Taney. 
 
 right-minded juries of Frederick County, an extent of 
 success which even his great abilities as an advocate 
 would not have enabled him otherwise to secure. He 
 had acquired, and he ever retained it, in an eminent 
 degree, the confidence and resi^ect of that community. 
 The people knew that he was sincere and honest; they 
 knew tliat he was a composer of strifes and controver- 
 sies, whenever the opportunity was afforded, and 
 that he never promoted any ; and they also knew that, 
 whilst he was earnest, strenuous, and indefatigable in 
 his efforts to secure for his clients their full rights, 
 yet he never sought to gain from the other party any 
 unjust advantage. He was an open and fair practi- 
 tioner. He never entrapped the opposing counsel by 
 any of the manoeuvres of an artful attorney ; and he 
 contemned, above all things, the low tricks of a petti- 
 fogger. In taking exception to the adverse rulings of 
 the Court, he never cloaked a jioint, but presented it, 
 fairly and distinctly, for adjudication by the Court." 
 
 It was now the year 1823. Great casualties had 
 befallen the bar of Maryland. Mr. Pinkney, the 
 greatest forensic character who has ever appeared in 
 the American Courts, was dead. He died represent- 
 ing Maryland in the Senate of the United States. His 
 death was announced to the House of Representatives 
 by Mr. Randolph, of Virginia. The publisheji debates 
 give this account of it : " Mr. Randolph rose to an- 
 nounce to the House an event which he hoped would 
 
Memoir of Eogee B. Taney. 141 
 
 put an end, at least for this day, to all further jar or 
 collision, here or elsewhere, among the members of 
 this body. Yes, for this one day, at least, let us say, 
 as our first mother said to our first father — 
 
 'While yet we live, — scarce one short hour, perhaps, — 
 Between us two let there be peace.' 
 
 " I rise to announce to the House the not unlooked 
 for death of a man who filled the first place in the 
 public estimation, in the first profession in that estima- 
 tion, in this or in any other country. We have been 
 talking of General Jackson, and a greater than he is 
 not here, but gone forever. I allude, sir, to the boast 
 of Maryland and the pride of the United States — 
 the pride of us all, but more particularly the pride 
 and ornament of the profession of which you, Mr. 
 Speaker [Mr. Philip P. Barbour], are a member, and 
 an eminent one." 
 
 When I was a student of law, Judge John Scott, an 
 eminent lawyer of Virginia, told me, that soon after 
 the death of Mr. Pinkney, Chief-Justice Marshall re- 
 marked to him, at Richmond, in the presence of that 
 eminent lawyer Walter Jones, that Mr. Pinkney was 
 the greatest man he had ever seen in a Court of jus- 
 tice, and that Mr. Jones responded, Yes ; no such man 
 has ever appeared in any country more than once in 
 a century. Mr. Pinkney had no political aspirations. 
 He seems never to have even thought of the Presi- 
 dency. 
 
142 Memoir of Roger B. Taney. 
 
 Luther Martin was now a wreck. His vast learning 
 was hidden in the oblivious darkness of an extinguished 
 intellect. And so generous, and withal so improvi- 
 dent, had been this great lawyer, that after all the 
 great professional harvests he had reaped, the Legisla- 
 ture of Maryland, in February, 1822, passed the fol- 
 ing joint resolution: "Resolved, That each and every 
 practitioner of law in this State shall be and he is hereby 
 compelled, from and after the passage of this resolu- 
 tion, to obtain from the Clerk of the County Court in 
 which he may practise, a license to authorize him so 
 to practise, for which he shall pay annually, on and 
 before the first day of June, the sum of five dollars; 
 which said sum is to be dejjosited by the Clerk of the 
 County Court, from which he may jirocure such license, 
 in the treasury of the Western Shore or Eastern 
 Shore, as the case may be, subject to the order of 
 Thomas Hall and William H. Winder, Esqrs., who 
 are hereby appointed trustees for the application of 
 the proceeds raised by virtue of this resolution to 
 the use of Luther JMartin : Provided that nothing 
 herein contained shall be taken to compel a practi- 
 tioner of law to obtain a license in more than one 
 Court, to be annually renewed, under penalty of being 
 suspended from the bar at which he may practise. 
 And provided, that this resolution shall cease to be 
 valid at the death of the said Luther Martin." This 
 is a sad and instructive memorial in the public 
 
Memoir of Roger B. Taney. 143 
 
 archives of Maryland. I recall it for the warning it 
 gives to men in the arduous toils of the j^ractice of 
 law. 
 
 As Martin and Pinkney had left a large opening 
 at the Baltimore bar, the high reputation of Mr. Taney 
 at once suggested to all that there was now a call to 
 him to place himself at the head of the leading bar 
 in the State. Therefore it was, that with all his love 
 of Frederick, both duty and professional ambition con- 
 strained him to leave it. His mother, whom he loved 
 with singular devotion, had left her home in Calvert 
 County, during the War of 1812, and taken refuge 
 from the ravages of the British, under her son's roof, 
 and continued to live with him until her death in 
 1814. She was buried in the little graveyard back of 
 a little chapel, then the only place of Roman Catholic 
 worship in Frederick. Before his departure from Fred- 
 erick, Mr. Taney made an arrangement with a partic- 
 ular friend, William Murdock Beall, a nuich younger 
 man than himself, for his own burial by the side of 
 his mother, no matter when and where his death 
 should occur. It was in this little chapel, with its 
 twilight stillness, that Mr. Taney, for many years, 
 could be seen every morning, in sunshine and in rain, 
 during his residence in Frederick, at his religious devo- 
 tions. Under its shadow, his filial piety made him 
 select his grave. 
 
CHAPTER III. 
 
 LIFE IN BALTIMOKE. 
 
 A. D. 1823 — 1836. 
 
 AS Mr. Taney will be seen occupying higli posts in 
 the Federal Government at important jiolitical 
 crises, it is necessary, before sketching his life in Bal- 
 timore, to take a view of the nature and the working 
 of the Federal Government, in order to judge of the 
 wisdom and the patriotism of his conduct in those 
 positions. Unless we have before our minds the 
 nature of the Federal Government, and the tendency 
 of its working disclosed in our political history, we 
 cannot judge of the acts of the functionaries who are 
 employed in its administration. It is by the nature 
 of the Government that the legitimate policy of its 
 administration must be determined. The two great 
 parties which have striven for the control of the Gov- 
 ernment, were formed, as we shall see, because of their 
 opposite views of the powers of Government granted 
 by the Constitution, and of the opposite policy upon 
 which they respectively sought to administer the Gov- 
 ernment. Mr. Taney's conduct, as an ofiicer of the 
 Federal Government, must be judged by his view of 
 the Federal Constitution and his judgment of theten- 
 
 144 
 
Memoir op Roger B. Taney. 145 
 
 dency in the working of the Government. And 
 whether his view of the Constitution, and his judgment 
 of tlie tendency in the working of tlie Government, be 
 true or not, can only be tested by the history of the 
 country down to the present time. 
 
 In order to judge of the nature of the Federal Gov- 
 ernment, we must recur to its origin. 
 
 So little inclined were the American colonies to 
 form a political union, that it was only to defend their 
 respective liberties against a common enemy that they 
 formed a confederation. As soon as the pressure of 
 the war with England was withdrawn by peace, the 
 colonies, then independent States, were dissatisfied 
 with the confederation, because of its inefficiency, and 
 determined to form a more perfect union. Accord- 
 ingly, a convention of delegates, appointed by the 
 several States, each acting for itself, met in Phila- 
 delphia, in 1787, and framed a Federal Constitution, 
 which was submitted to the several States for ratifica- 
 tion, on condition, when ratified by nine States, it 
 should be binding between the nine. After a thor- 
 ough discussion of its merits and demerits, the Consti- 
 tution was adopted by eleven States ; and the other 
 two finally came into the Union, and the Federal 
 Constitution became a constitutional compact between 
 the thirteen States. 
 
 It was in accordance with the laws that regulate the 
 progress of society, that the Federal Government then 
 
 10 
 
146 Memoir of Kogek B. Taney. 
 
 formed was one of only delegated powers. When 
 independent States form a common government, it is 
 always federative in its character. The individuality 
 of the States is never merged ; even though, in the 
 working of the Government, the States finally become 
 absorbed by the irresistible forces of centralization. 
 
 Of all the great Governments which have appeared 
 in the progress of society, our Federal Government is 
 the only one which has been framed by j^olitical archi- 
 tects. The leagues of States in ancient times were 
 not Governments. Neither were those in modern 
 times. They answered a temporary purpose. The 
 most memorable Government of ancient times, the 
 Roman, rather grew than was built. The organizing 
 hands of statesmen, from time to time, only adapted it 
 to the changes in society by incor^^orating into it new 
 provisions. And the most celebrated Government of 
 modern times, and the most glorious in achieving the 
 great ends of political institutions, that of England, — 
 though from 3Iagna Clim'ta downwards it shows, from 
 time to time, the hands of master-builders, — is, never- 
 theless, rather a growth than a product of human 
 wisdom. But the Government of the United States, 
 from its very foundations, is the work of political 
 architects. The State Governments were framed first 
 by the statesmen of the several States. Then came 
 the great work of forming a common Government for 
 all the States. And never before, in the history of 
 
Memoir of Roger B.Taney. 147 
 
 nations, as if ordered by Providence to meet the ex- 
 periment of a great republic, did such an assembly of 
 "wise statesmen meet for any purpose. The great iiieu 
 were the sons of the separate colonies, educated to the 
 great work by their separate fostei'ing cai-e. No 
 monarchy, no en]23ire, no great centralized State, in 
 the long history of man striving after security for 
 person and property, has ever nurtured at her bosom 
 such sons. Their profound and comj)rehensivfc vitivs 
 of government, their transcendent powers as wiiters, 
 their surpassing eloquence, constitute them the greatest 
 assembly that, in the order of Providence, has ever 
 been called together for the accomplishment of a great 
 purpose in the progress of society. The great states- 
 men, born of the separate colonies, conscious of their 
 own greatness, though reared in such small, isolated, 
 communities, felt that the separate States must be pre- 
 served to rear up, by their separate special influences, 
 great men in after times to administer the general 
 Government which they had ordained and established. 
 And the political instincts of the peoples of the several 
 States, serving them in the stead of a well-reasoned 
 political creed, would have rejected any constitution 
 that abolished the sovereignty of the States. 
 
 The polity, accordingly, established by the Constitu- 
 tion of the United States, while it embraces all the 
 powers relating to foreign relations, has flie grant of 
 only general powers relating to the internal interests 
 
148 Memoik of Kogek B. Taney. 
 
 of the country, leaving to the several States large 
 reserved ijolitical rights. 
 
 It was inevitable, in the working of such a Govern- 
 ment, that two great political parties should spring up 
 — one construing the Constitution so as to claim the 
 largest powers for the Government, and the other con- 
 struing it so as to limit the powers to those expressly 
 granted. In the Federal convention that framed the 
 Constitution, and in the separate conventions of the 
 several States that ratified and adopted it, there were 
 two great opposing parties — the Federal and the anti- 
 Federal. Tlie first was for establishing a centralized 
 Government, and the latter was for reserving the sov- 
 ereignty of the States. The same parties, as we shall 
 see, appeared as soon as the Government went into 
 operation, each striving, by construction, to make the 
 Government what each wished to make it in the con- 
 vention which framed it. One retains its name, 
 Federal, while the other assumes the name Repub- 
 lican. 
 
 It was on the 4th of March, 1789, that the Gov- 
 ernment of the United States went into operation, 
 though General Washington was not inaugurated as 
 President until the 30th of April. 
 
 General Washington appointed to his Cabinet the 
 two leading minds of the country — Alexander Ham- 
 ilton as Secretary of the Treasury, and Thomas Jef- 
 ferson as Secretary of State. These two statesmen 
 
to 
 
 Memoik of Eoger B. Taney. 149 
 
 became, as we shall see the fathers of the two great 
 opposing political parties which have, down to the 
 present time, divided the people of the United States. 
 Alexander Hamilton had no faith in the capacity 
 of the people for self-government. He believed, in 
 great sincerity, that they must be governed for their 
 own good, in spite of themselves. Early bred to 
 arms, and knowing the importance of sujjreme au- 
 thority in military affairs, he had formed an exag- 
 gerated estimate of the importance of executive au- 
 thority in civil administration. He was, in fact, a 
 sincere and avowed monarchist. From the first, he 
 had hoped that a centralized general Government would 
 be established, and had no confidence in the success of 
 the federative one that was established by the Consti- 
 tution of the United States ; he therefore considered 
 the Constitution as only a temporary bond of union, 
 a mere transitional form in the progress of events 
 towards a centralized Government; and believed, with 
 perfect sincerity, that it was the duty of statesmen, in 
 administering the Government, to interpolate into the 
 Constitution, by construction, such powers as would 
 gradually build up a central authority, in which the 
 reserved sovereignty of the States would be ignored 
 and finally abolished. With this political faith 
 honestly entertained, — for he belonged to the school of 
 Machiavelli, — he, as the head of the Treasury depart- 
 ment, strove at once to begirt and strengthen the new 
 
150 Memoir of Eogek B. Taney. 
 
 Government with tlie moneyed power of the country 
 organized under the control of the Federal executive. 
 He thought that the people could only be governed 
 by corruption, as it is called in politics, or self-interest, 
 as it is called in philosophy. He repudiated ideas 
 altogether in politics as un^^ractical and absurd. Gov- 
 erning, therefore, solely by state craft, he succeeded in 
 inducing Congress to establish a funded system and a 
 national bank. These were the means by which he 
 began the work of centralization. 
 
 The latitudinarian construction of the Constitution, 
 by which Hamilton persuaded Congress to establish a 
 national bank, was opposed by a doctrine of strict 
 construction denying the power to establish a bank, 
 put forth at the time by Jefferson, as Secretary of 
 State, and enforced by Madison in the House of Rep- 
 resentatives by irrefutable argument. General Wash- 
 ington yielded, rather than acceded, to the view of 
 Hamilton. It was not Hamilton's imperial policy 
 that influenced Washington, but the expediency of 
 the juncture of a new Government founded on the 
 ruins of one that had been declared perpetual, and yet 
 had perished without any attempt to uphold it. 
 
 AVith the establishment of tlie bank, in 1791, the 
 two old parties reappeared in the politics of the 
 country — the Federal party with its old name, and the 
 anti-Federal party with the name Kepublican. Ham- 
 ilton was the leader of the first, and Jefferson was the 
 leader of the last. 
 
Memoir of Roger B. Taney. 151 
 
 Under the countenance of Washington, the Federal 
 party grew so strong that it elected as his successor to 
 the Presidency John Adams, who was only a little 
 less of a monarchist than Hamilton, Such was the 
 genius of Hamilton and his rational control over the 
 minds of the leading men of the Federal party, that, 
 though not of the Cabinet of Adams, he controlled 
 his administration, making the Federal party almost 
 ignore him. Hamilton was tlie soul of his party. 
 The leading men thought his thoughts and spoke his 
 words, and the very acts of Congress were his. To 
 carry out his centralizing jiolicy of making everything 
 yield to Federal authority, the Alien and Sedition 
 laws were passed by Congress, which struck at per- 
 sonal freedom of speech. From the passage of these 
 laws began the struggle of the States against Federal 
 usurpation, under color of construing the Constitution. 
 The State of Virginia, by a series of resolutions passed 
 by her Legislature in 1798, condemning the Alien and 
 Sedition laws, called on the other States to co-operate 
 with her in arresting Federal usurpation. These reso- 
 lutions were prepared by Madison, who was a member 
 of the Legislature. And when the other States sent in 
 answers hostile to the resolutions, as most of them did, 
 he, as the chairman of a committee, made a report of 
 extraordinary ability, defining the character of the 
 Government which had been established by the Con- 
 stitution, of which he was the chief architect. By 
 
152 Memoir of Eogee B. Taney. 
 
 these resolutions and this report, the doctrine of State- 
 rights was declared. It was proclaimed that ours is a 
 Government of divided powers, and that the States 
 are sovereign in their sphere ; and that it is their right 
 and their duty to interpose between the Federal Gov- 
 ernment and a violated Constitution. Kentucky 
 passed similar resolutions drawn by Jefferson. 
 
 Taking the resolutions of Virginia and of Kentucky 
 as their political creed, the Republican party organized 
 itself amidst the dissatisfaction created by the Alien 
 and Sedition laws, and, in 1800, elected Jefferson 
 President in opposition to Adams. The landed 
 interest everywhere was for the Republican or State- 
 rights party. The mercantile and moneyed power were 
 with the Federal or centralizing party. Jefferson was 
 re-elected in 1804. Jefferson was a man of the most 
 commanding genius, and was at the same time a great 
 political manager ; so that he organized a party held 
 together by a great principle underlying the Con- 
 stitution, and determining the character of the polity 
 embodied in it. 
 
 The Republican party was so strong as to defy all 
 opposition. It elected Madison President in 1808, 
 and re-elected him in 1812. So, too, in a regular line 
 of Republican presidents, it elected Monroe President 
 in 1816, and re-elected him in 1820. The Federal 
 party had ceased to influence the Federal administra- 
 tion at all ; and had, in fact, become so odious to the 
 
Memoie of Kogek B. Taney. 153 
 
 country, because of its course in the War of 1812, that 
 it was almost extinguished. 
 
 It was fortunate for the success of our institutions, 
 that the Government fell so soon into the hands of the 
 strict constructionists, and continued in their hands for 
 twenty-four years. For, notwithstanding Jefferson, 
 Madison, and Monroe were strict constructionists, the 
 Federal Government in its working, during their ad- 
 ministrations, encroached upon the reserved rights of 
 the States. Jefferson, without any constitutional au- 
 thority, as he admitted, jDurchased Louisiana, justifying 
 it upon State necessity. And Madison, though he 
 had shown by conclusive argument, on the floor of 
 Congress, that the Federal Government had no power 
 to charter a bank, yet yielded to the mischief of the 
 paper currency issued by the State banks during the 
 War of 1812, and agreed to charter another to correct 
 the mischief, as he supposed it would. Madison can 
 only be justified upon the principle of interpretation 
 of the Federal i^arty, which construes the Constitution 
 by facts and considerations extrinsic to the Constitu- 
 tion. The words " necessary and proper " which are 
 aj)plied by the Constitution to the merely incidental 
 powers which are given by an express grant like the 
 substantive powers, in order to make the substantive 
 powers a limitation upon the incidental powers, are 
 made to vary in their import by the exigencies of 
 Government which are brought about by the abuses 
 
154 Memoir of Roger B. Taney. 
 
 of the Government itself, and not by the inevitable 
 course of events. 
 
 It was perhaps also fortunate for the success of the 
 Govermnent, that these three successive Presidents 
 were, like Washington, from Virginia, who presented 
 a constellation of greater men than any other State, 
 and therefore gave more respectability to the Govern- 
 ment, and obtained for it more confidence from the 
 country. And it was no small thing, that these three 
 Presidents had been great actors in the Revolution 
 with Washington, and, being of the same State, shared 
 his prestige. 
 
 But a stage in the politics of the country had 
 arrived, when though it was none the less important 
 that the jarinciples of the Virginia school of politicians 
 should be carried out in the administration of the 
 Government, the Government should not be in the 
 hands of a President who was a Virginian. 
 
 From the beginning, the theory of the Constitution 
 had been wholly disregarded by the country in the 
 mode of electing the President and Vice-President. 
 By the Constitution, the people are only to choose 
 electors, to whose superior intelligence the choice of 
 President and Vice-Presitlent is confided. But the 
 electors have been deprived of their constitutional 
 function of choice, and have been made to pledge 
 themselves to give their votes for a particular person 
 who has been nominated, by a caucus or a convention, 
 as a party candidate. 
 
Memoir of Eogee B. Taney. 155 
 
 During the adjninistratiou of Monroe, as the Fed- 
 eral jiarty had practically ceased to exist, the Ee- 
 publican party as an oi-ganization had fallen to pieces. 
 Therefore it was that, in 1824, upon the expiration of 
 Monroe's second term, there were four candidates, all 
 j)rofessing to be Republicans — Adams, Clay, Crawford, 
 and Jackson. 
 
 Such was the state of politics when Mr. Taney 
 began his professional life in Baltimore. It was an im- 
 p>ortant crisis in the history of the country. A new era 
 had, in fact, begun. The candidates for the Presi- 
 dency were all of one party, and neither were they, 
 like their predecessors, great actors in the E.evolution. 
 
 The War of 1812 had terminated without accom- 
 jjlishing the purpose for which it was declared. The 
 Kepublican party, who brought on the war, believed 
 that the failure of the war was due in 23art to the 
 New England States under the influence of the Fed- 
 eralists. Though these States did not oppose the war 
 with arms, they did so with arguments and remon- 
 strances, and refusal to vote sujoplies. And the hos- 
 tility to the war culminated in the Hartford Conven- 
 tion, whose purpose was prevented from being devel- 
 oped by the sudden termination of the war. Tlie ex- 
 istence of such a convention at such a time made the 
 Government and the Republican j^arty suspect it of 
 treasonable purposes. In this suspicion no one partici- 
 pated more than Monroe, who was elected President, 
 
156 Memoir of Eogek B.Taney. 
 
 as we have seen, in the fall of 1816. General 
 Jackson, who, by his victory at New Orleans, had 
 elevated himself above all other military leaders, had 
 become a person of extraordinary influence over 
 public opinion. Feeling, as he did, that the great pur- 
 pose of Monroe's administration should be to remedy 
 the evils and the weakness of the country that had 
 been made manifest during the war, he, as a personal 
 as well as a f)olitical friend of Monroe, undertook to 
 advise him in regard to the formation of his Cabinet. 
 Though a Rejiublican of the Virginia school, his 
 patriotism and his i:)olitical forecast led him to see the 
 importance of breaking up those sectional party dif- 
 ferences, which had made the New England States 
 seem enemies, in time of war, to their Government. 
 He discriminated between the Federalists who opposed 
 the war before it was declared, but sujiported it after- 
 wards, and those who continued to oppose it. He 
 wished Monroe to adopt this view in forming his 
 Cabinet or ministry. In a letter dated 23d October, 
 1816, he says, " Everything depends on the selec- 
 tion of your ministry. In every selection, party 
 and party feeling should be avoided. Now is the time 
 to exterminate the monster called party spiirit. . . . The 
 chief magistrate of a great and powerful nation should 
 never indulge in party feelings." Monroe could not 
 bring himself to disregard party in forming his 
 Cal^inet. In answer, 14th November, 1816, to Gen- 
 
Memoir of Kogek B. Taney. 157 
 
 eral Jackson, lie said, " That some of the leaders of 
 the Federal party entertained principles unfriendly to 
 our system of Government, I have been thoroughly 
 convinced ; and that they meant to work a change in 
 it, by taking advantage of favorable circumstances, I 
 am equally satisfied. . . . You saw the height to which 
 the opposition was carried in the late war ; the embar- 
 rassment it gave to the Government, the aid it gave to 
 the enemy. ... It is under such circumstances that the 
 election of a successor to Mr. Madison has taken place, 
 and that a new administration is to commence its 
 service." To this General Jackson replied, 6th Jan- 
 uary, 1817, " I have read with satisfaction that part 
 of your letter on the rise, progress, and policy of the 
 Federalists. It is, in my opinion, a just exposition. I 
 am free to declare, had I commanded the military de- 
 partment where the Hartford Convention met, if it 
 had been the last act of my life, I should have pun- 
 ished the three principal leaders of that party. I am 
 certain an independent court - martial would have 
 condemned them under the second section of the act 
 establishing rules and regulations for the government 
 of the army of the United States. These kind of 
 men, although called Federalists, are really monarch- 
 ists, and traitors to the constituted authorities. But 
 I am of opinion that there are men called Federalists 
 that are honest and virtuous, and really attached to 
 our Government; and although they differ in many 
 
158 Memoir of Roger B. Taney. 
 
 respects and opinions with the Republicans, still they 
 will risk everything in its defence. It is therefore 
 a favorite adage with me, that tlie tree is best known 
 by its fruit." General Jackson, upon these views, re- 
 commended Col. Drayton, a Southern Federalist, for 
 Secretary of War; but Monroe appointed Mr. Cal- 
 houn, a Southern Republican. 
 
 This correspondence was published, for the first 
 time, in the year 1824, to j^romote the election of 
 General Jackson to the Presidency. It brought to 
 his support many Maryland Federalists, and among 
 them Mr. Taney ; though of course other reasons 
 concurred to induce Maryland Federalists to support 
 the election of General Jackson. Mr. Taney has left 
 on record these remarks on the course of the Mary- 
 land Federalists after the War of 1812: "When the 
 war was over, the Federal party, as it existed before, 
 was dissolved by the events of the war. This is not 
 the jjlace to show why it was dissolved. But it may 
 not be improper to say, so far as Maryland is con- 
 cerned, that during the war the deepest dissatisfaction 
 was felt by the greater number of the prominent 
 Federalists of the State with the conduct of tlie 
 Eastern Federalists. For while the enemy was in the 
 midst of us assailing our cities, and burning our 
 houses, and plundering our property, and the citizens 
 of the State, without distinction of party, were put- 
 ting forth their whole strength and blending in its 
 
Memoir of Eoger B. Taney. 159 
 
 defence, tliose with whom the Maryland Federalists 
 had been associated as political friends in the Eastern 
 States, and whom they had regarded and treated as 
 the leaders of the party, were holding the Hartford 
 Convention, talking about disunion, conferring with 
 one another in secret conclave ; demanding from us, 
 one of the Southern States, a surrender of a portion 
 of the political weight secured to us by the Constitution ; 
 making this demand, too, in the hour of our distress, 
 when the enemy was upon us. They were moreover 
 using every exertion in their power to destroy the 
 credit and cripple the resources of the general Govern- 
 ment, feeble as it then was, and leaving us to defend 
 ourselves as well as we could by our own resources. 
 
 " It will readily be imagined that after this the 
 Federalists of Maryland would hardly desire to con- 
 tinue the party association, and continue the lead in 
 hands who apjaeared to be not only indiiferent to the 
 sufi'erings of our citizens, but ready to take advantage 
 of the peril in which the State was placed, to extort 
 from it the surrender of a portion of its legitimate 
 power. We thought it time that the party connection 
 should be dissolved. 
 
 " There was no general concert of action between the 
 members of the old Federal party, in relation to the 
 general Government, after the close of the war. Mr. 
 Monroe was elected without opposition. Nor was 
 there any organized opposition to him during his ad- 
 
160 Memoir of Eogek B. Taney. 
 
 ministration. Indeed, some of the Federalists of the 
 Eastern States, who had been most prominent and 
 active in the rejDrehensible proceedings which I have 
 just mentioned, seemed anxious to enroll themselves 
 under his banner, and to be recognized as his political 
 friends." 
 
 Entertaining such views, Mr. Taney entered the 
 party supporting General Jackson ; but only from a 
 sense of duty as a good citizen, and not with political 
 aspirations. His only aim in life was professional. 
 To his career in Baltimore as a lawyer, I will now 
 turn ; to recur to his political life when it becomes 
 important. 
 
 Mr. Taney was, at this time, the leading lawyer at 
 the Baltimore bar. Mr. Wirt, who was several years 
 older than Mr. Taney, did not take up his residence 
 in Baltimore until 1829, after he had retired from the 
 office of Attorney-General of the United States. But 
 he had so much practice at the Baltimore bar long 
 before, that I count him as one of its members when 
 Mr. Taney began to practise in Baltimore. Be- 
 tween these great lawyers there was mutual friendly 
 regard. They did not feel towards each other as 
 rivals, but as colleagues in the great work of adminis- 
 tering justice. The following extract from a letter 
 written by Mr. Wirt to Mrs. Wirt, while it relates 
 an amusing anecdote, shows the kind feelings of Mr. 
 Wirt towards Mr. Taney. The letter is dated Octo- 
 
Memoik of Rogek B. Taney. 161 
 
 ber SOth, 1825. " I dined yesterday with the Duke 
 of Saxe- Weimar, at Mr. Oliver's. He is about a 
 head taller than myself, with a nose retrousse, and 
 features a good deal like , but with a sallow com- 
 plexion and dark hair ; no redundant fat, but brawny, 
 muscular, and of herculean strength. He is about 
 thirty-five years old, and looks like a Eussian, or one 
 of those gigantic Cossacks. I dare say he makes a 
 magnificent figure in uniform. He speaks English 
 tolerably well; yet he has the apparent dulness of 
 apprehension which always accompanies a defective 
 knowledge of a language, and renders it rather up-hill 
 work to talk with him. He sat between Mr. Oliver 
 and Mr. Barney, neither of whom seemed to be able to 
 find him in talk. Taney, who you know is a pious 
 Roman Catholic, as well as a most amiable gentleman, 
 said, ' Come, Mr. Barney, Mr. Wirt and I sit side by 
 side quite enough in Court ; let me change places with 
 you:' his object being to amuse the Duke. The 
 change was made, and Taney and the Duke got into 
 a side-talk. The Duke was soon observed to speak 
 with a most ' saracenical and vandalic ' fury, and, as I 
 was afterwards informed, was pronouncing a jshilippic 
 against the Roman Catholic religion, which he blamed 
 for all the political conspiracies in Europe. Taney 
 took the occasion to tell him that he was a Roman 
 Catholic. This produced some embarrassment, but 
 the Duke got over it. Taney changed the subject to 
 11 
 
162 Memoir of Roger B. Taney. 
 
 the war, in which the Duke had figured, — particularly 
 at Waterloo — and unluclvily asked the Duke about 
 Blucher. Now Blucher, it seems, had on some occa- 
 sion gone into the Duke's territories, and was exacting 
 contributions from his subjects, which the Duke hear- 
 ing of, he had put him in prison. So here was a new 
 contre-temps ; and as there was a general pause at the 
 table, I attempted to relieve it by asking the Duke 
 another question, which contributed to increase the 
 difficulty. I dare say he wished himself amongst the 
 wild boars of the forest of Westj^balia." 
 
 Mr. Wirt's prestige was, at this time, far greater 
 than that of Mr. Taney, except in the State of Mary- 
 land, to which Mr. Taney's reputation was confined. 
 
 Mr. Taney was now employed in most of the im- 
 portant cases in the Court of Appeals of Maryland. 
 The cases embrace every variety of judicial contro- 
 versy, as the Court has appellate jurisdiction in all 
 cases of equity as well as of law. In 1826, we find 
 him, with Wirt, Jones, and Magruder, arguing the 
 great case of Ringgold vs. Ringgold, (1 Harris & Gill, 
 R. 11.) In this case the important relation of trustee 
 and ceshd que trust, in every aspect and every phase 
 of obligation and reciprocal right and duty under the 
 most varied circumstances, was thoroughly discussed 
 under all the light of learning belonging to the doc- 
 trine of trusts. And the case is marked by the preci- 
 sion with which the controversy and the relief is kept 
 within the pleadings. 
 
Memoir of Eoger B. Taney. 163 
 
 We find Mr. Taney engaged, in this same year, with 
 Mr. Wirt as counsel for tlie State of Maryland in a 
 case in the Supreme Court of the United States. The 
 following letter from Mr. Wirt, in regard to the case, 
 shows the free and amiable spirit in which he corre- 
 sponded with Mr. Taney. 
 
 Washington, March 30, 1826. 
 
 r)EAE Sir: — I enclosed to Mr. Culbreth, in both 
 our names, a coj^y of the opinion of the Court in the 
 L'd Baltimore case as soon as the copy couhl be pro- 
 cured, — which was the day after the Court rose; and 
 wrote him a short letter, as polite as possible, saying 
 not one word on the subject of fees, which I thought 
 would be rather unseemly on our part (for I spoke 
 in both our names) towards the sovereign State of 
 Maryland, our liege mother. But the old lady is 
 maintaining rather an unnatural silence on her part; for 
 I have not received a single word in reply, not even in 
 the form of thanks, for our great and successful exer- 
 tions — for, as nobody else will praise us, why should 
 not we praise ourselves? Governor Kent has been 
 here until within a few days back ; and 2)erhaps his 
 absence has occasioned Mr. Culbreth's silence. But 
 we will be patient for a fortnight or so, when I hope 
 to find you in Baltimore. 
 
 Yours "truly, Wm. Wirt. 
 
 Roger B. Taney, Esq. 
 
 In 1827, upon the unanimous recommendation of 
 the Baltimore bar, Mr. Taney was appointed Attorney- 
 General of Maryland. The appointment was made 
 
164 Memoik of Eogee B. Taney. 
 
 by Governor Kent, who was a warm supporter of the 
 administration of Mr. Adams, while Mr. Taney was 
 well known as a Jackson Republican. I have often 
 heard Mr. Taney say that he had never desired to 
 hold any office but that of Attorney-General of Mary- 
 land. 
 
 As Attorney-General, Mr. Taney had the appoint- 
 ment of deputy attorneys for the State in the several 
 judicial districts. In these appointments, while he 
 showed his regard for the public interests, he mani- 
 fested his personal friendship for those who stood in 
 need of aid in their struggles at the beginning of pro- 
 fessional life. In the judicial district embracing Fred- 
 erick County, he ajopoiuted James Dixon, who had 
 come from Pennsylvania and studied law in the 
 office of Mr. Taney at Frederick. Mr. Dixon was of 
 humble birth, little education, no friendly influences to 
 help him forward in his jDrofession. Mr. Taney knew 
 his great natural abilities. And never did any man 
 fill any office with faculties more exactly suited to its 
 duties, or perform the duties more faithfully. It so 
 happened, that several murders of a most flagitious 
 character were perpetrated within Mr. Dixon's district, 
 which rested for proof solely upon circumstantial evi- 
 dence. One of these trials, and the most remarkable 
 of them all, I heard just as I began the study of law. 
 It was The State vs. Markley. In no case of State 
 trials either in England or America, that I have read, 
 
Memoir of Eogee B. Taney. 165 
 
 is there such a combination of strange circumstances 
 pointing out the murderer. I can never forget the 
 force of argument by which the facts were combined 
 into evidence of guilt, and the transcendent eloquence 
 of appeals to the feelings of the jury, by which this 
 case was prosecuted to conviction. Mr. Dixon was 
 beyond all question the ablest criminal lawyer I have 
 ever heard in Court. He owed all his success in 
 life to Mr. Taney ; and never did any one show more 
 gratitude to a benefactor. There is nothing which 
 evinces more convincingly the high nobility of Mr. 
 Taney's nature than to see him, through liis whole 
 career, as he stepped from altitude to altitude of per- 
 sonal success, extending, whenever occasion offered, a 
 helping hand to all classes of j^ersons struggling 
 amidst the hopes and the fears of life. 
 
 The doctrine of the law founded on the Statutes of 
 Limitations was so confused, in regard to what the suit 
 should be based ujjon, so as to escape the provisions 
 of the statute, where an acknowledgment of the debt 
 had been made, after the period of limitation had 
 occurred, that it became important to the business of 
 the State that the doctrine should be settled by the 
 Court of Ajajjeals. With this view, the case of Oliver 
 vs. Gray was argued at the June Term, 1827, by Mr. 
 Taney. The very comjorehensive and elaborate opinion 
 of the Court indicates, by its accurate analysis of the 
 question, the thoroughness with which it had beeu 
 
166 Memoie of Eogek B. Taney. 
 
 discussed at the bar. The case is reported 1 Harris & 
 Gil], 204. In the same vohime of Harris & Gill, 324, 
 the case of the Union Bank vs. Bidgley exhibits the 
 skill of Mr. Taney as a special pleader. 
 
 Mr. Taney was at this time employed in many cases 
 of maritime law and marine insurance, where he 
 showed that he had mastered these branches of juris- 
 prudence, though he had lately come from an inland 
 town to a commercial city. 
 
 It is out of the scope of my purpose to notice the 
 cases in detail of Mr. Taney's j^ractice. His profes- 
 sional labors were at this time very diversified and 
 very arduous. He worked by day and by night. 
 Professional duties and his home circle occupied his 
 whole time. Not a moment was spent in fashionable 
 life. He looked at the world from the point of duty, 
 and his whole course was directed accordingly. Yet 
 he walked in the straight and steep path with unchang- 
 ing cheerfulness, greeting with singular cordiality 
 every one he met. 
 
 Now begins a new era in Mr. Taney's life. He is 
 forced into the world of ambition against all his tastes 
 and his strongest judgment in regard to true happi- 
 ness. 
 
 General Jackson had been elected President of the 
 United States, and was inaugurated the 4th of March, 
 1829. It turned out that, because of difficulties 
 between some of the members of his Cabinet, all of 
 
Memoir of Roger B. Taney. 167 
 
 the members resigned their posts. There were now, 
 in secret, so many aspirants to succeed General Jackson 
 in the Presidency, that it was very important that his 
 new Cabinet should be composed, as far as possible, of 
 persons who would be zealous in co-operating to make 
 his administration successful. The formation of the 
 Cabinet was, in fact, a matter of deep concern to Gen- 
 eral Jackson. He, of course, consulted with his per- 
 sonal friends on the subject, and was glad to receive 
 their suggestions in regard to persons whom they 
 might think fitted for his constitutional advisers. 
 Hence it was that Dr. William Jones, of Wash- 
 ington City, who was born in Montgomery County, 
 State of Maryland, in a conversation with General 
 Jackson, said, " I know a man who will suit for 
 Attorney-General." " Who is he ? " said the Gen- 
 eral. " Eoger B. Taney, of the Baltimore bar. 
 He is now the leading lawyer of Maryland, and a 
 zealous friend of your administration. I learned his 
 character while I studied medicine with your friend 
 Dr. William Tyler, of Frederick, where Mr. Taney 
 then resided. He was a Federalist, but after war was 
 declared in 1812, gave it his hearty support." From 
 this information given by Dr. Jones, the appointment 
 of Mr. Taney assumed so much importance that Mr. 
 Francis S. Key, Mr. Taney's brother-in-law, who 
 knew Mr. Taney's aversion to political life, wrote him 
 the following letter : 
 
168 Memoie of Koger B. Taney. 
 
 George Town, D. C, June 14, 1831. 
 
 My Dear Taney : — I had some talk with Berrien 
 in our journey, and found that he expected he was to 
 resign, but thought he was willing (if the President 
 was so) to remain. He inquired what was thought 
 and said upon the subject. I told him that some in- 
 ferred, from the President's letters, that he contem- 
 plated an entire change ; others thought there was 
 nothing in the afi'air to require it, and that, as to him, 
 it was not necessary nor desirable, and that it would 
 gratify some of the General's friends if he could be 
 retained ; and I told him that was your opinion, and 
 that you thought it desirable to the party that he 
 should continue in the Cabinet. 
 
 He intimated that he apprehended Van Buren 
 would have required that he should be included in the 
 arrangement, and he asked who had been talked of as 
 the successor. I told him I thought Buchanan would 
 be more apt to be named than any others who were 
 spoken of; that you had been mentioned, but that I 
 did not believe the appointment would be offered to 
 you. He asked whether you would take it, and I told 
 him it was possible that you might, if you saw a pros- 
 pect of things going on well. In the course of the 
 conversation, I told him that he saw Green was trying 
 to put the late confusion on the ground of Mrs. Eaton's 
 affair ; and that I thought if he was continued, it 
 would be plain that that matter had not occasioned the 
 change of the Cabinet ; and that I thought it desirable 
 that such a proof should be given that the difference 
 arose from no such cause. 
 
Memoir of Eogek B. Taney. 169 
 
 As we came on, lie mentioned the prospect of set- 
 tling matters with Georgia and the Indians ; that he 
 had been urged to go to the Indian country, and was 
 assured that an arrangement could be made satisfac- 
 tory to both parties and greatly to the credit of the 
 Government ; and that he believed he could now so 
 arrange it in two or three months. 
 
 I thought a good deal of this on getting here, and 
 determined I would see Barry, and perhaps Livingston, 
 and see if anything could be done about it. I have 
 seen Livingston. Barry was not at home. And I 
 also saw Woodbury. I told them I thought if Berrien 
 could be retained, it would have a good eifect upon the 
 affairs of the party, both as to its bearing ujjon the 
 Indian and the Eaton question. They both exjjressed 
 their wish that it could be so, but doubted whether 
 they could say anything on the subject unless con- 
 sulted with. Livingston seemed to take it up with 
 most earnestness, but wished me to see Barry. I called 
 again, but could not see him — that was this morning, 
 and of course after what occurred last night, of which 
 I will presently tell you. 
 
 I told Livingston that I had talked with some of 
 the President's friends on the subject, and mentioned 
 you. He said that you had been talked of for the 
 place. I told him you had heard so, but would prefer, 
 I believed, Berrien's being continued, and thought it 
 would be better. 
 
 Ujaon getting home, I found a note from the Presi- 
 dent, requesting me to call out and see him; and I 
 went, of course, though it was almost nine o'clock. 
 
 He said he wanted to tell me confidentially that he 
 
170 Memoir of Eoger B. Taney. 
 
 wished to offer you the place of Attorney-General ; 
 and he wanted to know if it would be acceptable to 
 you. I told him that some of your friends had told 
 you that the aj^pointment would be probably offered 
 to you, and that I had conversed with you recently 
 upon the subject; that I believed you would j^refer his 
 continuing Berrien, thinking such a thing would be 
 conducive to the success of the administration and 
 gratifying to his friends, some of whom thought it 
 would be advantageous to keep Berrien in the Cabinet. 
 He said at once that was entirely out of the question ; 
 that he would have been glad to retain Berrien ; that 
 he thought highly of him, and had still the kindest 
 feelings towards him ; but that it was a necessary part 
 of the arrangement he had been compelled to make, 
 and was understood as such, and that he could not go 
 back from it. He was very decisive. I told him 
 that, of course, we, who could not know the circum- 
 stances fully under which he had been placed, could 
 not have known whether he could consistently keep 
 Mr. Berrien ; but that looking only to what would 
 benefit the cause sustained by the administration, you 
 had thought it desirable to keep Mr. Berrien, if he 
 could do so with propriety. As to your accepting the 
 place, I would inniiediately write and get your views. 
 I believed you would accept, because I thought you 
 would feel it a duty. He said it would give pleasure 
 to his heart to understand that you would ; that he 
 would feel gratified to have you in his counsels ; that 
 your doctrines upon the leading constitutional ques- 
 tions he knew to be sound ; and your standing in the 
 Supreme Court he well knew from Baldwin and 
 
Memoir of Roger B. Taney. 171 
 
 others. He requested I would write and let him know 
 your answer as soon as possible. 
 
 This, of course, you understand is to be kept entirely 
 to yourself; and you are now to make up your mind 
 (if you have not already done so) as quick as you can, 
 that the Cabinet may be filled and matters become 
 settled. 
 
 You will get this to-morrow evening, and can let 
 me hear from you by the mail of Thursday. 
 
 I do not think you ought to have any hesitation in 
 accepting. I believe it is one of the instances in 
 which the General has acted from his own impulses, 
 and that you will find yourself, both as to him and his 
 Cabinet, acting with men who know and value you, 
 and with whom you will have the influence you onght 
 to have, and which you can do souietliing eflicieiit with. 
 As to your business, you can be as much in Baltimore 
 as you would find necessary or desirable, with the 
 understanding that you would come over whenever 
 wanted. This would only be when you Avere wanted 
 at a meeting of the Cabinet, or anything important. 
 On ordinary occasions, and applications for opinions 
 from the Departments, they could send you the papers 
 to Baltimore, and you could reply from there. As 
 to the Su^^reme Court, it would of course suit you 
 entirely, and tlie increase in your business there would 
 make up well for lesser matters. 
 
 I shall therefore look for a letter on Thursday ; and 
 
 tell me when I must come on, as I am very busy 
 
 here. 
 
 With love to Uncle and Aunt M., 
 
 Yours truly, 
 
 F. S. Key. 
 
172 Memoir of Eogee B. Taney. 
 
 P. S. I think the President said Berrien was to send 
 in his resignation to-day. 
 
 This letter was sent to Annapolis, where Mr. Taney 
 was attending the Court of Appeals. I have not been 
 able to procure Mr. Taney's answer, which was in 
 accordance with the wishes of General Jackson, as the 
 following reply from Mr. Key shows : 
 
 George Town, D. C, June 16, 1831. 
 
 My Dear Taney : — I am writing this at the post- 
 office, as the mail is closing. I have seen the Presi- 
 dent. He expressed great pleasure at your determi- 
 nation. Barry was there, with whom I had also some 
 talk. He is much gratified. He said it need not 
 interfere at all with your affairs in Baltimore ; tliat it 
 seemed to him you need not even change your resi- 
 dence, if you did not wish it. The President said in 
 reply, to what I said about your engagements in the 
 Court of Appeals, that that would have presented no 
 difficulty in any event, but that, as it was, Mr. 
 Berrien wished to continue a little while to get the 
 business of the office brought up ; and that when he 
 was ready he would say so, and he would inform you ; 
 that he did not wish you to let it interfere with your 
 business, and did not suppose it would in any material 
 degree. Both Barry and the President speak of the 
 parting with Berrien as being quite friendly on both 
 sides. Yours affectionately, 
 
 F. S. Key. 
 
 P. S. There is a son of Caldwell's who is Berrien's 
 clerk : you must continue him. 
 
Memoir of Eogek B. Taney. 173 
 
 Mr. Taney was still at Annapolis. On the 21st of 
 June, 1831, Mr. Livingston, the Secretary of State, 
 wrote to him as follows : 
 
 Department of State, June 21, 1831. 
 
 Sir: — I have great satisfaction in obeying the 
 President's instructions to inform you that he has this 
 day appointed you Attorney-General of the United 
 States, and to ask your acceptance of the office. 
 
 Mr. Berrien will be employed for a few days in 
 arranging the business of the office in order to transfer 
 it to you, should you signify your acceptance, in which 
 case your commission will be made out, ready to be de- 
 livered when you shall find it convenient to come on 
 and assume the duties of the office. 
 
 I have the honor to be, with great respect, 
 
 Your most obedient servant, 
 
 Edw. Livingston. 
 
 KoGEE B. Taney, Esq. 
 
 Mr. Taney's answer to Mr. Livingston's letter was 
 as follows : 
 
 Annapolis, June 24, 1831. 
 
 Sir : — I had the honor of receiving by the last 
 mail your letter of the 21st inst., informing me that 
 I have been appointed by the President, Attorney- 
 General of the United States. I accept the appoint- 
 ment, and pray you to convey to the President my 
 respectful acknowledgments for this distinguished 
 mark of his confidence. 
 
 The Court of Appeals of this State is now in 
 
174 Memoir of Eoger B. Taney. 
 
 session, and I cannot leave it before the end of the 
 Term, without doing injustice to several persons who 
 rely on me to argue their cases. Under such circum- 
 stances, I hope that my presence at Washington can 
 be dispensed with until I have fulfilled my engage- 
 ments here ; and as soon as I have done so, I shall be 
 prepared to enter upon the duties of the ofBce to which 
 the President has been pleased to appoint me. 
 I have the honor to be, with the highest respect, 
 Your most obedient servant, 
 
 Roger Brooke Taney. 
 
 The Hon. Edward Livingston, 
 
 Washington. 
 
 Mr. Taney had now become a member of General 
 Jackson's Cabinet. In order to judge of his wisdom 
 as a counsellor of the President, it is necessary to 
 recur to the political issues that were involved in the 
 election which made General Jackson President. 
 
 At the Presidential election of 1824, when Adams, 
 Clay, Crawford, and Jackson were candidates, Jackson 
 received 99 votes, Adams 84, and Crawford 41, and 
 Clay a less number. As neither candidate had a 
 majority of all the electoral votes, the election was, by 
 the Constitution, referred to the House of Representa- 
 tives to choose a President from the three candidates 
 who had received the largest number of electoral 
 votes. The representatives vote by States, each 
 State having one vote. Mr. Clay threw his influence 
 in favor of Adams, and elected him President. Mr. 
 
Memoir of Koger B. Taney. 175 
 
 Clay was made Secretary of State. The friends of 
 General Jackson immediately charged that there was 
 a corrupt bargain between Adams and Clay, by which 
 the latter had sold his influence for the Secretaryshij) 
 of State. And to enhance the feeling of the country 
 against these two honest statesmen, it was contended 
 that it was the duty of Clay to give his influence to 
 Jackson, who had the highest number of votes. This 
 doctrine would strip the House of Representatives of 
 its independent choice when the Electoral College had 
 failed to elect a President. This false doctrine and 
 the false charge of corruption were used with great 
 effect against the administration of Adams, and ren- 
 dered his chances of re-election less and less every day. 
 But a great political issue had been presented by 
 Adams, in his inaugural address. The views presented 
 by him were eminently Federal. And Clay, who 
 became the soul of his administration, had fallen in 
 with the doctrines of Alexander Hamilton, and by a 
 scheme of a high tariff, and internal improvements by 
 the Federal Government, and the influence of the 
 moneyed power organized through the United States 
 Bank, was striving to introduce the centralizing policy 
 in the administration of the Government which had 
 been rejected in the beginning of the century. Mr. 
 Clay even advocated the right to construct . roads 
 through the States by Federal authority. This 
 Alexander Hamilton had not advocated, because he 
 
176 Memoik of Kogee B. Taney. 
 
 was too familiar with public law, and had too much 
 intellectual pride, to contend that a Government, which 
 has not the right of eminent domain, can condemn to 
 public use the private lands of the people, as a Gov- 
 ernment must do that undertakes to construct roads 
 over a territory. The Adams and Clay wing of the 
 Republican party, conscious of their Federal proclivi- 
 ties, called themselves National RejDublicans. 
 
 With such a policy was Adams put before the 
 American people, in 1828, for re-election, and was 
 beaten by General Jackson by a vote of 178 to 83. 
 During Jackson's administration, the battle of 1800 
 was to be fought over in the political cycle which had 
 brought forward old questions to be discussed anew. 
 And we shall see that it was fought over by the 
 Federal party led by Clay, and the Democratic party 
 represented by Jackson as President. And it was the 
 most gigantic contest since the formation of the Fede- 
 ral Government. The great men of the Revolution 
 were not the combatants; but they wer« men who had 
 been brought up under the tuition of the men of the 
 Revolution, and had striven to rise to their intellectual 
 standard. They appreciated the grandeur of our 
 system of government, and had a patriotic anticipa- 
 tion of a glorious destiny for the United States in the 
 history of nations. Both parties had the good of the 
 country in view : it would be puerile to say otherwise. 
 
 It was at such a crisis in the progress of the 
 
Memoir of Eoger B. Taney. 177 
 
 American people, in relation to the character and the 
 policy of their Government, that Mr. Taney was called 
 by General Jackson into his Cabinet, in 1831. And 
 we shall see it was upon Mr. Taney, in the final 
 struggle of the administration with its powerful 
 enemies, that the blows fell the heaviest, and were 
 returned by him with such j^ower that the Democratic 
 policy triumphed, and the organ of the money power, 
 the great instrument of centralization, was trodden 
 upon until it utterly perished. 
 
 General Jackson's inaugural address, on the 4th 
 of March, 1829, was merely a general declaration — as 
 all such addresses are — of the political principles by 
 which the administration would be guided. It left 
 to time and events the qualification of these general 
 views by the acts of the Government as exigencies 
 might occur. It was a general chart of the principles 
 upon which he had been elected. One serious objec- 
 tion uro-ed as;ainst the election of General Jackson, 
 and enforced with all the vehement power of Mr. 
 Clay's eloquence, was, that he was a military chieftain, 
 and therefore prone to put the civil power beneath the 
 military. This was a strong point. For so abhorrent 
 is military rule to all the race of the English-speaking 
 people, that Mr. Adams had, in his inaugural address 
 as President, on the 4th of March, 1825, signalized by 
 a specific declaration the importance of keeping the 
 military subordinate to the civil authority. Therefore 
 
 12 
 
178 Memoir of Kogee B. Taney. 
 
 it was that General Jackson, in his inaugural, said, 
 " considering standing armies as dangerous to free 
 government, in time of j^eace, I shall not seek to en- 
 large our present establishment, nor disregard that 
 salutary lesson of political experience which teaches 
 that the military should be held subordinate to the 
 civil power." He also repudiated the Federal doc- 
 trine, that a national debt is a national blessing, in 
 these words : " Under every aspect in which it can be 
 considered, it would appear that advantage must result 
 from the observance of a strict and faithful economy. 
 This I shall aim at the more anxiously, both because it 
 will facilitate the extinguishment of the national debt, 
 — the unnecessary duration of which is incompatible 
 with real independence, — and because it will counter- 
 act that tendency to public and private j^rofligacy 
 which a profuse expenditure of money by the Govern- 
 ment is but too apt to engender." And that most 
 wicked, because the most fatal to liberty, of all the pos- 
 sible acts of the Federal Government — the interference 
 in elections — is thus rebuked: "The recent demonstra- 
 tion of public sentiment inscribes on the list of execu- 
 tive duties, in characters too legible to be overlooked, 
 the task of reform ; which requires, jiarticularly, the 
 correction of those abuses that have brought the 
 patronage of the Federal Government into conflict 
 with the freedom of elections." 
 
 On the 8th of December, 1829, General Jackson 
 
Memoir of Eogee B. Taney. 179 
 
 delivered his first annual message to Congress, wliicli 
 was the first j^ractical step in his administration. He 
 declared his views of the Bank of the United States in 
 these words : " The charter of the Bank of the United 
 States expires in 183G, and its stockholders will must 
 probably apply for a renewal of their privileges. In 
 order to avoid the evils resulting from precipitancy in 
 a measure involving such important principles and 
 such pecuniary interests, I feel that I cannot, in justice 
 to the parties interested, too soon present it to the 
 deliberate consideration of the Legislature and the 
 people. But the constitutionality and the expediency 
 of the law creating the bank are well questioned by a 
 large portion of our fellow-citizens ; and it must be 
 admitted by all that it has failed in the great end of 
 establishing a uniform and sound currency." This 
 sentence contains a proclamation of hostility to the 
 great organ of the money power of the countr}^, which 
 had been established by Alexander Hamilton as the 
 instrument of his centralizing policy. The nation was 
 at once notified that the decentralizing policy of 
 Jefferson would be restored in the working of the 
 Government. The Maysville Road bill had been 
 vetoed, just as Madison and JMonroe had vetoed 
 similar bills proposing to make internal imjirovements 
 by the Federal Government. And General Jackson 
 had, on the 13th of April, 1830, at the celebration, in 
 Washington, of the birthday of Jefferson, given the 
 
180 Memoie of Eogee B. Taney. 
 
 celebrated toast, " The Federal union : it must be pre- 
 served ! " to make issue upon the doctrine of nullifica- 
 tion, which had been broached by Mr. Hayne, of South 
 Carolina, in the Senate of the United States, as a legiti- 
 mate basis for resisting the collection of the revenue of 
 the United States. 
 
 It was to assist General Jackson in maintaining the 
 principles and the policy avowed in his inaugural, his 
 messages, and his toast, that Mr. Taney consented to 
 become a member of his Cabinet. 
 
 General Jackson had, by the measures of his ad- 
 ministration, clearly developed his decentralizing pol- 
 icy. He was opposed to the renewal of the national 
 bank charter, to the continuance of the high protec- 
 tive policy, and to internal improvements by the 
 Federal Government — the three great measures of 
 the American system which Mr. Clay advocated. He 
 now, in 1832, becomes a candidate for re-election to 
 the Presidency. Mr. Clay becomes the opposing can- 
 didate. 
 
 It was now, in the winter of 1832, that the Bank of 
 the United States petitioned Congress to pass a bill re- 
 newing its charter. It well knew that Congress would 
 pass such a bill, and that General Jackson would have 
 to veto it, or recede from his policy of opposition to 
 the bank. It was a defiance to General Jackson on 
 the eve of the Presidential election. It felt mighty 
 in its power of corruption. The bill renewing the 
 
Memoir of Eoger B. Taney. 181 
 
 charter was j^assed by Congress, and sent to the Presi- 
 dent for his approval. Mr. Taney was in Annapoh's, 
 at the Court of Appeals, and had already, the 27th 
 of June, 1832, written to General Jackson, giving Iiia 
 reasons why the bill, if it was passed, should be vetoed. 
 The General now calls him to Washington, and Mr. 
 Taney aids in preparing a message vetoing the bill, 
 which was sent to Congress; and the bill was thereby 
 defeated. Mr. Taney was the only member of the 
 Cabinet who favored the veto. 
 
 General Jackson now put himself upon the country 
 for re-election, making a definite issue between the cen- 
 tralizing policy of Mr. Clay and his own decentraliz- 
 ing policy. It was a momentous crisis in the working 
 of the Government. 
 
 The bank was fully prepared for the contest. Its 
 loans had been sown broadcast over the country. In 
 the year immediately preceding its petition for a re- 
 newal of its charter, that is, from the 30th of Decem- 
 ber, 1830, to the 30th of December, 1831, it had in- 
 creased its loans and discounts from $42,402,304.fifj 
 up to |63,026,652.f^. And while its petition was 
 actually pending in Congress, it added, before the 1st 
 of May, 1832, $7,401,617.^011 more to the sum last 
 mentioned, making the whole amount $70,428,270.^^,3,3. 
 This was an increase of $28,025,766.-^V in the short 
 space of twenty-six months, being an extension of 
 sixty-six per cent, on its previous loans. The State 
 
182 Memoir of Eogee B. Taney. 
 
 banks did likewise : so that the money power, led by 
 the great fiscal agent of the Government, was fairly 
 in the field, exerting its mighty influence in the elec- 
 tion against General Jackson. The old hero and his 
 Attorney-General, relying upon the intelligence and 
 the patriotism of the people, stood fast by the policy 
 which they believed to be that which could alone save 
 the country from utter corruption. The struggle was 
 fierce, malignant, and desperate. It was a struggle 
 between the Constitution and the money power — 
 whether the Government was to conform to the pro- 
 visions of the one or the behests of the other. 
 
 The defeat of Mr. Clay, and the consequent con- 
 demnation of his policy, was overwhelming. He re- 
 ceived only forty-nine votes out of two hundred and 
 eighty-eight. 
 
 After a declaration so emphatic by the people, in 
 favor of his policy. General Jackson could but carry 
 it out in his second term. And there was no measure 
 more distinctly embraced in his policy than the re- 
 duction of the tariff. Yet South Carolina, possessed 
 by a spirit of waywardness, had voted neither for Mr. 
 Chiy nor General Jackson, but threw away her vote 
 on Mr. Floyd, of Virginia; and now determined not 
 to wait for relief fi'om the burden of the tariif by any 
 measure of General Jackson's administration, but to 
 throw oif the burden herself. This course of South 
 Carolina was presented, by General Jackson, to Con- 
 
Memoik op Roger B. Taney. 183 
 
 gress, in his next annual message, in these words : "It 
 is my painful duty to state that in one quarter of the 
 United States opposition to the revenue laws has risen 
 to a height which threatens to thwart their execution, 
 if not to endanger the integrity of the Union. What- 
 ever obstructions may be thrown in the way of the 
 judicial authorities of the general Government, it is 
 hoped they will be able, peaceably, to overcome them 
 by the prudence of their own officers and the patriot- 
 ism of the people. But should this reasonable reli- 
 ance on the moderation and good sense of all portions 
 of our fellow-citizens be disajspointed, it is believed 
 that the laws themselves are fully adequate to the 
 suppression of such attempts as may be immediately 
 made. Should the exigency arise, rendering the exe- 
 cution of the existing laws impracticable, from any 
 cause whatever, prompt notice of it will be given to 
 Congress, with the suggestion of such views and meas- 
 ures as may be deemed necessary." 
 
 The fiscal function of a Government consists of 
 taxation and disbursement. If the revenue system be 
 such as to impose the taxes upon one section of the 
 country and disburse them in another, it operates 
 great injustice. The revenue system of the United 
 States has, from the beginning, done this to a con- 
 siderable degree. Madison, as soon as the first Con- 
 gress under the Constitution met, introduced a bill 
 laying duties upon imposts, and another levying a tax 
 
184 Memoik of Eogee B. Taney. 
 
 upon tonnage. In defending the provisions and the 
 policy of the bills, he admitted that they would 
 operate more heavily upon the Southern States than 
 upon the Northern, and appealed to the patriotism of 
 the South to bear the burden, for the sake of the com- 
 pensation made by the advantages afforded by the 
 Federal Union. With this unavoidable evil of a 
 revenue system operating upon States of such opposite 
 interests as those of the North and the South, the 
 perverse ingenuity of the statesmen who favored a 
 high protective tariff, led them to think that the 
 market opened to the South, by the manufacturing 
 interest built up at the North by the tariff, equalized 
 entirely the burden of the revenue between the South- 
 ern and Northern States. Upon this doctrine, tariff 
 after tariff was enacted by Congress, until a bill was 
 passed in 1828, not so much to raise revenue as to 
 encourage manufactures, and to construct internal im- 
 provements by the Federal Government. This scheme 
 of policy was called the " American system." 
 
 The perennial sentiment of State-rights, that is so 
 obtrusive in American politics when States either at 
 the North or the South or the West consider them- 
 selves oppressed by the measures of the Federal Gov- 
 ernment, became so extravagant at the South, that 
 Southern statesmen, by an ingenuity as perverse as 
 that of the advocates of the protective policy, con- 
 vinced themselves that, by the tariff act of 1828, the 
 
Memoir of Eogek B. Taney. 185 
 
 whole revenue was levied upon the South while it was 
 disbursed at the North. 
 
 South Carolina, with the other Southern States, 
 believed the revenue act of 1828 to be unconstitu- 
 tional, because its principal object was not revenue but 
 the encouragement of manufactures. She therefore 
 betook herself to what she considered a constitutional 
 right as the last resort in the working of the Federal 
 Government. The State was led in this contest by 
 Mr. Calhoun. No man of the time saw so clearly as 
 he the fearful sectional strife that was threatened 
 between the Northern and the Southern States. At 
 present, it was one rather of money than of sentiment. 
 But he foresaw that, besides the tariff, the fearful 
 question of negro slavery must become fundamental in 
 Federal politics. I knew Mr. Calhoun from my boy- 
 hood. Fie was a sincere Unionist. He dreaded the 
 dissolution of the Federal Union only less than the 
 loss of the local sovereignty of the States. He had 
 studied the history and the constitution of the ancient 
 Roman rejxiblic with far more interest and care than 
 he had done that of England. He was, in fact, more 
 of a Roman than an Englishman. His reading in 
 political history had been extensive. His speculative 
 and his logical faculty were both very powerful in the 
 economy of his mind. If he had had the conserva- 
 tive training of continued practice at the bar, these 
 faculties would have been moderated, and he would 
 
186 Memoir of Eoger B. Taney. 
 
 have become a sounder constitutional lawyer. As it 
 was, he had become enamored of the Government of 
 the Roman republic with its checks and balances. He 
 saw two legislative assemblies, the comitia centuriata and 
 the comitia tributa, as antagonistic, legislating side by 
 side, for one hundred and fifty years, on the same sub- 
 jects, and, because of their mutual respect and comity, 
 never coming into collision. He saw two consuls, 
 both chief executive officers, who must concur in all 
 acts. He saw ten tribunes, with constitutional power to 
 stop by veto the acts of the Senate, which was the 
 great central institution of this polity, giving to it its 
 enduring force. This Government — of such diversi- 
 fied checks, that David Hume, in his profound politi- 
 cal essays, says it would only be considered a political 
 chimera, if it were not known to have existed, — Mr. 
 Calhoun saw had been the most active, most j)owerful, 
 and the most efficient ever established, extending, as 
 it did, its dominion by conquest over the whole 
 known world. With Roman studies and Roman pre- 
 dilections, he looked at our Federal Constitution from a 
 Roman rather than from an English point of view. As 
 the Federal Constitution had been established by every 
 State giving its assent, separately, in order to bind it, 
 and the Constitution authorizes three-fourths of the 
 States to change or amend it, he inferred by construc- 
 tion that the Constitution had conferred on three- 
 fourths of the States the authority to settle constitu- 
 
Memoik of Eoger B. Taney. 187 
 
 tional questions of a political character raised between 
 States and the Federal Government, just as it lias con- 
 feiTed, on the Supreme Court of the United States, 
 authority to decide all legal constitutional questions 
 raised by parties to proceedings at law. From this 
 general doctrine, he inferred the right of a State in a 
 constituent convention to nullify, within her territory, 
 any statute ^^assed by the Congress of the United 
 States which the State considered unconstitutional. 
 And that when such an issue was presented by a State 
 or States, it was the duty of the Federal Government 
 to refer the question of the nullified law to the arbit- 
 rament of the States, and if three-fourths did not 
 declare it constitutional, it would thereby become null 
 and void ; but if they declared it constitutional, then 
 the State must submit, or might secede from the Union. 
 Such was the doctrine of nullification which South 
 Carolina put forth in justification of her refusal to 
 permit the revenue acts to be enforced witiiin her 
 borders. General Jackson and his Cabinet, including 
 his legal adviser, Mr. Taney, repudiated the doctrine 
 of nullification as utterly subversive of all Federal 
 authority ; and, as we have seen, he brought the 
 matter, in his annual message, to the attention of 
 Congress, as likely to lead to difficulty between the 
 Federal Government and the State of South Caro- 
 lina. 
 
 According to the supposed right to do so, South 
 
188 Memoir of Roger B. Taney. 
 
 Carolina, on the 24 th of November, 1832, passed, "An 
 ordinance to nullify certain Acts of Congress of the 
 United States purj^orting to be laws laying duties and 
 imposts on the importation of foreign commodities." 
 A copy of the ordinance was immediately sent to Mr. 
 Vandeventer, who brought it to Mr. Blair, the Gov- 
 ernment printer, for publication in the Globe. Mr. 
 Blair sent the ordinance to General Jackson by Mr. 
 Vandeventer. Not long afterwards, Mr. Blair called 
 to see General Jackson, and found him engaged in 
 writing a proclamation. The General read to Mr. 
 Blair what he had written. The proclamation, as 
 written by General Jackson, was handed by the Gen- 
 eral to Mr. Livingston, the Secretary of State, to ba 
 elaborated and put into an appropriate form. When 
 the instrument, as prejjared by Mr. Livingston, was 
 presented to General Jackson, he disapproved of the 
 principles and doctrines of centralization contained in 
 it. But as the conclusion suited him, he determined 
 to issue it at once, without waiting to correct the erro- 
 neous doctrines contained in it; as promptitude was a 
 cardinal principle of action with him. He authorized 
 Mr. Blair to set forth his views in an editorial in the 
 Globe, which was written by Mr. Blair under his dic- 
 tation, and submitted to General Jackson before it was 
 j)ubUshed. Mr. Taney has left a memorandum among 
 his papers in these words: " I was at Annapolis attend- 
 ing Court, when General Jackson's proclamation at the 
 
Memoir of Roger B. Taney. 189 
 
 time of tlie South Carolina nullification was prepared, 
 and never saw it until it was in print, and certainly 
 should have objected to some of the principles stated 
 in it, if I had been in Washington. K. B. Taney. 
 July, 1861." 
 
 The proclamation warned the people of South 
 Carolina of the fatal consequences of nullification, 
 and, with parental solicitude, begged them to desist 
 from their purpose of open hostility to the authority 
 of the Federal Government. But so infuriated were 
 the people of the State, that, relying on support from 
 other Southern States, they put themselves in an attitude 
 of military defiance. The whole country was smitten 
 with fearful anticipations at the thought of a fratricidal 
 war. All knew that a man of imperious will held the 
 sword of the country. They knew, too, that a per- 
 sonal dislike of Mr. Calhoun, the leader of this in- 
 cij)ient rebellion against the laws of the Federal Gov- 
 ernment, influenced General Jackson's feelings as the 
 executive head of the Government. The worst fore- 
 bodings filled the country. That States, which had 
 marched shoulder to shoulder in the war that achieved 
 independence from foreign rule, should now slaughter 
 each other in civil war, so roused the magnanimous 
 patriotism of Mr. Clay, that, casting behind him all 
 party feelings, he threw himself between tlie Govern- 
 ment of the United States and South Carolina, and, 
 like a true statesman, compromised the difficulty and 
 
190 Memoir of Kogee, B. Takey. 
 
 rescued his country from disgrace. He introduced a 
 revenue bill, which virtually gave up the policy of a 
 protective tariff", tliat was accepted by the Congress of 
 the United States, and achieved for himself an honor, 
 as a statesman, that is a glory in our history. No 
 blood was shed ; and South Carolina, because of wise 
 statesmanship, again embraced her sister States, and 
 moved on with them in the march of nations. Gene- 
 ral Jackson felt great relief in being sjiared the dread- 
 ful necessity of enforcing the laws by the sword and 
 by criminal prosecutions. 
 
 Mr. Taney was now unusually engaged in questions 
 submitted to him by the President. Hurrying, one 
 very cold morning, to his office, at an early hour, he 
 saw a little negro girl striving in A'ain to bring water 
 into a tin bucket hanging on the spout of a pump. 
 When he came up to the pump, and saw the little girl 
 shivering in the cold wind, he took the pump-handle 
 and filled the bucket, and then placing it upon her 
 head, said, " Tell whoever sent you to the pump, that 
 it is too cold a morning to send out such a little girl." 
 A negro woman, who came up just as Mr. Taney 
 finished his act of kindness, communicated the fact to 
 me, which had already been told me by a lady who 
 heard of it when it occurred. 
 
 Mr. Taney, by his personal and official intercourse, 
 had, by this time, so won upon the regard of General 
 Jackson that he had become his most trusted and his 
 
Memoir of Roger B. Taney. 191 
 
 most confidential adviser. And as the great issue 
 which the administration had made with the Banlc of 
 the United States and its adherents was now to be 
 tried, General Jaclcson relied especially uj)on the 
 faithfulness and the sagacious statesmanship of Mr. 
 Taney. He had learned that Mr. Taney, long before 
 he could have expected to be called into his Cabinet, 
 had often, to his friends, intimated the policy in re- 
 gard to the bank that he was now about to make the 
 policy of his administration. He, with his intuitive 
 sagacity, had come to know that, with a moral courage 
 and a clearness of conviction in regard to duty never 
 surpassed by any statesman, Mr. Taney would, if duty 
 required it, sacrifice his aims in life for tlie good of his 
 country. Mr. Taney was, in fact, a man after Jack- 
 son's own heart. 
 
 In his first annual message after his second election, 
 General Jackson cordially congratulated Congress and 
 the people on the near approach of the extinction of 
 the national debt. The Government would thereby 
 cease to be a debtor to the people. And a high tariff, 
 raising revenue upon one section of the country and 
 expending it in another, would no longer be needed. 
 This policy was distasteful to the money power. The 
 deposits in the Bank of the United States would 
 thereby be diminished, its discounts lessened, and its 
 influence in the politics of the country circumscribed. 
 The bank was, therefore, averse to the extinguishment 
 
192 Memoir of Kogee B. Taney. 
 
 of tlie national debt ; and so was the money power of 
 the countiy, and also the politicians, who were debtors 
 or attorneys of the bank, or expected to be aided by 
 the bank influence in any way. The bank was con- 
 sidered by the whole country as solvent as the sun. 
 It was no more supposed that the deposits of the 
 Federal Government in the bank were in danger of 
 being lost in bankruptcy than that the light of the 
 sun would be lost in universal darkness. But not 
 so thought General Jackson and his Attorney-Gen- 
 eral, Mr. Taney. Mr. Taney thoroughly understood 
 finance and banking. Abhorring, as he did, all alli- 
 ance between the Government and the money j)0wer 
 of the country, as fatal to liberty and a high civiliza- 
 tion, he had for years watched the conduct of the 
 United States Bank, and believed that, while it was 
 corrupting the country, it was risking bankruptcy by 
 its adventurous dealings. He was calm while all were 
 excited by passion or suspicion or party feeling. In 
 the storm of party struggles, his judgment was as 
 sagacious and as unclouded as that of justice, with 
 even scales weighing the opi^osite considerations of a 
 dispute. His party could no more influence his judg- 
 ment or his conduct than his political adversaries 
 could. General Jackson saw this, and trusted him. 
 For Jackson was, with all the fiery energy of his 
 nature, cautious in listening to trusted counsellors, 
 and, like Washington, enlightening and confirming 
 his judgment by their advice. 
 
Memoir of Eogee B. Taney. 193 
 
 It was Mr. Taney as well as General Jackson who 
 startled the country, when the annual message of the 
 President intimated that the deposits of the Govern- 
 ment were not safe in the Bank of the United States, 
 in these terms. " Such measures as are within the 
 reach of the Secretary of the Treasury have been 
 taken to enable him to judge whether the public 
 deposits in that institution may be regarded as entirely 
 safe ; but as his limited power may prove inadequate 
 to this object, I recommend the subject to the atten- 
 tion of Congress, under the firm belief that it is worthy 
 of their serious investigation. An inquiry into the 
 transactions of the institution, embracing its branches 
 as well as the princij)al bank, seems called for by the 
 credit which is given throughout the country to many 
 serious charges impeaching its character, and which, 
 if true, may justly excite the apprehension that it is 
 no longer a safe dej)ository of the money of the peo- 
 ple." The message recommended that the seven mil- 
 lions of stock held in the bank by the United States 
 be sold ; and also all other stock held by the United 
 States in joint-stock companies : so as to sever the 
 Government from all pursuits properly belonging to 
 individuals. 
 
 A motion for a select committee to inquire into the 
 condition of the bank was scornfully rejected by the 
 House of Eepresentatives, and the subject was referred 
 to the Committee of Ways and Means. This com- 
 
 13 
 
194 Memoir of Kogek B. Taney. 
 
 mittee, acting upon a report of the Treasury agent 
 founded upon statements furnished by the bank itself, 
 which were utterly false, reported, for the adoption of 
 the House, " That the Government deposits may, in 
 the opinion of the House, be safely continued in the 
 Bank of the United States." This resolution was 
 passed by a vote of 109 to 46. Of the members who 
 voted for it, fifty were borrowers from the institution, 
 and many were on the list of its retained attorneys. 
 The influence of money, like the miasm of the pesti- 
 lence, finds its way against all antidotes ; and the his- 
 tory of man ^^roves that he is as easily infected by the 
 one as the other. 
 
 Now was the great issue made by the bank, sustained 
 by the House of Representatives, with the Executive 
 Department of the Government, whether the bank, 
 that was insolvent, as it turned out to be, was to keep 
 the deposits of the Government for its own piurposes, 
 or the Executive was to secure them from loss, for the 
 use of the people. 
 
 The bank had already, by j^revarication and by 
 falsehood, evaded the payment of five millions of the 
 public debt which had been required to be paid out of 
 the public money on deposit. And it had, as even its 
 friends admitted, violated its charter by dealings to 
 which it had resorted in order to conceal its insolvency, 
 and its consequent inability to apply the deposits to 
 the payment of the five millions of public debt. 
 
Memoir of Roger B. Taney. 195 
 
 When a nation, at a crisis in its history, is left with- 
 out a great man to conduct its affairs for the welfare 
 of the people, it may be considered as given over by 
 Providence to the power of evil. If ever a man was 
 raised up for a crisis in the history of a country, that 
 man was Andrew Jackson. His administration marks 
 an epoch in the history of the United States. But 
 the great actor in the contest with the money power, 
 represented by the Bank of the United States was, as 
 we shall see, Roger B. Taney. 
 
 General Jackson was at the Rip Raps, where, in the 
 warm season, he usually retired from the cares and the 
 intrusions of office. So deeply was Mr. Taney im- 
 pressed with the importance of removing the Govern- 
 ment deposits at once from the Bank of the United 
 States, that he wrote to him the following letter : 
 
 Washington, August 5, 1833. 
 [Private.] 
 
 My Dear Sir : — After reflecting on the conversa- 
 tion you held with me on the morning you left Wash- 
 ington, it seems to be proper that I should state to 
 you, without reserve, my opinion on the j^resent condi- 
 tion of affairs in relation to the bank. 
 
 In my official communications I have already ex- 
 pressed my conviction that the deposits ought to be 
 withdrawn by order of the Executive, provided a safe 
 and convenient arrangement can be made with the 
 State banks for the collection and distribution of the 
 revenue. And I have advised that the step should be 
 
196 Memoik of Koger B. Taney. 
 
 taken before the meeting of Congress, because it is de- 
 sirable that the members should be among their con- 
 stituents when the measure is announced, and should 
 bring with them, when they come here, the feelings 
 and sentiments of the people. I rely, at all times, 
 with confidence on the intelligence and virtue of the 
 people of the United States ; and believing it right to 
 remove the deposits, I think they will sustain the de- 
 cision. 
 
 The obstacles which have recently come in the way 
 of such a proceeding have, without doubt, greatly 
 strengthened the hands of the bank and increased the 
 difficulties to be surmounted by the Executive. They 
 have not, however, changed my opinion of the course to 
 be taken. My mind has for some time been made up 
 that the continued existence of that powerful and cor- 
 rupting monopoly will be fatal to the liberties of the 
 people, aud that no man but yourself is strong enough 
 to meet and destroy it; and that if your administra- 
 tion closes without having established and carried into 
 operation some other plan for the collection and distri- 
 bution of the revenue, the bank will be too strong to 
 be resisted by any one who may succeed you. Enter- 
 taining these opinions, I am prepared to hazard much 
 in order to save the people of this country from the 
 sliackles which a combined moneyed aristocracy is seek- 
 ing to fasten upon them. 
 
 But although it is my duty frankly to state to you 
 the opinion I hold on this subject, yet I do not desire 
 to press the measure upon you. I am every day more 
 and more sensible of the power and influence exer- 
 cised by the bank; and I should feel deeply mortified, 
 
Memoir of Eogek B. Taney. 197 
 
 if, after so many splendid victories, civil and military, 
 you should in the last term of your public life meet 
 with defeat. You have already done more than any 
 other man has done, or could do, to preserve the sim- 
 plicity and purity of our institutions, and to guard 
 the country from this dangerous and powerful instru- 
 ment of corruption. And after a life of so many 
 hazards in the public service, and after achieving so 
 much for the cause of freedom, in the field and the 
 Cabinet, I have doubted whether your friends or the 
 country have a right to ask you to bear the brunt of 
 such a conflict as the removal of the deposits under 
 present circumstances is likely to produce. 
 
 With these feelings and opinions, I cannot wish you 
 to adopt this measure, unless your own judgment is 
 clear and decided that it is your duty to order the re- 
 moval, and that the public interest requires it to be 
 done. If you have any doubts on the subject, I would 
 advise you not to proceed further until the meeting of 
 Congress. For although my own opinion is firm in 
 favor of the removal, as soon as the proper arrange- 
 ments can be made, I have far more confidence in 
 your decision than I have in my own. And if you 
 determine against it, I shall most cheerfully acquiesce, 
 and shall cordially support any other course of pro- 
 ceeding which you may think j)referable. 
 
 But if you should finally make up your mind to 
 adopt the measure, and should, as you intimated, find 
 it necessary to call for my services, to aid in carrying 
 it into execution, they will be promptly and willingly 
 rendered ; and I have thought it to be my duty, after 
 what passed between us on the morning of your de- 
 parture, to give you this assurance. 
 
198 Memoik of Roger B. Taney. 
 
 I should greatly regret tlie necessity for any change 
 in your Cabinet. You will do me the justice to be- 
 lieve that I have no desire for the station you sug- 
 gested. For, as I have already said to you, 1 do not 
 think myself qualified for even its temjjorary occupa- 
 tion. But I shall not shrink from the resjDonsibility, 
 if, in your judgment, the public exigency should re- 
 quire me to undertake it. 
 
 I have now, my dear sir, laid before you all of my 
 thoughts and feelings on this subject, and with cordial 
 wishes for your health and happiness, 
 
 I am, with the highest respect and regard. 
 
 Your obedient servant, 
 
 R. B. Taney. 
 
 General Jackson answered as follows : 
 
 EiP Raps, August 11, 1833. 
 [Private.] 
 
 Dear Sir : — Your letter of the 5th instant has 
 been received, perused with much pleasure, and the 
 contents duly noted. 
 
 I am still of opinion that the public dt'posits ought 
 to be removed, provided a more safe depository, and 
 as convenient for carrying on the fiscal operations of 
 the Government, can be found in the State banks as 
 is now found in the United States Bank. 
 
 The United States Bank attempts to overawe us. 
 It threatens us with the Senate and with Congress, if 
 we remove the deposits. As to the Senate, threats of 
 their power cannot control my course or defeat my 
 operations. I am regardless of its threats of rejecting 
 my nominations. If Mr. Duane withdraws, you can, 
 under an agency, carry on and superintend the Treas- 
 
Memoir of Roger B. Taney. 199 
 
 ury Department until nearly the close of the next 
 session of Congress ; before which the battle must be 
 fought and all things settled before your nomination 
 would be sent in. 
 
 As to the threats about Congress, it may be ob- 
 served, the bank, having been chartered contrary to 
 the powers of Congress as defined by the Constitution, 
 may find, when once the deposits are removed for 
 cause, that Congress is not competent to order the de- 
 posits to be restored to this unconstitutional and cor- 
 rupt depository, but must find another, and that can 
 only be the State banks ; there is none other : more of 
 this when we meet. 
 
 I have no doubt of receiving, in a few days, in a 
 report from the directors appointed by the Govern- 
 ment, proof that about $40,000 have been paid by the 
 United States Bank for printing essays, pamphlets, 
 etc., etc., in favor of the bank, and in abuse of the 
 Executive, and in subsidizing and corrupting journals. 
 When this proof is furnished, of which I have no doubt, 
 it will be considered by me sufficient cause for remov- 
 ing the deposits. If the bank can apply $8000 (being 
 \ of $40,000) out of the public funds, Avithout appro- 
 l^riation by law, it may one or two millions. There- 
 fore, the deposits cannot be safe in such an institution. 
 It might use the whole money of the Government, 
 and stop its wheels. 
 
 I have been recently advisetl that a large amount 
 of the six ]oer cents., which have been paid off three 
 or four years ago, remains uncollected, and the evi- 
 dence of debt not surrendered to the Government ; 
 and, therefore, the Government is still bound for the 
 
200 Memoir of Kogek B. Taney. 
 
 debt to the holder of the scrip, whilst the bank has 
 had, and still has, the use of the money. I have 
 directed the Secretary to make a strict inquiry into 
 this matter, and report the real facts of the case to me, 
 that such steps may be taken to coerce the surrender 
 of the stock, and to have the Government exonerated 
 from its liability, as may be in our j^ower to adopt. 
 If it be that the original holders of the scrip are dead, 
 it can only be justice to their representatives to pub- 
 lish to the world the fact that it appears from the 
 books of the commissioner of loans that to A, B, 
 and C there is money due, which will be paid to the 
 individual who will present the evidence of debt and 
 make satisfactory proof that he is legal heir or assignee. 
 The bank has no claim to this money. If the proper 
 owner is dead, without heirs or representatives or 
 legal assignees, it belongs to the Government, not to 
 the bank. I have suggested to the Secretary of the 
 Treasury the propriety of calling in the loan-office 
 books, and put an end to this agency of the bank, and 
 having this duty performed in his own department ; 
 that when the debt is paid, the evidence may be sur- 
 rendered, and put out of the jDower of the bank to 
 make auy more secret arrangements for postponing 
 the payment of the public debt. To this it is inti- 
 mated that the act of the 3d of March, 1817, which 
 abolished the old commission of loans, and transferred 
 it to the bank, will prevent the exercise of this power 
 by the Government. This is not my idea of the law. 
 I may be mistaken, as I have not referred to it lately, 
 and have it not with me. You will find it in the 
 sixth volume of the laws, page 192, and I ask your 
 
Memoir of Eogee B. Taney. 201 
 
 opinion on its j^roper construction and power of the 
 Government in this particular. If the Government 
 has no power to call for these books, and put an end 
 to this bank agency, how can we know when the 
 national debt is paid, or how much is and has been 
 postponed by the bank, and remains unpaid by the 
 bank, although it has been thought by the people, and 
 reported by the tones of the Treasury, that the whole 
 public debt has been paid except about seven millions, 
 when seventeen may have been postponed by the 
 bank, and the Government now liable for the same ? 
 Should I be mistaken, then I can only add that all 
 legislation, from the charter establishing the bank, 
 and in the charter, must have been to increase its 
 powers, open avenues for its speculations and frauds, 
 to the great neglect of the security of the Government 
 and the interest of the people. Should we remove the 
 deposits, I would not be surprised if the bank would 
 rebel against our power, and even refuse to pay to the 
 order of the Government the public money in its 
 vaults, and lay claim to all the money that remains 
 uncalled for on the books of the loan office. Every 
 investigation gives us evidence of the assumed power 
 of this monster. It must be thought by Mr. Biddle 
 that it is above the law, and beyond any control of 
 the Executive government. He has boasted that it is. 
 We must test this matter, and meet it fearlessly and 
 boldly; and no doubt remains on my mind but we 
 will be sustained by the people. 
 
 I write in haste for the mail, and keep no copy. 
 My health is improving, but I am much pestered with 
 business, which is sent after me : this will hasten my 
 
202 Memoir of Koger B. Taney. 
 
 return to the city, where the burden of so much 
 writing will be lessened. I shall remain here eight 
 or ten days more, perhaps a fortnight. 
 
 My little family all, now, enjoy health, and all join 
 with me in a tender of kind salutations to you and 
 your amiable family. 
 
 I am very respectfully your friend, 
 
 Andrew Jackson. 
 Roger B. Taney, Esq., 
 Attorn ejr-General, U. S. 
 
 ^J'liese letters furnish an instance of the private con- 
 ferences between Mr. Taney and General Jackson on the 
 question of the Bank of the United States. It is seen 
 that Mr. Taney was so fully impressed that it was the 
 duty of the President to remove the deposits of the Gov- 
 ernment from the Bank of the United States, that when 
 the President had intimated that jierhaps his agency 
 would be required to effect the removal, he assured him 
 he was ready to perform the duty at any sacrifice. 
 And the letter of Mr. Taney strives to stimulate Gen- 
 eral Jackson to an act which his sense of duty to the 
 people, as a constitutional adviser of the President, 
 constrained him to think ought to be performed. Mr. 
 Taney entered into this question with his whole heart. 
 Of all men I have ever known, he had the deepest ab- 
 horrence of the influence of money. This appears even 
 in his judicial opinions on usury laws, giving, as they 
 do, a construction making the provisions as stringent 
 
Memoir of Eoger B. Taney. 203 
 
 as possible. But when an individual of wealth em- 
 ployed his money in promoting art, and in establishing 
 great charities during his lifetime, and in private gifts 
 to the needy, like the great American banker, Mr. W. 
 W. Corcoran, he had a pecidiar admiration of him, as 
 he had of that gentleman. 
 
 General Jackson had now returned from the Rip 
 Eaps. The bank was the all-absorbing subject. Mr. 
 William J. Duane, a lawyer of Philadelphia, and a 
 son of an old friend of General Jackson's, had been 
 appointed Secretary of the Treasury in June, 1833, 
 when Mr. McLane was transferred to the Secretary- 
 ship of State, made vacant by Mr. Livingston being 
 sent minister to France. Mr. Duane was known to 
 General Jackson as an opponent of the bank, and 
 was supposed to concur in the contemplated measures 
 against that institution. The very evening of the day 
 of his appointment, Mr. Duane had been informed 
 that General Jackson expected him to remove the pub- 
 lic deposits from the bank. This was the first of June. 
 On the twenty-sixth of the same month, General 
 Jackson wrote from Boston, to Mr. Duane, that it was 
 in his opinion desirable to appoint a discreet agent to 
 inquire into the practicability of making an arrange- 
 ment with State banks, as fiscal agents of the Govern- 
 ment, to receive and disburse the revenue. Mr. Duane 
 opj)osed the scheme of removal of the deposits and 
 employing State banks. He thought the matter ought 
 
204 Memoik of Eogek B. Taney, 
 
 to be left to Congress. In this state of the measure, 
 Mr. Taney, at the request of General Jackson, pre- 
 pared a paper on the subject, which was read to the 
 Cabinet the 18th of September. It concluded by ap- 
 pointing the 1st day of October for removing the 
 dej)osits. After it had been printed by Mr. Blair, the 
 editor of the Globe, (the Government paper,) Wm. B. 
 Lewis came to Mr. Blair and told him that Mr. Mc- 
 Lane and General Cass would resign their places in 
 the Cabinet, rather than be responsible for the removal 
 of the deposits ; and said that he thought the paper 
 should be so drawn as to exempt them from all re- 
 sponsibility for the act. Mr. Blair thereupon took 
 the paper to General Jackson and told him what Mr. 
 Lewis had said. The General at once said he did 
 not want any one to be responsible for his acts ; and 
 requested Mr. Blair to read the paper to him, so that 
 he might see where he could insert a sentence assum- 
 ing the sole responsibility. It was accordingly read, 
 and the assumption of the sole resj)onsibility was 
 inserted by the General. Afterwards, Mr. Blair took 
 the corrected copy to Mr. Taney to read it to him, 
 that he might see whether it was correctly printed. 
 When Mr. Blair read the inserted j^assage, Mr. Taney 
 asked where it came from. Mr. Blair informed him. 
 Mr. Taney said it would be better that Mr. McLane 
 and General Cass should leave the Cabinet than 
 remain in it with feelings of hostility to so cardinal a 
 
Memoir of Kogee B. Taney. 205 
 
 measure; that it was better to encounter their hos- 
 tility out of the Cabinet than in it. The paper was 
 read to the Cabinet the 18th of September, and 
 was published in the Globe and other papers. Mr. 
 Duane now halted between two opinions. He first 
 promised General Jackson that, if he could not bring 
 himself to remove the deposits, he would resign. He 
 at last told the General that he would do neither. 
 Upon which General Jackson removed him the 2od 
 of September ; and the same day addressed Mr. Taney 
 the following letter : 
 
 Washington, September 23, 1833. 
 
 Sir : — Having informed William J. Duane, Esq., 
 this morning, that I have no furtiier use for his 
 services as Secretary of the Treasury of the United 
 States, I hereby apj^oiut you Secretary in his stead, and 
 hope you will accej^t the same, and enter upon the 
 duties thereof forthwith, so that no injury may accrue 
 to the public service. 
 
 Please signify to me your acceptance or non-accept- 
 ance of this appointment. 
 
 I am, with great respect. 
 
 Your obedient servant, 
 
 Andrew Jackson. 
 R. B. Taney, Esq., 
 
 Attorney-General, U. S. 
 
 I have not been able to find Mr. Taney's letter 
 of acceptance. He entered upon the duties of the 
 Treasury Department on the 24th of September, 
 
206 Memoib of Kogek B. Taney. 
 
 1833. On the twenty-sixth of the month, he gave the 
 order for the removal of the deposits, to take eflfect on 
 the 1st of October, in accordance with the day desig- 
 nated in the President's " Cabinet Paper." On the 
 day that the order was given for the removal, letters 
 were written to the banks which were at that time 
 selected as the depositories of the public money, noti- 
 fying them of their appointment. It was well under- 
 stood by the public that there was strong opposition 
 in the Cabinet to the removal. And it was only 
 because Mr. Taney had urged the removal that he felt 
 himself in honor bound to take charge of the Treasury 
 Department when Mr. Duane unexpectedly refused to 
 carry out the policy of the President. He therefore 
 entered office with his mind made up to remove the 
 deposits. The order of removal merely directed that 
 thereafter the revenue should be deposited in the 
 selected State banks. The deposits already in the 
 Bank of the United States were only to be drawn out 
 when needed for the use of the Government. The 
 withdrawal would thei'efore be very gradual. 
 
 The bank at once put forth its whole strength, 
 which reached every point in the country, to bring 
 about as much distress as possible, by the time Con- 
 gress met, with a view to compel a restoration of the 
 deposits. It had from the first formed its plan for 
 the contest with the Government. In order to gain 
 the favor of the country, so as to secure the renewal 
 
Memoir of Eogee B. Taney. 207 
 
 of its charter, it had, as we have seen, extended its 
 loans and discounts to more than seventy millions. 
 Now, under the pretence that the loss of the dejDosits 
 compelled it, the bank called in its loans and discounts 
 to such an extent, and constrained the State banks to 
 do likewise, as to make the whole nation groan under 
 the pressure. For months there were the most fearful 
 scenes of dismay and ruin, when the paper currency 
 was thus suddenly and violently contracted. There 
 was hardly any gold in the country to take its place ; 
 and though there was more silver, it was too heavy to 
 be used for currency in a commercial country, and 
 only served as change in small transactions. Com- 
 merce became embarrassed. Property became unsal- 
 able. The price of produce and of labor was reduced 
 to the lowest point. Thousands and tens of thousands 
 of laborers were thrown out of employment ; and 
 many wealthy people were reduced to poverty. The 
 friends of the bank were involved in common ruin 
 with its enemies. All this distress, the bank strove to 
 make the sufferers believe, was caused by the removal 
 of the deposits. 
 
 Congress met on the second day of December, 1833. 
 This session was called the Panic Session. Litanies 
 of woe came up to Congress from all j)arts of the 
 country. 
 
 In his annual message to Congress, General Jackson 
 said: "Since the last adjournment of Congress, the 
 
208 Memoir of Kogeb B. Taney. 
 
 Secretary of the Treasury has directed the money of 
 the United States to be deposited in certain State 
 banks designated by him, and he will immediately lay 
 before you his reasons for this direction. I concur 
 with him entirely in the view he has taken of the sub- 
 ject ; and some months before the removal, I urged 
 upon the department the propriety of taking that step. 
 The near approach of the day on which the charter 
 will expire, as well as the conduct of the bank, 
 appeared to me to call for this measure wpon the high 
 considerations of j^ublic interest and public duty. 
 The extent of its misconduct, however, although known 
 to be great, was not at that time fully developed by 
 proof It was not until late in the month of August, 
 that I received from the Government directors an 
 official report, establishing beyond question that this 
 great and powerful institution had been actively en- 
 gaged in attempting to influence the elections of the 
 public officers by means of its money ; and that, in 
 violation of the express provisions of its charter, it had, 
 by a formal resolution, placed its funds at the disposi- 
 tion of its president, to be employed in sustaining the 
 political power of the bank. 
 
 " It being thus established, by unquestionable proof, 
 that the Bank of the United States was converted into 
 a permanent electioneering engine, it appeared to me 
 that the path of duty which the Executive depart- 
 ment of the Government ought to pursue was not 
 
Memoir of Koger B. Taney. 209 
 
 doubtful. As, by the terms of the bank charter, no 
 oiiicer but the Secretary pf the Treasury could remove 
 the deposits, it seemed to me that this authority ought 
 to be at once exerted to deprive that great corporation 
 of the support and countenance of the Government in 
 such a use of its funds, and such an exertion of its 
 power. 
 
 "At this time the efforts of the bank to control pub- 
 lic opinion, through the distresses of some and the 
 fears of others, are equally apparent, and, if possible, 
 more objectionable. By a curtailment of its accom- 
 modations, more rapid than any emergency requires, 
 and even while it retains sj)ecie to an unprecedented 
 amount in its vaults, it is attempting to produce great 
 embarrassment in one portion of the community, 
 while through presses known to have been sustained 
 by its money, it attempts, by unfounded alarms, to 
 create a panic in all. 
 
 " These are the means by which it seems to expect 
 that it can force a restoration of the deposits, and, as 
 a necessary consequence, extort from Congress a re- 
 newal of its charter." 
 
 No great measure of state was ever more thorough- 
 ly vindicated and justified than the removal of the 
 public deposits was by the letter of December 4, 1833, 
 addressed by Mr. Taney, as Secretary of the Treasury, 
 to the Speaker of the House of Eepresentatives. As 
 the Treasury Department is intrusted with the admin- 
 
 14 
 
210 Memoir of Eoger B. Taney. 
 
 istration of the finances, it is the duty of the Secre- 
 tary of the Treasury, in the absence of any legislative 
 provision on the subject, to take care that the public 
 money is deposited in safe keeping, in the hands of 
 faithful agents, and in convenient places, ready to be 
 applied according to the wants of the Government. 
 The law incorporating the Bank of the United States 
 had reserved to the Secretary of the Treasury this 
 power to its fullest extent. The sixteenth section of 
 the law is in these words : " And be it enacted that 
 the deposits of the money of the United States in places 
 in which the said bank, and branches thereof, may be 
 established, shall be made in said bank, or branches 
 thereof, unless the Secretary of the Treasury shall at 
 any time otherwise order and direct; in which ease the 
 Secretary of the Treasury shall immediately lay before 
 Congress, if in session, and if not, immediately after 
 the commencement of the next session, the reasons of 
 such order or direction." 
 
 The right of the Secretary of the Treasury being 
 undoubted, the bank itself admitting it, the question 
 of removal of the public money was one solely of ex- 
 pediency. Mr. Taney, in his letter, showed beyond 
 question that every interest of both the people and 
 the Government required the removal. The bank 
 was created solely as a fiscal agent of the Government, 
 to be used for the benefit of the people; and the means 
 of private emolument given in its franchises were in- 
 
Memoir of Eoger B. Taney. 211 
 
 tended as a reward for the services it was expected and 
 required by its charter to perform. It was never sup- 
 posed that its separate interests would voluntarily be 
 brought into collision with those of tlie public. Its 
 separate interests were wholly subordinate to its duties 
 as a fiscal agent to the Government. Yet, in order to 
 secure a renewal of its charter, which was to expire 
 the 3d of March, 1836, the bank, as early as 1831, 
 entered the political arena, to influence the meabures 
 of the Government by controlling the election of the 
 President of the United States and of the represent- 
 atives in the Legislature. For this purpose the bank 
 had, in effect, placed the whole capital of the institu- 
 tion, including the shares owned by the United States, 
 and the public deposits, at the disposal of the presi- 
 dent of the institution. And while the whole country 
 was in an agony of distress produced by his measures 
 of pure selfishness, the president of the institution sat 
 in his office as calm as a summer's morning, as was 
 boasted by one of his friends. And so wanton and 
 hazardous had been the conduct of the bank in using 
 its own money and that confided to its care, that the 
 deposits of the Government were no longer safe in its 
 custody. And as the re-election of General Jackson 
 had virtually decided that the charter of the bank was 
 not to be renewed, it was imperatively demanded that 
 the State banks, which had been substituted for the 
 United States Bank, should be gradually possessed of 
 
212 Memoir of Eogeb, B. Taney. 
 
 the public deposits, to enable tliem to supply tbe place 
 of that institution, in honoring each other's notes and 
 drafts, and thereby supply a general currency in their 
 mutually guaranteed notes. 
 
 Mr. Taney's opposition to the renewal of the charter 
 of the bank was avowedly placed by him upon the 
 ground of its great power. " It is [said he] 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 a moneyed cor- 
 poration." 
 
 And the constitutional power of the President to 
 remove Mr. Duaue, when he thought he was derelict 
 in duty, is no less clear than the expediency of re- 
 moving the dej^osits. Mr. Calhoun, in a sj^eech of 
 singular denunciation of both General Jackson and 
 Mr. Taney, delivered in the Senate, admitted this. 
 "But while I thus [said Mr. Calhoun] severely con- 
 demn the conduct of the President in removing the 
 former Secretary, and appointing the j^resent, I must 
 say that, in my opinion, it is a case of the abuse, and 
 not of the usurpation, of power. I cannot doubt that 
 the President has, under the Constitution, the right 
 of removal from office ; nor can I doubt that the 
 power of removal, wherever it exists, does, from ne- 
 cessitjr, involve the power of general supervision ; nor 
 can I doubt that it might be constitutionally exercised 
 
Memoir of Rogek B. Taney. 213 
 
 in reference to the deposits. Reverse tlie j)resent case: 
 suppose the late Secretary, instead of being against, 
 had been in favor of the removal ; and that the Presi- 
 dent, instead of being for, had been against it, deem- 
 ing the removal not only inexpedient, but, under the 
 circumstances, illegal, would any man doubt that 
 under such circumstances he had a right to remove 
 the Secretary, if it were the only means of j^reventing 
 the removal of the deposits ? Nay ; would it not be 
 his indispensable duty to have removed him ? and had 
 he not, would not he have been universally and justly 
 held responsible ? " 
 
 But notwithstanding the wisdom of the j^olicy of 
 General Jackson and Mr. Taney in regard to the 
 bank, as subsequent events proved, as we shall see, 
 the Senate, under the lead of Mr. Clay, co-oj^erating 
 with other Senators as able and as full of partisan zeal 
 as himself, passed resolutions condemning the act of 
 General Jackson as unconstitutional, and that of Mr. 
 Taney as inexpedient and unjustifiable. But the 
 House of Representatives, just elected by the people, 
 justified both General Jackson and Mr. Taney, and 
 declared against the renewal of the charter of the 
 bank. This action of the House of Representatives 
 was the death-blow to the bank. The purpose of 
 General Jackson was thereby accomplished. The 
 State banks showed themselves adequate to the func- 
 tion of fiscal agents of the Government. But tlie 
 
214 Memoir of Eogek B. Taney. 
 
 distress brought upon the country by the Bank of the 
 United States, in its death struggle for the renewal of 
 its charter, frightened the administration of Mr. Van 
 Buren into the recommendation of a league of State 
 banks, different from the plan of Mr. Taney, which 
 brought discredit on his plan because it was supposed 
 to be the same by many, and was said to be the same 
 by others who knew better. 
 
 Mr. Taney had, according to the practice of the 
 Government, made a report on the state of the finances, 
 and the probable revenue for the next fiscal year, 
 which had been laid before Congress. Early in May, 
 1834, the Senate, by a resolution, called on Mr. Taney, 
 as Secretary of the Treasury, for a report on the fi- 
 nances, believing, from the memorials of distress that 
 were sent up to Congress, that the Government would 
 soon be without adequate revenue, and would have to 
 resort to loans. The panic created by the bank was 
 at its height. It was still hoped, by the bank and its 
 friends, that the report of the Secretary would show 
 the revenue to be in such ruin that, in order to relieve 
 himself from the indignation of the people, the Presi- 
 dent would be compelled to restore the deposits to the 
 bank, and that, as a consequence, the charter would 
 be renewed. By the middle of June, Mr. Taney sent 
 in his report. Instead of showing the financial de- 
 cline which had been expected, it showed an increase 
 in every branch of the revenue, and proved that Mr. 
 
Memoie of Eoger B. Taney. 215 
 
 Taney, in his report on the revenue for the coming 
 year, had not over-estimated it. It vindicated his 
 administration of the Treasury Department, while it 
 presented facts which proved that in localities where 
 the bank influence was greatest, there was the greatest 
 distress and commercial embarrassment. The friends 
 of the bank found that they had committed a great 
 blunder, as a party measure, in calling for the report. 
 Mr. Taney's great abilities as a financier and states- 
 man had been entirely underrated ; as he had been 
 supposed to be only a profound lawyer. He had 
 never before been in the councils of the Federal Gov- 
 ernment. 
 
 The bank question was one not only of political 
 power, but also of currency. The nation had been so 
 completely strewed over with bank notes, that they 
 were almost as numerous, and nearly as worthless, as 
 the leaves on the ground, when the forests have been 
 touched by autumnal frosts. The people had been 
 made to know that paper is not money, but only gold 
 and silver is, as their forefathers had declared when 
 they framed the Constitution of the United States. 
 The unquenchable thirst of gain, seeking for loans 
 which cannot be obtained when gold and silver are the 
 currency, had built up so many banks issuing jjaper 
 under the lead of the United States Bank, that gold 
 and silver were almost banished from the dealings of 
 the country. In this state of things, Mr. Benton in- 
 
216 Memoik of Eogee B. Taney. 
 
 troduced into the Senate a bill for equalizing the value 
 of gold and silver, and legalizing the tender of for- 
 eign coins of both metals. Mr. Taney advocated this 
 measure with great zeal, giving Mr. Benton the aid of 
 his sagacity throughout the jDreparation of the meas- 
 ure, as I find from many letters from Mr. Benton ask- 
 ing for interviews with him, from time to time, both 
 before and while the measure was pending. Mr. 
 Taney was for keeping every department of the Gov- 
 ernment within the limits of the Constitution. He 
 was, therefore, for preventing paper from taking the 
 place of gold and silver not only as a matter of policy, 
 but of constitutional law also. The bill of Mr. Ben- 
 ton was passed, and gold began to come forth from 
 its hiding-places and flow in from all the channels of 
 commerce, giving confidence to all the pursuits of in- 
 dustry. 
 
 The opposition to the policy of General Jackson 
 on the bank question was urged by an array of great 
 men hardly to be 2:)aralleled in any country. Clay, 
 Webster, and Calhoun in the Senate, and McDuffie, 
 Binney, Adams, and others in the House, who gave an 
 intellectual dignity to our legislative annals, assailed 
 the administi-ation, and especially Mr. Taney, with 
 peculiar force and fierceness of denunciation. If the 
 spirit of ruin had been administering the Government, 
 more terrible evils could not have been foretold as 
 sure to come upon the country. And there is always 
 
Memoir of Eogee B. Taney. 217 
 
 some truth in predictions of woes at such a crisis in a 
 nation's history. When a Government has instituted 
 a policy even of ultimate ruin, interests spring up 
 under that policy, upon which thousands of fortunes 
 depend, that must suffer in the transition to even a 
 policy which only can save the country from destruc- 
 tion. Of all powers on earth, the money power is the 
 most mighty, the most unscrupulous, the most craving, 
 the most unrelenting, and the most sure to have 
 devotees. It has not only bought individuals, but 
 Governments, and, in fact, the ruHng majority of 
 nations. And there is nothing so fatal to all that is 
 great in man as the dominion of money. There is no 
 more important civil achievement in the working of 
 our Government than the overthrow of the Bank of 
 the United States. 
 
 As the transactions of to-day can only be tested by 
 time, we must look at the ultimate fate of the Bank 
 of the United States to judge correctly of General 
 Jackson's and Mr. Taney's jjolicy. This fate will be 
 seen in the following announcements in the Phila- 
 deljDhia paj^ers of the day. 
 
 First announcement : " Resolved (by the stock- 
 holders), that it is exjjedient for the Bank of the 
 United States to make a general assignment of the 
 real and personal estate, goods and chattels, rights and 
 credits, whatsoever and wheresoever, of the said cor- 
 poration, to five persons, for the payment or securing 
 
218 Memoir of Koger B. Taney. 
 
 of the debts of tlie same, agreeably to the provisions 
 of tlie Acts of Assembly of this Commonwealth 
 (Pennsylvania)." 
 
 Second announcement : " It is known that measures 
 have been taken to rescue the pi'operty of this shattered 
 institution from impending peril, and to recover as 
 much as ^wssible of those enormous bounties which it 
 was conceded had been paid by its late managers to 
 trading 2>oliticiaus and mercenary publishers for cor- 
 rupt services rendered to it daring its charter — seek- 
 ing and electioneering campaigns." 
 
 Third announcement : " The amount of the suit in- 
 stituted by the Bank of the United States against Mr. 
 N. Biddle is $1,018,000, paid out during his admin- 
 istration, for which no vouchei's can be found." 
 
 Fourth announcement: "The United States Bank is 
 a perfect wreck, and is seemingly the prey of the 
 officers and their friends, who are making away with 
 its choicest assets by selling them to each other, and 
 taking pay in the depreciated paper of the South." 
 
 Fifth announcement: "Besides its own stock of 
 $35,000,000, which is sunk, the bank carries down with 
 it a great many other institutions and companies, in- 
 volving a loss of about $21,000,000 more — making 
 a loss of $56,000,000, besides injuries to individuals." 
 
 Sixth announcement : " There is no price for the 
 United States Bank stock. Some shares are sold, but 
 as lottery-tickets would be. The mass of the stock- 
 
Memoik of Eogee B. Taney. 219 
 
 holders stand and look on, as passengers on a ship 
 that is going down, and from which there is no 
 escape." 
 
 Seventh announcement: "By virtue of a venditioni 
 exponas, directed to the Slieriff of the City and County 
 of Philadelphia, will be exposed to public sale to the 
 highest bidder, on Friday, the 4th day of November 
 next, the marble house and grounds known as the 
 Bank of the United States, etc." 
 
 Eighth announcement: "By virtue of a writ of 
 levari facias, to me directed, will be exposed to public 
 sale the estate known as ' Andalusia,' ninety-nine and 
 a half acres, one of the most highly improved places 
 in Philadelphia : the mansion-house, and out-houses 
 and offices, all on the most splendid scale; the green- 
 houses, hot-houses, and conservatories extensive and 
 useful ; taken as the property of Nicholas Biddle." 
 
 Ninth announcement : " To the honorable Court of 
 General Sessions. The grand jury for the County of 
 Philadelphia respectfully submit to the Court, on 
 their oaths and affirmations, that certain officers con- 
 nected with the United States Bank have been guilty of 
 a gross violation of the law, colluding together to de- 
 fraud those stockholders who had trusted their J)to- 
 perty to be preserved by them. And that there is 
 good ground to warrant a prosecution of such jsersons 
 for criminal offences, which the grand jury do now 
 present to the Court, and ask that the Attorney- 
 
220 Memoie, of Roger B. Taney. 
 
 General be directed to send uj) for the action of 
 the grand jury bills of indictment against Nicholas 
 Biddle, Samuel Jaudon, John Andrews, and others to 
 the grand jury unknown, for a conspiracy to defraud 
 the stockholders in the Bank of the United States of 
 the sums of, etc." 
 
 Tenth announcement : " Bills of indictment have 
 been found against Nicholas Biddle, Samuel Jaudon, 
 and John Andrews, according to the jDresentment of 
 the grand jury, and bench-warrants issued, which 
 have been executed upon them." 
 
 Eleventh announcement: " On Tuesday, the 18th, 
 the examination of Nicholas Biddle and others was 
 continued and concluded ; and the Recorder ordered 
 that Nicholas Biddle, Thomas Dunlap, John Andrews, 
 Samuel Jaudon, and Joseph Cowperthwaite each enter 
 into a separate recognizance, with two or more suffi- 
 cient sureties, in the sum of $10,000, for their appear- 
 ance at the present session of the Court of General 
 Sessions for the City and County of Philadelphia, to 
 answer the crime of which they stand charged." 
 
 Twelfth announcement : " The criminal proceedings 
 against these former officers of the Bank of the United 
 States have been brought to a close. To get rid of the 
 charges against them without trial of the facts against 
 them before a jury, they had themselves surrendered 
 by their bail, and sued out writs of habeas corpus for 
 the release of their persons. The opinions of the 
 
Memoik of Roger B. Taney. 221 
 
 judges, the proceedings having been concluded, were 
 delivered yesterday. The opinions of Judges Barton 
 and Conrad were for their discharge ; that of Judge 
 Doran was unfavorable. They were accordingly dis- 
 charged. The indignation of the community is intense 
 against this escape from the indictments without jury 
 trials." 
 
 As the session of Congress was near its close, Gen- 
 eral Jackson, on the 23d of June, sent to the Senate 
 the nomination of Mr. Taney as Secretary of the 
 Treasury. He was the next day rejected ; and it was 
 the first time, in the history of our Government, that 
 a Cabinet minister nominated by a President had 
 been rejected by the Senate. Mr. Taney, the day 
 after, resigned his olfice by the following letter : 
 
 Washington, June 25, 1834. 
 
 Sir : — The Senate having, yesterday, refused to 
 confirm my nomination as Secretary of the Treasury, 
 I beg leave to resign the commission with which you 
 honored me during the last recess. It would expire 
 by its own limitations at the end of the present session 
 of Congress, which is now at hand. But after the 
 appointment has been submitted to the Senate, and 
 acted on by them, it is due to you and to myself that 
 I should conform to their decision, and retire at once 
 from the office. 
 
 I cannot, however, take my final leave of the ofiicial 
 relations which have connected me with your adminis- 
 tration without returning my cordial thanks for the 
 
222 Memoie of Roger B. Taney. 
 
 many and continued proofs of kindness and confidence 
 which I have received at your hands. I shall always 
 bear them in grateful recollection. 
 
 I am, sir, with the highest resj^ect, 
 
 Your obedient servant, 
 
 R. B. Taney. 
 
 General Jackson's answer was as follows : 
 
 Washington, June 25, 1834. 
 
 Dear Sir : — Your resignation of the appointment 
 of Secretary of the Treasury, conferred upon you in 
 the recess of the Senate, and now relinquished in con- 
 sequence of the refusal of that body to confirm your 
 nomination, has been received. 
 
 I cannot refrain from expressing, on tliis occasion, 
 my profound regret at the necessity for your retire- 
 ment from that important office ; nor can I suffer the 
 opportunity to pass Avithout paying a just tribute to 
 the patriotism, firmness, and ability which you have 
 uniformly exhibited since your introduction into my 
 Cabinet. Knowing that such a situation was not 
 desired by you, and was in opposition to your course 
 of life, 1 could not but feel grateful to you, when, in 
 compliance with my invitation, you exchanged the 
 independence of professional pursuits for the labors 
 and responsibilities of the office of Attorney-General 
 of the United States. This sentiment was greatly and 
 deservedly increased during the last year, when, upon 
 becoming acquainted with the difficulties which sur- 
 rounded me and with my earnest desire to avail' my- 
 self of your services in the Treasury Department, you 
 generously abandoned the studies and avocations to 
 
Memoir of Eoger B. Taney. 223 
 
 which your life had been devoted, and encountered 
 the responsibility of carrying into execution* those 
 great measures which the public interest and the will 
 of the people alike demanded at our hands. For the 
 prompt and disinterested aid thus afforded me, at the 
 risk of personal sacrifices which were then probable 
 and which have now been realized, I feel that I owe 
 you a debt of gratitude and regard which I have not 
 the joower to discharge. But, my dear sir, you have 
 all along found support in a consciousness of right ; 
 and you already have a sure promise of reward in the 
 approbation and ap^^lause which an intelligent and 
 honest people always render to distinguished merit. 
 The plan of financial policy which you have initiated 
 by your acts and developed in your official reports, 
 and which has thus far received the full a2:iprobation 
 of the representatives of the people, will ultimately, 
 I trust, be carried into complete operation ; and its 
 beneficial effects on the currency of tlie country and 
 the best interests of society will be, in all future time, 
 more than an adequate compensation for the momen- 
 tary injustice to which you have now been subjected. 
 And as it is the martyrs in any cause whose memory 
 is held most sacred, so the victims in the great struggle 
 to redeem our Republic from the corrupting domina- 
 tion of a great moneyed power will be remembered 
 and honored in proportion to their services and their 
 sacrifices. 
 
 I am, very respectfully and sincerely, 
 
 Your friend and obedient servant, 
 
 Andkew Jackson. 
 Hon. R. B. Taney. 
 
224 Memoir of Eogek B. Taney. 
 
 Mr. Taney was now relieved from official station, 
 and rejoiced to resume the j)ractice of the law, in 
 which he had always found the pleasant duties of life. 
 He at once began practice in Baltimore, and business 
 hastened to get his aid. 
 
 His return from official station was hailed in Balti- 
 more, with every demonstration of apjaroval of his 
 administration of the Treasury Department. He 
 entered the city in a barouche drawn by four gray 
 horses, accomjjanied by the committee of reception, 
 amidst a multitude of citizens. The barouche was 
 escorted by a cavalcade of several hundred horsemen. 
 The procession repaired to the Columbian Gardens, 
 where Mr. Taney addressed the assembly from a 
 rostrum prepared for the occasion. It was a civic 
 triumph of greater worth than those of arms cele- 
 brated by Roman generals on the Capitoline Hill. 
 
 A few days afterwards, a public dinner was given to 
 Mr. Taney. There were many distinguished invited 
 guests. Among those who could not attend the 
 festivity was Martin Van Buren. He sent the follow- 
 ing letter of apology : 
 
 New Yoke, July 21, 1834. 
 
 Gentlemen : — I regret that I cannot accept your 
 kind invitation to the public dinner to be given, by 
 the Republicans of Baltimore, to Mr. Taney on the 
 occasion of his return to that city. 
 
 An unreserved intercourse with Mr. Taney at a 
 
Memoir of Koger B. Taney. 225 
 
 vitally interesting period in our public afiairs, and 
 whilst he was in the discharge of his official duties, 
 of the most arduous and responsible character, has 
 enabled me fully to appreciate his intellectual and 
 moral worth and his unsurpassed devotion to the best 
 interests of our country. 
 
 Nothing would give me greater pleasure than to 
 participate in a compliment so richly merited g,nd so 
 honorably bestowed ; the state of my engagements will 
 not allow me to do so further than to ask the favor 
 of you to offer the annexed sentiments to the company 
 in my name. 
 
 I have the honor to be, gentlemen, with the greatest 
 respect, your friend and obedient servant, 
 
 Martin Van Buren. 
 
 EoGER B. Taney. — He has, in his last best brilliant 
 official career, passed through the severest ordeal to 
 which a public officer can be subjected, and he has 
 come out of it with imperishable claims upon the favor 
 and confidence of his countrymen. 
 
 Resolutions ajjproving of Mr. Taney's course in the 
 administration of General Jackson were passed at 
 primary meetings all over the United States, and pub- 
 lic dinners tendered to him. He could not refuse the 
 public dinner tendered to him at Frederick, in Mary- 
 land. The dinner took place the 6th of August. On 
 his arrival at Frederick, Mr. Taney was welcomed, in 
 behalf of the people, by Francis Thomas, the repre- 
 
 15 
 
226 Memoir of Roger B. Taney. 
 
 sentative of that district in Congress. To whicli Mr. 
 Taney said : 
 
 " Sir : I am gratified for the honors with which my 
 fellow-citizens of Frederick City and County have 
 this day received me. I lived so many years in the 
 midst of them, and that residence is endeared to me 
 by so many cherished recollections, that I never find 
 myself apjiroaching Frederick without feeling as if I 
 were again bending my footsteps to my own home, 
 again to dwell in the midst of a people whose long- 
 continued kindness to me I can never forget, and 
 shall warmly and gratefully bear in my memory to 
 the latest hour of my life. 
 
 "I see around me many citizens who were well 
 known to me during almost the whole period of my 
 residence in Frederick. And the deep emotions with 
 which the events of this day are so well calculated to 
 inspire me, are greatly increased when I behold so 
 many well-remembered faces greeting my arrival with 
 looks of friendship and approbation. 
 
 " Under any circumstances, such proofs of the con- 
 fidence of my fellow-citizens would be gratefully ac- 
 knowledged. But the recent incidents of my life give 
 them peculiar value. When I entered on the high 
 and delicate ofBce which I recently filled, the great 
 body of the people of the United States were strangers 
 even to my name. I had never been a member of 
 either House of Congress. The ofiice of Attorney- 
 
Memoir of Eoger B. Taney. 227 
 
 General of tlie United States, from the nature of its 
 duties, was not calculated to make my name familiar 
 to the ears of the people, in the brief space for which 
 1 held it. And when I was unexpectedly called to 
 the office of Secretary of the Treasury, in a season of 
 severe trial, when the best and highest interests of 
 this great nation of freemen were vitally connected 
 with the measures of that department, I could not but 
 feel that my humble name would give no weight to 
 the measures I had determined to adopt; that out of 
 Maryland I was unknown to the great body of tiie 
 American people, and could not, therefore, if attacks 
 should be made upon me, apipeal for my vindication 
 to their previous knowledge of me, and a long life 
 passed in the honest endeavor to discharge, to the best 
 of my power, my duties as a man and a citizen. Yet 
 a crisis had come which did not allow me to hesitate 
 as to the path of duty. 
 
 " It was obvious to my mind, from the facts before 
 me, that a great moneyed corporation, possessing a 
 fearful power for good or for evil, had entered into the 
 field of political warfere, and was deliberately preparing 
 its i^ans to obtain, by means of its money, an irresist- 
 ible political influence in the affairs of the nation, so 
 as to enable it to control the measures of the Govern- 
 ment. It was evident, if this ambitious corporation 
 should succeed in its designs, that the liberties of the 
 country would soon be destroyed, that the power of 
 
228 Memoir of Eogek B. Taney. 
 
 self-government would be wrested from the people, 
 and they would find themselves, at no distant day, 
 under the dominion of the worst of all possible gov- 
 ernments — a moneyed aristocracy. In this posture of 
 affairs, full of peril, and of the deepest interest to this 
 great nation, I saw the gray-haired patriot now at the 
 head of the Government, who has so often breasted 
 every danger in defence of the liberties of his country, 
 once more prepared to plant himself in the breach, to 
 defend his countrymen, at every hazard to himself, 
 from the impending danger. I firmly believe, and 
 still believe, that the safety of the country depended 
 on his prompt and decisive action. I had long, as 
 one of his Cabinet, advised the proceeding which he 
 finally made up his mind to adopt. Under such cir- 
 cumstances it was impossible that I could, without dis- 
 honor, have hesitated about accepting the office he 
 proffered me, or have shrunk from the responsibility 
 of executing a measure which I had myself advised 
 at a time when it was believed that the duty would be 
 j^erformed by another person. It was impossible, in a 
 crisis when the dearest interests of the country were 
 at stake, that I would, without just disgrace, have re- 
 fused to render my best services in its defence. I 
 should have been unworthy of the friendship of the 
 high-spirited and patriotic citizens who are now 
 around me, if I could have thought of myself, and 
 my own poor interests, at such a moment. 
 
Memoir of Roger B. Taney. 229 
 
 "The measures which I adopted as Secretary of 
 the Treasury are now before the public, and I am 
 ready to abide the judgment which the American 
 people shall pass upon them. They have, indeed, 
 brought upon me, it seems, a deep and enduring spirit 
 of hostility. I have been singled out from among the 
 number who advised, and who approved of the meas- 
 ure I pursued, as a fit object to receive a peculiar 
 mark of indignity. The most unsparing efforts have 
 been made to impeach the integrity of my motives, 
 and to destroy me in the estimation of the citizens of 
 the United States ; and although I am no longer in 
 office, the same spirit is still abroad, and still pursues 
 its object with unwearied perseverance. I do not men- 
 tion these things to complain of them. I should have 
 been blind to the examples of history, if I had not 
 expected them. No man who has at any jaeriod of 
 the world stood forth to maintain the liberties of 
 the people against a moneyed aristocracy grasping at 
 power has ever met with a different fate. Its unrelent- 
 ing, unquenchable hate has never failed to pursue him 
 to the last hour of his life, and when in his grave. 
 Money can always buy instruments ; and I was not 
 weak enough to suppose that I should escape what all 
 others in a like situation have been doomed to en- 
 counter. 
 
 " Having, as I have already said, had no connection, 
 until recently, with the general Government, I was 
 
230 Memoir of Eogee B. Taney. 
 
 altogether unknown to the great body of the citizens 
 of other States, and cannot therefore, in reply to 
 assaults made upon me, appeal to their previous knowl- 
 edge of my principles and conduct. But in Mary- 
 land it is otherwise. Born in the State, my life has 
 been passed in the midst of its citizens until age is 
 now coming upon me. To them I can confidently 
 appeal, for they have known me from my childhood. 
 To the citizens who now surround me, I can still more 
 confidently, for among them I passed twenty-two 
 years of the prime of my life ; taking an active part 
 during all that time in their pulilic concerns. It is 
 from tlie people of Maryland that the citizens of other 
 States must in a great measure learn my character and 
 my principles ; and of none more justly can the 
 inquiry be made than of the citizens of this county, 
 who have so long and so intimately known me. And, 
 gratifying as their approbation and support would at 
 all times have proved, I acknowledge that, at a mo- 
 ment like tins, I feel it with more than ordinary sensi- 
 bility. The honors with which they have been pleased 
 to receive me ; the numerous body of freemen who 
 are now gathered about me ; the public expression of 
 their undiminished confidence and esteem, which, at 
 their request, you have just made to me, is a proud 
 and cheering testimony to which I can point to repel 
 the calumnies which are continually heaped upon me. 
 " The time will come, sir, I doubt not, when every 
 
Memoie of Eogee B. Taney. 231 
 
 man who loves the institutions of the country will be 
 ready to admit the misconduct of the Bank of the 
 United States, and the danger to be apprehended from 
 any similar corporation. Many honest and estimable 
 men are now opposed to us who are led away by mis- 
 taken notions of party obligations, or are too much 
 under the influence of party prejudices to examine the 
 subject fairly, and form an impartial judgment for 
 themselves. The time will soon come when such men 
 will look back with deep regret at the course they have 
 pursued, and are still pursuing, and will do justice to 
 those who have shown themselves ready to make per- 
 sonal sacrifices to maintain unimpaired, for this great 
 people, the blessings of freedom. 
 
 " It is an additional gratification to find you, sir, 
 selected as the organ to communicate to me the senti- 
 ments of this large assemblage of my fellow-citizens. 
 As the representative of this district, I received from 
 you, during my brief and eventful administration of 
 the Treasury Department, the most firm and steady 
 supj)ort. It was to the committee of the House of 
 Representatives, of which you were the head, that the 
 people of this country are indebted for the proof that 
 the affairs of the bank have been so managed that it 
 is compelled, in the face of the plain provisions of its 
 charter, to hide its proceedings from the public eye. 
 The official report of your committee shows that the 
 bank, aware of the conclusions which must inevitably 
 
232 Memoir of Roger B. Taney. 
 
 be drawn from its refusal to submit itself to a fair and 
 full examination, made every effort to escape, without 
 coming to a direct denial. But the talents, firmness, 
 and perseverance of the committee baffled the design, 
 and compelled it to decide directly and unequivocally 
 whether it would lay open its proceedings to strict and 
 impartial scrutiny, or would, in direct violation of its 
 charter, and in contempt of the House of Representa- 
 tives of the United States, refuse it. Driven from 
 every attempt of evasion, the bank finally refused, and 
 thus gave to the people the most convincing and con- 
 clusive evidence of the truth of the charges against it, 
 and that it dared not meet the searching investigation 
 of such a committee. 
 
 " The distinguished share which you took in the 
 conflict, and the efficient services you performed, will 
 always be remembered and honored by a people whom 
 you have so signally served." 
 
 As soon as Mr. Taney closed his remarks, the shouts 
 of the multitude rent the air with cheers of approbation. 
 He then repaired, with the committee, to the court- 
 house square, where, under the canopy of trees, on a 
 luxuriant grass-plot, seventeen tables were prepared 
 with a sumptuous feast, where many hundreds of citi- 
 zens and guests from abroad dined. Here, after the 
 toasts were over, Mr. Taney made an elaborate speech, 
 reviewing with the most masterly exposition all the 
 topics involved in the politics of that trying time. 
 
Memoie of Eogee B. Taney. 233 
 
 Mr. Taney considered this compliment of the citi- 
 zens of Frederick City and County, made in the pres- 
 ence of the old court-house, whose bar he so long 
 adorned, one of the glories of his life. Friendship 
 mingled in the compliment, giving to its political 
 signification the higher tribute to his character as a 
 man. 
 
 On the 4th of Sej^tember, in a speech delivered by 
 Mr. Taney at a public dinner given to him at Elkton, 
 Maryland, besides making a general defence of him- 
 self, he took occasion to repel the personal assaults 
 which had been made upon him. Mr. Webster had 
 suffered himself, in a public address, to speak of Mr. 
 Taney as the " pliant instrument " of the President. 
 Mr. Taney reproved him in the following language: 
 " It is well understood, that when my nomination was 
 before the Senate for their decision, no charge was 
 brought against me ; not a word of accusation was 
 uttered, and I was rejected by a silent vote. If there 
 was supposed to be anything in my character and con- 
 duct which justified my rejection, then was the time to 
 have brought it forward. The charge then could have 
 been invest! rated. But this was not done. And I had 
 therefore a right to expect that no Senator, who had 
 given a silent vote for my rejection, would, after the 
 close of the session, follow me, with the spirit of hos- 
 tility, into private life. In one instance, and in but 
 one, so far as my knowledge extends, has this expecta- 
 
234 Memoir of Eoger B. Taney. 
 
 tion been disappointed. And I find that at a public 
 dinner at Salem, some time ago, Mr. Webster, of the 
 Senate, took occasion to sjoeak of me as the ' pliant 
 instrument of the President, ready to do his bidding.' " 
 After correcting some of Mr. Webster's misstatements 
 of facts, and showing how entirely gratuitous were his 
 accusations, Mr. Taney, rising, in the conscious gran- 
 deur of his moral superiority, to the sublimity of 
 heartfelt scorn, said, " Neither my habits nor my 
 princi^jles lead me to bandy terms of reproach with 
 Mr. Webster or any one else. But it is well known 
 that he has found the bank a profitable client ; and I 
 submit to the public, whether the facts I have stated 
 do not furnish ground for believing that he has be- 
 come its ' ])liaut instrument,' and is prepared on all 
 occasions to do its bidding, whenever and wherever it 
 may choose to requii'e him. In the situation in which 
 he has placed himself before the public, it would far 
 better become him to vindicate himself from imputa- 
 tions to which he stands justly liable, than to assail 
 others." 
 
 The men at Washington little knew the man they 
 were dealing with. In the mysterious drama of hu- 
 man life, there has never yet trod the stage a more 
 chivalric man than Roger B. Taney. The fiery 
 temper of his soul had been chastened by that form 
 of Christianity which is ministered by the Church 
 that sits on the seven hills of Borne, the imperial mis- 
 
Memoir of Roger B. Taney. 235 
 
 tress of tlie moral order of the modern world. In his 
 Christian faith was his security from inflicting uj^on 
 insolence the punishment which an angry temper 
 would sus2;est. 
 
 Mr. Taney was an inordinate smoker of cigars. 
 "While he was Secretary of the Treasury, a friend of 
 his, meeting witli the peculiar cigars which Mr. Taney 
 used, sent him two boxes of them. As he could not 
 find out the donor, he retained them unopened. A 
 few days after he ceased to be Secretary of the Treas- 
 ury, he ascertained that a Mr. Thomson, of Baltimore, 
 connected temporarily with the Custom- House at 
 New York, was the donor. Such was his high sense 
 of official integrity, and his scorn of the custom of 
 receiving presents by public men, that, though he was 
 then only a private citizen, he wrote to Mr. Thomson 
 the following letter: 
 
 Washikgton, June 28, 1834. 
 
 Dear Sir : — Some weeks ago I received two boxes 
 of ciarars, and, as I had no letter of advice on the sub- 
 ject, I was at a loss to know from what quarter they 
 came. A short time afterwards, Mr. Smith, the Reg- 
 ister of the Treasury, asked me if I had received 
 them ; and in answer to my inquiry to whom I was 
 indebted for them, he told me they were sent by you ; 
 and that they were intended as a token of your good 
 will to one who had been the neighbor of your family 
 in Maryland, and with whom you had yourself 
 formed a friendly acquaintance in your late visit to 
 Washington. I sincerely thank you for this proof of 
 
236 Memoir of Eoger B. Taney. 
 
 your kindness, and you must not feel mortified at what 
 I am about to say. I cannot accept the cigars from 
 you as a present. But I will be glad to keep them, 
 and pay you the market value of them. And I must 
 ask the favor of you to say how much they are worth, 
 that I may send you the money. I meant to say this 
 to you before, as I heard that you had sent them. 
 But a thousand official engagements continually press- 
 ing on me left but little time to attend to anything 
 else. Now I am a private citizen and have more com- 
 mand of my time. 
 
 I repeat that you must not feel any mortification at 
 my refusal to accept the cigars as a j^resent. But it 
 has been a fixed rule with me to accept of no present, 
 however trifling, from any one the amount of whose 
 compensation for a public service depended on the 
 department over which I presided. You will, per- 
 haps, smile at what you may think my fastidiousness 
 about such a trifle as your cigars. But I have thought 
 it the true rule for a public man, and that it ought to 
 be inflexibly adhered to in every case, and without any 
 exception in the smallest matters. And having con- 
 stantly acted upon it, I cannot consent to depart from 
 it in this case, and trust that you will not suspect me 
 of doubting for a moment the kindness and integrity 
 of the motive which influenced you to send them. 
 
 With many thanks, my dear sir, for this token of 
 your friendly recollection, and expecting soon to hear 
 from you, 
 
 I am, very truly, your friend and obedient servant, 
 
 K. B. Taney. 
 Samuel Thomson, Esq. 
 
Memoir of Eoger B. Taney. 237 
 
 Mr. Thomson answered. 
 
 New York, July 8, 1834. 
 
 Dear Sir: — Yours of the 28th ultimo has just 
 been received ; and while I regret that the rule laid 
 down for the government of your conduct has pre- 
 vented your acceptance of the small token of my re- 
 gard which I forwarded, I must, at the same time, 
 acknowledge that the rule itself as a general one has 
 the homage of my respect. But really the applica- 
 tion of it to the particular case in question does ajjpear 
 almost " fastidious." Public men certainly cannot be 
 too careful in guarding their actions and their motives 
 against all suspicion ; and perhaj^s, while an application 
 of mine was before your " department," I ought not 
 to have done what I did ; and yet it would be esteem- 
 ing your integrity as a very supple affair indeed, to 
 suppose that it would be influenced by a box of 
 cigars. However, my motives you duly apjjreciate, 
 and I as duly aj)preciate the delicacy of your feelings. 
 
 And now you will permit me to say that " rules " 
 which apply to B. B. Taney as Secretary of the 
 Treasury do not apply to B. B. Taney as a private 
 citizen ; and you will oblige me much by accepting, 
 in this character, of the trifle now in your possession 
 as a mark of my respect for your great private worth 
 and invaluable public services ; or, if your fine feelings 
 and independent spirit will not allow this, then either 
 return the cigars or enclose me f 10. I do sincerely 
 hope, however, that the first proposition will be satis- 
 factory to you. 
 
 With great respect, believe me to be yours, etc. 
 
 Samuel Thomson. 
 
238 Memoir of Eogee B. Taney. 
 Mr. Taney replied. 
 
 Washington, July 11, 18^4. 
 
 Dear Sir: — Although, in conformity with the 
 rule which I have always prescribed to myself, I must 
 send you, as I now do enclosed, ten dollars for the 
 cigars I received from you, yet I hope you do not 
 doubt that I feel as much obliged by your kind inten- 
 tions as if I had accepted them as a present. And 
 having long known and respected your family in 
 Maryland, it has given me real pleasure to meet you ; 
 and I hope that our acquaintance, although but brief, 
 will be remembered by both of us with mutual kind- 
 ness. And with best wishes for your health and 
 happiness, 
 
 I am, dear sir, very truly 
 
 Your friend and obedient servant, 
 
 R. B. Taney. 
 
 $10 enclosed — postage paid. 
 
 Have the goodness to let me know that this letter 
 comes safely to you. 
 To Mr. Samuel Thomson, New York. 
 
 Mr. Taney had been a diligent student of history, 
 and his character had been formed under the influ-* 
 ence of its solemn teachings. He well remembered 
 that, two centuries and a quarter before, Lord-Chan- 
 cellor Bacon had been impeached by the Commons of 
 England, condemned by the House of Lords, fined 
 forty thousand pounds, and disabled from holding 
 office, and sent to the Tower, because he had received 
 presents. It was not pretended that the gifts had 
 
Memoik of Eogek'B. Taney. 239 
 
 influenced his conduct in office; but the Commons 
 wished to signalize their abhorrence of tlie jDractice of 
 receiving gifts by public men ; and they selected the 
 greatest man of their country, and indeed of all 
 countries, and made him an example, to future ages, 
 of the infamy of receiving presents while in public 
 office. 
 
 Gabriel Duvall, before whom Mr. Taney argued his 
 first case in the Mayor's Court of Annapolis, as we have 
 seen in his autobiography given in the first chapter 
 of this Memoir, had been, after holding many im- 
 portant offices, appointed in the year 1811, by Mr. 
 Madison, an Associate Justice of the Supreme Court 
 of the United States. He was violently opposed to 
 General Jackson and his policy. He was now ad- 
 vanced in age, and wished to resign his seat on the 
 bench. But he feared that General Jackson would 
 appoint a gentleman of great abilities as a lawyer, 
 but of too much political ambition, as he thought, to 
 be elevated to the Su2)reme Court. He expressed this 
 oj^inion to a particular friend, Thomas William Car- 
 roll, the Clerk of the Supreme Court of the United 
 States. Mr. Carroll, who was opposed in politics to 
 Mr. Taney, knew that Judge Duvall, like himself, had 
 the greatest admiration of his abilities and his char- 
 acter. He, in some way, found out that General 
 Jackson would a2:>point Mr. Taney in case Judge 
 Duvall resigned, and communicated this information to 
 
240 Memoir of Eogee B. Taket. 
 
 the Judge. Judge Duvall thereupon resigned " his 
 seat upon the bench in January, 1835. General 
 Jackson immediately nominated Mr. Taney to supply 
 the vacancy. 
 
 The great Chief-Justice Marshall was still presid- 
 ing over the Supreme Court. He had a peculiar dis- 
 like to General Jackson and to his policy. But so 
 high was his estimate of Mr. Taney, that he privately 
 endeavored to secure the confirmation of his ajjpoint- 
 meut. With that view, he wrote the following note to 
 Benjamin Watkins Leigh, a Senator from Virginia. 
 Mr. Leigh was opposed to General Jackson's adminis- 
 tration. 
 
 My Dear Sir : — If you have not made up your 
 mind on the nomination of Mr. Taney, I have received 
 some information in his favor which T would wish to 
 communicate. 
 
 Yours, J. Marshall. 
 
 Mr. Leigh. 
 
 This letter from Chief-Justice Marshall was sent to 
 Mr. Taney, in the following letter, by the son of the 
 Senator to whom it was written. 
 
 San Francisco, December 5, 1854. 
 
 To the Hon. Eoger B. Taney, Chief Justice of the 
 
 Supreme Court of the United States. 
 
 Sir : — I have the honor to send you a note from 
 Chief-Justice Marshall to my father, which I feel as- 
 sured will give you much pleasure. An evidence of 
 
Memoir of Eogee B. Taney. 241 
 
 the esteem of that illustrious man is a fit offering of 
 respect to one who worthily fills the exalted station he 
 so long occupied, to his own immortal honor and that 
 of these United States. The enclosed paper [the note] 
 was found by me among my father's papers soon after 
 his death. 
 
 I am, sir, with the highest respect, 
 
 Your most obedient servant, 
 
 B. W. Leigh. 
 
 Mr. Taney answered. 
 
 Washington, January 15, 1855. 
 
 My Deae Sir : — I have received your letter en- 
 closing Chief-Justice Marshall's note to your father, 
 while my nomination as one of the Associate Justices 
 of the Supreme Court was pending before the Senate. 
 You rightly suppose that it is exceedingly gratifying 
 to me ; and I thank you for it. I shall preserve it. 
 
 Allow me to thank you also for the kind language 
 of your own letter. Your father and myself were 
 early friends. Politics sej)arated us for a time. But 
 it gives me now sincere pleasure to remember that, 
 years before his death, the cloud which had arisen 
 between us passed away, and our early relations of 
 mutual friendship were cordially restored. And I am 
 glad to have this opj)ortunity of renewing with the son 
 the friendship and regard I cherished for the father. 
 With best wishes to you, 
 
 I am, dear sir, your friend, 
 
 E. B. Taney. 
 B. W. Leigh, Esq. 
 
 16 
 
242 Memoir of Roger B. Taney. 
 
 At the last moment of the session, the nomination 
 of Mr. Taney was brought up in the Senate, and was 
 indefinitely postponed, which was equivalent to a re- 
 jection. 
 
 It is sad to a reflecting man to witness in an august 
 body like the Senate, composed at that time of men 
 who, by their eminent abilities, would give the highest 
 dignity to any legislative assembly in the world, the un- 
 reasoning domination of party spirit, making it do an 
 act of which every member was afterwards ashamed. 
 
 In January, 1836, Mr. Taney was invited to a jjublic 
 dinner in Cincinnati, to be given on the 4th day of 
 March next, in celebration of the expiration of the 
 charter of the Bank of the United States. Engage- 
 ments constrained him to decline the invitation. He 
 therefore sent the following toast : " The gold coins 
 — long exiled from our country for the benefit of the 
 few — they are now returning for the benefit of the 
 many." 
 
 Mr. Taney was singularly devoted to the State of 
 his nativity, and was profoundly interested in what- 
 ever concerned her honor. In all emergencies, there- 
 fore, he stepped forward, and endeavored, by his ad- 
 vice, to save his State from any dishonor. 
 
 In 1835, the Bank of Maryland, situated in Baltimore, 
 which had been chartered in 1790, failed in the general 
 disasters which befell the banks of the country. The 
 losses fell upon so many dependent persons that great 
 
Memoir of Eogee B. Taney. 243 
 
 indignation seized a portion of the community. Mr. 
 Reverdy Johnson, and other gentlemen of the highest 
 standing, having implicit confidence in the integrity 
 and capacity of the managers of the bank, had, from 
 motives of generosity, suifered their names to appear as 
 directors of the institution, though they never looked 
 into the management of the institution, and derived 
 no profit from it. The feeling of resentment per- 
 vaded more especially the breakers of the peace, who, 
 assembling in a mob, destroyed the dwellings and 
 other jjroperty of the mere nominal directors of the 
 bank. These gentlemen were opponents of the ad- 
 ministration of General Jackson; and the vengeance 
 against them was intensified by political prejudice. 
 Mr. Taney at once took a decided stand against the 
 outrage and the resentment ; and mointained that the 
 sufferers from the mob were entitled to indemnity for 
 their losses from the city of Baltimore, which was 
 bound to jorotect every member of the community 
 from violence by other members of the same commu- 
 nity. By his advice, a petition was sent up to the 
 Legislature asking for indemnity. Mr. Taney pre- 
 jjared himself to argue the question before the Legis- 
 lature, but was prevented from doing so because he 
 had in the mean time been nominated for Chief Justice 
 of the Supreme Court of the United States; and 
 though the nomination was still pending, his scrupu- 
 lous sense of propriety forbid him to argue a cause. 
 
244 Memoie of Eoger B. Takey. 
 
 His notes were placed in the hands of Mr. John V. 
 L. MacMahon, who argued the case in Mr. Taney's 
 stead: Mr. Taney, however, appearing as a citizen 
 present to council the passage of the bill. The Legis- 
 lature was intensely Jacksonian in politics ; and not- 
 withstanding Mr. MacMahon, who called up all the 
 resources of his vast capacity, made, as Chancellor 
 Johnson told me, the greatest speech he ever heard, 
 would have refused the indemnity, had it not been for 
 the determination of Mr. Taney to vindicate his State 
 from dishonor by his advice to the Legislature. It 
 was an act of moral heroism in Mr. Taney ; for those 
 opposed to the bill used the name of General Jackson 
 as decidedly against it. To do away with the influ- 
 ence of General Jackson's supposed hostility to the 
 measure, Mr. Key, Mr. Taney's brother-in-law, wrote 
 the following letter : 
 
 Washington, March 14, 1836. 
 
 My Dear Takey : — I got your letter this morning, 
 and am surprised you have not received mine of Satur- 
 day. 
 
 I saw the President this morning. He expressed 
 himself, as I wrote you he did before, in strong and 
 decided terms, that the persons whose property had 
 been destroyed ought to be fully indemnified by the 
 community where the outrage had occurred, and 
 denied positively that he had ever expressed any other 
 opinion. He allows me to say this to you, and to say 
 that you may make any use of it you please. 
 
Memoir of Roger B. Taney. 245 
 
 Your nomination was to have been called up to- 
 day. It will most probably be done to-morrow. 
 Yours truly, 
 
 F. S. Key. 
 
 The Legislature passed a bill which, in its opera- 
 tion, made the city of Baltimore pay the full amount 
 of the losses sustained from the violence of the mob. 
 Still, as I personally know, some of the members of 
 the Legislature who voted for the bill were afterwards 
 voted against, by members of their own party, when 
 they became candidates for place, because of their 
 vote. 
 
 There is another memorable instance in the history 
 of Maryland where Mr. Taney rebuked the action of 
 his party in an important political movement in the 
 State. 
 
 The growth of Baltimore City and of the western 
 counties had made them dissatisfied with certain feat- 
 ures of the State Constitution. By the Constitution, the 
 Senate, the Governor and Council, and a majority of 
 the House of Delegates could be elected by a minority 
 of the people. This disparity had existed since 1776, 
 when the Constitution was ordained and established, 
 but was now much increased. The mode of electing 
 the Senate through electors was considered particularly 
 objectionable. 
 
 As early as 1807, a bill was introduced into the 
 House of Delegates to give each county a Senator, 
 
246 Memoie of Eoger B. Taney. 
 
 and the counties, delegates in proportion to popula- 
 tion. The bill failed. In the next year a similar bill 
 was introduced, but it was lost in the Senate. 
 
 After the War of 1812, the agitation of the subject 
 was renewed, and became an element in State politics 
 more or less obtrusive at different junctures. It at 
 last waxed so warm, that, on the 6th of June, 1836, 
 delegates chosen from Cecil, Harford, Baltimore, 
 Frederick, Montgomery, and Washington Counties, 
 and Baltimore City, met at Baltimore, and adopted 
 resolutions advising the people to elect delegates at the 
 ensuing election pledged to introduce into the Legisla- 
 ture a bill to take the sense of the people upon the 
 amendment of the Constitution; and providing for 
 calling a convention for that purpose, if a majority of 
 the j^opular vote shoukl be for it. And they em- 
 powered their president to re-assemble the convention, 
 if the Legislature did not pass such a bill within forty 
 days, " to take such ulterior measures as might then 
 be deemed expedient, just, and proper, and best calcu- 
 lated, without the aid of the Legislature, to ensure the 
 accomplishment of the desired results." 
 
 The election of President of the United States was 
 near at hand, and was mingled in the question of 
 amending the State Constitution. The Senate of the 
 State was about to expire. An election of electors to 
 choose a State Senator took place, and resulted in 19 
 Van Buren electors and 21 Whig. According to the 
 
Memoir of Roger B. Taney. 247 
 
 Constitution of the State, the electors met at Annajoolis 
 on the proper day. Twenty-four electors were neces- 
 sary to constitute a quorum in the college. The 21 
 Whig electors qualified to take their seats in the col- 
 lege. The 19 Van Buren electors refused to meet in the 
 college, unless the Whig electors would agree before- 
 hand that 8 Van Buren Senators should be elected and 
 7 Whig. They based their proj)Osition on the ground 
 that the 19 Van Buren electors represented counties 
 which contained a majority of the people. This pro- 
 position entirely ignored the Constitution of the State, 
 which was not founded upon the numerical majority, 
 but upon the majority as the peoi^le were organized 
 under the established Government. The Whig electors 
 refused to yield. So determined was Governor Veasy, 
 who was a Whig, to maintain the Government and the 
 Constitution, that he issued a proclamation calling on 
 the military authority to hold itself in readiness to aid 
 the civil to maintain its power. The 19 Van Buren 
 electors finally went into the college, and a Senate was 
 elected according to the provisions of the Constitution. 
 Afterwards the reform was effected lawfully which was 
 attempted to be effected by revolution. Mr. Taney 
 had just been made Chief Justice of the Supreme 
 Court of the United States. He had discountenanced 
 this movement of his party to get the control of the 
 State. And I find letters from distinguished persons 
 of his party, who favored the movement, expressing 
 
248 Memoir of Roger B. Taney. 
 
 the liope that lie would not oppose it, which he 
 answered, expressing strong condemnation of it as ill- 
 advised, rash, and unfortunate. 
 
 Neither friendship, nor politics, nor religion, so far 
 as I have ascertained from access to all that remains 
 to testify of the secrets of his life, ever induced him 
 even to hesitate to follow the dictates of his judgment, 
 enlightened by a conscience ever looking up for guid- 
 ance to Him to whom he owed his first allegiance. 
 
CHAPTER IV. 
 
 JUDICIAL LIFE. 
 
 A. D. 1836 — 1856. 
 
 WE now enter upon the narrative of tliat part of 
 Mr. Taney's life in which we shall contemplate 
 him in the full dimensions of his greatness. 
 
 Chief- Justice Marshall died in the summer of 1835. 
 On the succeeding 28th of December, President 
 Jackson nominated to the Senate Mr. Taney, to fill 
 his place in the Supreme Court. Since his nomina- 
 tion as Associate Justice, the political complexion of 
 the Senate had changed. Yet the nomination was 
 opposed with great determination. Mr. Clay and Mr. 
 Webster led the opposition. So violent were his feel- 
 ings of hostility to Mr. Taney, engendered during 
 the strife with the Bank of the United States, that 
 Mr. Clay permitted his assaults to degenerate into 
 scurrility. Little did he and Mr. Webster dream 
 that the great Chief-Justice Marshall had endeav- 
 ored to help Mr. Taney to sit by his side as an 
 Associate Justice. On the 15th of March, 1836, 
 the nomination was confirmed by a majority of fourteen 
 votes. 
 
 249 
 
250 Memoir op Eogee B. Taney. 
 
 Members of the Senate and distinguished persons 
 everywhere congratulated Mr. Taney upon his ap- 
 pointment. But I shall pass by all their letters of 
 congratulation, to give place to one from James Dixon, 
 of the Frederick bar, who, as we have seen, studied 
 law under Mr. Taney, and was appointed by him one 
 of his deputies when he was made Attorney-General 
 
 of Maryland. 
 
 Frederick, Maryland, March 17, 1836. 
 
 Dear Sir: — I have just understood that your 
 nomination as the Chief Justice has been ratified, and 
 I cannot but take leave to offer you, my sincerest con- 
 gratulations. I know you will believe me, when I 
 say frankly that I have no selfish motive in this com- 
 munication, but write simply to utter a few thoughts 
 which I am unwilling to stifle, though to you of small 
 value. There never lived a mortal, except my mother, 
 for whom I have felt so much unmixed regard and 
 friendship ; yea, I may add any other word the lan- 
 guage affords, and yet fail to express my feelings — 
 deep feelings — on that subject. There is no one 
 alive to whom I feel so deep a debtor ; though I have 
 always known that you neither knew nor dreamed I 
 was under any obligation. In a word, I never left 
 your presence without feeling in love with virtue, and 
 have often and often recorded the same in my diary ; 
 for I have kept one almost all my life. I am 2:)roud that 
 you will be now tlie very head itself of a profession 
 you have always loved and honored ; but though fitly 
 then, you will never receive, even in that exalted seat, 
 a single particle more of my respect thau you have 
 
Memoir of Roger B. Taney. 251 
 
 long bad already. You have had my best and purest, 
 and more I shall never attempt to offer. 
 
 Yours sincerely, J. Dixon. 
 
 Hon. E. B. Taney. 
 
 This letter I found among the papers of the Chief 
 Justice. The writer is long since dead, and his diary 
 is destroyed. I know full well that I act in harmony 
 with the sentiments of the Chief Justice, when I pre- 
 sent tbis letter from his old pupil, in this memoir, in 
 preference to congratulations from those high in places 
 of ambition. And, besides, it gives insight into Mr. 
 Taney's character. It shows how he appeared to Mr, 
 Dixon, who knew bim so entirely. 
 
 It has been said, and perhaps was true, that Mr 
 Taney was appointed Chief Justice of the Supreme 
 Court because of his aid to General Jackson on the 
 bank question, and especially for the act of removing 
 the public deposits. And it is quite certain that 
 his great predecessor, Marshall, was appointed Chief 
 Justice because of his defense, when a rejjresentative 
 in Congress, of Mr. Adams's administration, in the case 
 of Jonathan Bobbins, who claimed to be an American 
 citizen, but was delivered up to the British Govern- 
 ment as a deserter, and was hanged at the yard-arm of 
 a British man-of-war. The act was seized upon by 
 the op|)Osite party and denounced by resolutions offered 
 in the House of Representatives ; but the transcend- 
 ent speech of Marshall on the floor of the House 
 
252 Memoir of Eoger B. Taney. 
 
 shut their mouths. The office in each case was be- 
 stowed as a reward for political services. But the 
 eminent fitness of each man justified his appointment 
 on grounds of patriotism and good government. The 
 rewards were not offered beforehand, but after great 
 services rendered in the interests of the country. And 
 as the great Marshall fulfilled the high trust to the 
 uttermost, so, we shall see, did his successor. Their 
 successive administration of justice is the noblest chap- 
 ter in the history of our Government. 
 
 In order to show the services which Mr. Taney 
 rendered to his country as Chief Justice, it is first 
 necessary to give some account of the Court over 
 whose deliberations he presided, and point out its func- 
 tions in the working of the Federal Government. 
 
 The framers of the Constitution of the United 
 States were men familiar with the history of nations. 
 They had studied human society in its progress 
 through all recorded time, in relation to Governments 
 as they had sprung up in various forms suited to the 
 peculiarities of different peoples. When, therefore, 
 they were about to frame a general Government for 
 the purpose of uniting a number of small, independent 
 sovereign States into one body politic, their thought 
 was some device by which questions which lead to war 
 between -States should be settled by judicial adjust- y' 
 ment. For this purpose they gave to a Supreme 
 Court, and such inferior courts as Congress may from 
 
Memoib of Eogek B. Taney. 253 
 
 time to time ordain and establish, judicial power over 
 all cases in law and equity arising under the Constitu- 
 tion, the laws of the United States, and treaties made, 
 or which shall be made under their authority; over 
 all cases affecting ambassadors, other public ministers 
 and consuls ; over all cases of admiralty and mari- 
 time jurisdiction; over controversies to which the 
 United States shall be a party ; to controversies be- 
 tween two or more States; between a State and citizens 
 of another State ; between citizens of different States ; 
 between citizens of the same State claiming lands 
 under grants of different States, citizens, or subjects. 
 
 In all cases affecting ambassadors, or other 23ublic 
 ministers and consuls, and those in wliich a State shall 
 be a party, the Supreme Court shall have original 
 jurisdiction. In all other cases before mentioned, the 
 Supreme Court shall have appellate jurisdiction, both 
 as to law and fact, with such exceptions and under 
 such regulations as Congress shall make. 
 
 The trial of all crimes, except in cases of impeach- 
 ment, shall be by jury; and such trials shall be held 
 in the State where the said crime shall have been com- 
 mitted ; but when not committed within any State, the 
 trial shall be at such place or places as the Congress 
 may, by law, have directed. The judicial power of 
 the United States shall not be construed to extend to 
 any suit in law or equity commenced or prosecuted 
 against one of the United States by citizens of another 
 State, or by citizens or subjects of any foreign State. 
 
254 Memoie of Rogek B. Taney. 
 
 All the legal ideas of the framers of the Constitu- 
 tion, and especially of the judicial department, were 
 derived from the common law of England. The fun- 
 damental principle of the common law, as a scheme 
 of administrative justice, is, that a decision once made 
 by a Court of the last resort, like the Supreme Court, 
 shall not only bind the parties to the suit, but, the 
 principle decided, shall be a precedent which all sub- 
 sequent judges must follow as fixed law. 
 
 The Supreme Court, with the jurisdiction given to 
 it under the Constitution, is a co-ordinate department 
 of the Government. It is the equal, under the Con- 
 stitution, with the legislative and executive depart- 
 ments. It sits in the Capitol the supreme dispenser 
 of Federal law. It has the high function because of 
 the limitations which the Constitution has imposed 
 upon the legislative departiuent, to declare any of its 
 enactments null and void which it may deem in con- 
 flict with the Constitution, when tlie question arises 
 in a case litignted before it by parties to a suit. This 
 is the highest function ever bestowed upon a Court. 
 And it is the provision of the Constitution which, 
 above all others, signalizes it as having ordained and 
 established a Government of limited powers. It clothes 
 the Supreme Court with moral sublimity. It supposes 
 that, without patronage, and without any other power 
 than its own character for learning, virtue, patriotism, 
 and a love of justice, it will declare, as it is its duty 
 
Memoir of Eoger B. Taney. 255 
 
 under the Constitution to do, an act passed by Con- 
 gress and approved by the President, null and void, 
 when not authorized by the Constitution. And above 
 all, it supposes that the people will have such reverence 
 for its decisions that they will go into effect by the 
 simple forms of civil process as certainly as the silent 
 laws of nature take effect. 
 
 It was over the deliberations of such a tribunal, the 
 most august ever established among men, that Mr. 
 Taney was called to preside. No man ever realized 
 more entirely the grandeur of high judicial functions, 
 and felt more profoundly its responsibilities. And 
 never did a man bring to the discharge of duty a more 
 sublime moral courage. As to his qualifications as 
 a lawyer for the office, they were the most complete. 
 He had not only mastered every branch of legal learn- 
 ing in every form of judicial tribunal, from the high- 
 est to the lowest, but he was extraordinarily familiar 
 with practice in every sj)ecies of Court. No matter 
 from what Court, whether on the law or the equity 
 side, a record came up on writ of error or appeal, he 
 could see at once its full import. And his long and 
 diversified experience as a practising lawyer in courts 
 of original jurisdiction, had made him as familiar with 
 rules of practice as the most exjjerienced clerk of a 
 Court. He was marshalled to his place by a divine 
 tactic, for the good of his country, if ever a public 
 functionary was, just as his great predecessor had 
 been. 
 
256 Memoir of Eogek B. Taney. 
 
 Before I sketch the judicial career of Mr. Taney, it 
 is important, in order to understand the influence of 
 the Supreme Court in the working of the Federal 
 Government, to give some account of the conduct of 
 his predecessors in the high ofiice of Chief Justice. 
 
 John Jay, the first Chief Justice, was a Federalist 
 of the extremest political views of his party. He 
 may be said to have had none but an entirely per- 
 verted view of the character of the Federal Govern- 
 ment. In 1785, in a letter to a friend, he wrote : 
 " It is my first wish to see the United States assume 
 and merit the character of one great nation, whose 
 territory is divided into different States merely for 
 more convenient government and the more easy and 
 prompt administration of justice ; just as our several 
 States are divided into counties and townshijjs for the 
 like purposes." And in a letter to General Washing- 
 ton, just before the convention which framed the Con- 
 stitution met, he wrote : " What j)owers should be 
 granted to the Government so constituted is a question 
 which deserves much thought. / thinlc the more the 
 better ; the States retaining only so much as may be 
 necessary for domestic pur^DOses, and all their principal 
 officers, civil and military, being commissioned and 
 removable by the national Government." When the 
 Constitution was agreed upon and submitted to the 
 States for ratification, he became its zealous advocate. 
 He saw it through his theoretic view of what he 
 
Memoir of Eoger B.Taney. 257 
 
 thought it ought to be. His theory made him mag- 
 nify its powers. He carried his political views, as all 
 judges do, upon the bench. He saw all constitutional 
 questions through their modifying influences. 
 
 At the February Term of the Court, 1793, held at 
 Philadelphia, the case of Chisholm vs. Georgia came 
 up for argument. The doctrine of the sovereignty of 
 the States of the Union was, for the first time, brought 
 before the Court, at the suit of a citizen of another State 
 against the State of Georgia. The question raised by 
 the suit for adjudication was whether a State was 
 amenable to the jurisdiction of the Supreme Court 
 at the suit of a citizen of another State. Chisholm, 
 a citizen of South Carolina, had brought the suit by 
 serving j^rocess on the Governor and the Attorney- 
 General of Georgia. Georgia, not recognizing the 
 jurisdiction of the Supreme Court, refused to appear. 
 Thereupon the Attorney-General of the United States 
 moved that, unless Georgia caused her apjsearance to 
 be entered by the next term, judgment should be ren- 
 dered against her by default, and a writ of inquiry 
 issued. Georgia, still denying the jurisdiction of the 
 Court, presented, by Mr. Dallas and Mr. Ingersoll, of 
 the bar of Philadelphia, a written j)rotest. In this 
 state of the case, involving a question which determines 
 the character of the polity embodied in the Constitu- 
 tion of the United States, the Court pronounced its 
 judgment. The Chief Justice, looking at the question 
 
 17 
 
258 Memoik of Rogek B. Taney. 
 
 througli his political theory, considered a State as 
 merely an aggregate of individuals, resting as to sua- 
 bility on the same ground with a corporation ; and 
 that, therefore, there was nothing in the character of 
 a State of the Union incompatible with its being sued 
 in a court of law, by a citizen of another State, in an 
 action of assumpsit for the breach of a contract. In 
 this view a majority of the Court concurred, and a 
 judgment was given accordingly at the February Term, 
 1794, and a writ of inquiry awarded. 
 
 A decision so obnoxious to the sense of the people, 
 who had but the other day ratified the Constitution, 
 produced such excitement in the public mind that the 
 matter was taken up by several of the State Legisla- 
 tures. And to settle the question forever, an amend- 
 ment was added to the Constitution which declared 
 that the jurisdiction of the Supreme Court should not 
 extend to suits against a State by citizens of another 
 State, or subjects of a foreign State. In obedience to 
 this amendment, the Court, at the February Term, 
 1798, unanimously determined that no further juris- 
 diction could be exercised in any case, past or future, 
 wherein a State should be sued by the citizeus of 
 another State. The sovereignty of the States was 
 thus declared by the amending power of the Consti- 
 tution, and then proclaimed by the Supreme Court of 
 the United States. At this time all the departments 
 of the Government were co-operating, under the in- 
 
Memoir of Roger B. Taney. 259 
 
 fluence of centralizing doctrines, to reduce the States 
 to the low level of counties. This amendment of the 
 Constitution rebuked their usurping policy. 
 
 Nothing can show more conclusively than this de- 
 cision, how jDrone the Federal Government is, in its 
 working, to the usurpation of powers not granted by 
 the Constitution. For even Alexander Hamilton, in 
 the eighty-first number of The Federalist, when it was 
 objected to the ratification of the Constitution that 
 under its provisions a State might be sued by the 
 citizens of another State, scouted- the notion as incon- 
 sistent with the admitted sovereignty of the States. 
 " It is inherent [said he] in the nature of sovereignty, 
 not to be amenable to the suit of an individual vnth- 
 out its consent. This is the general sense and the 
 general practice of mankind ; and the exemption, as 
 one of the attributes of sovereignty, is now enjoyed 
 by the government of every State in the Union. Un- 
 less, therefore, there is a surrender of this immunity 
 in the plan of the convention, it will remain with the 
 States, and the danger intimated must be ideal. The 
 circumstances which are necessary to produce an 
 alienation of State sovereignty, were discussed in con- 
 sidering the article of taxation, and need not be re- 
 peated here. A recurrence to the principles there 
 established will satisfy us that there is no color to pre- 
 tend that the State governments would, by the adop- 
 tion of that plan, be divested of the privilege of pay- 
 
260 Memoir of Eogee B. Taney. 
 
 ing their own debts in their own way, free from every 
 constraint but that which flows from the obligations 
 of good faith. The contracts between a nation and 
 individuals are only binding on the conscience of the 
 sovereign, and can have no jDretension to a compulsive 
 force. They confer no right of action independent 
 of the sovereign will. To what purpose would it be 
 to authorize suits against States for debts they owe ? 
 How could recoveries be enforced ? It is evident that 
 it could not be done without waging war against the 
 contracting State; and to ascribe to the Federal Courts, 
 by mere implication, and in destruction of a pre-exist- 
 ing right of the State government, a power which 
 would involve such a consequence, would be altogether 
 forced and unwammtable." 
 
 Chief- Justice Jay jjresided for the last time, at the 
 term of the Supreme Court, in February, 1794. Soon 
 afterwards he was commissioned as Minister to Eng- 
 land. He accepted the appointment without vacating 
 his seat on the bench. When he returned to America, 
 in 1795, he had been elected Governor of New York. 
 Thereupon he resigned the ofiice of Chief Justice of 
 the Supreme Court of the United States. 
 
 At no period of his life was the sublime majesty of 
 Washington's character, and his extraordinary admin- 
 istrative ability, more apparent than at this time, when 
 the Government had only begun its working. He 
 had not only to conduct aifairs amidst the contentions 
 
Memoir of Koger B. Taney. 261 
 
 of the Federal and Republican parties, but also amidst 
 the strifes and intrigues of the factions of the Federal 
 party. He knew that in his own Cabinet the success 
 of his administration was far from being the only aim 
 of its members. Therefore it was that, with scarcely 
 any intimation to his Cabinet, he apj)ointed John 
 Rutledge, of South Carolina, to the office of Chief 
 Justice, immediately upon the resignation of Jay. 
 Eutledge was one of the leading minds of that age of 
 great men. His courage and administrative ability, as 
 Governor of South Carolina, contributed, in an emi- 
 nent degree, to the success of the American arms in 
 expelling the British from the South. His eloquence, 
 together with his genius for organization, as a member 
 of the convention which framed the Federal Consti- 
 tution, was of signal service. He had, 25erhaps, the 
 wisest view of what should be the function of the 
 judiciary in the Federal Government, of any member 
 of the convention. His cardinal idea was that " the 
 judges ought never to give their oj)inion on a law till 
 it comes before them." This view was adopted in 
 opposition to that of Mr. Madison and others who 
 proposed that the supreme national judiciary should 
 be associated with the executive in the revisionary 
 power. Such was his recognized ability, that he was 
 made the chairman of the committee which reported 
 the first draft of the Federal Constitution. He had 
 held high judicial stations in his own State ; and had 
 
2G2 Memoir of Roger B. Taney. 
 
 been an Associate Justice of the Supreme Court of the 
 United States. He was, too, of the Federal party. 
 But because he had, in common with other Federalists 
 of the South, opposed the ratification of the treaty 
 which Chief-Justice Jay had negotiated with Great 
 Britain, he was denounced by Washington's own 
 Secretary of the Treasury, Wolcott, as a " driveller and 
 a fool." Having been appointed during the recess 
 of Congress, his nomination was rejected by his own 
 party in the Senate. Marshall, in his Life of Wash- 
 ington, speaks of him as " a gentleman of great talents 
 and decision." He presided one term in the Supreme 
 Court. 
 
 The class of Federalists who had defeated the 
 nomination of Rutledge were held together not only 
 by the cohesive force of party aims, but by personal 
 ambition for power, and would have taken the reins 
 of government out of the hands of Washington, as 
 they afterwards did out of the hands of Adams, had 
 it not been for his great faculty for rule. Yet Wash- 
 ington, notwithstanding he was well aware that they 
 had other aims than the success of his administration, 
 and that they reproached him in secret, selected one 
 of their class, because he was not blind to his fitness, 
 and appointed him to succeed Chief-Justice Rutledge. 
 This was Oliver Ellsworth, of Connecticut. He was 
 Senator from his State, and had voted against the 
 nomination of Rutledge. 
 
Memoie of Eoger B. Taney. 263 
 
 Chief - Justice Ellsworth was among the most 
 moderate of the class of Federalists to which he be- 
 longed, and brought to the bench the eminent qualifi- 
 cations of extensive judicial experience in the Courts 
 of his State. His nomination was not dictated to 
 Washington, but was the result of his administrative 
 wisdom in selecting officers in every department of 
 Government. His imperial eye penetrated character 
 in all classes of men. 
 
 Ellsworth had been a member of the convention 
 which framed the Constitution ; and was a strenuous 
 advocate for preserving the identity and sovereignty 
 of the States. " What we wanted [said he] was do- 
 mestic happiness. The national Government could 
 not descend to the local objects on which this de- 
 pended. It could only embrace objects of a general 
 nature. He turned his eyes, therefore, for the jare- 
 servation of their rights, to the State governments. 
 From them alone he could derive the greatest happi- 
 ness he expected in this life. His happiness dejsended 
 on their existence as much as a new-born infant on its 
 mother for nourishment." It was by his exertions as 
 much as by those of any member, that the identity 
 and sovereignty of the States were preserved in the 
 Federal Government. He opposed with especial hos- 
 tility every attempt to confer on the Federal Legisla- 
 ture the power to interfere with the elective franchise 
 in the States, or to impose unnecessary restrictions on 
 
264 Memoir of Eogek B. Taney. 
 
 the qualifications of its own members. "The right 
 of suffrage [said he] is a tender point, and strongly 
 guarded by most of the State Constitutions. The 
 people will not readily subscribe to the national Con- 
 stitution, if it should subject them to be disfranchised. 
 The States are the best judges of the circumstances 
 and temper of their own people." 
 
 After the Constitution had been framed upon the 
 compromises between the consolidationists and the 
 advocates of State sovereignty, Ellsworth characterized 
 the Government established by it as " partly national 
 and partly Federal ; " language afterwards employed 
 by Mr. Madison, in the thirty- ninth number of The 
 Federalist, in describing the Government. As a 
 Senator, Ellsworth legislated upon the assumption of 
 this twofold character of the Government, and ceased 
 to be so entirely under the influence of the idea of 
 State sovereignty as he was when he was one of the 
 architects of the Constitution. 
 
 The Constitution had declared that the judicial 
 power of the United States should be vested in one 
 Supreme Court, and such inferior Courts as the Con- 
 gress may from time to time ordain and establish ; 
 leaving it to legislation to organize the whole edifice. 
 When, therefore, Congress met, so important was the 
 matter deemed, that on the day after the opening of 
 the Senate, and before the President's inaugural had 
 been delivered, a committee of the Senate was ap- 
 
Memoir of Kogee B. Taney. 265 
 
 pointed "to bring in a bill for organizing the judiciary 
 of the United States." Ellsworth had the honor of 
 being placed at the head of the committee. The bill 
 was drafted by him ; and time has proved it to be a 
 masterpiece of legislation, touching as it does all the 
 points of relation between the Federal and State Gov- 
 ernments, and so organizing jurisdiction as, under the 
 legislation of Congress, to afford adequate legal remedy 
 in our comj)lex political system. 
 
 Chief-Justice Ellsworth took his seat on the bench 
 of the Supreme Court at the February Term, 1796. 
 Most of the cases in the Court at that early period 
 related to the jurisdiction of the Federal Courts. He 
 presided for the last time at a general term of the 
 Court in August, 1799. At this session the case of 
 Turner vs. the Bank of North America was decided ; 
 and the princi^jle settled that, because of the limited 
 character of Federal jurisdiction, a cause in the Circuit 
 Court must affirmatively, and upon the face of the 
 pleadings, appear to be within the jurisdiction of the 
 Court, otherwise the judgment will be reversed in the 
 Suj)reme Court, as jurisdiction is never to be presumed. 
 The objection to the record was that the pleadings did 
 not show the parties to be citizens of different States, 
 or one of them an alien ; and it was decided to be a 
 fatal jurisdictional defect. 
 
 Now it was that President Adams sent Chief-Justice 
 Ellsworth to France, just as Washington had sent 
 
266 Memoir of Eogee B. Taney. 
 
 Chief-Justice Jay to England ; it being deemed com- 
 patible to hold both offices at the same time. After 
 the treaty with France was negotiated, and before his 
 return to America, Chief-Justice Ellsworth resigned 
 his seat ui^on the bench. President Adams thereupon 
 nominated to the Senate, John Marshall, of Virginia, 
 who was then his Secretary of State, to fill the vacancy 
 of Chief Justice. The nomination was unanimously 
 confirmed ; and on the 31st of January, 1801, he was 
 commissioned, but continued to act as Secretary of 
 State until the 4th of March, when President Adams's 
 term of office expired. 
 
 Chief-Justice Marshall was a moderate Federalist, 
 and as little of a partisan as any man could be who 
 had held so many political posts. When a member 
 of the Virginia convention which ratified the Consti- 
 tution of the United States, he maintained that the 
 sovereignty of the States was not merged in the plan 
 of Government, so that a State could be sued in a 
 Federal Court by a citizen of another State. In de- 
 fending the judiciary clause against the objections of 
 those who contended that it conferred jurisdiction on 
 the Federal Court in such a case, he said : " I hope 
 that no gentleman will think that a State will be called 
 at the bar of a Federal Court. Is there no such case 
 at present? Are there not many cases in which the 
 Legislature of Virginia is a party, and yet the State 
 is not sued ? It is not rational to suppose that the 
 
Memoir of Eogee B. Taney. 267 
 
 sove7'eign powei- shall be dragged before a Court. The 
 intent is to enable States to recover claims of in- 
 dividuals residing in otlier States. I contend this con- 
 struction is warranted by the words." His strict views 
 of constitutional limitations were so well known, that 
 when lie took his seat as a member of Congress, in 
 December, 1799, that venomous Federalist, Oliver 
 Wolcott, in a letter to Fisher Ames, said: "A number 
 of distinguished men apjoear from the southward, who 
 are not pledged by any act to support the system of the 
 last Congress ; these men will pay great respect to the 
 opinions of General Marshall : he is doubtless a man 
 of virtue and distinguished talents, but he will think 
 much of the State of Virginia, and is too much dis- 
 posed to govern the world according to rules of logic; 
 he will read and expound the Constitution as if it 
 were a penal statute, and will sometimes be embarrassed 
 with doubts, of which his friends will not perceive the 
 importance." 
 
 Chief-Justice Marshall took his seat on the bench 
 of the Supreme Court at the February Term, 1801. 
 So little had been done by his predecessors towards 
 developing Federal jurisprudence, that he had to lay 
 its very foundations. And it is fortunate for the suc- 
 cess of our Federal system of local self-governm(!nt by 
 sovereign States, that the foundations should have been 
 laid by one who so fully recognized the limitations of 
 the Constitution as conferring only specific powers ex- 
 pressly granted. 
 
268 Memoir of Eogee B. Taney. 
 
 At the term of the Court in February, 1803, the 
 case of Marbury vs. Madison was argued and decided. 
 It involved the question whether the Constitution of 
 the United States is to be regarded as an absolute 
 limit to the legislative power, or is, as in England, at 
 the mercy of the Legislature. 
 
 In disposing of this question, which involved the 
 determination of the nature of our Federal Govern- 
 ment, the Chief Justice said : " The powers of the 
 Legislature are defined and limited. To what j)ur- 
 pose axe powers limited, and to what purpose is that 
 limitation committed to writing, if these limits may at 
 any time be passed by those intended to be restrained? 
 The distinction between a Government of limited and 
 unlimited powers is abolished, if these limits do not 
 confine the persons on whom they are imposed. It is 
 a proposition too jDlain to be contested, that the Consti- 
 tution controls any legislative act repugnant to it, or 
 that the Legislature may alter the Constitution by an 
 ordinary act. Between these alternatives there is no 
 middle ground. The Constitution is either a superior, 
 paramount law, unchangeable by ordinary means, or 
 it is on a level with ordinary legislative acts, and, like 
 other acts, is alterable when the Legislature shall 
 please to alter it. 
 
 " If the former part of the alternative be true, then 
 a legislative act contrary to the Constitution is not 
 law: if the latter part be true, then written Constitu- 
 
Memoir of Eogek B. Taney. 269 
 
 tions are absurd attempts, on the part of the people, to 
 limit a power in its own nature illimitable. 
 
 " Certainly all those who have framed written Consti- 
 tutions contemplate them as forming the fundamental 
 and permanent law of the nation ; and, consequently, 
 the theory of every such Government must be, that 
 an act of the Legislature repugnant to the Constitu- 
 tion is void. 
 
 " This theory is essentially attached to a written Con- 
 stitution, and is consequently to be considered by this 
 Court as one of the fundamental principles of our 
 society." 
 
 The Chief Justice then claims for the judicial de- 
 partment the authority to declare an act of Congress 
 repugnant to the Constitution null and void ; and de- 
 cided that the Act of Congress conferring jurisdiction 
 on the Supreme Court to issue a mandamus, it being 
 an original process, is not authorized by the Constitu- 
 tion, and therefore is null and void. The mandamus 
 was refused on that ground. 
 
 He completed his view of the limited powers of the 
 Federal Government, in his opinion in the case of 
 Bank of Hamilton vs. Dudley's Lessees, that the State 
 Courts have exclusive power to construe the Constitu- 
 tion and legislative acts of their respective States. 
 " The judicial department of every Government [he 
 said] is the rightful expositor of its laws ; and emphat- 
 ically of its supreme law." 
 
270 Memoir of Eogek B. Taney. 
 
 But where a State law is repugnant to the Federal 
 Constitution, he maintained the supremacy of the 
 Federal judiciary over the State tribunals in cases 
 of constitutional construction brought up on writ of 
 error. 
 
 Such were the settled rules of constitutional con- 
 struction in the Supreme Court of the United States 
 when Chief-Justice Taney came to preside over its de- 
 liberations. 
 
 He first took his seat on the bench, at a Circuit 
 Court held in Baltimore, for the District of Maryland, 
 in AjotI, 1836. He had been so long familiar with 
 the practice of Courts in which the grand and petty 
 juries perform functions in the administration of 
 justice, that he was at once, as a judge, prepared to 
 correct what he had observed to be vicious practice. 
 It had been customary, before a grand jury entered 
 upon the discharge of its functions, for the judge, in 
 open Court, to instruct them regarding their duties. 
 He disapproved of this practice. Therefore, in place 
 of the customary charge, he remarked : " He had a few 
 words to say to them, not so much in compliance with 
 the usage which had prevailed, of charging grand 
 juries, — of which he disaj^proved, and would in future 
 dispense with altogether, — but more for the purpose of 
 giving his reasons for departing from it ; and his pre- 
 sent charge would necessarily be brief. He thought 
 the Court should enter at once with promptness and 
 
Memoir of Roger B. Tanet. 271 
 
 industry upon the discharge of its duties, disconnected 
 with all unnecessary forms. The age had passed by 
 which called for particular instructions from the 
 Court ; the public mind had become enlightened, and 
 the intelligence of juries was adequate to the discharge 
 of their duties. The District Attorney was ready to 
 counsel them in all matters of law. It was unnecessary 
 that the Court should enter the wide field of jurispru- 
 dence, when the attention of the jury would be called 
 to but few infractions of the criminal law of the land." 
 He ever after dispensed with the custom of charging 
 the grand jury. On this occasion, after his prelimi- 
 nary remarks, he advised the jury that it was their 
 duty carefully to examine the testimony laid before 
 them, and find no bill except upon their clear con- 
 viction of the guilt of the accused. 
 
 In the January Term, 1837, he took his seat for 
 the first time on the bench of the Supreme Court. 
 
 The judicial administration of Chief- Justice Taney 
 must be considered as a reaction against the later ten- 
 dency of that of Chief- Justice Marshall, and a return 
 to the earlier constitutional construction of that great 
 Judge. In the case of McCulloch vs. The State of 
 Maryland, Chief-Justice Marshall was made to swerve 
 from his earlier strictness of construction by the 
 moulding and transforming logical power, aided by the 
 delusive light of the seductive fancy, of Pinkney. 
 The great orator put his own thoughts into the mind 
 
272 Memoik of Rogek B. Taney. 
 
 of the Chief Justice without his knowing it, until he 
 made him see in the auxiliary provision of the Con- 
 stitution, " to make all laws which shall be necessary 
 and proper for carrying into execution " the specific 
 powers granted, powers as original as those they are to 
 carry into execution. And the Chief Justice never 
 afterwards freed himself from this i^ersuasive coercion 
 of that master of the forum. 
 
 My chief purpose in this Memoir is to show the in- 
 fluence of Mr. Taney on the working of the Federal 
 Government, in the political system of the United 
 States, both while he was a Cabinet oJBficer and while 
 he was Chief Justice of the Supreme Court. I shall 
 therefore confine my review to his judicial opinions 
 on constitutional questions. At the moment he took 
 his seat on the bench of the Supreme Court, there were 
 pending three cases of great interest, each of them in- 
 volving the validity of a State law, and the discussion 
 of the relative powers of the State and the Federal 
 Governments. The cases had been discussed in the 
 time of Chief-Justice Marshall, and it was understood 
 that he was of opinion that the State law involved in 
 each was repugnant to the Constitution of the United 
 States. Those who were familiar with the current of 
 judicial decisions while Marshall presided over the 
 Sujjreme Court, were curious to see, from the decision 
 of these cases, whether that current was to flow in the 
 same channel of construction, under the influence of 
 the new Chief Justice. 
 
Memoir of Eogek B. Taney. 273 
 
 The first of these cases is the City of New_YQrkj;s. 
 Miln^ The Legislature of the State of New York had 
 passed a statute, requiring the master of every vessel 
 arriving in the port of New York, under certain 
 penalties, to report in writing, respecting his pas- 
 sengers, within twenty-four hours after his arrival. 
 The question in the case was, whether the requirement 
 of the statute did not interfere with the right of Con- 
 gress, under the express grant of the Federal Consti- 
 tution, to regulate commerce. 
 
 It had been decided in 1824, by the Supreme Court, 
 in the case of Gibbons vs. Ogden, that a statute of the 
 State of New York, granting to certain persons the 
 exclusive j^rivilege to navigate all the waters of the 
 State with vessels moved by steam, was repugnant to 
 the clause of the Constitution giving to Congress 
 the power to regulate commerce among the several 
 States, and was therefore void. And in 1827, it was 
 decided by the Supreme Court, in the case of Brown 
 vs. The State of Maryland, that an Act of the Legis- 
 lature of Maryland which required every importer of 
 goods, by wholesale, bale, or f)ackage, to take out a 
 license, and pay for it, under certain penalties or for- 
 feitures for neglect, was void ; because it was virtually 
 laying a duty on imports, which the States were by 
 the Constitution prohibited from doing, and because 
 it interfered with the power of Congress to regulate 
 
 18 
 
274 Memoik of Eoger B. Taney. 
 
 foreign commerce. In both cases, Chief-Justice Mar- 
 shall delivered the opinion of the Court. 
 
 It was argued, by those opposed to the validity of 
 the State law, that the case came within the decisions 
 just mentioned. But the majority of the Court, in- 
 cluding Chief-Justice Taney, decided that the Act of 
 New York was not a regulation of commerce, like the 
 statutes involved in those cases, but a regulation of 
 police, and was therefore in the exercise of a power 
 belonging to the State. Persons, it was argued, are 
 not the subject of commerce ; and not being imported 
 goods, they do not fall within the reasoning founded 
 upon the construction of the power given to Congress to 
 regulate commerce, and a prohibition of the States from 
 imposing a duty on imported goods. The opinion of 
 the Court was pronounced by Justice Barbour. 
 
 The second case was Briscoe vs. The Bank of the 
 Commonwealth of Kentucky. The Act of the Legisla- 
 ture of Kentucky established the bank " in the name 
 and behalf of the Commonwealth of Kentucky." It 
 was argued, against the validity of the Act, that it was 
 repugnant to the provision in the Federal Constitution 
 which restrains the States from emitting bills of credit. 
 The case had been argued before Chief-Justice Mar- 
 shall, and he and a majority of the Court were of 
 opinion that the Act was unconstitutional and void, 
 A re-argument was ordered ; and the case was argued 
 before Chief-justice Taney. The Act was declared 
 
Memoir of Roger B. Taney. 275 
 
 constitutional ; as the States were only prohibited 
 from emitting such paper as was denominated bills of 
 credit before and at the time of the adoption of the 
 Constitution, and there was no limitation in the Con- 
 stitution on the power of a State to incorporate a 
 bank, a power incident to sovereignty. The judgment 
 of the Court, in which the Chief Justice concurred, 
 was pronounced by Justice McLean. 
 
 The last of these cases was the Charles River 
 Bridge vs. Warren Bridge. The Chief Justice now 
 delivered his first judgment regarding the Constitu- 
 tion. The case had been argued before Chief-Justice 
 Marshall, and was ordered to be re-argued. It was 
 a question of law that involved a great principle of 
 public policy, requiring for its solution the forecast of 
 the statesman as well as the learning of the lawyer. 
 It was a question just suited to the statesmanly 
 judicial mind of the Chief Justice. 
 ^^ The question in this case involved the power of the 
 several States relative to the corporations which they 
 have chartered, as it is affected by the provision in the 
 Federal Constitution prohibiting a State from passing 
 any law impairing the obligation of contracts^^ ^-^ — - 
 
 The Charles River Bridge held its franchises under 
 Acts passed by both the Colonial and the State Legis- 
 latures of Massachusetts. .^It was claimed that the cor- 
 poration had, in perj^etuity, the exclusive right to erect 
 and maintain a bridge over the Charles River, and 
 
276 Memoik of Rogee B. Taney. 
 
 receive tolls ; and that the Act of the Legislature of 
 Massachusetts which authorized the erection of the 
 Warren Bridge — which was a free bridge, diverting 
 all the travel — impaired the implied contract contained 
 in the charter of the Charles River Bridge not to 
 authorize another such structure^-^ 
 
 The case came by ajjpeal before the Supreme Court, 
 on a bill in equity for an injunction to prevent the 
 erection of the Warren Bridge, filed in the State Court. 
 1/ Th e Chief Justice maintained that public grants 
 kre to be construed strictly : that nothing passes by 
 implication. And as there was no express grant of an 
 Exclusive privilege to the Charles River Bridge, an 
 |mj)lied contract to that effect cannot be inferred/^ 
 And that therefore the Act authorizing the erection 
 of the Warren Bridge does not come in conflict with 
 the provision in the Federal Constitution jirohibiting 
 ihe several States from passing laws impairing the 
 obligation of contracts. J " We cannot [he said] deal 
 thus with the rights reserved to the States, and by 
 legal intendments and mere technical reasoning take 
 away from them any portion of that power over tlieir 
 own internal police and im25rovemeut which is neces- 
 sary to their well-being and prosperity." 
 
 <And having disposed of the case by the well settled 
 rules for construing public grants, the Chief Justice 
 vindicates his decision on grounds of statesmanly 
 policy, y " If this Court [he said] should establish 
 
Memoir of Rogee B. Taney. 277 
 
 the principles now contended for, what is to become 
 of the numerous railroads established on the same line 
 of travel with turnpike companies, and which have 
 rendered the franchises of turnpike corporations of 
 no value? Let it once be understood that their 
 charters carry with them these implied contracts, and 
 give this unknown and undefined property in a line 
 of travelling, and you will soon find the old turnpike 
 corporations awaking from their sleep, and calling 
 upon this Court to put down the improvements which 
 have taken their places. The millions of property 
 which have been invested in railroads and canals in 
 lines of travel which had been before by turnpike cor- 
 porations, will be put in jeopardy. We shall be 
 thrown back to the improvements of the last century, 
 and obliged to stand still until the claims of the old 
 turnjDike corporations shall be satisfied, and they shall 
 consent to permit these States to avail themselves of 
 the light of modern science, and to partake of the 
 benefit 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." 
 
 This decision, enforced with the most convincing 
 reasoning, founded on sound legal doctrine and ex- 
 pressed in the most felicitous diction, was most auspi- 
 cious for the country. It left the States free to push 
 forward the great improvements by which the earth 
 has been subdued to the dominion of mam, 
 
278 Memoir of Kogee B. Taney. 
 
 Justice Story delivered an elaborate dissenting 
 opinion. The great force of this first opinion of the 
 Chief Justice, and the principles maintnined in the 
 two previous opinions, circumscribing, as he thought, 
 the j)Owers of the Federal Government, filled him with 
 despondency for the fate of Federal supremacy. 
 Writing from home to Justice McLean, he said : 
 " There will not, I fear, ever, in our day, be any case 
 in which a law of a State, or of Congress, will be de- 
 clared unconstitutional ; for the old constitutional doc- 
 trines are fast fading away, and a change has come 
 over the public mind from which I augur little good. 
 Indeed, on my return home, I came to the conclusion 
 to resign. But my friends have interposed against my 
 intention, and I shall remain on the bench, at least for 
 the present." 
 
 Mr. Justice Story was originally a RejDublican, and as 
 such was appointed to the Supreme Court by President 
 Madison. In 1803, writing to Mr. Nathaniel Wil- 
 liams, of the Baltimore bar, but a native of New 
 England, he said: "I have long had a desire to 
 sojourn in some Southern clime, more congenial with 
 my nature than the petty prejudices and sullen cool- 
 ness of New England." But raised to distinction, and 
 his great merits as a jurist becoming fully recognized 
 at home, he gradually grew into sympathy with New 
 England and with New England opinions. In an 
 autobiographical letter to his son and biographer, 
 
Memoir of Koger B. Taney. 279' 
 
 written in 1831, he said : " Nay, a Virginia Eepub- 
 lican of that day [administration of Jefferson and 
 Madison] was very different from a Massachusetts 
 Republican ; and the anti-Federal doctrines of the 
 former State then had, and still have, very little sup- 
 port or influence in the latter State, notwithstanding 
 a concurrence in political action upon general sub- 
 jects." And writing to Mr. Everett, he said : " I was 
 avowedly a believer in the doctrines of Washington, 
 and little infected with Virginia notions as to men or 
 measures." 
 
 These three cases, which so disturbed Mr. Justice 
 Story, and made Chancellor Kent, in a letter to him, 
 say, " I have lost my confidence and hopes in the con- 
 stitutional guardianship and protection of the Supreme 
 Court," are reported in the eleventh volume of Peters's 
 Reports ; and the extracts from Mr. Justice Story's 
 letters are taken from his life by his son. ^ 
 
 At the next term of the Court, the State of Massa- 
 chusetts was summoned by the State of Rhode Island 
 to answer a suit involving the question of the territorial 
 boundary line between them. Rhode Island claimed 
 political sovereignty and jurisdiction over about one 
 hundred square miles of territory, with about five 
 thousand inhabitants whose rights of property in the 
 land were not questioned. Massachusetts had always 
 exercised sovereignty and jurisdiction over the terri- 
 tory. Rhode Island alleged that a mistake had bet-n 
 
280 Memoir of Eoger B. Taney. 
 
 made in the location of the boundary line between the 
 two States, and prayed that this boundary line might 
 now be established by the judgment of the Supreme 
 Court, and the State might be restored to and con- 
 firmed in the sovereignty and jurisdiction of the dis- 
 puted territory. The case was brought by bill in 
 equity. The counsel for the State of Massachusetts 
 moved to dismiss the bill for want of jurisdiction ; 
 first, because of the character of the respondent, a 
 sovereign State ; second, because of the nature of the 
 suit, being to recover sovereignty and j urisdiction. 
 
 The opinion of the Court, which was delivered by 
 Mr. Justice Baldwin, sustained the jurisdiction. Chief- 
 Justice Taney dissented. " It has, I find, [said the 
 Chief Justice,] been the uniform practice in this 
 Court for the Justices who differed from the Court on 
 constitutional questions to express their dissent." 
 
 The Chief Justice then proceeded to state the grounds 
 of his dissent. He did not doubt the jurisdiction of 
 the Court, under the Constitution, to hear and deter- 
 mine a controversy between States as well as between 
 individuals, in relation to the boundaries between the 
 States, where the suit is to try a right of property in 
 the soil. But the jui'isdiction does not extend to 
 political rights. Sovereignty and jurisdiction, which 
 Ehode Islands seeks to recover, are not matter of pro- 
 perty, but are political rights. The Court therefore 
 cannot take cognizance of the suit. He was therefore 
 
Memoir of Rogek B. Taney. 281 
 
 of opinion that the bill ought to be dismissed for want 
 of jurisdiction. After various proceedings in the case, 
 running through ten years, the matter was argued on 
 its merits in the winter of 1846, and decided against 
 Rhode Island on the ground that no mistake in the 
 location of the boundary line was proved; and that 
 even if a mistake had been proved, it would be diffi- 
 cult to disturb a possession of two centuries by Massa- 
 chusetts, with a claim of right which was admitted by 
 Rhode Island and other colonies in the most solemn 
 form. The Chief Justice concurred in the judgment 
 dismissing the bill, solely on the ground of want of 
 jurisdiction, which was his j^osition from the begin- 
 ning. 
 
 At the same term, January, 1839, the Chief Jus- 
 tice delivered the opinion of the Court in the case of 
 the Bank of Augusta vs. Earle, and two other cases 
 depending on the same principle, called the corpora- 
 tion cases, in which the sovereignty of the several States 
 is presented in another aspect. It was decided that the 
 comity which obtains between independent nations, 
 applies to the several States of the Union, and must 
 be recognized by the Federal Courts. <^The question 
 involved in the cases was, whether the corporations of 
 one State created by statute, within its territorial 
 limits, are permitted by the comity of nations to make 
 contracts in the other States and sue in their Courts^ 
 " They are [said the Chief Justice] sovereign States ; 
 
282 Memoir of Koger B.Taney. 
 
 and the history of the past, and the events which are 
 daily occurring, furnish the strongest evidence that 
 they have adopted towards each other the laws of 
 comity in their fullest extent." Upon this doctrine 
 of comity, it was decided that the corporations of one 
 State can sue in the Courts of the other States. 
 
 At the term of the Court in 1841 was decided 
 the case of Prigg vs. Commonwealth of Pennsylvania. 
 It is reported in 14 Peters. Prigg, a citizen of 
 Maryland, had taken a fugitive slave by force from 
 the State of Pennsylvania, and carried her to the 
 State of Maryland to her owner. The State of Penn- 
 sylvania had passed an Act which provided that the 
 taking and carrying away of a negro or mulatto by 
 force and violence out of the State should be deemed 
 felony, punishable by fine and imprisonment. The 
 Act provided a mode for the rendition of fugitive 
 slaves by the State authorities to their owners. It 
 professed to be j)assed to give effect to the constitu- 
 tional provision relative to fugitives from labor, and to 
 prevent kidnapping. The fugitive slave had been 
 brought, by virtue of this law, before the Pennsyl- 
 vania magistrate ; but the magistrate refused to take 
 cognizance of the case. Prigg thereupon, of his own 
 will, carried off the slave and her children into Mary- 
 land. He was acting as the agent of the owner. 
 For this act, Prigg was indicted under the law of 
 Pennsylvania. The State of Pennsylvania and the 
 
Memoir of Eoger B. Taney. 283 
 
 State of Maryland, in the most friendly spirit, agreed 
 that judgment might be entered against Prigg, and 
 the case be taken to the Supreme Court of the United 
 States, and the question involved be decided by that 
 final arbiter of constitutional questions of a judicial 
 character. 
 
 Mr. Justice Story delivered the opinion of the 
 Court, declaring the Act of the Legislature of Penn- 
 sylvania unconstitutional. The ground upon which 
 Mr. Justice Story based 'his judgment was, that the 
 Constitution places the remedy for fugitives from 
 labor exclusively in Congress. While concurring in 
 the judgment, the Chief Justice dissented from the 
 doctrine that the States could not pass laws to aid 
 in giving effect to the provisions in the Constitution. 
 The Chief Justice had a clearer view than his asso- 
 ciates, of the international character of the Federal 
 Union, and of the co-operative duty and function of 
 the several States in giving effect to all the provisions 
 of the constitutional compact. His cast of mind was 
 essentially statesmanly in considering constitutional 
 questions. He knew that political law was an essential 
 element in constitutional questions that arise in the 
 working of our complex system of government. The 
 Chief Justice said, in his dissenting o^^inion, " The lan- 
 guage used in the Constitution does not, in my judgment, 
 justify the construction given to it by the Court. It 
 contains no words j)rohibiting the several States from 
 
284 Memoir of Rogek B. Taney. 
 
 passing laws to enforce this right. They are in ex- 
 press terms forbidden to make any regulation that 
 shall impair it. But there the prohibition stops. And 
 according to the settled rules of construction for all 
 written instruments, the prohibition being confined to 
 laws injurious to the right, the 230wer to pass laws to 
 support and enforce it is necessarily implied. And 
 the words of the article which directs that the fugitive 
 * shall be delivered up,' seem evidently designed to 
 impose it as a duty upon the peojsle of the several 
 States to pass laws to carry into execution, in good 
 faith, the compact into which they thus solemnly 
 entered with each other. The Constitution of the 
 United States, and every article and clause in it, is a 
 part of the law of every State in tlie Union, and is a 
 paramount law. The right of the mastei*, therefore, 
 to seize his fugitive slave, is the law of each State ; 
 and no State has the power to abrogate or alter it. 
 And why may not a State protect a right of property 
 acknowledged by its own paramount law? Besides, 
 the laws of the different States, in all other cases, con- 
 stantly protect the citizens of other States in their 
 rights of property, when it is found within their re- 
 spective territories ; and no one doubts their power to 
 do so. And in the absence of any express prohibi- 
 tion, I perceive no reason for establishing, by implica- 
 tion, a different rule in this instance, where, by the 
 national compact, this right of property is recognized 
 as an existing right in every State of the Union." 
 
Memoir of Roger B. Taney, 285 
 
 At the January Term, 1847, in the case of Cook vs. 
 Moffat, the Chief Justice again maintained, as he had 
 done in the corporation cases, that the comity of na- 
 tions existed among the States. The question was 
 the effect of a debtor's discharge, under the insolvent 
 laws of one State, on a contract made in another State. 
 It had been decided in Chief-Justice Marshall's time, 
 that a discharge under the insolvent law of a State was 
 not a discharge of a debt due to a citizen of another 
 State. As the question was no longer open to contro- 
 versy, the Chief Justice, while acquiescing in the judg- 
 ment of the Court, following the previous decisions, ex- 
 pressed his disapprobation of the princij^le on which 
 it was decided. He was of opinion that the true doc- 
 trine was, that the insolvent law of one State should 
 receive in the tribunals of a sister State the respect 
 and comity which the established usages of civilized 
 nations extend to the bankrupt laws of each other. 
 
 The princij)les of the decisions of the Supreme 
 Court, since Chief-Justice Taney presided over the 
 Court, continued to dissatisfy Mr. Justice Story. In 
 April, 1845, he wrote to Hon. Ezekiel Bacon : " I 
 have been long convinced that the doctrines and 
 opinions of the ' Old Court ' yfeve daily losing ground, 
 and especially those on great constitutional questions. 
 New men and new opinions have succeeded. The 
 doctrines of the Constitution, so vital to the country, 
 which in former times received the support of the 
 
286 Memoir of Eogek B. Taney. 
 
 whole Court, no longer maintain their ascendency. I 
 am the last member now living of the old Court, and 
 I cannot consent to remain where I can no longer hope 
 to see those doctrines recognized and enforced. For 
 the future, I must be in a dead minority of the Court, 
 with the painful alternative of either expressing an 
 open dissent from the o^iinions of the Court, or, by 
 silence, seeming to acquiesce in them." 
 
 With these views, Mr. Justice Story had determined 
 to resign his seat on the bench, and for the future de- 
 vote his life to his law professorship at Harvard Uni- 
 versity. But he died on the 10th of September, 1845; 
 and America lost one of her greatest judges, and the 
 world, one of its greatest jurists. 
 
 At the opening of the Court at the next session, 
 in the winter of 1846, in response to the Attorney- 
 General, who had announced the death of Mr. Justice 
 Story, and moved the usual testimonials of respect, 
 Chief-Justice Taney said: "It is difficult for me to ex- 
 press how deeply the Court feels the death of Mr. 
 Justice Story. He had a seat on this bench for so 
 many years, and was so eminently distinguished for 
 his great learning and ability, that his name had 
 become habitually associated with the Supreme Court, 
 not only in the mind of those more immediately con- 
 nected with the administration of justice, but in that 
 of the public generally throughout the Union. He had, 
 indeed, all the qualities of a great judge ; and we are 
 
Memoir of Kogek B. Taney. 287 
 
 fully sensible that his labors and his name have con- 
 tributed largely to inspire confidence in the opinions 
 of this Court, and to give weight and authority to its 
 decisions. 
 
 " It is not, however, in this country only, that the 
 name of Justice Story is respected and honored. His 
 works upon various branches of jurisprudence have 
 made him known to eminent men wherever judicial 
 knowledge is esteemed and cultivated ; and wherever 
 he is known, his opinions are quoted with respect ; and 
 he is justly regarded as one of the brightest ornaments 
 of the age in which he lived. But it is here, on this 
 bench, that his real worth was best understood, and it 
 is here that his loss is most severely and painfully 
 felt. For we have not only known him as a learned 
 and able associate in the labors of the Court, but he 
 was endeared to us as a man, by his kindness of heart, 
 his frankness, and his high and pure integrity. We 
 most truly and deeply deplore his death, and cord- 
 ially unite with the bar in paying appropriate honors 
 to his memory. 
 
 "The proceedings of to-day will therefore be en- 
 tered on the records of the Court, as a lasting testimony 
 of our respectful and affectionate remembrance of our 
 departed brother." 
 
 The relations between Mr. Justice Story and Chief- 
 Justice Taney were of the most intimate friendship. 
 
288 Memoir of Eogee, B. Taney. 
 
 No Justice on the Supreme Court Bencli wrote as 
 many letters to the Chief Justice as Mr. Justice Story. 
 Some of them were wholly personal, others relating to 
 cases on his circuit, but one and all breathe the most 
 friendly spirit. And his friendship for the Chief 
 Justice extended to his family. He never passed 
 through Baltimore, that he did not pay his resjoects to 
 Mrs. Taney either in person or by a note of apology 
 for not calling. He fully appreciated the great abili- 
 ties and learning of Chief-Justice Taney. In a letter 
 to the Chief Justice, dated at Cambridge, April 19, 
 1839, Justice Story says : " Your ojjinion in the cor- 
 poration cases has given very general satisfaction to 
 the public; and I hope you will allow me to say that I 
 think it does great honor to yourself as well as to the 
 Court." And in another letter from the same place, 
 dated March 25, 1843, he says : " Whether I shall go 
 abroad this sj)ring is very uncertain. If my health im- 
 proves, so that I need not go, I shall assuredly remain 
 at home, for at my age, and with my feelings, I have 
 no desire to visit foreign countries ; and although I 
 have every reason to believe that I should be most 
 hospitably received in England, — the only country 
 which I feel a sincere desire to see and understand, 
 — yet I confess that my heart misgives, whenever I 
 think of quitting my home to embark among strangers, 
 in new scenes and interests, and new habits of life. I 
 
Memoir of Roger B. Taney. 289 
 
 am sure that you will sympathize with me in this re- 
 spect, and feel that, when age is upon one, it is most 
 for our happiness to be at rest at our own fireside. 
 
 "I read the opinion of the Court in the Illinois case, 
 respecting the stay laws of that State, with the highest 
 satisfaction, and entirely concur in it. I think your 
 opinion is drawn up with great ability, and in my 
 judgment is entirely conclusive. I hope that the 
 opinion was unanimous : but within a few days it has 
 been suggested in Boston that Brother McLean dif- 
 fered from the Court. But the information has not 
 reached me in such a way as to make me feel that it 
 is entitled to credit. At all events, I should regret to 
 find it true. There are times in which the Court is 
 called upon to support every sound constitutional doc- 
 trine in support of the rights of j^roperty and of 
 creditors. 
 
 " I was exceedingly grieved in hearing of the death 
 of poor Key. His excellent talents, his high morals, 
 his warm and active benevolence, and his most amia- 
 ble and gentle temper, endeared him to all who knew 
 him. To you and Mrs. Taney the loss is irreparable, 
 and to the public, in the truest sense of the word, a 
 deep calamity. ' Our dying friends come o'er us like 
 a cloud.' Jones is almost the only one left at the bar 
 who was there when I first knew the Court ; and it is 
 sad to know how many glorious lights have been ex- 
 tinguished." 
 
 19 
 
290 Memoir of Rogek B. Taney. 
 
 The Mr. Key spoken of in this letter is the author 
 of " The Star-Sj^angled Banner," and the Mr. Jones 
 was Walter Jones, of whom I have S23oken as Judge 
 Advocate in General Wilkinson's trial, a lawyer of 
 surpassing abilities, but now dead. 
 
 Justice Story, in a letter, dated May, 1840, to Mr. 
 Peters, the Reporter of the Supreme Court, said: "In 
 my judgment, the opinion of the Chief Justice in the 
 habeas corpus case is a masterly one, and does his sound 
 judgment and discrimination very great credit. I 
 think it will (as it ought) elevate his judicial reputa- 
 tion. I entirely concurred in that opinion with all my 
 heart ; and was surprised that it was not unanimously 
 adopted." Mr. Peters, in an official letter to the 
 Chief Justice, quoted this opinion of Mr. Justice 
 Story. The Chief Justice, in his official answer, said : 
 " I am very glad to hear that Judge Story is getting 
 well, and not a little gratified at the judgment he pro- 
 nounces on my opinion in the habeas corpus case. It 
 is praise worth receiving." And when, five years 
 afterwards. Judge Story died, the Chief Justice, in a 
 letter to Mr. Peters, dated November, 1845, said: 
 " What a loss the Court has sustained in the death of 
 Judge Story ! It is irreparable, utterly irreparable in 
 this generation ; for there is nobody equal to him. 
 You who have seen me sitting there for so many years 
 between Story and Thompson, will readily understand 
 how deeply I feel the loss of the survivor of them, 
 
Memoek OP EoGEK B. Taney. 291 
 
 especially so soon after the death of the other ; and T 
 feel it still more deeply, as the time approaches when 
 I must again take my seat there under such altered 
 circumstances." 
 
 The habeas corpus case mentioned in the letter of 
 Judge Story to Mr. Peters, I have deferred mention- 
 ing until now, because the Chief Justice, in his opinion 
 in that case, guarded the rights of the Federal Govern- 
 ment, while in all the opinions I have mentioned, he 
 guarded the rights of the States. .He never became 
 confused in defining the boundaries between the 
 powers of the Federal Government and the reserved 
 rights of the States. His marvellous joower of analysis 
 enabled him to discern the exact boundary in all thee 
 mutual relations of Federal and State sovereignty 
 and jurisdiction. Our complex political system was a 
 perfect logical harmony, undisturbed by any conflict 
 of 230wers, in the comprehensive view of his judicial 
 mind. He had thoroughly studied it in the light of 
 its history, and of the inferences founded, on both 
 the indestructible love of local self-government in 
 the respective States and the felt need of a Federal 
 Union. 
 
 In the case of Holrhes vs. Jennison, reported in 14 
 Peters, the members of the Court were so divided 
 that no opinion was delivered as the opinion of the 
 Court. Justice Story, McLean, and Wayne concurred 
 in the view of the Chief Justice. The question in the 
 
292 Memoie of Kogek B. Taney. 
 
 case was, can a State, since the adoption of the Consti- 
 tution of the United States, deliver up an individual 
 found within its territory to a foreign Government, to be 
 there tried for offences alleged to have been committed 
 against it ? The relative powers of the Federal and 
 State Governments were directly involved in the in- 
 quiry. 
 
 Before the merits of the question could be deter- 
 mined, there was a preliminary point to be decided. 
 Holmes, the plaintiff, had, upon demand by the au- 
 thorities of Canada, been arrested in the State of Ver- 
 mont, on a warrant issued by Jennison, as Governor of 
 the State, directed to a sheriff, commanding him to arrest 
 Holmes for the crime of murder, and deliver him, on 
 the confines between the State and Canada, to such 
 person as was empowered by the Canadian authorities 
 to receive him. Holmes sued out a habeas corpus from 
 the Supreme Court of Vermont, and the Court decided 
 in favor of the Governor's authority. The case was 
 brought before the Supreme Court of the United 
 States by a writ of error. 
 
 The Chief Justice decided, after reasoning the point 
 thoroughly, that the Supreme Court had jurisdiction. 
 The case being therefore before the Court, the Chief 
 Justice proceeded to inquire whether the authority ex- 
 ercised by the Governor of Vermont was repugnant 
 to the Constitution of the United States. He first ad- 
 mitted that the respective States have the power to 
 
Memoir of Roger B. Taney. 293 
 
 remove from their territory any persons whose pres- 
 ence they may think dangerous to their peace, or in 
 any way injurious to their interests : that being an 
 ordinary police power which has never been surren- 
 dered to the Federal Government. But in the case of 
 Holmes, the State did not act in order to protect itself, 
 but to assist another nation which had asked its aid. 
 The act of the State is one of foreign intercourse. 
 All foreign intercourse belongs, by express grant, to 
 the Federal Government. " The framers of Jhe Con- 
 8tit]iti£»iL-[said the Chief Justice] manifestly believed 
 that any intercourse between a State and a foreign 
 nation was dangerous to the Union ; that it would 
 open a door of which foreign powers would avail 
 themselves to obtain influence in the separate States. 
 Provisions were therefore introduced to cut off all 
 negotiations between the State authorities and foreign 
 nations. If they could make no agreement, either in 
 writing or by parol, formal or informal, there would 
 be no occasion for intercourse between the State au- 
 thorities and a foreign Government. Hence, prohibi- 
 tions were introduced, which were supposed to be suffi- 
 cient to cut off all communication between them." 
 
 After showing that such a power in the States is so 
 inconsistent with the power on the same subject con- 
 ferred on the United States, that, without any express 
 prohibition on the States, they would be excluded 
 from its exercise, the Chief Justice said : " It was one 
 
294 Memoir of Eogek B. Taney. 
 
 of the main objects of the Constitution, to make us, so 
 far as regarded our foreign relations, one people and 
 one nation, and to cut off all communications between 
 foreign Governments and the several State authorities. 
 The power now claimed for the States is utterly in- 
 compatible with this evident intention, and would ex- 
 pose us to one of those dangers against which the 
 framers of the Constitution have so anxiously endeav- 
 ored to guard." 
 
 Notwithstanding the masterly argument of the 
 Chief Justice for reversing the judgment of the Su- 
 preme Court of Vermont, the Court was so divided 
 that a different judgment had to be entered. 
 
 From the important character of this case, and of 
 those which I have already reviewed and others yet to 
 be noticed, deciding questions of the relative ^jowers of 
 the Federal and State Governments, the majesty of 
 the Supreme Court of the United States, as one of the 
 co-ordinate departments of Federal Government, be- 
 comes conspicuous. No wonder that, under the in- 
 spirations of such a tribunal, Pinkney pronounced it 
 " a more than Amphictyonic Council." The dignity 
 of the Supreme Court, Chief-Justice Taney never, for 
 a moment, forgot. When President Harrison died, 
 the news was immediately communicated to the Chief 
 Justice. And the next day, April 5th, 1841, Mr. 
 Carroll, the Clerk of the Supreme Court, in a letter to 
 the Chief Justice, said : " I now write, at the instance 
 
Memoir of Eoger B. Taney. 295 
 
 of Mr. Webster, to say not only that it would be highly 
 gratifying that you would be present on Wednesday, 
 at the funeral, but also that the Cabinet would be 
 pleased to see and confer with you at this most inter- 
 esting moment." To this letter the Chief Justice 
 made the following answer : 
 
 Baltimore, April 6, 1841. 
 
 My Dear Sir : — I have this moment received 
 your letter of yesterday. I do not suppose I could 
 with propriety come to Washington unless I am re- 
 quested to do so by the Cabinet, or by the Vice-Presi- 
 dent when he arrives. It is certainly my sincere wish 
 as well as my duty, to pay every respect to the mem- 
 ory of the President, and to render every service in 
 my power, in the new and painful condition of public 
 affairs. But if you look at the j)ublished invitations 
 of the Cabinet, you will, I think, agree with me, that 
 the presiding oilicer of a co-ordinate branch of the 
 Government would hardly be authorized to consider 
 himself as invited ; and could not, after that publica- 
 tion, make his appearance at the funeral without a 
 direct invitation from the Cabinet. Of course, I am 
 speaking of my official character, in which it is my 
 duty to look at what is due the Judiciary Department 
 of the Government from the Executive, and from those 
 who act in its behalf. Yet do not, for a moment, sup- 
 pose that I think any disrespect was intended. There 
 was no particular reason why 1 should have been 
 invited ; and therefore no disrespect in the omission. 
 
 So also as to the other matter referred to in your 
 communication, [whether another oath must be taken 
 
296 Memoik of Eoger B. Taney. 
 
 by the Vice-President,] the same reasons apply. In 
 the intercourse between the Executive Department of 
 the Government and the Judicial, whenever their 
 ofBcial characters are involved, the communication 
 from the one to the other ought to be direct and 
 from the proper organ. I should be most unwilling 
 to subject myself to the suspicion of desiring to intrude 
 into the affairs which belong to another branch of the 
 Government; and if I say or do anything in the 
 matter, it must be upon a request in such a form as 
 would make it my duty to comj^ly ; and, in that case, 
 I should perform the duty with pleasure. 
 
 You will please regard this letter, as well as the 
 former one, as intended for yourself only ; and not to 
 be even mentioned to the Cabinet or the Vice-Presi- 
 dent. It is designed to enable you to say why I am 
 not in Washington : provided inquiries are made from 
 quarters where you think it proj^er to answer, in order 
 to prevent mistakes as to my intentions or motives. I 
 repeat, that I am quite sure that no unkindness to me 
 has been designed, and that I shall not be suspected 
 of acting under any such feeling. 
 
 And with great respect and regard, 
 
 I am, dear sir, very truly yours, 
 
 E. B. Takey. 
 Wm. Thos. Carroll, Esq., 
 
 Clerk of the Supreme Court, 
 
 Washington. 
 
 By this defence of the dignity of the Judicial De- 
 partment, Chief-Justice Taney has set an example of 
 high official spirit, which I record for the lesson it 
 
Memoir of Rogek B. Taney. 297 
 
 teaches to all who may succeed him as the head of ad- 
 ministrative justice in our country. But for the func- 
 tion which the Supreme Court has performed in the 
 working of the Federal Government, our Union would 
 long ago have perished. 
 
 At the January Term, 1847, there came before the 
 Supreme Court the Massachusetts, Rhode Island, and 
 New Hampshire License cases, reported in 5 Howard. 
 The question in the cases arose under the power vested 
 in Congress, by the Constitution, to regulate com- 
 merce. The question was precisely the same in the 
 first two cases. It was whether a State can regulate or 
 prohibit the retail of wines and spirits which Con- 
 gress has authorized to be imjiorted from foreign 
 countries. It was unanimously decided that a State 
 can, and that the statutes authorizing it were consti- 
 tutional. 
 
 The Chief Justice in his opinion, marked by sin- 
 gular facility of discrimination, admitted that if the 
 statutes had obstructed the importation, or prohibited 
 the sale in the original cask in the hands of the im- 
 porter, they would have been unconstitutional, because 
 in conflict with the power of Congress to regulate 
 foreign commerce. But the State laws involved in 
 the cases were designed to act upon the article after 
 it had passed the line of foreign commerce into the 
 hands of the dealer, and had become a part of the 
 general property of the State. 
 
298 Memoir of Kogee B. Taney. 
 
 In the New Hamjjshire case, the liquor had been 
 imported from Massachusetts into New Hampshire, 
 and had been sold by the importer in the same cask 
 in which it was imported. The New Hampshire 
 statute prohibited such a sale. The question was 
 whether, in the absence of a law of Congress regulat- 
 ing commerce between the States, all State laws on the 
 subject are unconstitutional. This involves the ques- 
 tion whether a mere grant of a power to the Federal 
 Government amounts to a prohibition to the exercise 
 of a similar power by the States. The Chief Justice, 
 in his opinion in the case of Prigg vs. Pennsylvania, 
 as we have seen, had pronounced that a mere grant of 
 power to Congress was not exclusive, or j^rohibitory 
 upon the States. Upon this doctrine he bases his 
 opinion in this case. " The controlling and supreme 
 power over commerce with foreign nations and the 
 several States, is undoubtedly [he said] conferred 
 upon Congress. Yet, in my judgment, the State may 
 nevertheless, for the safety or convenience of trade or 
 for the protection of the health of its citizens, make 
 regulations of commerce for its own ports and harbors, 
 and for its own territory ; and such regulations are 
 valid, unless they come in conflict with the laws of 
 Congress. Such evidently, I think, was the construc- 
 tion which the Constitution universally received at 
 the time of its adoption, as appears from the legislation 
 of Congress and of the several States ; and a careful 
 
Memoir of Eoger B.Taney. 299 
 
 examination of the decisions of this Court will show 
 that, so far from sanctioning the opposite doctrine, they 
 recognize and maintain the power of the States." 
 
 It was a fundamental rule of construction with the 
 Chief Justice, that our jjolitical system is a co-operative 
 one on the 23art of the States in aid of the Federal 
 Government. This principle he apj^lied again in the 
 passenger cases, 7 Howard Reports. These cases came 
 up from New York and from Massachusetts. They 
 were decided at the session of the Court in 1849. They 
 had, because of the difficulty the Court had in a con- 
 currence of opinion, been argued at several terras. 
 And after all, " there was no opinion of the Court as 
 a Court," so great was the conflict of views among the 
 Judges. 
 
 The question presented in the New York case Avas, 
 whether a law of the State of New York laying a tax 
 upon the masters of vessels arriving from a foreign 
 port, of one dollar on every steerage passenger, and 
 one dollar and fifty cents for every cabin passenger, 
 and upon the masters of coasting vessels, of twenty- 
 five cents for each jDassenger such vessel might contain, 
 for " hospital moneys," was repugnant to the Consti- 
 tution of the United States, and void. The Massa- 
 chusetts case depended upon the same question. 
 
 It was supj^osed that the question had been settled 
 by previous adjudications; but this not being the view 
 of the Court, the Chief Justice delivered an elaborate 
 
300 Memoik. of Koger B. Taney. 
 
 dissenting opinion, maintaining what he had con- 
 sidered as settled by previous cases. 
 
 The points in the cases were : 1st. Is the power to 
 regulate commerce exclusively vested in Congress? 
 2d. Is a tax upon persons or passengers in vessels a 
 regulation of commerce? The Chief Justice main- 
 tained, as he had done before, that the power to regu- 
 late commerce is not exclusive in Congress ; and that 
 persons are not, like goods, subjects of commerce, and 
 a tax upon passengers is not a regulation of commerce. 
 These propositions he discussed with a subtlety and a 
 perspicuity never surjaassed in any judicial opinion. 
 He showed that a State may make regulations regard- 
 ing commerce, where they do not conflict with the 
 paramount legislation of Congress. And his micro- 
 scopic discrimination cleared up the confusion, that a 
 tax upon persons coming into harbors in vessels is a 
 regulation of commerce. But so many of his asso- 
 ciates were unable to appreciate the convincing force 
 of his argument, that his masterly opinion is one of 
 dissent. 
 
 The confused notion prevalent in this country, in 
 relation to the right of the peo^^le to change their form 
 of Government, confounding, as it does, the right of 
 revolution with a constitutional right, misled a por- 
 tion of the people of Rhode Island into an attitude of 
 treason towards their State Government. It is not ade- 
 quately discriminated, that any attempt to change a 
 
Memoir of Eoger B. Taney. 301 
 
 Government except in the mode pointed out in the 
 Constitution where a mode is provided, or where there 
 is none, under the authority of a law authorizing it, 
 is revolutionary. A Constitution was framed in 
 Rhode Island without the forms of law; and a Govern- 
 ment was set up under it, to the attem^^ted exclusion 
 of the existing Government. Then another Constitu- 
 tion was framed in the forms of law, to which the old 
 Government gave sanction, and yielded up its authority. 
 The matter was brought before the Supreme Court 
 by a suit between two individuals for an assault and 
 battery, involving the authority of the Government 
 under which the act was justified. It came up from 
 the State Court. 
 
 " The questions decided [said the Chief Justice] are 
 not such as commonly arise in an action of trespass. 
 The existence and authority of the Government under 
 which the defendants acted were called in question." 
 This involved the question which of the two opposing 
 Governments was the legitimate one. This the Chief 
 Justice said was purely a question of political power, 
 to be decided by the political department of the Gov- 
 ernment, and not by the judicial; and that the politi- 
 cal department of the State had determined it, and the 
 State Courts bad recognized and acted upon this de- 
 termination. That whatever might be the propriety 
 of that decision, the Federal tribunals must not step 
 over the boundaries of their jurisdiction, and invade 
 
302 Memoik of Eoger B. Taney. 
 
 the proper domain of the political department. 
 "Much of the argument [he said], on the part of the 
 plaintiff, turned upon political rights and political 
 questions, upon which the Court has been urged to ^ 
 express an opinion. We decline doing so. The high 
 power has been conferred on this Court of passing 
 judgment upon the acts of the State sovereignties, 
 and upon the legislative and executive branches of 
 the Federal Government, and of determining whether 
 they are beyond the limits of joower marked out for 
 them respectively by the Constitution of the United 
 States. This tribunal, therefore, should be the last to 
 overstep the boundaries which limit its own jurisdic- 
 tion. And while it should be always ready to meet 
 any question confided to it by the Constitution, it is 
 equally its duty not to pass beyond its ai^propriate 
 sphere of action, and to take care not to involve itself 
 in discussions which properly belong to other forums." 
 This case was decided at the session of 1849, and is re- 
 ported in 7 Howard. 
 
 I come now to the December Term, 1851. A ques- 
 tion involving the extent of the maritime jurisdiction 
 of the Federal Courts was presented in the case of 
 The Genesee Chief. It was a case of collision and 
 loss on Lake Ontario. The vessel had been libelled 
 in the District Court for the Northern District of 
 New York. 
 
 By the law of England, maritime jurisdiction ex- 
 
Memoir of Eogek B. Taney. 303 
 
 tended only over tide-water. And the Supreme Court 
 had decided, in 1825, that the maritime jurisdiction of 
 the Federal Courts was, as in England, limited by the 
 ebb and flow of the tide. Mr. Justice Story, who 
 delivered the opinion of the Court, adopted the strict 
 letter of the English decisions. 
 
 In 1846, Congress had passed an Act extending the 
 admiralty jurisdiction over the lakes and the connect- 
 ing navigable waters. The question now for judicial 
 determination was whether this act was authorized by 
 the Constitution. The Chief Justice delivered the 
 opinion of the Court, maintaining the constitutionality 
 of the Act of Congress. In the decision of the question, 
 the politic insight of the statesman enlightened and 
 enlarged the legal view of the judge. It is a remark- 
 able instance of a thoroughly technical lawyer real- 
 izing that enlightened jurisprudence requires the judge 
 to adapt our borrowed law to the conditions of our 
 own country, where tide-water does not, as in England, 
 cover the whole expanse over which navigation jarose- 
 cutes its work in commerce. This decision alone is 
 sufficient to place the Chief Justice among the greatest 
 of judicial characters. It was the politic element in 
 the judgments of Mansfield which signalized his ad- 
 ministration of justice as among the wisest known to 
 judicial history. None of his judgments have more 
 of the circumspect forecast of the judicial legislator 
 than this leading decision fixing the boundaries of 
 
304 Memoik of Eogeb B. Tanet. 
 
 maritime jurisdiction beyond tide-water. And the 
 decision illustrates, in an especial manner, the liberal 
 wisdom of the Chief Justice, extending as it does the 
 area of Federal legislation, where it might have been 
 supposed that a Judge so jealous of the rights of the 
 States would have been restrained by political pre- 
 conceptions. The decision is a signal example of im- 
 partial judicial wisdom. None but lawyers who are 
 familiar with the transactions embraced in maritime 
 law, can apjDreciate the disastrous effects of a judg- 
 ment confining maritime jurisdiction in this country, 
 with its vast inland waters, within the limits of the ebb 
 and flow of the tide. The Chief Justice rose to the 
 elevation of mind proper to one presiding over so 
 august a tribunal. " It is evident [said the Chief Jus- 
 tice] that a definition that would at this day limit 
 public rivers in this country to tide-water rivers is 
 utterly inadmissible. We have thousands of miles of 
 public navigable waters, including lakes and river, in 
 which there is no tide. And certainly there can be 
 no reason for admiralty power over a public tide-water 
 which does not apply with equal force to any other 
 public water used for commercial purp)oses and foreign 
 trade. The lakes, and the waters connecting them, 
 are undoubtedly public waters; and we think are 
 within the great admiralty and maritime jurisdiction 
 in the Constitution of the United States." 
 
 In regard to the former decision, the Chief Justice 
 
Memoik of Eogee B. Taney. 305 
 
 said, as it was " founded in error, and the error, if not 
 corrected, must produce serious public as well as pri- 
 vate inconvenience and loss, it becomes our duty not 
 to perpetuate it." 
 
 As tliis Memoir is not intended for tlie professional 
 reader only, I must leave the notice of liis opinions on 
 constitutional questions, and pass by altogether his 
 opinions in cases in the Su^^reme Court not involving 
 constitutional questions, with the single remark that 
 for apposite learning, wise legal discrimination, calm 
 judicial spirit, and perspicuity and finish of language, 
 they are unsurpassed by those of any Judge who has 
 ever administered law in a Court founded on the com- 
 mon law of England. 
 
 But as the practice is so important a part of the 
 administration of justice, I will say a few words in 
 regard to what Chief- Justice Taney did for that of the 
 Supreme Court. When he came to the bench, the 
 practice was very uncertain. As all matters of prac- 
 tice are particularly under the direction of the Chief 
 Justice, from time to time, as exigencies growing out 
 of cases presented themselves, Chief-Justice Taney 
 accommodated the English practice and process to the 
 circumstances of the cases. As an example of his 
 perfect knowledge of the remedies furnished by the 
 law of England in all their changed adaptations from 
 age to age, his dissenting opinion in the case of Ken- 
 dall vs. The United States, 11 Peters, should be studied. 
 
 20 
 
306 Memoir of Eoger B. Taney. 
 
 A mandamus had been sued out from the Circuit 
 Court of Washington County, in the District of Co- 
 lumbia, to comj)el Amos Kendall, Postmaster-General, 
 to pay certain money claimed to be due to a contractor 
 for carrying the mail. When the case came before 
 the Supreme Court, the Chief Justice delivered a dis- 
 senting opinion, denying that the Court had authority 
 to issue a mandamus as a prerogative writ. He 
 founded his opinion upon the history of the use of the 
 writ in Maryland up to the time of the cession of the 
 District of Columbia. And his clear comprehension 
 of equity pleading and practice is evinced in his 
 Of)inion in the case of Rhode Island vs. Massachusetts, 
 before mentioned. But in order -to see how he grad- 
 ually built up the practice of the Court, all his 
 opinions on mere points of practice must be read. The 
 practice of the Court has at last been ably treated by 
 Mr. P. Phillips, in his Jurisdiction and Practice just 
 published. 
 
 When Chief-Justice Taney's opinion in the case of 
 Kendall vs. The United States was delivered, he was 
 pelted by the party newspapers as influenced by 
 political feeling to protect General Jackson's Post- 
 master-General. Mr. Peters, the re23orter, in a letter 
 to him said that at one time he thought he would 
 notice the comments of the newspapers. To this the 
 Chief Justice responded : 
 
Memoir of Koger B. Taney. 307 
 
 Baltimore, March 27, 1838. 
 
 My Dear Sir: — I liave received your kind letter, 
 and return my acknowledgments for the honor you 
 propose to me in the dedication of your Digest. I 
 esteem it no small honor to have my name associated 
 with a work destined, I have no doubt, to be exten- 
 sively useful, and to be more generally acceptable to 
 the profession in this country than any law-book that 
 has issued from the American press. Yet I shall 
 chiefly value it as the evidence of the friendship and 
 kind feelings we have cherished for each other. 
 
 You were certainly right in declining to notice, in 
 any way, the statements in the newspapers in relation 
 to the 0[)inions delivered by the Court and its diflir- 
 ent members in the case of the Postmaster-General. 
 The daily press, from the nature of things, can never 
 be "the field of fame" for Judges; and I am so sensible 
 that it is the last place that we should voluntarily 
 select for our discussions, that on more occasions than 
 one, where I have seen my opinions at Circuit incor- 
 rectly stated, I have declined publishing the opinion 
 really delivered, because I did not think it jM'oper for 
 a Judge of the Suj^reme Court to go into the news- 
 ]oapers to discuss legal questions. 
 
 Since I wrote to you, I have received Judge Bald- 
 win's dissenting opinion in the case of the Post- 
 master-General. It was arranged between him and 
 myself before he left Washington, that he should send 
 me the opinion which he told me he had determined 
 to write out ; and it was then my intention merely to 
 express my concurrence with him, and to say nothing 
 more. But the publications afterwards led me to 
 
308 Memoir of Rogek B. Taney. 
 
 change that intention, and to determine to write out 
 my opinion. It is already written ; but I find it 
 longer than I hke, and I retain it for the purpose of 
 condensing my argument. As soon as it is brought 
 within proper dimensions, I will send it to you with 
 Judge Baldwin's. You know my settled dislike to 
 long opinions, when justice to the case can be done by 
 a short one. Yet I fear I sin in unnecessary length 
 as often as any of my brethren. 
 
 With best wishes, I am, dear sir. 
 
 Your friend and obedient servant, 
 
 / R. B. Taney. 
 Richard Peters, Esq., 
 
 Philadelphia. 
 
 I must now speak of Chief-Justice Taney as a 
 Judge at Circuit. His opinions from April Term, 
 1836, to April Term, 1861, have been reported by his 
 son-in-law, the late James Mason Campbell, of the 
 Baltimore bar. They embrace cases at common law, 
 equity, and admiralty. If the reader will look at the 
 first two opinions in the volume, they will be evidence 
 of the ability of all the rest. The ability of a Judge 
 at Circuit cannot be fully seen in his opinions. The 
 matters which are not reported manifest much more 
 the capacity of the Judge. The supreme excellence 
 of the Chief Justice at Circuit will go down to other 
 generations as a tradition of the Baltimore bar. My 
 honored friend, the late J. V. L. McMahon, of the 
 Baltimore bar, in a letter to me, dated December 11, 
 
Memoir of Koger B. Taney. 309 
 
 1865, written while he was ill, thus speaks of the 
 Chief Justice at Circuit : 
 
 " Thus situated, I cannot now undertake [says Mr. 
 McMahon] to furnish you with such a statement of 
 the case of Budd vs. Brooke's Lessee as you would 
 desire to have or I would be willing to give. 
 
 " I will refer you, however, on the subject, to my 
 old friend Thomas S. Alexander, Esq., my associate 
 in that case, who must still have a vivid recollection 
 of all the circumstances of that intricate and most 
 perj)lexing case, which was on trial before C. J. Taney 
 and J. Heath for nearly a month. He will remember 
 that this case was prosecuted on what was called the 
 old title, for about three weeks, during which we had 
 prepared, with great care, and after much reflection 
 and consultation, a great number of prayers embody- 
 ing all our views upon the novel and perplexing ques- 
 tions involved in that title, but which were never pre- 
 sented to the Court, because the old title was ruled out 
 for the want of proper location. He will also recollect 
 that the plaintiff's then threw themselves upon their 
 later title, under the escheat warrant which they 
 sought in the first instance to repudiate, by setting up 
 the old title. And that the case was decided in our 
 favor, as to the escheat title, upon a single prayer of 
 the plaintiffs. He will also recollect that after thus 
 disposing of this new title, the Chief Justice remarked 
 that as the old title might come up again in the case 
 
310 Memoir of Eogeb B. Taney. 
 
 on amended locations, lie deemed it due to the cause of 
 justice to avoid, as far as possible, further delay and 
 expense to the parties, by giving them his views as to 
 the old title also, which had been fully and completely 
 exhibited before the objection as to location had been 
 taken. 
 
 " Then it was that he delivered the verbal opinion 
 as to the old title, which gave us such a disj^lay of in- 
 tellect and judicial ability as has seldom, if ever be- 
 fore, been displayed in any case under the same cir- 
 cumstances. The questions involved in that title, 
 many of which were very novel, and even perplexing 
 to ourselves after much reflection, had not only never 
 been argued, but had not even been presented for the 
 cause before stated. The facts as to the old title, ex- 
 tending over a period of nearly or quite a century, 
 and tiirough several generations, were such as required 
 the closest attention to obtain even a mastery of these. 
 
 " It was expected by all parties that at the close of 
 the case, all these comj^licated facts, and the difficult 
 questions growing out of them, would have been fully 
 presented to the Court by the prayers and arguments 
 of the counsel on both sides. For it could not rea- 
 sonably be expected that the Court, whilst its atten- 
 tion was engrossed by the reception of the evidence, 
 and the decisions of the questions arising in the course 
 of its reception, could have mastered the whole case, 
 so as to have rendered prayers or arguments unne- 
 
Memoir of Roger B. Taney. 311 
 
 cessary. When, then, the old title was unexpectedly- 
 ruled out, without a prayer or argument on either side,. 
 I was entirely unprepared for the display of intellect 
 by the Chief Justice in his opinion disposing of it. 
 And accustomed as I had been to the manifestations 
 of his forensic and judicial ability on many previous 
 occasions, I confess that, in my judgment, this out- 
 stripped them all. His opinion not only showed a 
 perfect acquaintance with all the complicated facts of 
 the case, but it also referred to and covered all the 
 numerous questions of law which were to have been 
 presented by our carefully prepared jsrayers. It is to 
 be remarked also, that when this occurred there were 
 other circumstances calculated to distract the attention 
 of the Chief Justice. The case, at its close, was hur- 
 ried through to enable him to attend the Supreme 
 Court, and the opinion was delivered after the session 
 had commenced. What I have said will serve to re- 
 fresh the recollection of my friend, Mr. Alexander ; 
 although I am sure he will need no such refresher. I 
 think I cannot be mistaken when I say that his sur- 
 prise and admiration were equal to my own. Should 
 there be any favorable turn in my disease which will 
 enable me to say more, you will hear from me ; and 
 let me add, I shall always be glad to hear from you." 
 This letter, written by a lawyer of the greatest 
 power and resources of any I have ever heard in a 
 
312 Memoik of Eogee B. Taney. 
 
 court of justice, will furnish the reader some idea of 
 Chief- Justice Taney as a nisi prius ]udge. 
 
 In Camiobell's Reports will be found the case of 
 Eeed vs. Carusi, relating to cojiyright for a musical 
 composition. What took place on the trial before 
 Chief-Justice Taney, at Circuit Court in Baltimore, is 
 given in a letter to Mr. Campbell, written, by one of 
 the counsel in the case, for my use. 
 
 Baltimore, February 8, 1867. 
 J. Mason Campbell, Esq. 
 
 Dear Sir : — I can only comjjly, in a very general 
 way, with your request that I should furnish you with 
 a narrative of the proceedings in the case of George 
 P. Reed vs. Samuel Carusi, tried before C. J. Taney, 
 at November Term, 1845, in the Circuit Court United 
 States, in Baltimore. 
 
 The papers I have been able to find present a very 
 meagre record of the case ; and, after the lapse of 
 more than twenty years, I cannot pretend to recall with 
 accuracy the special circumstances of the trial. But 
 I furnish you with such as I can recollect. 
 
 Reed was a music seller in Boston, and had pub- 
 lished and copyrighted an air set to the words of a 
 popular ballad of the day, composed by Miss Eliza 
 Cook and called " The Old Arm-Chair." The author- 
 ship of the music was claimed by Mr. Henry Russell, 
 a famous singer ; and the piece was in great demand. 
 Carusi was a music publisher in Baltimore, who, avail- 
 ing himself of the popularity of the song, had adapted 
 to the words another somewhat similar air, which he 
 claimed to be a different composition, and published 
 
Memoir of Eoger B. Taney. 313 
 
 and sold it ; and he was sued by Eeed, in the Circuit 
 Court before Chief-Justice Taney, for an infringement 
 of his copyright. The case was entirely novel in its 
 features, and presented some very perplexing ques- 
 tions as to what constituted " originality " in musical 
 composition, and as to the right of Mr. Russell to be con- 
 sidered the " author " of the air which had been copy- 
 righted. There was a great deal of learned musical 
 testimony and forensic discussion on these very im- 
 portant points, the particulars of which, and the Chief 
 Justice's ruling thereon, I do not remember. 
 
 But I recall very distinctly one circumstance in the 
 case which was so peculiar that it could not easily be 
 forgotten. There was a question of fact, whether the 
 air adapted by Carusi to the words was substantially 
 the same as that which had been used by Mr. Russell. 
 On this jDoint, the musical experts, proverbially dis- 
 cordant among themselves, differed widely in their 
 testimony. Some insisted that the airs were identical ; 
 others, that there was a marked and easily to be re- 
 cognized difference between them. To reconcile this 
 conflict of opinion, it was proposed by Mr. Latrobe, 
 who was the plaintiff''s counsel, that Mr. John Cole, an 
 old professional singer, should be sworn as a witness, 
 and required to sing the two songs to the jury, that 
 they might judge for themselves whether the two airs 
 were similar or not. I remember resisting most stren- 
 uously, on behalf of the defendant, the introduction 
 of this novel species of evidence ; but the Chief Jus- 
 tice overruled the objection, stating that he would 
 make a rule for the case, which he considered a reason- 
 able one, however novel and peculiar it might be; 
 
314 Memoir of Roger B. Taney. 
 
 and that as the jury were to determine whether the 
 two airs were substantially the same, the best evidence 
 with which they could be furnished, would be the 
 singing of them by an expert witness. Mr. Cole ac- 
 cordingly proceeded in the gravest manner, under the 
 direction of the Chief Justice, to intone the two songs 
 successively in open court; and the appearance of the 
 singer, the lamentable, monotonous cadence of both 
 airs, the bathos of the words, which, as nearly as I 
 recollect, ran somewhat in this way, 
 
 " I love it ! I love it ! And who shall dare 
 To chide me for loving that old arm-chair," etc., 
 
 together with the singular and varied expressions of 
 pleasure or disapprobation on the faces of the musical 
 dilettanti j^resent, produced by Mr. Cole's emphatic 
 rendering of the songs, would, under any other cir- 
 cumstances, have created in the crowd of bystanders 
 irresistible laughter and confusion. But the Chief 
 Justice, with that power j)eculiarly his own, of re- 
 straining almost by a glance the slightest breach of 
 decorum in his Court, overawed and repressed every 
 demonstration of disrespect by the placid and digni- 
 fied attention which he bestowed throughout U230n Mr. 
 Cole's musical efforts. I doubt if the same scene 
 could have been enacted in any other Court without 
 inducing some, at least, of the listeners to forget and 
 violate the customary rules of judicial decorum. 
 
 The case was argued to the jury, who made up 
 their minds that there was only a difference in the 
 songs between " Tweedledum and Tweedledee," and 
 there was accordingly a verdict for the plaintiff. 
 I am, very truly yours, Wm. F. Fkick. 
 
Memoir of Roger B. Taney. 315 
 
 There was always in the Court the most perfect 
 order. As a presiding officer, dignity and authority 
 sat upon his brow. His own singular courtesy not 
 only diffused itself through the bar and all the officers 
 of the Court, but it was contagious among the crowd. 
 No officer was permitted to look at a newspaper, but 
 was required to be intent upon the proceedings of the 
 Court. Every one was made to feel that he was 
 where solemn duties were to be performed. 
 
 At the beginning of a term, when the list of jurors 
 was called, he attended to every name. And if a 
 juror from Frederick County, where he so long lived, 
 was called, and the name was familiar in his recollec- 
 tion, he always asked the Marshal to tell the juror 
 to come to him after the adjournment. He generally 
 found them the sons or more distant relatives of his 
 old professional acquaintances and friends ; and made 
 the kindest inquiries into their family matters. Often 
 have jurors from Frederick County told me, when 
 they returned home, of these friendly talks of the 
 Chief Justice. He was a true citizen, interested in all 
 the affairs of his State. And the reverence and the 
 almost filial affection with which he was regarded, 
 showed that he was the first in the hearts of the 
 people. 
 
 I must ]3ause for a moment and open the door, and 
 let the world look in upon the domestic life of the 
 Chief Justice. 
 
316 Memoir of Eoger B. Taney. 
 
 Guizot, the minister of Louis Philippe, King of 
 France, in the third volume of the Memoirs of his ad- 
 ministration, while descanting on his own success in 
 climbing to power and fame, steps aside from matters 
 of State to tell to men who walk in the paths of am- 
 bition a great truth in human life. " Even in the 
 midst of great undertakings, [says he,] domestic affec- 
 tions form the basis of life ; and the most brilliant 
 career has only superficial and incomplete enjoyments, 
 if a stranger to the hap^jy ties of family and friend- 
 ship." He found at home that peace which fame and 
 power cannot give. 
 
 Chief- Justice Taney had the great blessing of a wife 
 who was to him " the gust of joy and the balm of 
 woe." On the forty-sixth anniversary of their mar- 
 riage, he wrote her the following letter : 
 
 Washington, January 7, 1852. 
 
 I cannot, my dearest wife, suffer the 7th of January 
 to pass without renewing to you the pledges of love 
 which I made to you on the 7th of January forty-six 
 years ago. And although I am sensible that in that 
 long period I have done many things that I ought not 
 to have done, and have left undone many things that I 
 ought to have done, yet in constant affection to you I 
 have never wavered — never being insensible how much 
 I owe to you — and now pledge to you again a love as 
 true and sincere as that I offered on the 7th of Janu- 
 ary, 1806, and shall ever be 
 
 Your affectionate husband, E. B. Taney. 
 Mrs. Anne Taney. 
 
Memoie of Kogee B. Taney. 317 
 
 Such was the reputation which the Cliief Justice 
 had now acquired for all the qualities of a great Judge, 
 that all his old political enemies had become his 
 greatest admirers. Mr. Clay had long ago, in the 
 presence of Mr. Reverdy Johnson, of the Maryland 
 bar, made a personal apology for the style of his I'e- 
 marks upon his nomination to the Senate, and paid 
 the highest possible tribute to his great judicial abili- 
 ties. And ever after, Mr. Clay, as his many letters to 
 the Chief Justice show, seemed to strive for the gen- 
 erous forgiveness of the Chief Justice, by his courteous 
 and kind bearing towards him. And the many 
 instances in which Mr. Webster sought the counsel 
 of the Chief Justice on matters of state, show his esti- 
 mate of his great ca|)acity and wisdom. And so high 
 did he stand in the estimation of the whole country, 
 that his judgment was counted as a sure measure of 
 truth in all matters pertaining to justice and right. 
 Mr. Senator William H. Seward, aj^jjreciating the 
 weight of the Chief Justice's character, addressed to 
 him the following letter : 
 
 Washington, January 31, 1851. 
 
 SiE : — I am prepossessed with a belief that your 
 convictions must be in favor of the justice of the 
 claims of the American merchants for indemnities for 
 French spoliations ; and I am sure that these convic- 
 tions, if known, would have great influence upon the 
 public mind in favor of the law relatiug to that sub- 
 
318 Memoir of Kogek B. Taney. 
 
 ject which has jiassed the Senate. I am desirous of 
 the honor of inscribing my speech, recently delivered 
 on that subject, to you, as well for the consideration 
 I have already presented, as because it would be an 
 expression of the high regard which, in common with 
 the whole American people, I entertain for you as the 
 head of the Judiciary Department. But I dare not 
 take so great a liberty, without first obtaining your 
 consent. I beg leave therefore to submit a copy of my 
 argument, and to request your permission to use your 
 name in the manner I have indicated. 
 
 I am, dear sir, with high respect and esteem, 
 Your humble servant, 
 
 William H. Sewakd. 
 The Hon. R. B. Taney, Chief Justice, etc. 
 
 To this letter, the Chief Justice responded as 
 follows : 
 
 Washington, January 31, 1851. 
 
 Sir: — I thank you for the copy of your speech on 
 the claims of American merchants for indemnities for 
 French spoliations which you have been good enough 
 to send me, with a request for permission to inscribe it 
 to me. 
 
 Ever since I have been on the bench, I have felt 
 very unwilling to have my name in any way connected 
 with a measure pending before the Legislative or Ex- 
 ecutive Departments of the Government; and have 
 studiously abstained from doing anything that might 
 be construed into interference on my part. I have 
 adopted this course from the belief that it would en- 
 able me to discharge my judicial duties more usefully 
 
Memoir of Roger B. Taney. 319 
 
 to the public. And acting upon that opinion, I must 
 beg leave respectfully to decline the honor you have 
 proposed to do me. 
 
 With great respect, I am, sir, 
 
 Your obedient servant, 
 
 R. B. Taney. 
 Hon. William H. Seward. 
 
 As this book is designed not only to be a memoir 
 of Chief-Justice Taney, but also to show the working 
 of the Federal Government, I will now give the cor- 
 respondence between General Taylor, when he was 
 about to take the oath of office as President of the 
 United States, and Chief-Justice Taney. Though the 
 President may have his official oath administered to 
 him by any functionary competent to administer an 
 oath, the Chief Justice of the Supreme Court of the 
 United States has always sworn in every President of 
 the United States. This seems befitting the dignity 
 and the solemnity of the occasion. The ancient kings 
 of England, while the memories of the separate States 
 of which the kingdom was composed had not yet died 
 away, in order to secure themselves from sectional 
 feelings in the suspicions of the people, before they 
 took their official oath, turned to the East, and to the 
 West, and to the North, and to the South, and then 
 swore to govern according to law. The Chief Justice 
 of the Supreme Court of the United States, from his 
 
320 Memoir of Eogek B. Taney. 
 
 high judicial position, can administer no sectional 
 oath. He represents the Constitution and the laws 
 over the East and the West, the North and the South. 
 And without sectional difference he administers the 
 oath to the President. 
 
 Washington, D. C, March 3, 1849. 
 
 SiK : — Expecting to take, on the 5th instant, the 
 oath of office as President of the United States, I have 
 the honor to request, if it be agreeable to you, that 
 you will attend for the purjDOse of administering the 
 oath at the time and place indicated by the committee 
 of the Senate. 
 
 In soliciting the favor of your attendance, I not 
 
 only comply with a long-established custom, but also 
 
 give expression to the high respect which I entertain 
 
 for the Supreme Bench and its august presiding officer. 
 
 I have the honor to be. 
 
 With the highest esteem. 
 
 Your most obedient servant, 
 
 Z. Taylok. 
 His Honor Roger B. Taney, 
 
 Chief Justice of the United States. 
 
 To this invitation, Chief-Justice Taney responded : 
 
 Sir : — It will give me much pleasure to administer 
 to you the oath of office as President of the United 
 States, on the 5th inst. And the duty will be the 
 more agreeable because the high trust to which you 
 are called has been spontaneously bestowed by the 
 American people upon a citizen already so eminently 
 
Memoir of Eoger B. Taney. 321 
 
 distinguished for the able and faithful discharge of 
 great public duties. 
 
 I have the honor to be, sir, 
 
 With the highest respect, 
 
 Your obedient servant, 
 
 E. B. Taney. 
 General Z. Taylor, 
 
 President- Elect of the United States. 
 
 As law reform has become an engrossing subject, it 
 is imi^ortant to know the opinion of Chief- Justice 
 Taney on changes in common law pleading. I will 
 therefore give a letter of his on the subject, which 
 also shows, incidentally, his opinion on the importance 
 of trial by jury. 
 
 In 1852, a constituent convention met in the State 
 of Maryland to change the Constitution of the State. 
 Among other matters, an order was offered to incor- 
 porate into the Constitution a provision j^rohibiting 
 the use of special pleading in the Courts of the State. 
 As I well knew the confusion and increased expense 
 any substitute for sjjecial pleading would bring into 
 the administration of law in the State, I addressed an 
 elaborate argument to the convention against such a 
 provision, and suggested that provision be made to 
 simplify common law pleading instead of abolishing 
 it. This suggestion was adopted ; and the first Legis- 
 lature which met under the new Constitution ap- 
 pointed Mr. William Price, Mr. Frederick Stone, and 
 
 21 
 
322 Memoir of Roger B. Taney. 
 
 myself, commissioners to simplify the pleadings and 
 practice in all the courts of record in the State. It 
 devolved upon me to simplify the preliminary proce- 
 dure and the pleading. I made an elaborate report 
 on the whole subject to the Legislature ; and sent a 
 copy of the report to Chief-Justice Taney. He wrote 
 me the following letter: 
 
 Baltimoee, June 12, 1854. 
 
 Dear Sir : — I have received your letter, and cer- 
 tainly take much interest in the law reforms proposed 
 in Maryland ; and, as you desire it, would be glad to ex- 
 amine the report on pleading, if it was in my power, and 
 give you my opinion of it. But at my time of life, the 
 labors of a long session of the Supreme Court are sen- 
 sibly felt when the Court is over, and I require repose 
 and relaxation from business to regain my strength. 
 Now, if I undertook to examine the report on pleading 
 in all its bearings, and to give you my opinion of it, it 
 would occupy nearly the whole summer, in order to 
 make up an opinion upon which I would myself be 
 dis^iosed to rely. The task of reforming — in other 
 words, of radically changing — the system of pleading, 
 which is interwoven with the common law itself, is 
 one of extreme difficulty and delicacy. I am by no 
 means satisfied that the exjieriments made in other 
 States and in England have been successful. For I 
 observe there are quite as many cases upon pleading 
 now — if not more — than before the change was 
 made. For more disputes arise as to the meaning of 
 words in new combinations and new modes of aver- 
 ment ; while in common law pleading as it now 
 
Memoir of Roger B. Taney. 323 
 
 stands, the ordinary counts in a declaration and 
 ordinary pleas have a certain definite form which 
 conveys a certain definite meaning, about which 
 lawyers can never doubt or dispute. I am sensible, 
 indeed, that there are many more forms and techni- 
 calities in common law proceedings which the Courts 
 ought to have reformed long ago. The power has 
 been given to them by the Legislature to give judgment 
 according to the right of the matter, without regard to 
 matters of form ; and yet they have obstinately (I 
 must say) continued to treat as a matter of substance 
 what evidently was nothing but form, merely because 
 it was called substance in some of the old law books. 
 I fear they will continue to do so, without some 
 specific direction from the Legislature. But when that 
 direction is given, it will require the greatest care and 
 consideration to preserve all that is really essential to 
 the common law and trial by jury, and dispense with 
 everything else. For certainly the jjroceedings ought 
 to be so moulded that the party having right on his 
 side, should not be defeated by technicality or nicety 
 in pleading. But to do this by legislation, and yet 
 preserve in full vigor and usefulness the great princi- 
 ples of the common law and trial by jury (without 
 which, in my judgment, no free government can long 
 exist), will require much reflection and care in matters 
 of detail, and great perspicuity in language. And I 
 should be most unwilling to express any opinion upon 
 such a proposed system of reform without ample time 
 to examine it and think about it. It would require 
 more labor and thought than I am willing to bestow 
 ou any subject this summer. And you must pardon * 
 
324 Memoik of Eoger B. Taney. 
 
 me, therefore, for declining to express any opinion 
 on the reform in pleading proposed by the commis- 
 sioners. 
 
 With great respect and regard, 
 
 I am, dear sir, truly yours, 
 
 E. B. Taney. 
 Samuel Tylek, Esq., 
 
 Frederick, Frederick County, Md. 
 
 After the Legislature had passed into a statute all 
 the recommendations prof)osed in my report, — the 
 statute having been prepared by me, — at the suggestion 
 of that great lawyer, my friend, Mr. Horace Binney, 
 of Philadelphia, I prepared a treatise to uphold the 
 simplified pleading, and sent a copy of it to Chief- 
 Justice Taney. He made his acknowledgments for 
 it in the following letter : 
 
 Baltimoee, November 9, 1857. 
 
 My Deae Sir : — Upon my arrival here to hold 
 the Circuit Court for the District of Maryland, Mr. 
 Campbell handed me your note, together with your 
 treatise on Maryland's Simplified Preliminary Pro- 
 cedure and Pleading. 
 
 Although my infirm health and many engagements 
 put it out of my j^ower to examine carefully the 
 whole volume ; yet I have looked enough into it to 
 see the judicious arrangement of the topics of which 
 you treat, and the condensed yet clear commentary 
 which you make upon them. Your book, under the 
 new system of pleading, must be exceedingly useful to 
 the student, and very convenient to the profession gen- 
 erally. 
 
Memoir of Roger B. Taney. 325 
 
 Accept my thanks for your book, and also for the 
 kind language of your note which accompanied it. 
 With best wishes, I am, d«ar sir. 
 
 Your friend and servant, 
 R. B. Taney. 
 Samuel Tyler, Esq., 
 
 Frederick. 
 
 Chief-Justice Marshall had belonged to a quoit 
 club near Kichmond. He was one of its most active 
 members ; as he had from boyhood been peculiarly 
 fond of quoits. Many other distinguished persons 
 belonged to the club ; so that membership was con- 
 sidered a high honor. Upon his first official visit to 
 Richmond to hold the Circuit Court, Chief-Justice 
 Taney was elected a member, as the following letter 
 shows : 
 
 Richmond, May 12, 1843. 
 
 Dear Sir : — I have the honor to acknowledge the 
 receipt of your letter, enclosing the resolution of the 
 Quoit Club at Buchanan's Spring, by which I am 
 elected an honorary member. 
 
 It is with much pleasure that I find myself so kindly 
 received on my first visit to Richmond by this ancient 
 club, distinguished, as it is, by the honored names asso- 
 ciated with it. And you have made my election still 
 more gratifying by the manner in which you have 
 been pleased to connect my name with oile so justly 
 venerated and cherished as that of Chief-Justice 
 Marshall. 
 
 I shall most gladly avail myself of the privileges 
 
326 Memoir of Rogek B. Taney. 
 
 conferred upon me by the club whenever it is in my 
 power. 
 
 I am, with high respect, 
 
 Your obedient servant, 
 
 E. B. Taney. 
 John G. Blaik, Esq. 
 
 A great affliction now falls upon the Chief Justice, 
 which makes him peculiarly a man of sorrows. He 
 had repaired, as was his custom, to Old Point Com- 
 fort, with his family, in the summer of 1855. The 
 yellow fever suddenly made its appearance; and on 
 the 29th of September carried off' Mrs. Taney, and 
 the next day, the 30th, took away the youngest child, 
 Miss Alice, who was "made up of loveliness alone." 
 
 The following letter tells how profoundly his 
 brother on the Bench of the Supreme Court, Mr. 
 Justice Curtis, felt for the Chief Justice in his sore 
 trial. 
 
 Boston, October 22, 1855. 
 
 Dear Sir : — It has not been by reason of my con- 
 stant labors on the Circuit, still less because I have 
 been forgetful of you, that I have not written to you 
 since I heard of the affliction which you have suffered. 
 I assure you, my dear sir, that I have very often con- 
 sidered whether it might not seera to you almost in- 
 trusive, if I were to express to you, as early and as 
 strongly as I wished, the sympathy which I felt. 
 Perhaps I formed a mistaken opinion, remembering 
 my own feelings when my children and my wife died. 
 
Memoir op Kogek B. Taney. 327 
 
 For I was young, and little schooled in the submissive- 
 ness and acquiescence in the will of God which you 
 have derived from a long and wise life. Allow me 
 now to say — alas, that it should be all I can say ! — that 
 you have my deepest sympathy. How little any hu- 
 man feeling can aid us in such trials, I know. But I 
 think I also know that you have that strength which 
 is " in quietness and confidence." Quietness of a mind 
 which can look back over a long life usefully spent, 
 and confidence in the goodness and mercy of God. 
 
 I am not willing you should take the trouble to 
 write to me; but if Mr. Campbell would do so, and say 
 how you are, I should take it as a favor. I strongly 
 hope I shall meet you at Washington, at the beginning 
 of the term, as well as you were during the last 
 winter. 
 
 With great respect and regard, 
 
 I am your obedient servant, 
 
 B. R. Curtis. 
 Mr. Chief-Justice Taney, 
 
 Baltimore. 
 
 The Chief Justice responded to this kind letter as 
 follows : 
 
 Baltimore, November 3, 1855. 
 
 Dear Sir : — I cannot turn your letter over to Mr. 
 Campbell as you suggest, but must answer it myself, to 
 thank you for the kind terms in which it is written, 
 and to assure you that I am grateful for it. 
 
 It would be useless for me to tell you what I have 
 passed through. But it has pleased God to support 
 me in the trial, and to enable me to resign myself in 
 
328 Memoik of Eogek B. Taney. 
 
 humble submission to his will. And I am again en- 
 deavoring to fulfil the duties which may yet remain 
 to me in this world. 
 
 The Circuit Court for this District begins on Mon- 
 day next, and I propose to take my seat on the bench, 
 and busy myself, if I can, in the business of the term. 
 I hope also to meet you at the Supreme Court at the 
 beginning of the session, and have made my arrange- 
 ments with that view. 
 
 But I shall enter upon those duties with the painful 
 consciousness that they will be imperfectly discharged. 
 The chastisement with which it has pleased God to 
 visit me has told sensibly upon a body already worn by 
 age, as well as upon the mind ; and I shall meet you 
 with broken health and with a broken spirit. 
 
 May you and Mrs. Curtis be long spared to one 
 another, and with best wishes for the health and hap- 
 piness of you both, 
 
 I am, dear sir, very truly your friend, 
 
 E. B. Taney. 
 Hon. B. K. Curtis, 
 
 Boston. 
 
 It was not from the great alone that the Chief 
 Justice received words of sympathy. It was befitting 
 that the humble should feel the private sorrow of this 
 great and good magistrate. I have, in the second 
 chapter of this Memoir, spoken of the happy planta- 
 tion home where Mrs. Taney was born, and lived at 
 her marriage. The negroes, who there had so often 
 looked with pleasure and pride at the beauty and 
 
Memoir of Eogee B. Taney. 329 
 
 grace and gentleness and fulness of feeling of their 
 young mistress, and received so many kindnesses from 
 her gracious hands, could never forget her. So that 
 now, when she had been taken from earth, one of 
 these servants, who had for many years been living 
 in Pennsylvania, far away from the scenes of early 
 life, wrote the Chief Justice the following letter : 
 
 QuAKEETOWN, November 26, 1855. 
 Bucks County, Pa. 
 
 Deak Sir: — Being informed lately of the irreparable 
 loss you have sustained in the death of your affectionate 
 wife, one who I had every reason to respect and re- 
 gard for the many kindnesses and attentions shown 
 me while a servant in her father's family, I thought 
 perhaps a few lines from one, though in inferior station, 
 who remembers her virtues and amiable disposition, in 
 the way of consolation to you, sir, suffering under the 
 privation of so valuable a companion, might not be 
 considered arrogant or improjjer, for I can truly say 
 I was very sorry when I was informed of her death, 
 and hope you may so bear your affliction as that it 
 may be sanctified to your eternal comfort and a re- 
 union in a better world with her. 
 
 I am getting to be an old man, failing some in bodily 
 strength, but my mind I believe pretty sound, and my 
 memory a little failing of things recently past, but of 
 things that happened in early life I have clear recol- 
 lections, and hence the remembrance of the respected 
 Mrs. Taney. Excuse me for thus approaching you, 
 but I have written as I felt best, and therefore hope 
 it will be accepted in all good feeling by you. 
 
330 Memoik of Kogee B. Taney. 
 
 I shall forward this by Dr. Samuel Bradshaw, a 
 member of Congress from our place, for whom I have 
 a high regard, having labored for him often. 
 
 With sentiments of profound respect, I remain your 
 
 humble friend, who was one of the servants of General 
 
 J. Ross Key. 
 
 Jakad. 
 
 The Chief Justice's answer to this letter I have not 
 been able to recover ; though I wrote to Dr. Samuel 
 C. Bradshaw, who, as a member of Congress, franked 
 the letter, and was living when I wrote, and I suppose 
 is now. Jarad, I suppose, is dead. 
 
CHAPTER V. 
 
 JUDICIAL LIFE. 
 
 A. D. 1856 — 1860. 
 
 NOTWITHSTANDING the exalted place which, 
 as we have seen, Chief-Justice Taney had at- 
 tained in the esteem of the great men of all political 
 parties, we shall now see him assailed, for political 
 ends, until he becomes an object of especial hate to a 
 powerful political combination. As the head of the 
 Federal judiciary, he stood between that political 
 combination and the Constitution, which was a barrier 
 in the way to their purj^oses. 
 
 It is a sad chapter in the history of the United 
 States u]3on which we now enter. Chief-Justice Taney 
 was a grand actor in its successive melancholy scenes. 
 By the part he took, he consummated the glory of his 
 high career. 
 
 Before the Federal Government was formed, and 
 even before the war of independence, there were two 
 diverse forms of civilization in this country — that of 
 Virginia and the other Southern States, and that of 
 Massachusetts and the other New England States. 
 Besides that, the first settlers of the two regions were 
 very different in character and opinions — the Cava- 
 liers having settled the Southern States, and the 
 
 331 
 
332 Memoir of Eoger B. Taney. 
 
 Puritans the New England States — tlie soils and the 
 climates of the two regions were so diflferent as to ne- 
 cessitate such diflferent pursuits in life as to enhance 
 the original diversity of character of the two distinct 
 peoples. But, nevertheless, the peoples of the two 
 regions had much in common. Besides their common 
 language and laws, their 23olitical rights were the same. 
 England was their common mother country, with the 
 same governmental relation to them. Therefore, when 
 their common liberties were invaded by the mother 
 country, they joined with alacrity in a common de- 
 fence, and in the struggle a more fraternal feeling 
 grew up between the two peoj^les. But when the war 
 with the mother country was over, and a common 
 government was formed by all the colonies now be- 
 come States, the antagonism of the Southern and 
 the New England States began at once to manifest 
 itself in the politics of the country and the working 
 of the Government. Each people aspired to rule the 
 country through Federal power, permitting the other 
 to only a participation in the trusts of office. Sec- 
 tional influence was therefore, at the very origin of 
 the Federal Government, an element, and a powerful 
 one, in the politics of the country and the working 
 of the Government. At first, as we have seen, New 
 England held the sceptre, after Washington laid it 
 down. And when the alien and sedition laws were 
 passed and attempted to be enforced, Virginia and 
 
Memoik of Eogee B. Taney. 333 
 
 Kentucky, representing the Southern States, pro- 
 claimed the right of the States to interpose their 
 sovereignty to prevent the enactment and execution 
 of unconstitutional laws. The New England States 
 at once repudiated any such right. But when the 
 Southern States attained the control of the Federal 
 Government under Jefferson's administration, and 
 Louisiana was purchased in 1803, to be formed into 
 new Southern States, thereby increasing their political 
 power, tlie doctrine of State sovereignty was pro- 
 claimed in New England, to preserve the balance of 
 Federal power between the two sections of the country. 
 Massachusetts asserted that, as the purchase was a vio- 
 lation of the constitutional compact between the 
 States, she was no longer bound by it. Her Legisla- 
 ture passed the following resolution : " Resolved, That 
 the annexation of Louisiana to the Union transcends 
 the constitutional power of the Government of the 
 United States. It formed a new confederacy, to which 
 the States united by the former compact are not 
 bound to adhere." And when, in 1811, a bill was 
 before Congress for the admission of Louisiana into 
 the Union as a State, Josiah Quincy, an able and 
 leading representative from Massachusetts, in discuss- 
 ing the bill, said, " If this bill passes, it is my delib- 
 erate opinion that it is virtually a dissolution of the 
 Union ; that it will free the States from their moral 
 obligation ; and as it will be the right of all, so it will 
 
334 Memoik of Roger B. Taney. 
 
 be the duty of some definitely to prepare for separa- 
 tion, amicably if they can, violently if they must." 
 And when the war measures, in 1815, pressed heavily 
 upon Massachusetts and other New England States, 
 they met in convention, at Hartford, Connecticut, to 
 consider how they might obtain relief. The conven- 
 tion, in considering the rights of the several States, de- 
 clared, "That Acts of Congress, in violation of the 
 Constitution, are absolutely void, is an indisputable 
 position. It does not, however, consist with the re- 
 spect from a confederate State towards the general 
 Government, to fly to open resistance upon every in- 
 fraction of the Constitution. The mode and the 
 energy of the opposition should always conform to the 
 nature of the violation, the intention of tlie authors, 
 the extent of the evil inflicted, the determination 
 manifested to persist in it, and the danger of delay. 
 But in case of deliberate, dangerous, and palpable in- 
 fractions of the Constitution, affecting the sovereignty 
 of the State and liberties of the people, it is not only 
 the right, but the duty, of each State to interpose its 
 authority for their protection, in the manner best cal- 
 culated to secure that end. When emergencies occur 
 which are either beyond the reach of judicial tribu- 
 nals or too pressing to admit of the delay incident to 
 their forms. States, which have no common umpire, 
 must be their own judges, and execute their own de- 
 cisions." 
 
Memoir of Kogee B. Taney. 335 
 
 Having thus asserted tlie right of each State to re- 
 dress its own wrongs inflicted by the working of the 
 Federal Government, and that the State is to judge 
 for itself when it is wronged, the convention proceeds 
 to suggest amendments to the Constitution which 
 would prevent the New England States from being 
 oppressed, in future, by the working of the Federal 
 Government in the hands of a majority from some 
 other section of the country. The first amendment 
 proposed was to lessen the relative power of the 
 Southern States, by taking from them any representa- 
 tion in Congress based upon their slaves. The second 
 amendment proposed was to prevent the admission of 
 any new State into the Union without the concur- 
 rence of two-thirds of both houses of Congress. 
 " The admission of new States into the Union [said 
 the convention] formed at j)leasure in the Western 
 region, has destroyed the balance of power which 
 existed among the original States, and deeply affects 
 
 their interests None of the old States can 
 
 find an interest in creating prematurely an over- 
 whelming Western influence, which may hereafter 
 discern (as it has heretofore) benefits to be derived to 
 them by wars and commercial restrictions." 
 
 It was now the year 1819, and so dominant had 
 been the influence of the Southern States in the work- 
 ing of the Federal Government, that all the Presi- 
 dents, as we have seen, except one, had been elected 
 
336 Memoik of Eogek B. Taney. 
 
 from a slave State. And the exceptional one was 
 defeated for the second term. The New England 
 States, therefore, determined to persist in their policy 
 begun in 1803, and declared in the Hartford Conven- 
 tion in 1815, of resisting the admission of any new 
 State into the Union which would be adverse to their 
 relative power in the working of the Federal Govern- 
 ment. When, therefore, Missouri, which was a slave 
 territory identified with the Southern States because 
 of slavery, asked for admission, as a State, into the 
 Union, the New England States opposed it, unless she 
 would, by her Constitution, abrogate slavery forever. 
 William Pinkney, the great lawyer, was then a Sena- 
 tor from Maryland in the Congress of the United 
 States, and stood forth as the chamjjion of the equality 
 and sovereignty of a State when admitted into the 
 Union. Rufus King, a Senator from New York and 
 a man of great ability and high honor, was the leader 
 of the j)arty which wished to introduce States into the 
 Union manacled by Federal authority. Such was the 
 marvellous power of Pinkney's vindication of the 
 right of States to be admitted, if admitted at all, into 
 the Union on no other conditions than those imposed 
 by the Constitution of the United States, that the 
 enemies of State sovereignty quailed under his mighty 
 blows. And Rufus King, while yet subdued by 
 Pinkney's Titanic strength, remarked to John Nelson, 
 whom I have mentioned as my preceptor in the law, 
 
Memoir of Eogee B. Taney. 337 
 
 then just elected a representative in Congress, that the 
 speech of Pinkney had enlarged his admiration of the 
 capacity of the human mind. 
 
 The argument of Pinkney so far prevailed, that 
 political managers on both sides settled the question, 
 for the time, by the Missouri compromise — an Act of 
 Congress which provided that slavery should not be 
 carried into any territory north of a certain geo- 
 graphical line. Upon this settlement, Missouri was 
 admitted as a slave State into the Union in 1820. 
 
 This was the first direct attack, made by the repre- 
 sentatives of New England civilization, uj^on the pro- 
 visions of tlie Constitution which guarantee equal 
 rights, to the slave States. Because slave labor was 
 not profitable in the New England States, slaves had 
 gradually passed from those States, by sale, to the 
 Southern States. The question of the balance of 
 power in the politics of the country was, therefore, 
 becoming a sectional question between slave-holding 
 and non-slaveholding States. That the question was, 
 at this time, rather a question of political power than 
 of hostility to slavery, is shown by the fact that while 
 the New England States were opposing the admission 
 of Missouri into the Union, some of their prominent 
 citizens were engaged in the African slave-trade, and 
 Judge Story was, throughout his circuit, charging the 
 grand juries, by elaborate arguments, to bring the 
 nefarious traflSickers to punishment. The African slave- 
 
 22 
 
338 Memoik of Koger B. Taney. 
 
 trade had been made a crime by Act of Congress. 
 But before the Act, and from the first settlement of 
 the country, the colonies, and afterwards the States, 
 both of New England and of the South, had acted 
 upon the principle that a negro has no rights which 
 a white man is bound to respect. All the wealth of 
 New England, and all her institutions, have their 
 roots in the nefarious trafiic of men and women torn 
 from their African homes, and subjected to the suffer- 
 ings and cruelties of a prison-ship, to be sold into 
 perpetual slavery to a different jieople. 
 
 " The Boston Gazette and Country Journal'^ on 
 Monday, July 22d, 1776, then published at Water- 
 town, contains the Declaration of Independence and 
 the proceedings of many towns in Massachusetts in 
 regard to it ; and it also contains the following adver- 
 tisement : 
 
 "To BE Sold. 
 
 " A stout, strong, healthy negro man, about twenty- 
 five years of age; has had the small-pox; can turn his 
 hand to almost anything. He likes farming business 
 the best: he is well clothed. The pay may be on 
 interest, giving security. Inquire of the printer." 
 
 When the Federal Constitution was established, in 
 1789, it recognized in a special manner the institution 
 of slavery, founding upon it even the relative sectional 
 representation in Congress, and by an express provi- 
 sion gave the authority and guaranteed the right to 
 
Memoir of Eoger B. Taney. 339 
 
 slave owners to seize their fugitive slaves in any State 
 in the Union, and take them home, as they would 
 their ox or their horse. And the Federal Govern- 
 ment was established on slave territory, and the pur- 
 cliase and sale of negroes were carried on under the 
 eaves of the Capitol, in the presence of Congress and 
 the other departments of the Government, as it had 
 been on the ceded territory when it was a j)art of the 
 States of Maryland and Virginia. Slavery was one 
 of the fundamental institutions in our system of 
 federative local self-government. 
 
 In 1828, while John Quincy Adams was President 
 of the United States, the Federal party having been 
 rendered odious in New England by the Hartford 
 Convention, Harrison Gray Otis, and others to whom 
 the stigma attached of having plotted the secession 
 of the New England States in time of war, inquired, 
 by letter, of Mr. Adams, whether he ever charged 
 New England Federalists with a 2:iurpose to set up a 
 separate confederacy. Mr. Adams frankly admitted 
 that he had made such a charge to Mr. Jefferson and 
 to others. He asserted that such a plot began in 1803, 
 and culminated in the Hartford Convention. In a 
 communication in the National Intelligencer, of Octo- 
 ber 21, 1828, Mr. Adams said, "That their object was, 
 and had been for several years, a dissolution of the 
 Union and the establishment of a separate confedera- 
 tion, he knew from unequivocal evidence, although 
 
340 Memoir of Kogek B. Taney. 
 
 not i^rovable in a court of law ; and that, in tlie case 
 of a civil war, the aid of Great Britain to effect that 
 purpose would be as surely resorted to as it would be 
 iudisjiensably necessary to the design." 
 
 In his letters to Mr. Otis and others, he denied the 
 right of a State to secede from the Union, by reason- 
 ing, in which I fully concur. "My principles," he 
 said, " do not admit the right even of the people, still 
 less of the Legislature, of any one State to secede at 
 pleasure from the Union. No provision is made for 
 the exercise of this right, either by the Federal or 
 any of the State Constitutions. The act of exercising 
 it j^resupposes a departure from the principle of the 
 compact, and a resort to force. 
 
 "If, in the exercise of their respective functions, the 
 legislative, executive, and judicial authorities of the 
 Union on one side, and one or more States on the 
 other, are brought into direct collision with each other, 
 the relations between the parties are no longer those 
 of constitutional right, but of independent force. 
 Each party construes the common compact for itself. 
 The constructions are irreconcilable together. There 
 is no umpire between them, and the appeal is to the 
 sword — the ultimate arbiter of right between indepen- 
 dent States, but not between members of one body 
 politic." 
 
 After the expiration of his presidential term, Mr. 
 Adams was, notwithstanding his charge against lead- 
 
Memoir op Eoger B. Taney. 341 
 
 ing Ne-ftr England Federalists, elected from Massa- 
 chusetts a representative in the Congress of the United 
 States. He was essentially a New England man, 
 with all the idiosyncrasies of the descendants of the 
 Puritans. All his travel, observation, study, and 
 varied experience had but nurtured his original type 
 of character. He became in Congress the representa- 
 tive man of New England civilization. He was the 
 first ex-president who had taken a seat in Congress. 
 This alone rendered his position peculiar. 
 
 Up to this time the agitation in regard to slavery 
 was political, having reference exclusively to the ter- 
 ritories; its aim being to prevent the Southern States 
 from growing in political strength, and perpetuating 
 their rule in the Federal Government. But a party 
 was now forming, with political aims, who regarded 
 slavery as a sin. And as the Constitution guaranteed 
 the right to slaves, they soon declared the Constitution 
 to be "a covenant with death and an agreement with 
 hell," and proclaimed that there is a " higher law " 
 which makes it a duty to disregard the Constitution. 
 The party soon acquired the name of abolitionists. 
 Being radical in regard to slavery, it soon became 
 radical in regard to everything opposed to their aim. 
 Radicalism belongs rather to the instincts of man 
 than to his reason. What it calls nature, is the basis 
 of its doctrines. It strives to extirpate all distinctions 
 of every kind, political and social. It aims at equality 
 
342 Memoie of Eogek B. Taney. 
 
 and unity in politics ; and at the ajjotheosi^ of the 
 will of the numerical majority, without regard to the 
 political rights of a community as organized under 
 established government. It is philanthropic rather 
 than patriotic. It moves to its ends through paths of 
 destruction ; and always terminates by an inevitable 
 recoil of society to save itself from anarchy in a mili- 
 tary desj^otism. 
 
 Abolition now knocked at the doors of Congress 
 for admission. It selected Mr. Adams to present its 
 wishes to the Federal Legislature. On the 12th day 
 of December, 1831, it being the second week of the 
 first session of the Twenty-Second Congress, he pre- 
 sented fifteen petitions, all numerously signed, from 
 sundry citizens of Pennsylvania, praying for the 
 abolition of slavery and the slave-trade in the Dis- 
 trict of Columbia. At this time abolition was con- 
 sidered so odious a fanaticism, that Mr. Adams did 
 not venture to advocate the abolition of slavery in the 
 District of Columbia. He thought Congress might 
 legislate on the slave-trade in the District. Year after 
 year Mr. Adams continued to present the petitions of 
 the abolitionists from New England and other States. 
 The Southern States were, at this time, oppressed by 
 the high tariff; and were threatening nullification. 
 Every possible means were used to excite the fi-ee 
 States against the slave States, and also to incite the 
 slaves against their masters. The spirit of the agita- 
 
Memoir of Eoger B. Taney. 343 
 
 tion is exemplified in the extracts -which I have given 
 from Mr. Gruber's sermon. Yet Mr. Adams stood 
 forth in tlie House of Representatives, under the pre- 
 text of guarding the right of petition, the foraentor of 
 discord between the two great sections of the country. 
 All discreet men abhorred the purposes of the aboli- 
 tionists. In order, if possible, to stop the nefarious 
 agitation, the House of Eepresentatives, in May, 1836, 
 by a large majority, passed the following resolution : 
 
 " Resolved, That all petitions, memorials, resolu- 
 tions, propositions or papers, relating in any way, or 
 to any extent whatever, to the subject of slavery, shall, 
 without being either printed or referred, be laid upon 
 the table, and that no further action whatever shall be 
 had thereon." 
 
 The resolution only gave Mr. Adams the j)osition 
 of one seemingly defending the right of petition, 
 and it roused his perverse nature to a more deter- 
 mined purpose. The petitions now came to him in 
 such numbers that he sometimes presented two hun- 
 dred a day. He was, with all his might, fomenting 
 sectional strife. He turned his back upon the Mis- 
 souri comj)romise ; and when, on the 13th of June, 
 1836, the bill for the admission of Arkansas as a State 
 was before the House of Representatives, he offered 
 this amendment, saying he wished it to be inserted in 
 italics: "And nothing in this Act shall be construed 
 as an assent by Congress to the article in the Consti- 
 
344 Memoie op Eoger B. Tanet. 
 
 tution of the said State, in relation to slavery or the 
 emancipation of slaves, etc." He, with the other 
 abolitionists, voted against the admission of the State. 
 Arkansas was within the territory where slavery was 
 allowed by the Missouri compromise. Mr. Adams 
 was bent upon agitating the question of slavery, with 
 the hope that it would tear up the institution by the 
 roots. He was now the great leader of New England 
 radicalism. He felt happy in his power of mischief. 
 Strife had always been his delight. And a peculiar 
 zest was given to the present contest, as it was with those 
 who had dismissed both his father and himself from 
 power — the people of the Southern States. In this 
 work of discord, on the 25th of February, 1839, he 
 proposed, in the House of Representatives, the following 
 amendments to the Constitution of the United States : 
 
 " Resolved, by the Senate and House of Representa- 
 tives in Congress assembled, two-thirds of both Houses 
 concurring therein. That the following amendments to 
 the Constitution of the United States be proposed to 
 the several States of the Union, which, when ratified 
 by three-fourths of the Legislatures of the said States, 
 shall become and be a part of the Constitution of the 
 United States : — 
 
 " 1. From and after the 4th day of July, 1842, there 
 shall be throughout the United States no hereditary 
 slavery ; but on and after that day every child born 
 within the United States, their territories or jurisdic- 
 tion, shall be born free. 
 
Memoir of Eogek B. Taney. 345 
 
 " 2. With the exception of tlie territory of Florida, 
 there shall henceforth never be admitted into this 
 Union any State the Constitution of which shall tol- 
 erate within the same the existence of slavery. 
 
 " 3. From and after the 4th of July, 1845, there 
 shall be neither slavery nor slave-trade at the seat of 
 Government of the United States." , 
 
 The course of Mr. Adams greatly encouraged the 
 abolitionists in their work of mischief The Legisla- 
 tures of Massachusetts and Vermont approved his 
 course, and pledged him their support. Large bodies 
 of people in the Eastern, Northern, and Middle States 
 gave him their pledges of co-operation in his work of 
 aggression. Mr. Adams was now the hero of an agi- 
 tation pregnant with civil war. 
 
 In order to justify a course so jjerilous to the peace 
 of the country, Mr. Adams conceived a new theory 
 of the Constitution of the United States. He had 
 been invited, by the New York Historical Society, to 
 deliver a discourse on the fiftieth anniversary of the 
 inauguration of George Washington as President of 
 the United States. This he did on the 30th of April, 
 1839, two months after he had proposed his amend- 
 ments to the Constitution of the United States abolish- 
 in o- slavery. In his discourse he asserted that, by the 
 Declaration of Independence, the inhabitants of the 
 Colonies became one people, and that the rights pro- 
 claimed were " the natural rights of mankind." That 
 
346 Memoir of Roger B. Taney. 
 
 the Articles of Confederation, in wliicli it was declared 
 "each State retains its sovereignty," were a usurj)a- 
 tion, by the Legislatures of the several States and 
 their delegates in Congress, upon the rights of the 
 people of the United States constituting one blended 
 community. And that afterwards the Articles of 
 Confederation were abolished, and the people reclaimed 
 their rights, and in their own name, " we the people," 
 ordained and established the Constitution of the 
 United States upon the principles of the Declaration 
 of Independence proclaiming " the natural rights of 
 mankind." If it were true that the Constitution of 
 the United States was founded upon " the natural 
 rights of mankind," and not upon the separate rights 
 of the respective peoples of the different States, then 
 his proposed amendments were no breach of the im- 
 plied faith to the South, but only a measure carrying 
 out the principles of the Constitution. But when, as 
 is seen in the first part of this cha^Jter, the Declara- 
 tion of Independence was at once published in the 
 same newspaper, in Massachusetts, with advertisements 
 for the sale of negro slaves, and that the slave-trade 
 from Africa was tolerated until 1808, increasing the 
 number of slaves in the States, and the right to catch 
 fugitive slaves everywhere was guaranteed by the 
 Constitution, and the Federal Government was estab- 
 lished in slave territory, it becomes manifest that Mr. 
 Adams's theory of the Federal Constitution is an 
 
Memoir of Roger B. Taney. 347 
 
 absurdity. It was invented, by perverse ingenuity, to 
 serve a fanatical purpose ; and it bas since been in- 
 voked to justify acts of machination in tbe course in 
 wbicb Mr. Adams was the forerunner. 
 
 The House of Representatives, finding that their 
 resokition in regard to the petitions of the abolition- 
 ists bad not answered its purpose of quieting tbe agi- 
 tation, rescinded it in 1845, and consented to receive 
 tbe petitions and treat them considerately. But this 
 was only considered by the abolitionists as a triumph 
 in the progress of their cause. 
 
 I knew Mr. Adams personally, when he was a very 
 old man, and I a very young one ; and I i-enieniber 
 his conversations with singular pleasure. But, con- 
 scious of no motives but the love of truth and justice, 
 and a wish to present to tbe world the political lessons 
 which our history teaches, I am writing of Mr. Adams 
 as a great actor in a movement which, as we shall see, 
 bas shattered to pieces the Constitution of 1789, and 
 bas exhibited the dreadful spectacle of a land drenched 
 in fraternal blood, which the grand orator of New 
 England, in his sublime protest, in tbe Senate of the 
 United States, against the right of nullification, prayed 
 to God bis eyes might never behold. 
 
 Only a few weeks before Mr. Adams broached the 
 theory that, by the Declaration of Independence, the 
 colonies were merged into one homogeneous commu- 
 nity, founded upon " the natural rights of mankind," 
 
348 Memoib of Kogek B. Taney. 
 
 and that it was continued under the Constitution, Mr. 
 Webster argued the case of Earle vs. The Bank of 
 Augusta before Chief-Justice Taney, in which it was, 
 as we have seen, decided that the States are sovereign, 
 in accordance with the doctrine of the Supreme 
 Court, j^ronounced by Chief-Justice Marshall in the 
 case of Gibbons vs. Ogden, and in McCuUoch vs. 
 Maryland; two cases in which he, nevertheless, 
 leaned unusually towards the enlargement of Federal 
 power. In the first of these cases, Chief- Justice Mar- 
 shall said, " As preliminary to the very able dis- 
 cussion of the Constitution which we have heard from 
 the bar, and as having some influence on its construc- 
 tion, reference has been made to the political situation 
 of these States anterior to its formation. It has been 
 said that they were sovereign, were completely inde- 
 pendent, and were connected with each other only by 
 a league. This is true." In the other case, the 
 Chief Justice declared that the States retained their 
 sovereignty under the Constitution. 
 
 Mr. Webster, in discussing the question of sover- 
 eignty in relation to our complex political system, 
 said, " The term ' sovereignty ' does not occur in the 
 Constitution at all. The Constitution treats States as 
 States, and the United States as the United States ; and 
 by a careful enumeration declares all the powers that 
 are granted to the United States, and all the rest are 
 reserved to the States. If we pursue, to the extreme 
 
Memoir of Eoger B. Taney, 349 
 
 point, the powers granted and the powers reserved, 
 the powers of the general and the State Governments 
 will be found, it is to be feared, impinging and in con- 
 flict. Our hope is, that the prudence and patriotism 
 of the States and the wisdom of this Government will 
 prevent that catastrophe. . . . The States of this Union, 
 as States, are subject to all the voluntary and custom- 
 ary laws of nations." 
 
 In the same year Mr. Webster considered the 
 question of sovereignty, in a letter to the Barings of 
 London, who inquired of him whether the States had 
 power to contract loans at home and abroad. " Every 
 State [said Mr. Webster] is an independent, sovereign, 
 political community, except in so far as certain powers, 
 which it might otherwise have exercised, have been 
 conferred on a general Government, established under 
 a written Constitution, and exerting its authority over 
 the peojjle of all the States. The general Govern- 
 ment is a limited Government. Its powers are specific 
 and enumerated. All powers not conferred upon it 
 still remain with the States and the people. The 
 State Legislatures, on the other hand, possess usual and 
 extraordinary powers of government subject to any 
 limitations which may be imposed by their own Con- 
 stitutions, and with the exception, as I have said, of 
 the operation on those powers of the Constitution of 
 the United States. 
 
 " The security for State loans is the plighted faith 
 
350 Memoir of Eogee B. Taney. 
 
 of tlie State as a political community. It rests on the 
 same basis as other contracts with established Govern- 
 ments — the same basis, for example, as loans made in 
 the United States under the authority of Congress; 
 that is to say, the good faith of the Government 
 making the loan, and its ability to fulfil its engage- 
 ments." 
 
 The considerations which I have presented show 
 the enormity of the heresy presented by Mr. Adams 
 in his Jubilee oration, as it is called. 
 
 Chief-Justice Taney was invited by the New York 
 Historical Society to be j^resent on the occasion of Mr. 
 Adams's oration. He answered the invitation by the 
 following' letter : 
 
 Baltimore, April 18, 1839. 
 
 Gentlemen: — I regret very much that it will not 
 be in my power to be present at the celebration of the 
 fiftieth anniversary of the inauguration of George 
 Washington as the President of the United States, 
 by the Historical Society of New York. The event 
 about to be commemorated has been followed with so 
 many public blessings, and is connected with so many 
 grateful and cheering recollections, that I should have 
 rejoiced in the opportunity of uniting in its celebra- 
 tion. But the Circuit Court for the District of 
 Maryland will be in session at the time, and my 
 official duties therefore compel me to remain in Bal- 
 timore. 
 
 Accept my thanks for the invitation with which you 
 
Memoie of Rogee B. Taney. 351 
 
 have favored me, and I am with great respect, your 
 obedient servant, 
 
 R. B. Taney. 
 To J. Blunt and others. 
 
 Committee. 
 
 When General Jackson's second term expired, 
 there was no one to continue the restoration in the 
 working of the Federal Government begun by that 
 great ruler. Martin Van Buren succeeded him as 
 President. He was cold and crafty, always watching 
 for an opportunity, but had nothing heroic in his 
 nature, which is so essential to the character of a ruler 
 of the people. He had, by machination, broken up 
 the first Cabinet of General Jackson, and by playing 
 upon his hatred of Mr. Calhoun, whom the General 
 thought had been treacherous to him, he succeeded in 
 gaining his favor for himself as his successor. Van 
 Buren was called a " Northern man with Southern 
 principles." He was. certainly an extreme State- 
 rights man, as his " Inquiry into the origin and 
 course of political parties in the United States " 
 abundantly shows. The Southern State-rights party, 
 led by Mr. Calhoun, felt for him the contemptuous 
 hatred borrowed from their great leader. When Van 
 Buren became a candidate for re-election, all the 
 political factions and cliques and rings, led by log- 
 rolling politicians, combined with the disintegrated 
 national Republican party into an opposition, — for 
 
352 Memoir of Eogee B. Taney. 
 
 such a combination cannot be called a party, — and 
 called themselves Whigs, to indicate that their aim 
 was to overthrow the one-man power, which, as they 
 pretended, General Jackson had endeavored to estab- 
 lish. The great leaders. Clay and Webster, were re- 
 pudiated by this motley group led by political 
 tricksters ; and recognizing availability as the only 
 qualification for candidates for the Presidency and 
 Vice-Presidency, they, nominated William Henry 
 Harrison and John Tyler, a Federalist and a Nullifier, 
 to secure all the votes of such a heterogeneous multi- 
 tude as were concealed under the aj^pellation. Whig. 
 Pandering to the lowest feelings of human nature, this 
 combination succeeded in electing their candidates by 
 the instrumentalities of log-cabins, coon-skins, and 
 hard cider. From that moment, the great party 
 which Alexander Hamilton organized fell to the 
 lowest level in politics. 
 
 " Its principles [to use an expression of John Ran- 
 dolph of Roanoke,] were seven — five loaves and two 
 fishes." When a nation comes to think that it no 
 longer stands in need of great men to lead it, but re- 
 lies upon the wisdom of the intuitions of the multitude, 
 it soon brings upon itself woes, which, perhaps, may 
 be esteemed curses for rejjudiating the great men 
 whom God has endowed with superior wisdom for the 
 benefit of the country in which they are born. The 
 Federalist died, and the Nullifier became President, 
 
Memoir op Eoger B. Taney. 353 
 
 and administered the Government upon his special 
 views of the Constitution. The Democratic party, 
 fighting the opposition upon the level of availability, 
 now nominated James K. Polk for President ; and the 
 other party nominated Henry Clay as their candidate. 
 Polk was elected by a large majority, which elicited 
 from Mr. Clay the remark that he was always nomi- 
 nated when his defeat was certain, and never when 
 his election was probable. The truth is, both parties 
 had ceased to appreciate great men. Amidst the 
 extraordinary development of the material resources 
 of the country, the nation had come to consider phys- 
 ical power and territorial extent the chief glory of a 
 great people. Therefore it was that combinations of 
 corporations and public companies, and speculators, 
 and money changers, became a great jjower in the 
 politics of the country. Their schemes of personal 
 aggrandizement could not receive the same favor from 
 great statesmen, aspiring to a proud name in history 
 as wise rulers, as they would from men of narrow 
 understandings, neither knowing what constitutes his- 
 torical honor nor caring for it. As early as 1833, it 
 had been attempted to make the election of President 
 of the United States turn uj^on the question of Masonry 
 or anti-Masonry ; and so respectable a man as the 
 eminent lawyer William Wirt consented and became 
 the candidate for the Presidency upon so preposterous 
 an issue. John Quincy Adams had written the ques- 
 
 23 
 
354 Memoir of Kogee B. Taney. 
 
 tion into a factitious importance. Mr. Wirt received 
 the entire vote of Vermont. I mention anti-Masonry, 
 to show what silly elements had entered into the 
 politics of the country, along with the demoralizing 
 influences of a universal greed for gain attempting to 
 work the Government for its aggrandizement. 
 
 By an unrighteous war with Mexico we had, by 
 conquest, added an immense territory to our wide 
 domain. General Taylor, who was one of the military 
 actors in the conquest, was now, in 1849, made Presi- 
 dent, more by a prurient political sentiment than any- 
 thing else, for he had not a qualification for the high 
 place. Wise men, lovers of republican institutions, 
 were grieved to see that the elective franchise can, in 
 an enlightened country, elevate to the highest places 
 of responsibility just as incompetent pei'sons as hered- 
 itary right has ever done. General Taylor died in 
 a few montlis, and Mr. Fillmore, the Vice-President, 
 succeeded to his place. He was a man of high char- 
 acter and respectable abilities. 
 
 A momentous crisis had come in the progress of the 
 nation. The addition of more territory to the country 
 had fomented anew the hostility against slavery. The 
 possible admission of more slave States, formed out of 
 this territory, into the Union, made anti-slavery feel 
 that, after all the progress of the country, the sceptre 
 of Federal rule might be wielded by the slave power, 
 as it was contemptuously designated. The " Life of 
 
Memoie of Roger B. Taney. 355 
 
 John Quincy Adams," written by William H. Seward, 
 was now published, to couple his own name and that 
 of Mr. Adams with the abolition movement, which, 
 he foresaw, was likely in the course of events to be- 
 come the soul of the Free-soil party, now growing 
 mighty in strength and in daring. He knew full well 
 that all movements in politics are apt to reach their 
 logical consequences ; and that Free-soil might cul- 
 minate, either by peaceful means or by violence, in 
 abolition. He knew that he himself was but watching 
 his opportunity to take advantage of the culmination, 
 however it might be. 
 
 It is a fact, which this nation, so mighty for good or 
 for evil, ought ever to remember with gratitude to 
 God, that their great statesmen. Clay and Webster, 
 were sioared to effect the settlement or comj^romise of 
 1850, and leave one more example of statesmanship in 
 the legislation of the Federal Government, and there- 
 by postpone civil war, so that the eyes of such patriots 
 should not behold its bloody scenes. 
 
 The compromise of 1850 declared that Congress 
 would not interfere on the question of slavery in the 
 territories acquired since the Missouri compromise, 
 but would leave the question to the inhabitants of the 
 respective territories. It prohibited the public sale 
 of slaves in the District of Columbia. And it enacted 
 a law for the recovery of fugitive slaves, which was 
 supposed to be less obnoxious to the free States than 
 
356 Memoir of Kogee B. Taney. 
 
 tlie law of 1793. This settlement only inflamed the 
 abolitionists to a more fanatical zeal, in which they 
 were encouraged by politicians who pretended to be 
 only Free-soilers. The settlement of the slavery agi- 
 tation in the territories would make politics too ra- 
 tional and too tranquil for their coarse ambition, which 
 breathed the sj^irit of " rule or ruin." The Legisla- 
 tures of many of the free States passed laws not only 
 hindering and obstructing the execution of the fugitive 
 slave laws, but subjected the owners of slaves, in the 
 exercise of their right of recovery, to punishment in the 
 penitentiary. Mr. Webster, in his celebrated speech 
 of the 7th of March, 1850, on Mr. Clay's compromise 
 measures, had maintained, as Chief-Justice Taney had 
 in the case of Prigg vs. Pennsylvania, that it was the 
 duty of the several States, under the Constitution, to 
 aid the Federal Government in executing the provision 
 in the Constitution relative to fusiitives from labor. 
 Mr. Webster knew that, as long as the free States 
 disregarded this important provision of the Constitu- 
 tion, and obstructed the execution of it, they were 
 estopped from charging breaches of the Constitution 
 against the slave States. In a speech at Capon Springs, 
 in Virginia, on the 28th of June, 1851, in alluding to 
 this subject, he said, " How absurd it is to suppose 
 that, when different parties enter into a compact for 
 certain purposes, either can disregard any provision, 
 and expect, nevertheless, the other to observe the rest ! 
 
Memoir of Eoger B. Taney. 357 
 
 I intend, for one, to regard and maintain and carry 
 out, to the fullest extent, the Constitution of the United 
 States, which I have sworn to support in all its parts 
 and all its provisions. It is written in the Constitution : 
 ' No person held to service or labor in one State, 
 under the laws thereof, escaping into another, shall, in 
 consequence of any law or regulation therein, be dis- 
 charged from such service or labor, but shall be deliv- 
 ered up on claim of the party to whom such service or 
 labor may be due.' 
 
 "That is as much a part of the Constitution as any 
 other, and as equally binding and obligatory as any 
 other on all men, public or private. And who denies 
 this ? None but the abolitionists of the North. And 
 pray, what is it they will not deny ? They have but 
 one idea ; and it would seem that these fanatics at the 
 North and the secessionists at the South are putting 
 their heads together to devise means to defeat the 
 good designs of honest and patriotic men. They act 
 to the same end and the same object ; and the Consti- 
 tution has to take the fire from both sides. 
 
 " I have not hesitated to say, and I repeat, that if 
 the Northern States refuse, wilfully and deliberately, 
 to carry into eifect that part of the Constitution which 
 resjDects the restoration of fugitive slaves, and Con- 
 gress provide no remedy, the South would no longer 
 be bound to observe the compact. A bargain cannot 
 be broken on one side, and still bind the other. I say 
 
358 Memoir of Eoger B. Taney. 
 
 to you, gentlemen in Virginia, as I said on the shores 
 of Lake Erie and in the city of Boston, as I may 
 again in that city or elsewhere in the North, that you 
 of the South have as much right to receive your fugi- 
 tive slaves as the North has to any of its rights and 
 privileges of navigation and commerce." 
 
 Mr. Calhoun died in 1850, and Mr. AVebster and 
 Mr. Clay died in 1852. Lesser stars now began to 
 shed disastrous light, from the political firmament, 
 upon the national destiny. The line of statesmen 
 bad ended; and politicians had succeeded to the gov- 
 ernment of the people. Political managers began 
 to disturb the work of pacification commenced, by 
 Mr. Clay, in the Missouri compromise ; continued in 
 the Revenue bill to arrest, by peaceful means, threat- 
 ened nullification ; and consummated in the compro- 
 mise of 1850 — constituting a civic crown of glory for 
 that celebrated statesman. 
 
 In 1852, the Democratic j^arty nominated and elect- 
 ed Franklin Pierce; pledging, in their political plat- 
 form, to maintain the compromise of 1850 relative to 
 slavery. But Mr. Senator Douglas, from Illinois, 
 aspiring to succeed either Mr. Pierce or his successor 
 as a Democratic President, assuming that he was only 
 carrying out the policy of the compromise of 1850, 
 introduced the Kansas-Nebraska bill into the Senate 
 in 1854, and it became a law by which territory 
 that had, by the Missouri compromise, been assigned 
 
Memoik of Eoger B. Taney. 359 
 
 to occupation only as free territory, was brought within 
 the non-intervention principle of the compromise of 
 1850, so that slave-owners might occupy it with their 
 slaves ; and the Missouri compromise was repealed. 
 Now ensued a contest for the occupation and control 
 of that territory by emigrants from the slave and the 
 free States, which ended in murder and plunder, and 
 other outrages which would disgrace even a barbarous 
 people. The opposing sections of the country became 
 infuriated with the spirit of the murderiug factious 
 of Kansas. Abolition, and its aiders and abetters, 
 gloated over a contest which they hoped was the fore- 
 runner of a crusade for the extirpation of slavery in 
 the States, and the humiliation of the slave-owners. 
 
 In the midst of these premonitions of a coming 
 catastrophe, James Buchanan was, in 1856, elected 
 President of the United States by the Democratic 
 party. His was not the hand to hold the sceptre in 
 such times. Looking at the fearful scenes around 
 him, and forecasting still more fearful consequences, 
 knowing, as he did, that the accumulated wrath of 
 a struggle that began in 1820 was pent up in the 
 contest, catching at a straw, he announced in his 
 Inaugural that a case relative to the constitutional 
 question about the occupation of the territories was 
 pending in the Supreme Court of the United States, 
 the decision of which might appease the storm ; as 
 he, as the President, should abide by it. It was the 
 celebrated Dred Scott case. 
 
360 Memoik of Roger B. Taney. 
 
 The day after the inauguration, the decision was 
 announced. Instead of the quiet which President 
 Buchanan's blind hope anticipated, the decision ex- 
 cited more rancorous hate than any other judgment 
 of a Court since man first submitted disputes to the 
 arbitrament of law. The abolitionists considered it a 
 decision enforcing "A covenant with death and an 
 agreement with hell," as they called the Constitution 
 of the United States. And the Free-soilers, from that 
 moment, caught the fanatical spirit of the abolition- 
 ists. 
 
 The great question involved in the case was, whether 
 . it be competent for the Congress of the United States, 
 directly or indirectly, to exclude slavery from the ter- 
 ritories of the Union f The Supreme Court decided 
 that it is not. This was the opinion of six Judges 
 out of the eight who composed the Court. Justice 
 McLean and Justice Curtis dissented. 
 
 The opinion of the Court was delivered by Chief- 
 Justice Taney, though the other five Judges, who con- 
 curred in the opinion, delivered separate opinions. 
 
 The opinion of Chief-Justice Taney, and a supple- 
 ment which he afterwards prepared, because of the 
 clamor against him, to justify his opinion before the 
 publicists of the world and before the judgment of 
 future ages, are published among the appendices to 
 this volume. The two combined constitute the most 
 comprehensive and best - reasoned politico -judicial 
 
Memoir of Eoger B. Taney. 361 
 
 opinion ever pronounced by any tribunal. No such 
 question could arise before any other judicature in the 
 world. It sprung out of our peculiar polity and form 
 of government. 
 
 The opinion is based upon the doctrine that when 
 the American colonies were settled, property in African 
 negroes was recognized by the public law of Europe ; 
 and that trade in negroes as merchandise was regula- 
 ted by public treaties and by municipal legislation. 
 That European States vied with each other in getting 
 control of the trade, because of its enormous j^rofits. 
 England, whose royal family was especially reaping 
 its profits, obtained by the treaty of Utrecht, in the 
 year 1713, as it had done years before, the almost 
 entire control of the trade of supplying the American 
 colonies with slaves. That the people of England, 
 dissatisfied with the monopoly by a few royal favorites 
 of such a profitable trade, forced Parliament to open 
 it to all subjects. That the crown lawyers of Eng- 
 land, and the Judges of the Courts of Westminster, in 
 giving opinions to the British Government on the 
 navigation act, put negroes on the same footing, as 
 property, with rum, and included them in the words 
 goods and merchandise. That States of Europe, in 
 this phase of public law and national practice, intro- 
 duced slavery into their American colonies, and es- 
 tablished property in negroes, as recognized by public 
 law, just as slavery on the continent of Europe had 
 
362 Memoie. of Roger B. Taney. 
 
 always been recognized by the law of nations. That 
 when the Constitution of the United States was formed, 
 negroes were just as much property as any other goods 
 and merchandise ; and that the right to their slaves 
 as property, in accordance with the common law of 
 the Colonies, was guaranteed, by its jarovisions, to their 
 owners when they escaped to other States than those 
 in which they were held to labor ; and that the States 
 to which they had fled were bound to deliver them to 
 their owners on demand. That, such being the law 
 of jiroperty recognized by the Constitution, and incor- 
 porated into its 251'ovisions, a master had as much 
 right to take his slaves, as any other j^roperty, into 
 the common territories of the United States, held by 
 the Government in trust for all citizens, no matter in 
 what State tliey resided ; and that, as the Missouri 
 compromise was in violation of this right, it was null 
 and void. And that negroes, being considered by the 
 Constitution as only property, could not, when freed 
 by their masters, thereby become citizens of the 
 United States. 
 
 In order that this decision, which has been reversed 
 by one of the most terrible and bloody wars ever en- 
 acted by infuriated man, may be tested by the objec- 
 tions of the dissenting Judges, I will consider the 
 opinion of Justice Curtis ; it being esteemed as em- 
 bracing the whole dissenting argument. 
 
 Justice Curtis, when he comes to the main question, — 
 
Memoik of Koger B. Taney. 363 
 
 and I sliall consider none other, — looks at it through 
 the pinhole of a provincial creed, which excluded all 
 the light of history by which alone the question could 
 be properly understood. One sentence embraces the 
 pith of his dissenting doctrine. " Slavery," says Jus- 
 tice Curtis, " being contrary to natural right, is created 
 only by municipal law." From his doctrine, that 
 slavery is created only by municipal law, he argues 
 that a citizen of the United States cannot take his 
 slaves into a territory, and own them there, because the 
 Constitution of the United States " has neither made 
 nor j)rovided for any municipal regulations which are 
 essential to the existence of slavery." 
 
 The doctrine that slavery was created by municipal 
 law, is one of the most extraordinary aberrations from 
 a great fundamental principle of public law to be 
 found in the history of judicial administration ; and 
 that one of such well - ordered faculties as Justice 
 Curtis should have enunciated such a doctrine in a 
 case of so much import, can only be accounted for by the 
 bias of the political aspect of the question. Mr. Curtis 
 should have remembered that Plato based the lawful- 
 ness of slavery upon the ground of captivity in war ; 
 and that, following this theoretical view of the matter, 
 the Roman jurists, more than fifteen centuries ago, based 
 it upon the same ground, and established it as a prin- 
 ciple of Eoman jurisprudence that slavery originated 
 in the,yMS gentium, the law of nations. And the insti- 
 
364 Memoie of Eoger B. Taney. 
 
 tution of slavery, in all the nations of Europe, was 
 recognized, by publicists, as reposing upon a right 
 originating in, and protected by, the law of nations. 
 If a slave ran away, the owner had a right, under the 
 law of nations, which was the law of every State, to 
 capture him in any country to which he may have 
 escaped, and carry him home, like any other property. 
 This right is shown by the following extract from a 
 letter written by Vatinius, Governor of lUyricum, to 
 Cicero : " Being informed that the slave you employed 
 as your reader, had run away from you into the coun- 
 try of the Vardaei, I have caused diligent search to 
 be made after him, although I did not receive your 
 commands for that purpose. I doubt not of recovering 
 him, unless he should take refuge in Dalmatia ; and 
 even in that case, I do not entirely despair." Where 
 any right is recognized by the law of nations, it would 
 be a breach of comity for any State to deny a remedy 
 to one seeking the enjoyment of that right, whether 
 to a slave or to the enforcement of a contract recog- 
 nized by the law of nations. The Roman law, as every 
 jurist knows, puts slavery, and almost all contracts, 
 upon the same legal basis, of having been introduced 
 by the law of nations. No State can abrogate the 
 legal right to a slave escaping from another State; but 
 it may refuse a remedy, just as it may refuse a remedy 
 upon a contract, because every State is sovereign over 
 the remedies in its forums. 
 
Memoir of Rogee B. Taney. 365 
 
 That African slavery, like the slavery under the 
 Roman dominion, originated in the law of nations, or in 
 the common practice of European States of dealing in 
 negroes as ordinary merchandise, with no rights to be 
 respected, being, as it was thought, an inferior order 
 of beings, is a fact of history so indubitable, that only 
 egregious ignorance or a blinding flmaticism can deny 
 it. As an inferior order of beings, having no human 
 rights, negroes were brought as property, called slavery, 
 into all the colonial settlements of America. They 
 were property on the shores of Africa, were received 
 as property into the slave-ships, were held as property 
 on the ocean, and were sold as property to the white 
 inhabitants of the American colonies. It is difficult 
 for a publicist to treat with respectful forbearance the 
 doctrine that such a right of property was " created 
 only by municipal law." And even down to and after 
 the Declaration of Independence, negroes were so little 
 thought of as human beings, that they were not con- 
 sidered as embraced in the words of that instrument, 
 but were, as we have seen, advertised for sale in the 
 same paper published in Massachusetts in which that 
 instrument was first declared to the people of that 
 Commonwealth in July, 1776. 
 
 But the reason which Justice Curtis gives for his 
 extraordinary doctrine, that slavery was created only 
 by municipal law, is even more extraordinary than 
 the doctrine. "Being contrary to natural right" is 
 
366 Memoir of Rogek B. Taney. 
 
 the reason uj)on which he rests the doctrine. Cer- 
 tainly, Roman slavery was contrary to natural right; 
 and surely he will not say that was created by munici- 
 pal law, in the face of all Roman jurists to the contrary. 
 Can it be that Justice Curtis was led into this extra- 
 ordinary doctrine by reading mistranslations of Jus- 
 tinian's Institutes, where the words servitus contra 
 naturam are rendered slavery is contrary to natural 
 right, and, confusedly remembering that the law of 
 nations is sometimes called, by jurists, the law of 
 nature, jumped to the conclusion that slavery, being 
 contrary to natural right, cannot be created by the law 
 of nations, which is the law of nature, therefore it 
 must be created by municipal law ? 
 
 The law of nature, in the writings of jurists, is a 
 very ambiguous thought. It sometimes means oppo- 
 site things. Cicero, in the first book and third chap- 
 ter of the Tusculan Questions, makes the consent of 
 all nations in regard to any thing the law of nature. 
 Omni in re consensio omnium geyitium lex naturcB 
 jndanda est. Gaius, who wrote about two centuries 
 after Cicero, makes no allusion, in treating of slavery 
 in his Commentaries on the Roman law, to the jus 
 naturale, law of nature. But Ulpian introduced the 
 jus naturale, by way of theoretical completeness, into 
 Roman law; and it was afterwards incorporated into 
 Justinian's Institutes, which were published in the 
 year 533 of the Christian era. In order to understand 
 
Memoir of Kogee B. Taney. 367 
 
 what is meant by the jus naturale, law of nature, in 
 Roman jurisprudence, we must refer to a passage in 
 the first book and second title of Justinian's Institutes. 
 " The law of nature is that law which nature teaches 
 to all animals. For this law does not belong exclu- 
 sively to the human race, but belongs to all animals, 
 whether of the earth, the air, or the water. Hence 
 proceeds the union of male and female, whicli we term 
 matrimony ; hence the procreation and education of 
 children. We see, indeed, that all other animals be- 
 sides man are considered as havino; a knowledge of 
 this law." It is seen that this law of nature is not a 
 moral law at all. Nothing ethical is involved in its 
 meaning. It merely describes relations in the order 
 of nature, which suggest the notion of law, like physi- 
 cal law binding things in certain relations. When, 
 therefore, in the first book and second title of Justin- 
 ian's Institutes, it is said that slavery is contrary to 
 the law of nature, it means such a law as that just 
 mentioned. And when it is said to be contrary to 
 nature, the same thing is meant. Slavery does not 
 come by nature; it is not a natural relation like that 
 of children. It comes by the law of nations. 
 
 Dr. Harris, more than a hundred years ago, trans- 
 lated contra naturam, contrary to natural right; and 
 Dr. Coo2:)er and others have adopted his blunder. 
 When the commissioners of Justinian came to sys- 
 tematize the Roman law, they introduced, as Ulpian 
 
368 Memoir of Eogek B. Taney. 
 
 had done, ideas drawn from the philosophy of the 
 Stoics. This philosophy classed some things as ac- 
 cording to nature, and other things as contrary to 
 nature. The commissioners carried this theory into 
 the Eoman law. The notion of natural right had not 
 yet entered into human thought. It did not enter the 
 mind of man till ages had elapsed after the publica- 
 tion of the Institutes of Justinian. It is a purely 
 modern notion. In considering moral questions and, 
 much more, political questions, Pagan civilization 
 looked at them solely from the point of duty, never 
 from the j^oint of right. All Pagan ethical philoso- 
 phy culminated in the De Officiis of Cicero ; and in 
 that treatise virtues and duties only are discussed. To 
 ascribe to the Eoman Jurists the doctrine that slavery 
 is contrary to natural right, or o^igld of any hind, is to 
 ignore the spirit of the Imperial Jurists, and of the 
 civilization of the epoch. The Eomans did not pos- 
 sess the abstract idea of rights. Though Justinian 
 had, by an edict in the year 529, closed the schools 
 of Athens, and thereby Paganism was extinguished, 
 still Christianity, out of which the abstract idea of 
 rights has emerged, had but little influence on juris- 
 prudence at that time. 
 
 Having postulated that slavery is created only by 
 municipal law. Justice Curtis argues that slave prop- 
 erty cannot exist in the territories, because the Consti- 
 tution of the United States "has neither made nor 
 
Memoik of Eogek B. Taney. 369 
 
 provided for any municipal regulations wliich are 
 essential to the existence of slavery." Now, Justice 
 Curtis seems to have forgotten that it was the opinion 
 even of Mr. Jefferson that the United States had no 
 authority to acquire any territory when Louisiana was 
 purchased by him. Then, surely, the Constitution 
 could not have provided for any municipal regula- 
 tions essential to the existence of slavery in territo- 
 ries never to be, in contemplation of the Constitution, 
 procured. Mr. Webster, late in life, expressed the 
 opinion that the Constitution never contemplated the 
 acquisition of any more territory. And this was the 
 opinion of all public men who can be considered 
 publicists. 
 
 Down to the formation of the Articles of Confedera- 
 tion, so entirely did the comity between the Colonies 
 enable masters to recover runaway slaves, that no pro- 
 vision on the subject was incorporated into the articles. 
 But when the Constitution was framed, as slavery was 
 no longer valuable in the Northern States, those States 
 where it was valuable, deemed it important to incor- 
 porate into the Constitution a provision containing the 
 principle of the comity in regard to fugitive slaves, 
 which had always existed between the Colonies when 
 all were interested in that species of property ; and it 
 was accordingly done. 
 
 All must rejoice when men once slaves have so far 
 improved as to become freemen, occupying a sphere of 
 
 24 
 
370 Memoir of Roger B. Taney. 
 
 higher duties and higher rights. But to speak of the 
 institution of slavery as political sciolists do, as an 
 unmitigated evil, crime, and sin, only betrays an igno- 
 rant presumption. It is coeval with human society ; 
 and it is the one great educational institution by 
 which, for thousands of years, the lowest classes of 
 people in all nations have, in the j)rogress of society, 
 been raised up from barbarism to a degree of intelli- 
 gence and self-control, when their restraints can be 
 removed. The greatest thinker of antiquity, Aristotle, 
 and who looked, perhaps, more j^i'ofoundly into all 
 forms of human polity and institutions than any 
 thinker even since his time, based slavery upon the 
 law of nature, as co-ordinate with the other social 
 relations, and originating in the necessities and good 
 of society. He saw so profoundly into the great 
 order of nature, that he acquired the philosophical 
 title of "The Interpreter of Nature," — "'ApiaTO've?.'^^ 
 triq (pvoEog ypafifiatevg rjv." And when Christianity 
 was sent into the world, slavery was a distinguishing 
 feature of the social arrangements of both the Jewish 
 and the Gentile world. Christianity did not single it 
 out for reprobation, but recognized it as a lawful insti- 
 tution, and gave precepts for regulating the relation 
 of master and slave, as it did for the other social 
 relations. 
 
 We must look at the institution of slavery as publi- 
 cists, and not as casuists. It is a question of law, and 
 
Memoir of Eoger B. Taney. 371 
 
 not a case of conscience. Chief-Justice Marshall, in 
 the year 1825, in the case of the slave-ship Antelope, 
 in the Supreme Court, 10 Wheaton Reports, in pro- 
 nouncing that the slave-trade was authorized by the 
 law of nations, said, "Slavery, then, has its origin in 
 force ; but as the world has agreed that it is a legiti- 
 mate result of force, the state of things which is thus 
 produced by general consent cannot be pronounced 
 unlawful." Many of the fundamental rules of tlie law 
 of nations have no moral foundation. By the law of 
 nations, the States of Europe claimed that, by the mere 
 fact of the discovery of America, as it was inhabited 
 by heathen barbarians, they acquired the absolute 
 title and dominion in the soil, and that the aboriginal 
 inhabitants had a mere right of occupation and use. 
 And in the case of Johnson vs. Mcintosh, in 8 Wheat- 
 on Reports, in the year 1823, Chief-Justice Marshall, 
 delivering the opinion of the Supreme Court, decided 
 that, because of the law of nations, the Indians have 
 only the right of possession to their lauds, and cannot 
 sell them except to the United States. And force is 
 recognized by the law of nations as the final arbiter in 
 political disputes. And even the most flagrant usur- 
 pations are recognized by jDublic law as having estab- 
 lished legitimate governments. Radicalism looks at 
 all questions of j)ublic law as cases of conscience ; and 
 is, therefore, ever on a crusade against the perennial 
 institutions of society. And it should ever be remem- 
 
372 Memoir of Eogek B. Taney. 
 
 bered that, — at the time when conscience played the 
 most important part in the politics of Europe, — by 
 the 'laws of Oleron, which were recognized every- 
 where, infidels were put upon the same footing with 
 pirates, as perpetual enemies, and subject to the ex- 
 treme rights of war. 
 
 Each age fixes the standard of right and wrong, of 
 legality and illegality, for itself; and all its rights of 
 every kind, and the corresponding duties and obliga- 
 tions express and implied, descend to the next age, 
 binding it just as they bound the previous age, who 
 fixed the standard by which the obligations were 
 contracted or incurred. In order to do justice, there- 
 fore, all rights, or claims of rights, which originate at 
 each epoch, must be determined by the opinions of 
 that epoch, and not by the opinions of subsequent 
 times. This is the doctrine of political and legal 
 justice. " Private opinions," said Lord Stowell, in 
 deciding the lawfulness of the slave-trade, " cannot be 
 carried into public judgments on the quality of ac- 
 tions." When the enlightened opinion of this century 
 first condemned the slave-trade, and, afterwards, the 
 institution of slavery, all nations and all communities 
 who had co-operated in establishing slavery, and had 
 shared in the profits of the trade, should have shared 
 in the losses of its abolition. This would be political 
 justice. 
 
 I rejoice that slavery no longer exists in our coun- 
 
Memoir of Kogee B. Taney. 373 
 
 try ; and as it is now a historical question, it is a part 
 of my duty to pass upon it such reflections as may en- 
 able all men to think wisely in regard to the real ques- 
 tion which was involved in the judgment pronounced 
 by Chief-Justice Taney in the Dred Scott case. 
 
 The opinion of Chief Justice Taney, in the Dred 
 Scott case, had hardly been read in open Court, before 
 the panders of the Free-soil party circulated, by all 
 means of communication, over every place where a 
 voter lived, that the Chief Justice had proclaimed, as 
 his personal opinion and not as a matter of public 
 law, that negroes have no rights which a white man is 
 bound to respect. A sentiment so atrocious, notwith- 
 standing the elevated position the Chief Justice had 
 attained, as we have seen, in public estimation, was 
 readily believed, and is still believed by perhaps a 
 majority of the people of the United States, had been 
 really expressed by the Chief Justice. In the wild, 
 willing imaginations of the party in whose path to 
 power the Dred Scott decision was a stumbling-block, 
 the Chief Justice appeared as a monster robed in the 
 habiliments of justice, in collusion with the Democratic 
 party, and delivering unrighteous judgments in their 
 interests. In the midst of this frantic state of party 
 feeling, the territory of Kansas, in the winter of 1858, 
 petitioned Congress to be admitted into the Union 
 with a Constitution allowing slavery. Whether the 
 Constitution expressed the wishes of the people of the 
 
374 Memoir of Eogee B. Taney. 
 
 territory or not, I have never been able to satisfy my- 
 self; but whether it did, or did not, was not of the 
 slightest weight in the contest then waging in Con- 
 gress. It had become the fixed purpose of the Free- 
 soil party, that no slave State should ever be admitted 
 into the Union. The question of slavery had been 
 discussed for forty years, and had now passed beyond 
 the frontier of reason. There was one man, prominent 
 in the politics of the country, who had been for many 
 years striving to fix it as a system of policy, that the 
 country should be governed by sectional animosities. 
 He hoped to wield the animosities of the strong sec- 
 tion against the weak, with his own hand, from the 
 Presidential chair. That man was William H. Seward. 
 He was now a Senator from the great State of New 
 York. By no means forgetting that he had sought the 
 moral influence of the name of Chief-Justice Taney, 
 as we have seen, to influence the public mind on a 
 measure in which, perhaps, he was interested in other 
 ways than as a Senator, but regardless of the fact, he 
 now denounces him for another purpose of his own. 
 It was on the 3d day of March, 1858, in his speech on 
 the bill for the admission of Kansas into the Union, 
 that William H. Seward, as Senator of the United 
 States, uttei-ed the following grave accusations against 
 Chief-Justice Taney in his judicial character. " At 
 this juncture, the new Federal administration came in, 
 under a President [Buchanan] who had obtained sue- 
 
Memoir of Eogek B. Taney. 375 
 
 cess by the intervention at the polls of a third party — an 
 ephemeral organization bnilt upon a foreign and frivol- 
 ous issue, which had just strength enough and life 
 enough to give to a pro-slavery party the aid required 
 to produce that untoward result. The new President, 
 under a show of moderation, masked a more effectual 
 intervention than that of his predecessor, in favor of 
 slave labor and a slave State. Before coming into office, 
 he aj)proached, or was approached, by the Supreme 
 Court of the United States. On their docket was, 
 through some chance or design, an action which an 
 obscure negro man, in Missouri, had brought for his 
 freedom against his reputed master. The Court had 
 arrived at the conclusion, on solemn argument, that, 
 inasmuch as this unfortunate negro had, through some 
 ignorance or chicane in special pleading, admitted what 
 could not have been proved, that he had descended 
 from some African who had been held in bondage, 
 therefore he was not, in view of the Constitution, a 
 citizen of the United States, and therefore could not 
 implead the reputed master in the Federal Courts ; 
 and on this ground the Supreme Court was prejoared 
 to dismiss the action for want of jurisdiction over the 
 suitor's person. This decision, certainly as repugnant 
 to the Declaration of Independence and the spirit of 
 the Constitution as to the instincts of humanity, never- 
 theless would be one which would exhaust all the 
 power of the tribunal, and exclude consideration of all 
 
376 Memoik of Kogek B. Taney. 
 
 other questions that had been raised ujDon the record. 
 The counsel who had appeared for the negro had 
 volunteered from motives of charity, and ignorant, of 
 course, of the disposition which was to be made of the 
 cause, had argued that his client had been freed from 
 slavery by operation of the Missouri prohibition of 
 1820. The oj^posing counsel, joaid by the defending 
 slave-holder, had insisted, in rej^ly, that that famous 
 statute was unconstitutional. The mock debate had 
 been heard in the chamber of the Court, in the base- 
 ment of the Capitol, in the presence of the curious 
 visitors at the seat of Government, whom the dulness 
 of a judicial investigation could not disgust. The 
 Court did not hesitate to please the incoming Presi- 
 dent, by seizing the extraneous and idle forensic 
 discussion, and converting it into an occasion for pro- 
 nouncing an opinion that the Missouri prohibition was 
 void ; and that, by force of the Constitution, slavery 
 existed, with all the elements of property in man over 
 man, in all the territories of the United States, para- 
 mount to any popular sovereignty within the territo- 
 ries, and even to the authority of Congress itself. 
 
 " In this ill-omened act the Supreme Court forgot 
 its own dignity, which had always before been main- 
 tained with just judicial jealousy. They forgot that 
 the province of a Court is simply 'jm dicere,' and 
 not at all 'jus dare.' They forgot, also, that one ' foul 
 sentence does more harm than many foul examples ; 
 
Memoir of Eogee B. Taney. 377 
 
 for the last do but corrupt tlie stream, while the former 
 corrupteth the fountain.' And they and the President 
 alike forgot that judicial usurpation is more odious 
 and intolerable than any other among the manifold 
 practices of tyranny. 
 
 " The day of inauguration came, the first one, among 
 all the celebrations of that great national pageant, that 
 was to be desecrated by a coalition between the Ex- 
 ecutive and Judicial departments to undermine the 
 national legislature and the liberties of the people. 
 The President, attended by the usual lengthened pro- 
 cession, arrived, and took his seat on the portico. The 
 Supreme Court attended him there, in robes which yet 
 exacted public reverence. The people, unaware of 
 the import of the whisperings carried on between the 
 President and the Chief Justice, and imbued with 
 veneration for both, filled the avenues and gardens far 
 away as the eye could reach. The President addressed 
 them in words as bland as those which the worst of 
 all the Koman emperors pronounced when he as- 
 sumed the purple. He announced (vaguely, indeed, 
 but with self- satisfaction,) the forthcoming extra- 
 judicial exposition of the Constitution, and pledged 
 his submission to it as authoritative and final. The 
 Chief Justice and his Associates remained silent. The 
 Senate, too, were there — constitutional witnesses of 
 the transfer of administration. They, too, were silent, 
 although the promised usurpation was to subvert the 
 
378 Memoir of Kogeb B. Taney. 
 
 authority over more than half of the empire which 
 Congress had assumed contemporaneously with the 
 birth of the nation, and had exercised, without inter- 
 ruption, for nearly seventy years. It cost the President, 
 under the circumstances, little exercise of magnanimity 
 now to promise to the people of Kansas — on whose 
 neck he had, with the aid of the Supreme Court, hung 
 the millstone of slavery — a fair trial in their attempt 
 to cast it off and hurl it to the earth when they should 
 come to organize a State government. Alas! that 
 even this cheap promise, uttered under such great 
 solemnities, was only made to be broken. 
 
 " The pageant ended. On the 5th of March, the 
 Judges, without even exchanging their silken robes 
 for courtiers' gowns, paid their salutations to the 
 President in the Executive palace. Doubtless the 
 President received them as graciously as Charles the 
 First did the Judges who had, at his instance, sub- 
 verted the statutes of English liberty. On the 6th of 
 March, the Supreme Court dismissed the negro suitor, 
 Dred Scott, to return to his bondage ; and having 
 thus disposed of that private action for an alleged 
 private wrong, on the ground of want of jurisdiction 
 in the case, they proceeded with mock solemnity to 
 pronounce the opinion that, if they had had such juris- 
 dictioji, still the unfortunate negro would have had to 
 remain in bondage unrelieved, because the Missouri 
 prohibition violates rights of general property involved 
 
Memoir of Roger B. Taney. 379 
 
 in slavery, paramount to the authority of Congress. 
 A few days hiter, copies of this opinion were multi- 
 plied by the Senate's press, and scattered in the name 
 of the Senate broadcast over the land; and their 
 publication has not yet been disowned by the Senate. 
 Simultaneously, Dred Scott, who had played the hand 
 of dummy in this interesting political game, unwill- 
 ingly, yet to the comj)lete satisfaction of his adversary, 
 was voluntarily emancipated ; and thus received from 
 his master, as a reward, the freedom which the Court 
 had denied him as a rieht. 
 
 ■"&' 
 
 " The new President of the United States having 
 organized this formidable judicial battery at the Capi- 
 tol, was now ready to begin his active demonstrations 
 of intervention in the territory." 
 
 This bungling sketch of an historical scene, by un- 
 skilful literary ambition, is an unmitigated calumny 
 from beginning to end, invented by a bad man to 
 serve in his machinations for the Presidency. 
 
 William H. Seward, in his place as Senator of the 
 United States, thus charged in an elaborate and care- 
 fully prepared speech, which has since been published 
 in one of the volumes of his printed writings, a corrupt 
 coalition between the chief executive magistrate of the 
 Union and the Judges of the Supreme Court of the 
 United States. He charges — and his charge is put into 
 a form to enter into history — that the Judges of our 
 highest Court, and the parties to the Dred Scott case, 
 
380 Memoir of Eogee B. Taney, 
 
 got ujD a mock trial, to serve a purpose in a political 
 game, by previous agreement with the President-elect 
 of the United States. Chief-Justice Taney is repre- 
 sented as whispering the terms of the nefarious bar- 
 gain into the ear of the President at the very moment 
 when he was administering to him the oath of office, 
 by which the majesty of Heaven was invoked to wit- 
 ness the purity of his intentions in the administration 
 of the government of his country. 
 
 By way of answer to this base accusation, it is only 
 necessary to state, for the information of future ages, 
 that years before Mr. Buchanan was even a candidate 
 for the Presidency, and years before even the meeting 
 of the Congress of 1854, which passed the Kansas- 
 Nebraska Act, Dred Scott had sought his freedom by 
 a suit in the State Courts of Missouri. It reached the 
 Supreme Court of Missouri, and was decided adversely 
 to Dred Scott, as early as 1852. In November, 1853, be- 
 cause of failure in the State Courts, the case was carried 
 into the Federal Court in the city of St. Louis. The 
 Kansas bill, which Mr. Seward made the occasion of 
 his charges, as though the case was got up to aid in its 
 passage, was not, at that time, even in the imagination 
 of any one. The case was decided in the lower Fede- 
 ral Court, and was taken by writ of error to the Su- 
 preme Court of the United States while Mr. Buchanan 
 was in England as American Minister. The case 
 came upon the docket of the Supreme Court by the 
 
Memoir of Koger B. Taney. 381 
 
 agency of the parties, like any other case ; and after 
 argument and re-argument it was, in the regular order 
 of the docket, decided. 
 
 Mr. Seward could not have believed one word of his 
 charges. He knew the truth ; but it was of no use to 
 him, and I believe hardly ever is to a man of crooked 
 ways. 
 
 In order to make his charge of judicial corruption 
 the more pointed, Mr. Seward alleged that the Court 
 said they had no jurisdiction over the case, but never- 
 theless decided it. So far from this being true, every 
 Judge held that the Court had jurisdiction over the 
 merits of the case; though they were divided in regard 
 to jurisdiction over the plea in abatement. This alle- 
 gation of Mr. Seward was made in order that the 
 decision might be considered an obiter dictum, and 
 therefore not binding as a precedent. 
 
 As Chief-Justice Taney has been singled out for the 
 vituperation of a political party, and of fanatics all 
 over the world, I publish the following letters from 
 Mr. Justice Campbell and Mr. Justice Nelson, the only 
 surviving Judges, except Mr. Curtis, who sat in the 
 Dred Scott case. From delicacy, I did not ask a letter 
 from Mr. Curtis. The letters will show the course 
 of Chief-Justice Taney in the consultation-room, and 
 vindicate him from all purpose to give the case a polit- 
 ical bearing on the issue with which Mr. Seward en- 
 deavored to connect it. 
 
382 Memoir of Koger B. Taney. 
 
 New Orleans, Nov. 24, 1870. 
 
 My Deak Sir: — Your letter of the 18th inst., re- 
 questing me to communicate " the facts or history of 
 the decision in the case of Dred Scott," that you may 
 vindicate the late Chief-Justice Taney from the infipu- 
 tation of complicity with Mr. Buchanan, has been re- 
 ceived. I am aware of no objection to the statement 
 of any fact concerning the judgment, but I hesitate to 
 believe that testimony is required to relieve the name 
 of the Chief Justice from a charge so improbable, 
 and so obviously calumnious and spiteful. The case of 
 Dred Scott was argued for the first time in the spring 
 of 1856. 
 
 There were several discussions at the conferences of 
 the Judges ujjon the case. There was much division 
 among them, and esjjecially upon the first question 
 presented. This was whether a plea in abatement that 
 decided that Dred Scott was a citizen of Missouri, or 
 capable of maintaining a suit in the Courts of the 
 United States, because he was a negro of African 
 descent, and his ancestors were African negroes im- 
 ported and held as slaves, was for consideration. The 
 minority of the Court, at that time, were of opinion 
 that this plea was not open for examination, nor 
 the judgment on it for review, because a demurrer 
 liad been filed to it, and sustained. The defendant had 
 then pleaded to the merits, and had succeeded in the 
 action. The writ of error had been taken by Dred 
 Scott, whose demurrer to the plea in abatement had 
 been sustained, and the judgment upon it submitted to 
 and complied with on the part of the defendant by 
 answering over. 
 
Memoir of Rogek B. Taney. 383 
 
 This minority was composed of Justices McLean, 
 Catron, Grier, and Campbell. The majority were 
 Chief-Justice Taney, Justices Wayne, Nelson, Daniel, 
 and Curtis. Justice Nelson hesitated, and proposed a 
 re-argument of that and other questions to be had at 
 the next term, and this was assented to, none objecting. 
 
 At the next term, these questions were again argued. 
 Upon the re-argument. Justice Nelson's opinion con- 
 curred with that of the minority above mentioned, and 
 they, by this addition, became the majority. Each of 
 these Judges has recorded in his opinion that there was 
 nothing in the plea in abatement before the Court for 
 review. I understand that four of them have decided 
 that the plaintiff, Dred Scott, was a slave upon the 
 facts established on the trial, and that he was not ca- 
 pable of maintaining a suit in the Courts of the United 
 States for that cause. 
 
 The other question of political, sectional, and party 
 interest arose upon the fact that Dred Scott, while in 
 the service of his master, went with him to a place in 
 the present State of Minnesota, north of the Missouri 
 line, and remained there two years in attendance on 
 him, when he returned to Missouri. This was about 
 fifteen years before the suit. He claimed that he be- 
 came free under the operation of the Act of Congress 
 of the 6th of March, 1820, prohibiting slavery in the 
 territory north of 36° SO north latitude. The major- 
 ity of the Court determined that the Act of Congress 
 did not operate upon Dred Scott under the particular 
 circumstances of his case, and also that it was inopera- 
 tive in any case to liberate a slave. The instruction 
 of the majority, in reference to the preparation of this 
 
384 Memoik of Kogee B. Taney. 
 
 opinion, was to limit the opinion to tlie particular cir- 
 cumstances of Dred Scott ; and Mr. Justice Nelson 
 prepared his opinion, on file, under this instruction, to 
 be read as the opinion of the Court. Subsequently, 
 and before it was read, upon a motion of Mr. Justice 
 Wayne, who stated that the case had created public 
 interest and expectation, that it had been twice argued, 
 that an impression existed that the questions argued 
 would be considered in the opinion of the Court, he 
 proposed that the Chief Justice should write an oj^inion 
 on all of the questions as the opinion of the Court. 
 This was assented to ; some reserving to themselves to 
 qualify their assent as the opinion might require. 
 Others of the Court proposed to have no question, save 
 one, discussed. It was under these circumstances that 
 the Chief Justice undertook that of)inion. The motion 
 of Mr. Justice Wayne was made without any notice to 
 me, and I do not know that he gave notice to any one 
 of the members of the Court. The apj^rehension had 
 been expressed by others of the Court, that the 
 Court would not fulfil jDublic expectation or discharge 
 its duties by maintaining silence upon these questions ; 
 and my impression is, that several opinions had 
 already been begun among the members of the Court, 
 in which a full discussion of the case was made, before 
 Justice Wayne made this proposal. 
 
 I have not the slightest information of any connec- 
 tion between Mr. Buchanan or any other person, with 
 the discussions in the Court or the conference, or with 
 the preparation of any opinion of either of the Judges, 
 save the Judges themselves. 
 
 Very respectfully, yours, J. A. Campbell. 
 
 Samuel Tylee, Esq. 
 
Memoik OF RoGEK B. Taney. 385 
 
 I left this letter from Judge Campbell with Mr. 
 
 Justice Nelson, and requested him to give me his 
 
 views in regard to its contents. In answer, he wrote 
 
 me the following letter : 
 
 Washington, May 13, 1871. 
 
 Dear Sir : — I have read with care the letter of 
 Judge Campbell, dated 24 Nov., 1870, addressed to you 
 on the subject of the opinion in the "Dred Scott case," 
 and concur with him as it respects the facts or history 
 of the decision in that case so far as they came within 
 my knowledge. I was not present when the majority 
 decided to change the ground of the decision, and 
 assigned the preparation of the opinion to the Chief 
 Justice, and, when advised of the change, I simply 
 gave notice that I should read the opinion I had 
 prepared as my own, and which is the one on file. 
 The accuracy and fulness with which Judge Campbell 
 has stated the facts render it unnecessary to go over 
 them. 
 
 Yours, truly, S. Nelson. 
 
 Samuel Tyler, Esq. 
 
 Soon after Mr. Seward uttered the abuse of the Su- 
 preme Court, and of Chief-Justice Taney in particular, 
 which I am noticing, a public meeting was held in 
 Baltimore, which Mr. Reverdy Johnson was invited to 
 address. As his engagements at Washington were 
 such that he could not be present at the meeting, he 
 wrote a letter of excuse, dated March 6th, 1858, from 
 which I make the following extract. " It was but the 
 other day, that a Senator [Mr. Seward] from a North- 
 
 25 
 
386 Memoie of Koger B. Taney. 
 
 ern State — a State, more interested, perliaps, if that be 
 possible, than any other in the undisturbed continu- 
 ance of the Union, and whose past and j)resent position 
 should have taught him better, — in a speech carefully 
 elaborated, and in j^rint before spoken, desecrated the 
 Senate - chamber by virtually threatening the South 
 with early practical subjugation ; hurling the bitterest 
 anathemas at their system of labor, denouncing it as at 
 war with the Declaration of Independence, repugnant 
 to the instincts of humanity, and an outrage upon the 
 laws of God. Never was there a more direct incentive 
 to servile insurrection. Could the slaves of the South 
 hear such teachings, and be as mad and reckless as the 
 speaker, many a homestead would swim in blood, and 
 many a cry would find its way to the throne of 
 Heaven, invoking retributive justice upon the author 
 of its agony. Even a co-ordinate branch of the 
 Government, because only of its having differed with 
 him on a question of constitutional law judicially be- 
 fore it, in a due course of legal proceeding, was, and 
 evidently from mere party ends, subjected to as calum- 
 nious an attack as ever dishonored human lips. These 
 are strong terms to apply to a Senator of the United 
 States ; but the relation which I held to what is known 
 as the Dred Scott case, and which furnished the pre- 
 text for the libel, and the knowledge which this gives 
 me, justifies me in their use. There is not, I know, a 
 word of truth in his direct charges, nor the slightest 
 
Memoir of Roger B. Taney. 3S7 
 
 foundation for the uncharitable and unmanly insinu- 
 ations in which he indulged. The case itself was origin- 
 ally commenced by Scott, under the advice of counsel, — 
 no advocate of slavery, — in one of the State Courts of 
 Missouri. This was done in perfect good faitli, and 
 with no view to political effect there or elsewhere; and 
 the defence was carried on in the same spirit. The 
 judgment of that Court was in favor of Scott; but, on 
 writ of error, sued out by the master, it was reversed, 
 and the case remanded for final judgment. Scott's 
 counsel then abandoned that case, and instituted an- 
 other for the like purpose in the Circuit Court of the 
 United States for that district. By that Court his 
 legality to sue, if free, was maintained ; but on the 
 merits, the judgment was against him, when he and 
 his counsel — not the master or the master's counsel — 
 brought the controversy to the Supreme Court of the 
 United States. 
 
 "This was all done before the Kansas and Nebraska 
 Act was passed or anticipated. On the first hearing in 
 that Court, the argument for Scott was made by JMr. , 
 Blair, and for the master by Mr. Geyer (one of the 
 Senators from Missouri), and myself. A re-argument 
 was ordered, and that was conducted by Mr. Blair and 
 Mr. G. W. Curtis (the brother of Mr. Justice Curtis) 
 for Scott, and with signal ability ; and the master was 
 again represented by Mr. Geyer and myself. The 
 Senator's insinuation that the case was made by the 
 
388 Memoir of Kogek B. Taney. 
 
 master for the purpose of obtaining a decision by the 
 Supreme Court is so far from being true, that the 
 suspicion at the time was that the political friends of 
 the Senator — the abolitionists — had had it instituted 
 and brought here with that exclusive end. But this 
 was equally unfounded, as was stated by Mr. Blair in 
 open Court, and a few days afterwards in a communi- 
 cation to the National Intelligencer. 
 
 " The allegation, also, that the counsel of the defend- 
 ant slave-holder were paid by him, is in keeping with 
 the recklessness of this portion of the entire speech. 
 It is absolutely untrue. The questions that the case 
 involved were mentioned to me by a Southern gentle- 
 man ; and always entertaining the opinion afterwards 
 announced by the Supreme Court, and seeing, as I 
 thought, how deeply the country was interested in 
 their decision, I volunteered to argue the case for the 
 defendant, and never received, or would have received, 
 the ordinary compensation. My colleague was, I am 
 certain, actuated by the same motives, and was re- 
 warded only by a sense of duty performed. The 
 charge that the majority of the Judges, in ruling the 
 Missouri restriction unconstitutional, acted extra-judi- 
 cially, I leave every lawyer to decide, after he shall 
 have read the opinion of the venerable Chief Justice. 
 If that does not convince him of the utter ground- 
 lessness of the complaint, all reason or authority would 
 be lost upon him. In this respect, however, there is 
 
Memoir of Eogee B. Taney. 389 
 
 one view which the public generally cannot fail, I think, 
 readily to comprehend, that what may have passed 
 at the consultations of the Court no one perhaps hut 
 the Judges will ever know. But this would seem to 
 be obvious, that if it was the duty of the dissenting 
 Judges, Messrs. McLean and Curtis, to pass upon a 
 question of such importance, and to argue it with 
 unwonted zeal and rare ability, and with a practical 
 appeal to Northern prepossession and sympathy calcu- 
 lated to impress upon the public mind of that section 
 a conviction of the right of Congress to prohibit slave 
 labor in the territories then or thereafter to belong to 
 the Union, — a power so pregnant with danger to our 
 continuance as one people, — it was equally proper 
 that the Judges who entertained a different opinion 
 should have expressed it, and maintained it with all 
 the ability and research within their power. 
 
 " Mr. Justice McLean's opinion occupies thirty-five 
 pages of the Report, in 19th Howard, and Mr. Justice 
 Curtis's opinion one hundred and three. The greater 
 part of each is devoted to this very question, and as to 
 the right to consider and decide it. The last-named 
 Judge concludes his with an apology for its length by 
 saying the ' questions are so numerous, and the grave 
 importance of some of them require me to exhibit the 
 grounds of my opinion. I have treated no question 
 which, in the view I have taken, it was not absolutely 
 necessary for me to pass upon to ascertain whether the 
 
390 Memoir of Kogee B. Taney. 
 
 judgment of the Circuit Court should stand or be 
 reversed. I have avoided no question on which the 
 validity of that judgment depends. To have done 
 either more or less, would have been inconsistent with 
 my sense of duty.' 
 
 "Were these two opinions to be spread, as they were, 
 with unexampled haste, broadcast over the land, and 
 the rest of the Court, who differed so widely and so 
 decidedly, to remain silent ? Were they, by that very 
 silence, to leave the public to infer, as they might then 
 have fairly done, that they did not, or were unable, to 
 maintain different doctrine ? Assuming, therefore, — 
 what is, I think, palpably unsound, — that the decision 
 of the Court on this question was in any sense extra- 
 judicial, I hold it to be perfectly clear that the course 
 adopted by the dissenting Judges rendered it the duty 
 of the Court to correct, to the whole extent of their 
 power, what they believed to be the serious constitu- 
 tional errors which that course, if left unobstructed, 
 was likely to fasten upon the j^ublic judgment. But, 
 not content with assailing the motives of the South by 
 totally misrepresenting them, and the alleged extra- 
 judicial character of the Court's decision, the inde- 
 pendence and integrity of the Judges were shamelessly 
 impeached. No gentleman can be guilty of the injus- 
 tice even of supposing that it can be necessary to 
 vindicate them against such a charge, coming from 
 such a quarter, and dictated by uuhallowed party 
 
Memoir of Eogee B. Taney. 391 
 
 motives so obviously apparent. With lives honestly 
 spent in the service of their country in almost every 
 department in which she could be served, without stain 
 or blemish, and with constantly increasing honor ; 
 with a judicial career, by its admitted ability, learn- 
 ing, and independence, challenging the respect and 
 admiration of the good and the wise ; with every in- 
 centive to continue to the last the pure administrators 
 of the jurisdiction with which the Constitution clothes 
 them, and especially the watchful guardians of all the 
 rights, personal and political, secured by that sacred 
 instrument, which may, by proper judicial proceeding, 
 be submitted to them, — with all these persuasions to 
 duty, the charge that they have been at last false to 
 it, and, forgetful of honest fame, have pandered to 
 party or Executive influence, is a slander so gross 
 and revolting, that, instead of finding a lodgment in, 
 it cannot but ultimately, if not at once, disgust the 
 public mind." 
 
 In such abhorrence did Chief-Justice Taney hold 
 the conduct of Mr. Seward, in so wantonly assailing 
 the Supreme Court, that he told me, if Mr. Seward 
 had been nominated and elected President instead of 
 Mr. Lincoln, he should, if requested, as was custom- 
 ary, have refused to administer to him the official 
 oath, and thereby proclaim to the nation that he would 
 not administer that oath to such a man. 
 
 I now leave Mr. Seward, as the accuser of Chief- 
 
392 Memoir of Eogee B. Taney. 
 
 Justice Taney, to the calm judgment of his fellow- 
 men. 
 
 Antislavery, which had long ago denounced the 
 Constitution of the United States as " a covenant with 
 death and an agreement with hell," had now become 
 openly rebellious against Federal authority in such 
 an important and defiant manner, that it had assumed 
 a judicial form because of positive violation of law, 
 and the case was brought to the Supreme Court of the 
 United States. And one year after Mr. Seward, in the 
 Senate of the United States, had poured out his abuse 
 upon Chief - Justice Taney, that patriotic magistrate 
 delivered one of his most imj)ortant, and to himself 
 one of the most satisfactory (as he told me), opinions 
 against this incipient treason. The case arose under 
 the fugitive slave law. It was the State of Wisconsin, 
 both by its Courts and Legislature, that openly defied 
 the judicial authority of the Supreme Court of the 
 United States. 
 
 There were two cases; both, however, constituting 
 one transaction, which originated under the fugitive 
 slave law passed in 1850, as one of the great measures 
 of pacification of Mr. Clay, of which I have already 
 spoken. 
 
 Sherman M. Booth had, in the State of Wisconsin, 
 aided and abetted the escape of a fugitive slave from 
 the United States Deputy Marshal who had him in 
 custody, under a warrant issued by the District Judge 
 
Memoik of Roger B. Taney. 393 
 
 of the United States for that district, under the Act 
 of Congress of 1850. On the 4th of January, 1855, 
 Booth was indicted, in the District Court, by the 
 grand jury, for the offence. He was tried by a jury, 
 found guilty, and was sentenced to imprisonment for 
 one month, and to pay a fine of a thousand dollars, 
 and remain in custody until the sentence was com- 
 plied with. Upon application to the Supreme Court 
 of the State of Wisconsin, the prisoner was released 
 upon habeas corpus by that Court. Then upon a 
 petition of the Attorney-General of the United States 
 to the Chief Justice of the Supreme Court of the 
 United States, based upon a certified copy of the pro- 
 ceedings, a writ of error was allowed and issued, to 
 bring the judgment of the Supreme Court of Wiscon- 
 sin before the Supreme Court of the United States, to 
 correct the error of the judgment. The Supreme Court 
 of Wisconsin thereupon directed its Clerk to make 
 no return to the writ of error, and to enter no order 
 upon the journals or record of the Court concerning 
 the same. And accordingly the Clerk contumaciously 
 refused to make return to the mandate of the Supreme 
 Court of the United States. It was, in fact, the con- 
 tumacy of the Supreme Court of Wisconsin : first, 
 taking a prisoner from the custody of the law of the 
 United States, defying the grand jury who indicted 
 him, the jury who found him guilty, and the Dis- 
 trict Court that passed sentence upon him ; and then 
 
394 Memoir of Eoger B. Taney. 
 
 refusing to permit the Supreme Court of the United 
 States to review their conduct for withdrawing a case 
 from a Federal Court. 
 
 Upon this open nullification of the process of the 
 Supreme Court of the United States by the State Court, 
 the Supreme Court of the United States, under a rule 
 laid, ordered the certified copy of the record of the 
 Supreme Court of Wisconsin, which the Attorney- 
 General had before procured, to be entered on its 
 docket, to have the same effect and legal operation 
 as if returned by the Clerk with the writ of error. 
 Thus the judicial nullification of Federal authority 
 was baflled by the regular order of practice being 
 adapted to the exigency ; and the case stood on the 
 docket for review. 
 
 Chief-Justice Taney, in the opening of his opinion, 
 in sjjeaking of the extraordinary claim of a State to 
 set aside and annul a judgment of a Federal Court, and 
 discharge a prisoner who had been tried and found 
 guilty of an offence agaiiist the laws of the United 
 States, and sentenced to imprisonment, said, " These 
 2)ropositions are new in the jurisprudence of the United 
 States, as well as of the States ; and the supremacy of 
 the State Courts over the Courts of the United States, 
 in cases arising under the Constitution and laws of the 
 United States, is now for the first time asserted and 
 acted upon in the Supreme Court of a State." 
 
 The Chief Justice then proceeded in an argument 
 
Memoir of Eoger B. Taney. 395 
 
 which may well be termed a bulwark of the Constitu- 
 tion of the United States. It defines, with boundaries 
 of light, the respective spheres of Federal and State 
 sovereignty. "Although," says he, "the St:ite of 
 Wisconsin is sovereign within its territorial limits to 
 a certain extent, yet that sovereignty is limited and 
 restricted by the Constitution of the United States. 
 And the powers of the general Government and of 
 the State, although both exist and are exercised within 
 the same territorial limits, are yet separate and distinct 
 sovereignties, acting separately and independently of 
 each other within their respective spheres. And the 
 sphere of action appropriated to the United States is as 
 far beyond the reach of the judicial jjrocess issued by a 
 State Judge or a State Court, as if the line of division 
 was traced by landmarks and monuments visible to 
 the eye. And the State of Wisconsin had no more 
 power to authorize these proceedings of its Judges and 
 Courts than it would have had if the prisoner had 
 been confined in Michigan, or in any other State of 
 the Union, for an offence against the laws of the State 
 in which he was imprisoned." 
 
 The Chief Justice then proceeds to define the scope 
 of the judicial power grafted to the Su2:)reme Court 
 of the United States, and enumerates the general con- 
 stitutional questions that belong to its jurisdiction. 
 " And as the final appellate j^ower in all such ques- 
 tions," says the Chief Justice, " is given to this Court, 
 
396 Memoik of Roger B. Taney. 
 
 controversies, as to the respective powers of the United 
 States and the States, instead of being determined by 
 military and physical force, are heard, investigated, and 
 finally settled, with the calmness and deliberation of 
 judicial inquiry. And no one can fail to see, that, if 
 such an arbiter had not been provided in our com- 
 13licated system of government, internal tranquillity 
 could not have been preserved ; and if such contro- 
 versies were left to the arbitrament of physical force, 
 our Government, State and National, would cease to be 
 governments of laws, and revolutions by force of arms 
 would take the place of Courts of justice and judicial 
 decisions." 
 
 After showing that, in organizing the Supreme 
 Court of the United States, its function was considered 
 so higb and indispensable in the working of so com- 
 plex a system of government that the great statesmen 
 of the time made the Court a part of the Constitution 
 itself, the Chief Justice said : " So long, therefore, as 
 this Constitution shall endure, this tribunal must exist 
 with it, deciding in the peaceful forms of judicial pro- 
 ceeding the angry and irritating controversies between 
 sovereignties, which in other countries have been 
 determined by the arbitrament of force." 
 
 After saying that, in the judgment of the Court, 
 the Act of Congress of 1850, commonly called the 
 fugitive slave law, is, in all its provisions, constitu- 
 tional, and that all the proceedings in the cases were 
 
Memoir of Eogee B. Taney. 397 
 
 regular and conformable to law, the Chief Justice 
 said: "The judgment of the Supreme Court of Wis- 
 consin must therefore be reversed in each of the cases 
 now before the Court." 
 
 This judgment was pronounced on the seventh of 
 March, 1859. The State of Wisconsin had been 
 watching for the judgment with a fanatical anxiety ; 
 and, on the nineteenth of the same month, the Legis- 
 lature of the State passed the following joint resolu- 
 tions : 
 
 Whereas : The Supreme Court of the United States 
 has assumed appellate jurisdiction in the matter of 
 the petition of Sherman M. Booth for a writ of habeas 
 corpus presented and prosecuted to a final judgment 
 in the Supreme Court of this State, and has, without 
 process, or any of the forms recognized by law, assumed 
 the power to reverse that judgment in a matter in- 
 volving the personal liberty of the citizen, asserted by 
 and adjusted to him by the regular course of judicial 
 proceedings upon the great writ of liberty secured to 
 the people of each State by the Constitution of the 
 United States : 
 
 And whereas : Such assump)tion of power and au- 
 thority by the Suj^reme Court of the United States, to 
 become the final arbiter of the liberty of the citizen, 
 and to override and nullify the judgments of the State 
 Courts declaration thereof, is in direct conflict with 
 that provision of the Constitution of the United States 
 which secures to the people the benefits of the writ of 
 habeas corpus : 
 
398 Memoir of Roger B. Taney. 
 
 Therefore, Resolved {the Senate concurring) , That we 
 regard the action of the Supreme Court of the United 
 States, in assuming jurisdiction in the case before 
 mentioned, as an act of arbitrary power unauthorized 
 by the Constitution, and virtually superseding the 
 benefit of the writ of habeas corpus, and prostrating 
 the rights and liberties of the people at the foot of 
 unlimited jiower. 
 
 Resolved, That this assumption of jurisdiction by 
 the Federal judiciary in the said case, and without 
 process, is an act of undelegated power, and, there- 
 fore, without authority, void, and of no force. 
 
 Resolved, That the Government formed by the Con- 
 stitution of the United States was not made the ex- 
 clusive or final judge of the extent of the powers 
 delegated to itself ; but that, as in all other cases of 
 compact among parties having no common judge, each 
 has an equal right to judge for itself, as well of infrac- 
 tions as of the mode and measure of redress. 
 
 Resolved, That the principle and construction con- 
 tended for by the party which now rules in the 
 councils of the nation, that the general Government 
 is the exclusive judge of the extent of the powers 
 delegated to it, stop nothing short of despotism ; since 
 the discretion of those who administer the Govern- 
 ment, and not the Constitution, would be the measure 
 of their powers ; that the several States which formed 
 that instrument, being sovereign and independent, have 
 the unquestionable right to judge of its infractions ; 
 and that a 'positive defiance of those sovereignties of 
 all unauthorized acts done under color of that instru- 
 ment is the rightful remedy. 
 
 A2">proved March 19, 1859. 
 
Memoir of Rogee B. Taney. 399 
 
 This conduct of the State of Wisconsin, in first, by 
 her Supreme Court releasing a criminal imprisoned 
 by a Court of the United States, and then ordering its 
 Clerk to disregard a writ of error from the Supreme 
 Court of the United States ; and, secondly, by her 
 Legislature declaring a decision of the Supreme Court 
 of the United States " void and of no force," " and 
 that a positive defiance" of all acts of the Federal 
 Government which it may deem unauthorized " is the 
 rightful remedy," is without parallel for audacity in 
 the history of our Government uj) to that time. From 
 the time (about forty years ago) that the emissaries 
 of the abolition societies of Great Britain began to 
 inculcate their doctrines in New England, the anti- 
 slavery sentiment had increased in intensity, until it 
 had become an epidemic fanaticism of both countries. 
 In England, it had infected, more or less, all classes of 
 minds. Max Miiller, the Oriental scholar, and Pro- 
 fessor at Oxford, could not lecture in London on " the 
 Science of Language," without venting his fanatical 
 spleen against negro slavery in America. And even 
 Earl Bussell, in Parliament, seemed to have found 
 relief from a moral oppression at other people's trans- 
 gressions by pronouncing slavery a sin. In fact, for 
 thirty years, there had been an active co-operation 
 between the radicals of both England and America to 
 overthrow the institution of slavery in the United 
 States. This co-operation of radicals in different 
 
400 Memoik of Kogek B. Taney. 
 
 countries is now, tlirough the International Society, 
 threatening to destroy the proper order of society all 
 over Europe and America. 
 
 South Carolina, before she threatened nullification, 
 and even while doing so, was willing and anxious that 
 a question involving the constitutionality of a revenue 
 laid primarily for protection, like that by the Act of 
 1828, should be put into judicial form, and submitted 
 to the Supreme Court of the United States. South 
 Carolina had faith in that tribunal, though presided 
 over at the time by Chief-Justice Marshall, who dif- 
 fered so entirely in political views from that State. 
 But such men as William H. Seward now taught the 
 people that the Judges of the Supreme Court were 
 utterly corrupt ; and that the Chief Justice was a 
 monster, who could, and did, administer the ofiicial 
 oath to the President of the United States while 
 whispering in his ear a corrupt political bargain 
 with him. 
 
CHAPTER VI. 
 
 JUDICIAL LIFE. 
 
 A.D. 1860 — 1864. 
 
 ANEW era now begins in the political history of 
 the United States. The conservative, statesmanly 
 civilization of the Southern States, which had, by its 
 Federal rule, conducted the country through a loeriod 
 of so much honor among nations and so much hap- 
 piness at home, becomes entirely excluded from all 
 influence in the working of the Federal Government. 
 The civilization of New England, with its radical 
 spirit, is inaugurated, to direct and control the policy 
 of the Government and the destiny of the people. 
 
 We must now recount how this great change was 
 brought about, and show what part Chief- Justice 
 Taney acted in the drama of this transition from one 
 civilization to another as the controlling power in the 
 Government of the country. 
 
 When that great statesman, Thomas Jefferson, 
 heard, in his retirement at Monticello, that the Mis- 
 souri compromise was passed, dividing political parties 
 by a geographical line, making them sectional instead 
 of national, he said it was like the sound of a fire- 
 bell in the night, and made him fear that the revolu- 
 
 26 401 
 
402 Memoir of Roger B. Taney. 
 
 tionary struggle for self-government had been in vain. 
 But up to this period, tlie Southern political doctrines 
 and policy of Federal administration had received 
 such wise and powerful aid in the Northern States, 
 that no political party had yet been organized upon 
 a geographical line. But now so complete was the 
 alienation of the free States from the slave States, 
 that even Christian churches had been broken asunder 
 on the question of slavery, and were divided by a 
 geographical line. A Christian on one side of the 
 line was not a Christian on the other. The United 
 States were, in fact, only held together by a written 
 Constitution, which was denounced, by a constantly 
 increasing political party on one side of a geographical 
 line, as " a covenant with death and an agreement 
 with hell." And the provision incorporated into the 
 Constitution for the special protection of the peculiar 
 institution, on which the present prosperity and safety 
 of the Southern States depended, was openly and per- 
 sistently violated and nullified, upon a principle whose 
 obligation was assumed to be above the Constitution. 
 A party breathing this sectional spirit, assuming the 
 name Republican, nominated, in May, 1860, Abraham 
 Lincoln, of Illinois, as their candidate for President 
 of the United States, and Hannibal Hamlin, of Maine, 
 as their candidate for Vice-President. This nomina- 
 tion of both candidates, contrary to unbroken usage, 
 from one side of the geographical line between the 
 
Memoir of Rogek B. Taney. 403 
 
 slave States and the free States, proclaimed, with the 
 fearful sound of a fire-bell at night, the policy of the 
 party now aiming at the control of the Federal Gov- 
 ernment. 
 
 Three other candidates for President and Vice- 
 President were also nominated by three other parties ; 
 but each presented candidates chosen from both sides 
 of the geographical line between the slave and free 
 States. They were national parties, deprecating sec- 
 tional strife, and stood upon the national ground that 
 their candidates must represent both the North and 
 the South, pledged to a policy of equal jorotection to 
 every section of the country. 
 
 It was felt by all who could forecast coming events, 
 that the question was now presented in the political 
 issue, whether the Constitution and Union were to be 
 one and inseparable in the future, as they had been in 
 the past, or the Union preserved and the Constitution 
 disregarded. For those conversant with the history 
 of popular movements inspired by one idea, foresaw 
 that the Republican party, if successful in the election 
 of their candidates, would be hurried on, even in spite 
 of itself, by the mere momentum of a developing idea, 
 from step to step — the oiMuions and conscience of the 
 party changing as it moved — to the entire extirpation 
 of the institution of slavery. Mr. Lincoln but uttered 
 this truth, when, at Springfield, Illinois, in 1858, he 
 said, in his speech to the Convention which nominated 
 
404 Memoir of Roger B. Taney. 
 
 him for the Senate of the United States : " In my 
 opinion, it [slavery agitation] will not cease until a 
 crisis shall have been reached and passed. A house 
 divided against itself cannot stand. I believe this 
 Government cannot endure permanently half slave 
 and half free. I do not expect the Union to be dis- 
 solved — I do not expect the house to fall ; but I do 
 expect it will cease to be divided. It will become all 
 one thing or the other. Either the opponents of sla- 
 very will arrest the farther spread of it, and place it 
 where the public mind shall rest in the belief that it is 
 in the course of ultimate extinction, or its advocates 
 will push it forward till it shall become alike lawful 
 in all the States — old as well as new, North as well 
 as South." It was a thing impossible, that the South 
 could see the triumph of such a party at the coming 
 election, without feeling that the polity of the United 
 States was to be moulded, sooner or later, so as to dis- 
 criminate between local self-government in the differ- 
 ent sections of the country. 
 
 With calm judgment and serene dignity, Chief- 
 Justice Taney foresaw, in the signs of the times, the 
 coming storm. He felt now, more than ever, the 
 importance of the Judicial Department of the Govern- 
 ment, and the high function of the Chief Justice of 
 the Supreme Court. To keep clear of the defiling 
 influences of politics had always been the fixed pur- 
 pose of his judicial life. No tempter could beguile 
 him from the path of his duty as a Judge. 
 
Memoir of Eoger B. Taney. 405 
 
 Each party was now using, in tlie canvass for the 
 Presidency, every available influence to promote the 
 election of their candidate. A communication ap- 
 peared in a newspaper, stating that Chief- Justice 
 Taney was favorable to the election of Mr. Douglas, 
 to influence, as it was said, the Roman Catholic vote 
 in his favor. George W. Hughes, an intimate friend 
 of the Chief Justice, and a Democratic representative 
 in Congress from Maryland, called the attention of the 
 Chief Justice to the statement, with a request that he 
 be permitted to contradict it, as he knew that the Chief 
 Justice did not prefer Mr. Douglas. The Chief Justice 
 wrote the following letter in answer : 
 
 Washington, August 22, 1860. 
 
 My Dear Sir : — I received your kind letter yes- 
 terday, with Mr. M 's to you inclosed, and should 
 
 have answered immediately, had not the calls of 
 friends prevented me from writing until after the mail 
 was closed. And I must now answer briefly, as I am 
 not strong enough to remain long at my desk without 
 fatigue. 
 
 In regard to Mr. M 's suggestion, I answer 
 
 that I cannot take any notice of such an anonymous 
 publication myself, nor authorize any one else to 
 take the slightest notice of it ; and for the following 
 reasons : 
 
 Whatever 1 might say or authorize to be said in 
 this matter would be regarded as said not merely by 
 an individual, but by the Chief Justice of the Su- 
 preme Court ; and I must neither say, nor authorize to 
 
406 Memoir of Kogee B. Taney. 
 
 be said, anything tliat it would not become the Chief 
 Justice to say. 
 
 Now, it would be most unseemly in that officer to 
 take any notice in any way of anonymous ijublications 
 in newspapers, upon exciting political questions, in 
 which his name is improperly used. 
 
 In the second place, every one whose opinion is 
 worth anything knows that, since I have been on the 
 Bench, I have carefully abstained from taking any 
 part in political movements or elections ; and that I 
 have done this from a sense of duty, and under the 
 firm conviction that any other course would destroy 
 the usefulness of the Supreme Court, and create the 
 belief that it was a mere party body, and acting for 
 the interests of a party. And no one will place the 
 least confidence in the anonymous statement Mr. 
 
 M speaks of; and it will be forgotten in a week, 
 
 unless public attention is called to it, and a factitious 
 importance attached to it by a formal or authorized 
 contradiction. 
 
 And if such a contradiction was made, by authority 
 from me, to such a jDublication, it would naturally be re- 
 garded as a mere pretext on my part, and as an excuse 
 for entering into the political campaign. The pub- 
 lication has, it seems, not been thought worthy of 
 notice, even by the newspapers ; for I have never seen 
 it noticed in any one, although I am accustomed to 
 look over papers on every side of this mixed-up and 
 confused election. 
 
 And in addition to the insuperable objection as Chief 
 Justice of the Supreme Court of the United States, any 
 sort of contradiction authorized by me would get up dis- 
 
Memoie, of Eogek B. Taney. 407 
 
 cussions about me among all the small-fry politicians ; 
 and I should be constantly annoyed by seeing my name 
 mixed up in the slavery discussions, and speeches, 
 and publications, by that class of politicians who are 
 always appealing to some unworthy passion or sup- 
 posed prejudice, instead of discussing the great prin- 
 ciples of government which are in issue in the election. 
 
 I never speak upon political issues of the day in 
 public, nor in mixed comjianies ; nor do I enter into 
 any argument, or ever express an ojoinion to friends 
 who I know differ from me, or who I think may be so 
 inconsiderate as to repeat what I say, in a way to in- 
 volve my name in public discussions as one who is 
 taking part in the canvass, and sup]30rting or 02iposing 
 a particular candidate. To my intimate and confiden- 
 tial friends, as you know, I speak freely and without 
 reserve. And I do this because I know them well 
 enough to be quite sure that they understand the 
 nature of these conversations and guard them as you 
 have done. 
 
 Pardon me for sayiijg that I was sorry to see the 
 
 remarks in Mr. M 's letter pointing to the class 
 
 upon whom he expects my opinion to operate ; and I 
 fear he has, unconsciously to himself, imbibed some 
 of those deep-rooted prejudices which gave rise to the 
 " Know-Nothing " clubs. I say this without any feel- 
 ing of unkindness to him. But his remark implies 
 that the Irish Roman Catholics vote from religious 
 bigotry, and blindly follow leaders because they hap- 
 pen to be Roman Catholics. I presume he has had 
 but little association with that class, and forms his 
 opinion of them from sectarian books, and not from 
 
408 Memoir of Eogee, B. Taney. 
 
 his own observation. For if he would look at the 
 Catholics of Baltimore and the Irish Catholics, he 
 would see that they are as much divided as other 
 churches, and vote as independently of leaders. And 
 if they for a moment supposed that an apj^eal was 
 made to their suj^posed bigotry in an election, they 
 would resent it, and it would recoil upon the party 
 who sought to use it. I know them better than Mr. 
 
 M ; and if he attempts to exercise that sort of 
 
 influence, he will find himself detected by those whom, 
 I have no doubt, he thinks too ignorant and bigoted 
 to be influenced by reason. 
 
 I have made this letter much larger than I had in- 
 tended. But its length will show you how sincerely 
 I respect your opinion, and how anxious I am to prove 
 to you that I am right. 
 
 When we are able, few things would give me more 
 pleasure than to pass some days at Tulip Hill, not 
 only on account of its present occupants, but the 
 memories of the past that the place would bring so 
 freshly back to me. Best regards to Mrs. Hughes. 
 Ever, dear Sir, truly and 
 
 Respectfully your friend, 
 
 E. B. Taney. 
 Hon. G. W. Hughes, Tulip Hill. 
 
 The above letter, like all the other private letters 
 of the Chief Justice published in this Memoir, was 
 procured by letters of general inquiry addressed by 
 me to persons with whom I knew the Chief Justice 
 to be on terms of intimacy. It shows with what stu- 
 
Memoik of Eoger B. Taney. 409 
 
 dious care he held himself aloof from i^arty politics. 
 No one knows better than I do his undeviating con- 
 duct on this important matter of duty in a Judge as 
 he thought it to be. It was, like his religion, ever 
 present to his mind. 
 
 Chief-Justice Taney wrote the " Farewell Address " 
 of General Jackson on his retirement from the Presi- 
 dency of the United States. The views of the Chief 
 Justice in regard to sectional discord may be seen in 
 the following extract from that address : " We behold 
 systematic efforts publicly made to sow the seeds of 
 discord between the diiferent parts of the United 
 States, and to place party divisions directly upon geo- 
 graphical distinctions : to excite the South against the 
 North, and the North against the South, and to force 
 into controversy the most delicate and exciting topics — 
 topics upon which it is impossible that a large 2)ortion 
 of the Union can ever speak without strong emotion. 
 Ajjpeals, too, are constantly made to sectional inter- 
 ests, in order to influence the election of the Chief 
 Magistrate, as if it were desired that he should favor a 
 particular quarter of the country, instead of fulfilling 
 the duties of his station with impartial justice to all ; 
 and the j)Ossible dissolution of the Union has at 
 length become an ordinary and familiar subject of 
 discussion. Has the warning voice of Washington 
 been forgotten ? or have designs already been formed 
 to sever the Union ? Let it not be supposed that I 
 
410 Memoir of Eoger B. Taney. . 
 
 impute to all of those who have taken an active part 
 in these unwise and un23rofitable discussions a want of 
 patriotism or of public virtue. The honorable feelings 
 of State pride and local attachments find a j^lace in 
 the bosoms of the most enlightened and pure. But 
 while such men are conscious of their own integrity 
 and honesty of purpose, they ought never to forget 
 that the citizens of other States are their political 
 brethren ; and that, however mistaken they may be in 
 their views, the great body of them are equally honest 
 and upright with themselves. Mutual suspicions and 
 reproaches may in time create mutual hostility ; and 
 artful and designing men will always be found who 
 are ready to foment these fatal divisions, and to in- 
 flame the natural jealousies of different sections of 
 the country ! The history of the world is full of such 
 examples, and especially the history of republics." 
 
 The chief question involved in the presidential 
 election of 1860 was, whether the decision of the 
 Supreme Court in the Dred Scott case was to stand 
 or not as the true construction of the Constitution of 
 the United States. It was a fearful thing, to submit 
 to a popular vote a question of constitutional construc- 
 tion which had been decided, after the most mature 
 deliberation, by a judicial tribunal which had been 
 made a co-ordinate department of the Government by 
 the Constitution, and jurisdiction over all constitutional 
 questions expressly given to it, that the Government 
 
. Memoir of Roger B. Taney. 411 
 
 might stand forth, in the most dedared manner, as 
 one of constitutional limitation. Tlie ]»arty whose 
 great purpose was to disregard that decision elected 
 Abraham Lincoln to carry out their policy. And on 
 the day that he took his official oath that he would, to 
 the best of his ability, preserve, protect, and defend 
 the Constitution of the United States, he, in his In- 
 augural Address, foreshadowed that the j^olicy of his 
 adnriuistration would disregard the decision of the 
 Dred Scott case. " I do not forget," said President 
 Lincoln, " the position assumed by some, that consti- 
 tutional questions are to be decided by the Supreme 
 Court; nor do I deny that such decision must be bind- 
 ing, in any case, upon the parties to a suit, while they 
 are also entitled to very high respect and consideration 
 in all parallel cases by all other departments of the 
 Government. And while it is obviously possible 
 that such decision may be erroneous in any given case, 
 still the evil effect following it, being limited to that 
 particular case, with the chance that it may be over- 
 ruled, and never become a precedent for other cases, 
 can better be borne than could the evils of a different 
 practice. Ai the same time, the candid citizen must 
 confess that if the folicy of the Government, xqwu vital 
 questions affecting the whole people, is to be irrevocably 
 fixed by decisions of the Supreme Court, the instant 
 they are made in ordinai-y litigation between parties in 
 personal actions the people will have ceased to be their 
 
412 Memoik of Koger B. Taney. 
 
 own rulers, having to that extent practically resigned 
 their Government into the hands of that eminent tri- 
 bunal'." The lines whicli I have i^ut in italics pro- 
 claim the most j^ernicious political heresy ever uttered 
 in the politics of our country. It saps the foundations 
 of the Constitution, and substitutes the fluctuating and 
 alternating will of a party majority of the people in its 
 stead. This was, however, the cardinal doctrine of the 
 party which elected President Lincoln, and he but 
 spoke their creed. 
 
 We have already seen how that party in Wis- 
 consin, in the case of Ableman and Booth, had set the 
 authority of the Supreme Court at defiance, in order 
 to carry out its j^olicy in regard to slavery. And at 
 the very time that President Lincoln was delivering 
 his Inaugural, a case was pending in the Supreme 
 Court, arising out of the determination of his party 
 to carry out its anti-slavery policy in defiance of the 
 Constitution. Willis Lago, a free man of color, was, 
 in October, 1859, indicted by the grand jury of a 
 Court of the State of Kentucky, under a law of that 
 State, for the crime of assisting a slave to escape. 
 Lago fled to the State of Ohio. A copy of the indict- 
 ment, properly authenticated according to the Act of 
 Congress of 1793, was presented to the Governor of 
 Ohio, by the authorized agent of the Governor of 
 Kentucky, and the arrest and delivery of the fugitive 
 from justice demanded. The Governor of Ohio re- 
 
Memoir op Eogek B. Taney. 413 
 
 t'erred the matter to the Attorney-General of the State 
 for his opinion. The Attorney-General gave an opin- 
 ion in conformity with his politics. Though the law 
 of Kentucky made the act of assisting a slave to 
 escape a crime, the politics of the Attorney- General 
 forbade him to consider the act otherwise than meri- 
 torious. He therefore advised the Governor of Ohio 
 that " The offence charged against Lago does not rank 
 among those upon which the constitutional provision 
 was intended to operate ; and you have therefore no 
 authority to comply with the requisition made upon 
 you by the Governor of Kentucky." The Governor, 
 of course, refused to cause the arrest and delivery of 
 the fugitive from justice. Upon this refusal, the State 
 of Kentucky moved the Supreme Court of the United 
 for a mandamus against the Governor of Ohio to com- 
 pel him to perform his duty in the premises. On the 
 13th of March, 1861, a few days after President Lin- 
 coln's inauguration, Chief-Justice Taney delivered the 
 opinion of the Court in the case. 
 
 After deciding that the Court had jurisdiction of the 
 case, the Chief Justice said : " This brings us to the 
 examination of the clause of the Constitution which 
 has given rise to this controversy. It is in the follow- 
 ing words : 
 
 " ' A person charged in any State with treason, 
 felony, or other crime, who shall flee from justice, and 
 be found in another State, shall, on demand of the 
 
414 Memoir of Eogek B. Taney. 
 
 Executive authority of the State from which he fled, 
 be delivered up, to be removed to the State having 
 jurisdiction of the crime.' 
 
 " Looking to the language of the clause, it is difli- 
 cult to comprehend how any doubt could have arisen 
 as to its meaning and construction. The words 
 ' treason, felony, or other crime,' in their plain and 
 obvious import, as well as in their legal and technical 
 sense, embrace every act forbidden and made punish- 
 able by a law of the State. The word crime of itself 
 includes every offence, from the highest to the lowest 
 in the grade of offences, and includes what are called 
 ' misdemeanors ' as well as treason and felony." 
 
 The Chief Justice, then, in order to show that the 
 framers of the Constitution intended to .make the 
 clause as comj^rehensive as possible, it being intended 
 to enable each State to maintain its local policy, says : 
 " They [the words ' treason and felony '] were intro- 
 duced for the purpose of guarding against any restric- 
 tion of tlie word ' crime,' and to prevent this provision 
 from being construed by the rules and usages of inde- 
 pendent nations in compacts for delivering up fugitives 
 from justice. According to these usages, even where 
 they admitted the obligation to deliver the fugitive, 
 persons who fled on account of political offences were 
 almost always excepted, and the nation upon which 
 the demand is made also uniformly claims and exer- 
 cises a discretion in weighing the evidence of the crime 
 
Memoik of Eoger B. Taney. 415 
 
 and the character of the offence. . . . And as treason 
 was also a 'felony,' it was necessary to insert those 
 words, to show, in language that could not be mis- 
 taken, that political offenders were included in it. For 
 this was not a compact of peace and comity between 
 separate nations who had no claim on each other for 
 mutual support, but a compact binding them to give 
 aid and assistance to each other in executing their 
 laws, and to support each other in preserving order 
 and law within its confines, whenever such aid was 
 needed and required ; for it is manifest that the states- 
 men who framed the Constitution, were fully sensible 
 that, from the complex character of the Government, 
 it must fail, unless the States mutually sujjported each 
 other and. the general Government ; and that nothing 
 would be more likely to disturb its peace, and end in 
 discord, than permitting an offender against the laws 
 of a State, by passing over a mathematical line which 
 divides it from another, to defy its process, and stand 
 ready, under the protection of the State, to repeat the 
 offence as soon as another opportunity offered." 
 
 The Chief Justice then argues that the right given 
 to " demand " implies that it is an absolute right, and 
 that the obligation or duty to deliver is correlative. 
 " The performance of this duty, however," says the 
 Chief Justice, "is left to the fidelity of the State 
 Executive to the compact entered into with the other 
 States when it adopted the Constitution of the United 
 States, and became a member of the Union. . . . 
 
416 Memoik of Kogek B. Taney. 
 
 " But if the Governor of Ohio refuses to discharge 
 this duty, there is no power delegated to the general 
 Government, either through the Judicial Department 
 or any other department, to use coercive means to 
 compel him. 
 
 " And upon this ground the motion for the man- 
 damus must be overruled." 
 
 This case consummated the determination of the anti- 
 slavery party to set the provisions of the Constitution 
 bearing upon the subject of the institution of slavery 
 at defiance. These provisions could no longer be 
 enforced. And a reference to the statutes of the free 
 States will show that the party was not moved by 
 any regard for the welfare of the negro race, but by 
 hostility to the Southern States. At the very time the 
 Governor of Ohio was disregarding his constitutional 
 duty in refusing to deliver uj) a fugitive from justice, 
 merely because he was a negro and his crime was 
 connected with the institution of slavery, there was a 
 statute of the State, passed in 1859, prohibiting any 
 free negro or mulatto from voting in the State, and 
 inflicting a fine of five hundred dollars and imprison- 
 ment for six months on any Judge " who shall receive 
 the vote of any person where such person has a dis- 
 tinct and visible admixture of African blood." And 
 in Indiana there was a statute, in 1862, punishing 
 any white person who should marry another with 
 one-eighth, or more, of negro blood by a fine of five 
 
Memoir of Kogee, B. Taney. 417 
 
 thousand dollars and an imprisonment for ten years. 
 And in President Lincoln's own State, Illinois, there 
 was a statute, when he was inaugurated, to prevent 
 the immigration of free negroes into the State, which 
 enacted that if any negro or mulatto, bond or free, 
 came into the State and remained more than ten days, 
 with the intention of residing in the State, he should 
 be " deemed guilty of a high misdemeanor," and be 
 liable to a fine, and to be advertised and sold at public 
 auction, to pay the fine by the proceeds of the sale. 
 
 In the case just mentioned, the Su^Dreme Court de- 
 cided that the constitutional compact had been delib- 
 erately broken by a State, and that there was no 
 redress by law. In all the other cases regarding 
 slavery which came before the Supreme Court, it was 
 decided that the Constitution had not only guaranteed 
 a right, but had also furnished a remedy. The opin- 
 ions of the Chief Justice in all these cases are to be 
 found among the appendices to this volume. And 
 the same calm, serene s]3irit of justice pervades them — 
 though delivered amidst the throes of civil war, the 
 causes of which the cases involved — as pervades his 
 opinions on ordinary matters of litigation. Neither 
 the thoughts nor the style of any one of his oj)inions 
 are ever tinctured in the slightest degree by the cir- 
 cumstances of the case. Never, perhaps, was so calm 
 a judgment given to a judicial magistrate. 
 
 Many of the slave States had now passed ordinances 
 
 27 
 
418 Memoir of Eoger B. Taney. 
 
 of secession, by which they claimed that they had 
 dissolved their connection with the other States and 
 had set up a confederate Government, organized into 
 executive, legislative, and judicial departments, upon 
 the plan of the Government of the United States. 
 Virginia, reluctant to leave a Union which she had 
 done so much to form, and in which she had acted so 
 glorious a part, appealed to her sister States still within 
 the Union to meet her in a Congress, where the discord 
 might be harmonized. The Congress met in Washing- 
 ton City, February 4, 1861, and adjourned February 
 the 27th, without accomplishing anything. Virginia 
 then bade the free States farewell, across the widen- 
 ing gulf of civil discord, and joined her fortunes, for 
 better or worse, with her sister States of the South. 
 
 No candid man, capable of considering the lessons 
 of history, can doubt, when he looks over the events 
 in the working of our Government which I have re- 
 cited, that any other group of States in our Union 
 would, under like peril to auy great interest of theirs 
 from the course of political events, have endeavored 
 to secede from the Union, or would have resisted by 
 arms. No power or right is constitutional but what 
 can be exercised in a mode pointed out in the Consti- 
 tution for its exercise. Secession is, therefore, not 
 constitutional, but revolutionary ; and is only justifi- 
 able, like war, upon failure of justice without hope of 
 relief under the Government. But, constituted as man 
 
Memoir of Eogee B. Taney. 419 
 
 is, peaceable secession would have been impossible, 
 even if the right to secede at pleasure had been ex- 
 pressly guaranteed by tlie Constitution of the United 
 States to each State. The common interests of all the 
 States had become too interdependent and identified, 
 since the establishment of the Federal Government, 
 to admit of severance without disasters worse than the 
 bloodiest war in defence of the Union. But, never- 
 theless, no publicist, jiidging by the practices of na- 
 tions, can doubt that, in the forum of |)olitical ethics, the 
 slave States were justified in their course. And every 
 publicist knows that it is not the party which fires the 
 first shot that is responsible for the war, but the party 
 
 
 
 which makes war necessary. " Neither is the opinion 
 of some of the schoolmen to be received," says Lord 
 Bacon, " tliat a war cannot justly he made but upon a 
 precedent injury or provocation. For there is no 
 question but a just fear of an imminent danger, though 
 there be no blow given, is a lawful cause of war." 
 
 Mr. Lincoln had the misfortune to be inaugurated 
 President of a divided country, without any hope of 
 amicable adjustment. He had grave and difficult 
 official responsibilities laid upon him, besides those 
 which ordinarily belong to the office of President. 
 He was President of a Government of only expressly 
 granted powers under a written Constitution. To 
 exercise any other jiowers would be usurpation. No 
 motive of patriotism could rescue the acts from a 
 
420 Memoir of Eoger B. Taney. 
 
 breacli of the Constitution. The very whisperings of 
 one's heart, placed in such circumstances, are likely to 
 be deceitful. For it may well be doubted, whether 
 the worst of usurpers and tyrants do not believe that 
 they are moved only by a regard to the welfare of their 
 country. Even the Earl of Strafford, on his trial for 
 treason, defended his usurpations, on the ground that 
 they were done for the welfare of the people. " Salus 
 populi," said he, " suprema lex ; nay, in cases of ex- 
 tremity, even above acts of Parliament." 
 
 President Lincoln and his Cabinet were from the 
 first in great alarm, and at once began to lean for sup- 
 port on the military arm of Lieutenant-General Scott. 
 Suspecting, very naturally, that Maryland sympathized 
 with her sister slave States, every citizen of the State 
 was imagined to be engaged in plots against the Fed- 
 eral Government. Hence it was that, on the 25th of 
 May, 1861, John Merrymau, a citizen of Baltimore 
 County, in the State of Maryland, was arrested by a 
 military force, acting under orders of a Major-General 
 of the United States Army commanding in the State 
 of Pennsylvania, and was committed to the custody of 
 the General commanding Fort McHenry, within the 
 district of Maryland. On the 26th of May, 1861, a 
 writ of habeas corpus was issued, upon the petition of 
 Merryman, by Chief-Justice Taney, sitting at cham- 
 bers, directed to the commandant of the Fort, com- 
 manding him to produce the body of the petitioner 
 
Memoir of Eogek B. Taney. 421 
 
 before the Chief Justice, in Baltimore City, on the 27th 
 of May, 1861. On that day, the writ was returned 
 " served," and the officer to whom it was directed de- 
 clined to produce the petitioner, giving as his excuse 
 the following reasons ; 
 
 1. That the petitioner was arrested by the orders 
 of the Major-General commanding in Pennsylvania, 
 upon the charge of treason in being publicly associated 
 with and holding a commission as lieutenant in a com- 
 pany having in their possession arms belonging to the 
 United States, and avowing his purpose of armed hos- 
 tility against the Government. 
 
 2. That he (the officer holding the prisoner in cus- 
 tody) was duly authorized by the President of the 
 United States, in such cases, to suspend the writ of 
 habeas corpus for the public safety. 
 
 The Chief Justice immediately passed the following 
 order : 
 
 " Ordered, That an attachment forthwith issue against 
 General George Cadwalader for a contempt, in refusing 
 to produce the body of John Merryman, according to 
 the command of the writ of habeas eoiyus returnable 
 and returned before me to-day, and that said attach- 
 ment be returned before me at twelve o'clock to-morrow, 
 at the room of the Circuit Court. Monday, May 27, 
 1861. R. B. Taney." 
 
 The attachment was issued as ordered. 
 
 At twelve o'clock on the 28th of May, 1861, the 
 
422 Memoir of Koger B. Taney. 
 
 Chief Justice again took his seat on the Bench, and 
 called for the Marshal's return to the writ of attach- 
 ment. It was as follows : 
 
 " I hereby certify to the Honorable Koger B. Taney, 
 Chief Justice of the Supreme Court of the United 
 States, that, by virtue of the within writ of attach- 
 ment to me directed on the 27th day of May, 1861, 
 I proceeded, on this 28th day of May, 1861, to Fort 
 McHenry, for the purpose of serving the said writ. 
 I sent in my name at the outer gate; the messenger 
 returned with the reply, ' that there was no answer to 
 my card,' and therefore could not serve the writ, as 
 I was commanded. I was not permitted to enter the 
 gate. So answers Washington Bonifant, 
 
 U. S. Marshal for the District of Maryland." 
 
 After the Marshal's return was read, the Chief Jus- 
 tice said that the Marshal had the power to summon 
 i\\Q posse comitatus to aid him in seizing and bringing 
 before the Court the party named in the attachment, 
 who would, when so brought in, be liable to punish- 
 ment by fine and imprisonment ; but where, as in 
 this case, the power refusing obedience was so notori- 
 ously superior to any the Marshal could command, he 
 held that officer excused from doing anything more 
 than he had done. 
 
 After expressing his views of the law of the case in 
 general but very decided terms, he said that he should 
 cause his written opinion, when filed, and all the pro- 
 
Memoir of Roger B. Taney. 423 
 
 ceedings, to be laid before the President, in order tbat 
 lie might perform his constitutional duty, to enforce 
 the laws by securing obedience to the process of the 
 United States. 
 
 In a day or two afterwards, the Chief Justice put 
 his opinion in writing, and filed it in the office of the 
 Clerk of the Circuit Court. 
 
 After stating the facts of the case, the Chief Justice, 
 in the written ojiinion, says : "As the case comes be- 
 fore me, therefore, I understand that the President 
 not only claims the right to suspend the writ of habeas 
 corfus at his discretion, but to delegate that discretion- 
 ary power to a military officer, and to leave it to him 
 to determine whether he will or will not obey judicial 
 process that may be served upon him. No official 
 notice has been given to the courts of justice, or to the 
 public, by jsroclamation or otherwise, that the Presi- 
 dent claimed this power, and had exercised it in the 
 manner stated in the return. And I certainly listened 
 to it with some surprise, for I had suj)posed it to be 
 one of those points of constitutional law upon which 
 there was no difference of oj)inion, and that it was 
 admitted on all hands that the j^rivilege of the writ 
 could not be suspended excej)t by act of Congress." 
 
 The Chief Justice then inquires into the law of 
 habeas corpus in England, in order to show what 
 must be the law in our country, which inherited, and 
 endeavored to improve the guarantees of j)ersonal 
 
424 Memoie, of Eogee B. Taney. 
 
 liberty derived from the mother country. He finally 
 shows what are the views of great American jurists 
 upon the subject. Mr. Justice Story is referred to as 
 maintaining, in his Commentaries on the Constitution 
 of the United States, that the right to suspend the 
 privilege of habeas corpus is vested in Congress. Mr. 
 Justice Story does not raise any question about the 
 right; as no jurist, unless maddened by some passion 
 or self-deluding sophistry, could ever doubt that the 
 right belonged to Congress. " Hitherto," says Story, 
 " no suspension of the writ has ever been authorized 
 by Congress since the establishment of the Constitu- 
 tion. It would seem, as the power is given to Congress 
 to suspend the writ of habeas corpus in eases of rebel- 
 lion or invasion, that the right to judge whether the 
 exigency had arisen must exclusively belong to that 
 body." And Chief-Justice Marshall, in the case of 
 Ex parte BoUman, 4 Cranch R., says, " If at any time 
 the public safety should require the suspension of the 
 powers vested by this Act [Judiciary Act of 1789] in 
 the Courts of the United States, it is for the Legisla- 
 ture to say so. Tliat question depends on political 
 considerations on which the Legislature is to decide ; 
 until the legislative will be expressed, this Court can 
 only see its duty, and must obey the laws." " I can 
 add nothing," said Chief-Justice Taney, " to these clear 
 and emphatic words of my great predecessor." 
 
 " But the documents before me," continues Chief- 
 
Memoir of Eogee B. Taney. 425 
 
 Justice Taney, " show that the military authority in 
 this case has gone far beyond the mere suspension 
 of the privilege of the writ of habeas corpus. It has, 
 by force of arms, thrust aside the judicial authorities 
 and oflEicers to whom the Constitution has confided the 
 power and duty of interpreting and administering the 
 laws, and substituted a military government in its 
 place, to be administered and executed by military 
 officers." 
 
 After showing that other guarantees besides the 
 habeas corpus had been disregarded, the Chief Justice 
 says : " These great and fundamental laws, which Con- 
 gress itself could not suspend, have been disregarded 
 and suspended, like the habeas corpus, by a military 
 order, sup20orted by force of arms. Such is the case now 
 before me ; and I can only say that, if the authority 
 which the Constitution has confided to the Judiciary 
 Department and judicial officers may thus, upon 
 any pretext or under any circumstances, be usurped 
 by the military power at its descretion, the i^eople of 
 the United States are no longer living under a Govern- 
 ment of laws ; but every citizen holds life, liberty, and 
 property at the will and j^leasure of the army officer 
 in whose military district he may happen to be found. 
 
 " In such a case, my duty was too plain to be mis- 
 taken. I have exercised all the power which the Con- 
 stitution and laws confer on me ; but that power has 
 been resisted by a force too strong for me to over- 
 
426 Memoik of Roger B. Taney. 
 
 come. It is possible that the officer who has incurred 
 this grave responsibility may have misunderstood his 
 instructions, and exceeded the authority intended to 
 be given him. I shall, therefore, order all the pro- 
 ceedings in this case, with my opinion, to be filed and 
 recorded in the Circuit Court of the United States for 
 the district of Maryland, and direct the Clerk to trans- 
 mit a copy, under seal, to the President of the United 
 States. It will then remain for that high officer, in ful- 
 filment of his constitutional obligation to ' take care 
 that the laws be faithfully executed,' to determine what 
 measures he will take to cause the civil j^rocess of the 
 United States to be respected and enforced." 
 
 The Clerk did accordingly transmit the proceedings 
 and the opinion in the case to the President, as ordered 
 by Chief-Justice Taney. But the President paid no 
 respect to the opinion of that great magistrate, nor to 
 his constitutional obligation to "take care that the 
 laws be faithfully executed." 
 
 There is not, in the history of nations, a more flagrant 
 usurpation, than this act by whicli President Lincoln 
 suspended all the guarantees of personal liberty, and 
 put the military power above the civil. From that 
 moment, the Government of the United States was con- 
 verted into an instrument by which the whole power of 
 one section of the country was wielded by a sectional 
 party against another section. And there is nothing 
 more sublime in the acts of great magistrates that give 
 
Memoir of Eoger B. Taney. 427 
 
 dignity to Governments, than this attempt of Cliief- 
 Justice Taney to uphold the supremacy of the Consti- 
 tution and the civil authority in the midst of arms. 
 His Court was open ; and he sat upon the Bench to 
 administer tlie law. The cannon of Fort McHenry, 
 where Merryman was imprisoned, pointed ujjon the 
 city of Baltimore. But the Chief Justice, with the 
 weight of eighty- four years upon him, as he left the 
 house of his son-in-law, Mr. Camp-feell, remarked that 
 it was likely he should be imprisoned in Fort McHenry 
 before night; but that he was going to Court to do 
 his duty. It is considered the chief glory in our his- 
 tory, that Washington delivered up his sword to the 
 civil authority after he had performed his duty as a 
 soldier. The scene, as it occurred at Annapolis, de- 
 picted on canvas, adorns the rotunda of the Capitol of 
 the United States. And the day will come, when some 
 painter, inspired with the sublime conception of this 
 great magistrate struggling for the cause of constitu- 
 tional government, will sketch this scene for the in- 
 struction of future ages. 
 
 The ojainion of Chief-Justice Taney, which is among 
 the appendices to this volume, pronounced against the 
 claim of President Lincoln, that the Executive of the 
 United States is an Imperial Caesar, with authority to 
 suspend all civil authority and govern the country by 
 the army. Disguise the matter as partisans may, this 
 is the great political issue made in the Merryman case. 
 
428 Memoib of Eoger B. Taney, 
 
 Emergencies will occur in the progress of a nation, 
 when the exercise of much greater power is necessary 
 for j)ublic order and safety than is needed for the 
 ordinary course of affairs. In every constitutional 
 Government, provision must therefore be made for such 
 emergencies. Because, says Hume, in his Essays, " It 
 is a maxim in politics, which we readily admit as un- 
 disputed and universal, that a j)ower, however great, 
 when granted by law to an eminent magistrate, is not 
 so dangerous to liberty as authority, however incon- 
 siderable, which he acquires from violence and usurpa- 
 tion. For, besides, that the law always limits every 
 power which it bestows, the receiving it as a conces- 
 sion establishes the authority whence it is derived, 
 and preserves the harmony of the Constitution." The 
 remedy furnished by the Constitution of England for 
 emergencies of state, is the susj^ension, by Parliament, 
 of the writ of habeas corpus, enabling the Government, 
 for the time, to retain in prison persons who may be 
 dangerous to the State. Such prisoners, however, are 
 amenable only to the civil authority, and entitled to 
 all the guarantees of a fair trial according to " the 
 frame and ordinary course of the common law." 
 They can, too, sue the highest officers of the Govern- 
 ment, if they have been imprisoned illegally. 
 
 In France, and other countries on the continent of 
 Europe, where the Roman civil law, with the maxim, 
 " Whatever pleases the Prince has the force of law," 
 
Memoir of Roger B. Taney. 429 
 
 has nurtured the spirit of the nation, the Government 
 has the authority to imprison at pleasure, and to 
 declare the state of siege and martial law. And the 
 officers of the Government are shielded by perfect 
 impunity for all their acts. 
 
 Our ancestors brought with them to this country 
 the laws and institutions of England ; and the framers 
 of the Constitution of the United States have provided 
 for emergencies of state, by authorizing Congress to 
 suspend the writ of habeas corpus, subject to the same 
 conditions as in England. In England, at all times 
 and under all circumstances, the military is subject to 
 the laws and civil authority. There is in England, 
 neither in war nor peace, any such thing as martial 
 law, like that employed by the other Governments of 
 Europe. " Where martial law," said Lord Loughbor- 
 ough, 2 H. Blackstone's Eeports, " is established and 
 prevails in any country, it is of a totally different 
 nature from that which is inaccurately called martial 
 law merely because the decision is by a court-martial ; 
 but which bears no affinity to that which was formerly 
 attempted to be exercised in this kingdom, which was 
 contrary to the Constitution, and which has been for a 
 century totally exploded Therefore, it is totally in- 
 accurate to state martial law as having any place what- 
 ever within the realm of Great Britain." Without the 
 Mutiny Act, and the power granted by Parliament to 
 the king to make articles of war, even soldiers would 
 
430 Memoir op Kogee B. Takey. 
 
 be amenable only to trial by " the frame and ordinary 
 course of the common law." 
 
 We have arrived at a point in the career of national 
 progress, when it behooves us to pause and to reflect 
 upon the nature of the peculiar polity under which 
 we have accomplished such great things as a people ; 
 in order that, in refitting our institutions for the new 
 era which is opening before us, we may build accord- 
 ing to the ancient models, which have hitherto weath- 
 ered national disasters. Nationality is not determined 
 more by peculiarity of race, than it is by the character 
 of the institutions under which a people is developed. 
 Let us beware, lest we exchange a Government with 
 the writ of habeas corpus and trial by jury for a Gov- 
 ernment with the right to declare the state of siege 
 and martial law ! 
 
 A few days after Chief - Justice Taney made his 
 decision in the Merryman case, he wrote the following 
 private letter to an intimate friend : 
 
 Washington, June 8, 1861. 
 
 My Dear Sir : — I returned from Baltimore yester- 
 day, having remained there to try a case in admiralty 
 in the Circuit Court after I had disposed of Merry- 
 man's case; and this morning I received your kind 
 letter. I thank you for the kind terms in which you 
 have spoken of my opinion in the habeas corpus case. 
 I certainly desire no conflict with the Executive De- 
 partment of the Government ; and would be glad, as 
 
Memoik of Roger B. Taney. 431 
 
 you will readily suppose, to pass the brief remnant of 
 life that may yet be vouchsafed to me in peace with all 
 men, and in the quiet discharge of every-day judicial 
 duties. Yet, I trust I shall always be found ready to 
 meet any responsibility or any consequence that my 
 official duty may require me to encounter. Ellen is 
 still an invalid — improves slowly ; and is seldom 
 strong enough even to drive out. 
 
 I looked at the envelope of your letter carefully. I 
 think it had not been opened. And indeed if it had 
 been read, there certainly was no opinion in it, nor 
 anything said, that you could have any reason for 
 wishing to conceal. 
 
 The girls all send, with me, affectionate remem- 
 brances to Mrs. Hughes, and best wishes to yourself. 
 And I am, dear Sir, very truly, 
 
 Your friend and servant, 
 
 R. B. Taney. 
 Hon. George W. Hughes, 
 
 Tulip Hill, Anne Arundel Co., Md. 
 
 After the President of the United States had author- 
 ized petty military officers to suspend the writ of hxibeas 
 corpus, and the judicial authority of the Chief Justice 
 of the Supreme Court of the United States was treated 
 with contempt, the will of Congress and of the President 
 was paramount over the Constitution. But subsequent 
 usurpations were committed under the forms of law. 
 Congress, in its career of unconstitutional legislation, 
 passed an Act taxing the salaries of the Judges of the 
 Courts of the United States ; and the Secretary of the 
 
432 Memoik of Eogee B. Taney. 
 
 Treasury deducted the tax from tlie salaries. Because 
 of so monstrous an act, done in contempt of the ex- 
 press words of the Constitution, Chief-Justice Taney 
 addressed the following letter to the Secretary of the 
 
 Treasury : 
 
 Washington, February 16, 1863. 
 
 SiE : — I find that the Act of Congress of the last 
 session, imposing a tax of three per cent, on the sala- 
 ries of all officers in the employment of the United 
 States, has been construed, in your department, to em- 
 brace judicial officers, and the amount of the tax has 
 been deducted from the salaries of the Judges. 
 
 The first section of the third article of the Constitution 
 provides that " The judicial power of the United States 
 shall be vested in one Supreme Court, and such infe- 
 rior Courts as Congress may from time to time ordain 
 and establish. The Judges of both the Supreme and 
 inferior Courts shall hold their offices during good 
 behavior, and shall at stated times receive for their 
 services a compensation, which shall not be diminished 
 during their continuance in ofiice." The Act in ques- 
 tion, as you interpret it, diminishes the compensation 
 of every Judge three per cent. ; and if it can be dimin- 
 ished to that extent by the name of a tax, it may, in 
 the same way, be reduced from time to time at the 
 pleasure of the Legislature. 
 
 The Judiciary is one of the three great departments 
 of the Government created and established by the 
 Constitution. Its duties and powers are specifically 
 set forth, and are of a character that requires it to be 
 perfectly independent of the other departments. And 
 
Memoie of Eoger B. Taney. 433 
 
 in order to place it beyond the reach, and above even 
 the suspicion, of any such influence, the power to re- 
 duce their compensation is expressly withheld from 
 Congress and excej)ted from their powers of legis- 
 lation. 
 
 Language could not be more plain than that used 
 in the Constitution. It is, moreover, one of its most 
 important and essential provisions. For the articles 
 which limit the powers of the Legislative and Executive 
 branches of the Government, and those which pro- 
 vide safeguards for the protection of the citizen in his 
 person and property, would be of little value without 
 a Judiciary to uphold and maintain them which was 
 free from every influence, direct or indirect, that might 
 by possibility, in times of political excitement, warp 
 their judgments. 
 
 Upon these grounds, I regard an Act of Congress, 
 retaining in the Treasury a portion of the com23eusa- 
 tion of the Judges, as unconstitutional and void ; and 
 I should not have troubled you with this letter, if 
 there was any mode by which the question could be 
 decided in a judicial proceeding. But all the Judges 
 of the Courts of the United States have an interest in 
 the question, and could not therefore with projDriety 
 undertake to hear and decide it. 
 
 I am, however, not willing to leave it to be inferred, 
 from my silence, that I admit the right of the Legis- 
 lature to diminish, in this or any other mode, the com- 
 pensation of the Judges when once fixed by law; and 
 my silence would naturally, perhaps necessarily, be 
 looked upon as acquiescence, on my part, in the power 
 claimed and exercised under this Act of Congress, and 
 
 28 
 
434 Memoie of Eoger B. Taney. 
 
 would be regarded as a precedent establishing the 
 principle that the Legislature may at its pleasure 
 regulate the salaries of the Judges of the Courts of 
 the United States, and may reduce their compensation 
 whenever Congress may think proper. 
 
 Having been honored with the highest judicial station 
 under the Constitution, I feel it to be more especially 
 my duty to uphold and maintain the constitutional 
 rights of that department of the Government; and 
 not by any act or word of mine have it to be supposed 
 that I acquiesce in a measure that displaces it from the 
 independent position assigned to it by the statesmen 
 who framed the Constitution. And in order to guard 
 against any such inference, I present to you this re- 
 spectful, but firm and decided, remonstrance against 
 the authority you have exercised under this Act of 
 Congress. And request you to place this protest upon 
 the public files of your office, as the evidence that I 
 have done everything in my power to preserve and 
 maintain the Judicial Department in the position and 
 rank in the Government which the Constitution has 
 assigned to it. 
 
 I am. Sir, very respectfully yours, 
 
 E. B. Taney. 
 Hon. S. P. Chase, 
 
 Secretary of the Treasury. 
 
 The Secretary of the Treasury took no notice of 
 the letter from Chief-Justice Taney. Thereupon the 
 ' Chief Justice procured the following order to be passed 
 by the Supreme Court of the United States : 
 
 '^Supreme Court of the United States, December 
 
Memoir of Eogek B. Taney. 435 
 
 Term, 1862. — Order of Court: Ordered, upon the 
 request of tlie Chief Justice, that the following letter 
 from him to the Secretary of the Treasury be entered 
 on the records of the Court. 10th March, 18G3." 
 
 The letter was, by this order, preserved, to testify to 
 future ages that, in war no less than in peace, Chief- 
 Justice Taney strove to protect the Constitution from 
 violation. Within a few days, (now April, 1872,) the 
 present Secretary of the Treasury has adopted the 
 views contained in the letter of Cliief-Justice Taney, 
 and declines to deduct, under the Act of Congress, any 
 part of the salaries of the Judges. And as wiser 
 counsels regain ascendency in the Government of the 
 United States, Chief - Justice Taney will recover, in 
 public estimation, his commanding influence, which has 
 been displaced by the infuriated rancor of a sectional 
 political jjarty. He, as we have seen, was equally as 
 much traduced by another j^olitical party before he 
 was elevated to the Bench, and when the rage of the 
 times passed away, those who traduced him' felt them- 
 selves honored in doing his exalted worth reverence. 
 And he, in his sublime magnanimity, forgot the past, 
 and gave to every returning repentant the full meas- 
 ure of his friendly regard. No man ever relied with 
 more confidence upon the ultimate triumph of truth. 
 This gave him his marvellous self-reliance. 
 
 In order to show the high moral views which 
 Chief-Justice Taney took of the duty of Government 
 
436 Memoir of Eogee B. Taney. 
 
 officials in time of war, I transcribe from the Balti- 
 more Daily Gazette, of June 4, 1863, the following 
 case : — 
 
 " In the Circuit Court of the United States, yesterday 
 morning, Chief- Justice Taney delivered his opinion in 
 an appeal taken from the District Court of the United 
 States, which has been under consideration for some 
 days past, and is of great importance in various points 
 of view. The case was : 
 
 " The claimants of a large lot of merchandise and 
 goods vs. The United States. 
 
 " A seizure made by Provost-Marshal McPhail, in 
 October, 1862, heretofore reported, in which he was 
 required to proceed to adjudication, by order of the 
 District Court, on the application of the claimants' 
 Proctor, A. Sterrett Ridgely, Esq. 
 
 " It appears from the evidence, which was fully re- 
 viewed by the Chief Justice, that, early in September, 
 18G2, Marshal McPhail received from the War De- 
 partment a communication stating a Colonel Stone 
 had lately come from the Southern Confederacy, with 
 authority and money to buy $25,000 of drugs ; that 
 he was the nephew of a dealer in artificial flowers, 
 living in Baltimore, of the name of Rose ; and that 
 Stone must be arrested. Immediately thereupon the 
 Provost-Marshal laid a trap to catch the party, giving 
 carte blanche to his detectives. One of these, Voltaire 
 Randal, called on Mr. Rose at his store on Lexington 
 
Memoie of Rogek B. Taney. 437 
 
 Street, and representing himself as a Captain Thomas, 
 of Cone River, Virginia, inquired after Stone, stating 
 that the Captain who had brought him from Virginia 
 had recommended him (Thomas) to Stone as a person 
 with whom he could safely return. Rose knowing 
 no one of that name, so told Randal, alias Captain 
 Thomas, and the latter left. He returned again at 
 night, and, after further conversation. Rose, supposing 
 he might refer to a young man formerly in his em- 
 ploy, named Stern, who had also lately come from 
 Virginia, mentioned his name to Randal, adding that 
 he was then in Philadelphia. The latter then asked 
 Rose to write, and tell Stern what he said. This Mr. 
 Rose refused to do, as he knew nothing of the matter, 
 and it was none of his business. 
 
 " After a few days, Randal again called on Rose, 
 with a letter addressed to Stern, which he requested 
 should be sent to him. This was done by Rose. 
 Randal, still under the assumed name of Thomas, 
 insinuated himself into Rose's house and into an ac- 
 quaintance with his children and family, visiting them 
 frequently, and waiting until Rose came from his 
 business, on the plea of inquiring if any answer to 
 his letter had come from Stern. He made presents to 
 the children, who became very fond of him ; and other- 
 wise sought to work himself into the family's con- 
 fidence. On one of these visits (they were always 
 made at night), he exhibited to Rose a handkerchief 
 
438 Memoir of Roger B. Taney. 
 
 full of soft hats, telling him they cost but four dollars 
 here, and would bring twenty dollars in Virginia. 
 On another occasion, he showed him a pair of cavalry 
 boots and a coat, which he declared he could get one 
 hundred dollars for, aslsing Rose if he did not think 
 that a pretty good business. He represented himself 
 as in the confidence of the officers of the United States 
 and Southern Confederacy — showed a pass and certi- 
 ficate of loyalty over what purported to be the signa- 
 ture of Marshal McPhail. His conversations were 
 subsequently reported by Rose to Stern, who was still 
 in Philadelphia, and who had received the letter from 
 Randal, alias Captain Thomas, inviting him to return 
 to Virginia with him. Some months or so afterwards, 
 Stern, having purchased his goods, came to Baltimore, 
 and having informed some of his young cotnj)anions 
 of Randal's conversations and assumed character, they 
 had an interview with the latter. At this interview, 
 Randal exhibited to them what he stated to be a 
 clearance from the custom-house ; told them he had 
 a wagoner up to such jobs, who would collect and 
 transport their goods to North Point, where his vessel 
 lay ; and concerted all the arrangements for so doing. 
 " The further to inspire their confidence, he showed 
 them letters to and from distinguished persons in the 
 South, and succeeded thoroughly in imposing upon 
 them; and they appointed the next night for their 
 departure. The goods were collected by Randal and 
 
Memoir of Roger B. Taney. 439 
 
 the wagoner employed by him, and sent towards North 
 Point, he (Randal) and the young men following down 
 two hours later in another wagon. In the meantime, 
 Marshal McPhail (who, privy to what was going 
 on, and who in his testimony, filed in the case, states 
 that he set traps to catch the parties, having sent to 
 North Point the schooner Caroline, manned and in 
 charge of other of his employees, who were to repre- 
 sent themselves as the schooner and crew of the ficti- 
 tious Captain Thomas, and were to receive and take 
 aboard the goods on their arrival,) had procured a 
 tug-boat, with a view of intercepting and capturing 
 the parties. 
 
 " In going aboard of the Caroline, the fictitious 
 Captain Thomas, alias detective Randal, called on the 
 parties for freight and passage-money ; they paid him 
 half. But he returned, and stated that he and the 
 crew were sailing the schooner on shares, and that the 
 latter demanded the whole amount, some two hundred 
 and five dollars. This sum he succeeded in getting 
 from the claimants in advance. After some delays 
 and difiiculties, evidently created by Randal, alias 
 Captain Thomas, for the purpose of giving time to 
 Marshal McPhail to get down in the tug-boat, they 
 got underway, a few minutes after which they were 
 boarded. The decejDtion was still carried on by 
 the Provost-Marshal and the supposed Captain and 
 crew of the Caroline, the former j)retending to treat 
 
440 Memoir of Rogek B. Taney. 
 
 the latter as prisoners and offenders. The schooner 
 was taken in tow ; they stoi^i^ed at Fort McHenry, 
 where the Marshal told Kandal he would hand him 
 over to the custody of General Morris, which was 
 seemingly done, as Randal was then landed. The 
 claimants were brought to Baltimore, and lodged in 
 jail. 
 
 "Among other circumstances of deception sought 
 to be practised by detective Randal on one of the 
 claimants, was a package of letters addressed to par- 
 ties in the South, which he was induced by Randal to 
 place in his carpet-bag. These, it seems, were bona 
 fide letters, which had previously got into the posses- 
 sion of Marshal McPhail, and which were used by 
 Randal the better to enable him to impose upon the 
 parties. 
 
 " There was also, in the case, the statement of Mr. 
 Hoffman, the Collector of the Port, to the effect that 
 some time in September or October, 1862, he was 
 called on by Marshal McPhail, with the request that 
 he would grant him blank permits, under the seal of 
 the custom-house, to enable him (McPhail) to entrap 
 persons engaged in contraband trade. This Mr. Hoff- 
 man did not think proper, and refused to do. 
 
 " The Chief Justice, in delivering his opinion, re- 
 viewed the facts in substance as above, stating that he 
 had examined them with no less care than surprise, 
 and could recall no similar case in the jurisprudence 
 
Memoir op Eoger B. Taney. 441 
 
 of either tins country or England. He commented 
 with severity on the visits of Kandal to Kose's house, 
 and the deceptions practised in the case ; on the ini- 
 quity, as he felt called to term it, of this and other 
 parts of his conduct ; on his forged permits and clear- 
 ances, and the evil design and consequences of placing 
 letters, or allowing them to be placed, in the carpet- 
 bag of the claimants. 
 
 " The parties he considered as having been seduced 
 and betrayed into the purchase of the goods by the Pro- 
 vost-Marshal's officers, and could see no jDossible benefit 
 to accrue to the Government from such a seizure that 
 would in any way compare with the great evil that 
 would arise from a court of justice countenancing 
 such conduct by a condemnation of the goods. It 
 would encourage officers to betray the weak and im- 
 prudent into all sorts of violation of law, and would 
 be demoralizing in the extreme to the officers them- 
 selves ; and he was at a loss to see how any court of 
 justice could condemn property under the circum- 
 stances of this seizure, unless the means employed be 
 also countenanced. 
 
 " Besides the questions of public morality and public 
 policy, there were other grounds on which the goods 
 should be restored. He had no doubt that the parties 
 had come originally from the South, and perhaps in- 
 tended to return on the first favorable opportunity. 
 There was, however, nothing connecting them with 
 
442 Memoik of Roger B. Taney. 
 
 the Colonel Stone alluded to in the communication 
 from the War Department but the fact that Stern 
 was known to Rose, wlio was named in that communi- 
 cation. The goods of the claimants in this case were not 
 of a hostile character, tending to aid or arm those in 
 rebellion against the Government. They were simple 
 articles of trade and merchandise, such as hats, rib- 
 bons, silks, and jewelry, and articles of that descrijD- 
 tion. There was no evidence of the claimants ever 
 having been before engaged in the contraband trade. 
 The libel charged that the goods were proceeding from 
 Baltimore to Virginia Avhen seized. 
 
 " In deciding the case, you must seek for the sub- 
 stantial fact. Were they then, at the time of the 
 seizure, proceeding from Baltimore to Virginia? The 
 claimants may have desired to carry them there, and 
 may have thought they were going there; but the 
 Court is not to regard the outside coloring which 
 imposed upon the claimants. The substantial fact is, 
 that they were going to Marshal McPhail's office from 
 the time they left their respective depositories in Bal- 
 timore till they arrived there. They were clearly not 
 going to Virginia. The law, too, is express that not 
 only the goods, but the vessel conveying them, must 
 be forfeited. Now the vessel belonged to the Govern- 
 ment officers. Was sAe going to Virginia, and is she 
 liable to be condemned? Clearly not. She and the 
 goods were, although unknown to the claimants, in 
 
Memoie of Roger B. Taney. 443 
 
 the custody and control of the Government officers all 
 the tmie, and cannot be condemned under the libel in 
 this case, even though the Court should overlook the 
 immorality of the proceedings, and look only at the 
 case in its legal aspect. 
 
 " Part of the goods were bought in Philadelphia by 
 Stern, and could not, of course, come under the pro- 
 visions of the libel, which only refers to those in 
 Baltimore. 
 
 " A decree was signed, reversing the decision of the 
 District Court, and ordering the money or a^rjpraised 
 value of the goods, which had been deposited (instead 
 of stipulating in the case), to be restored or paid over 
 to the claimants. The Court, at the same time, stated 
 that there was no 'prohahh cause for the seizure, which 
 renders the informer (Marshal McPhail) responsible 
 for the damages and costs sustained by the claim- 
 ants." 
 
 This report of the case was submitted to Chief- 
 Justice Taney by the reporter, and received his ap- 
 proval, before it was published. 
 
 The vile practices disclosed in this case that were 
 authorized by the Government during the war, and 
 the disregard of the Constitution and the law, have 
 chiefly contributed to demoralize the public sense, and 
 bring about in our country the stupendous official cor- 
 ruption of the present time. And now, in the calm 
 of peace, with a returning sense of truth and justice, 
 
444 Memoik of Rogek B. Taney. 
 
 it becomes us, as patriots, to pause, and reflect with 
 instructive terror on the fate of nations like ancient 
 Rome, which, because of public corruption and private 
 jorofligacy, perished with such exemplary and a^ipalling 
 ruin. That Chief-Justice Taney, both as a statesman 
 and a Judge, did all in his power to save his country 
 from such a fate, must be manifest to all who may 
 read this Memoir. 
 
 The Chief Justice of the Supreme Court of the 
 United States is made, by an Act of Congress, ex 
 officio, one of the Regents of the Smithsonian Institu- 
 tion. Chief-Justice Taney was the first to occuj)y that 
 post. In order that it may be known how he per- 
 formed the duties of the office, I give the following 
 letter from the Secretary of the Institution, the emi- 
 nent scientist, Dr. Joseph Henry : 
 
 Smithsonian Institution, 
 Washington, D. C, January 4, 1872. 
 
 My Dear Sie : — Your letter, asking me to inform 
 you as to the " manner in Avhich Chief-Justice Taney 
 performed his duties in his official relations with the 
 Smithsonian Institution," has been received ; and I 
 take pleasure in complying with your request. 
 
 Chief-Justice Taney took a lively interest in the 
 Smithsonian Institution, and was thoroughly imbued 
 with an idea of its importance and the responsibility 
 involved in its management. He frequently referred 
 to the peculiarity of the bequest on which the Institu- 
 tion is founded, and to the fact that it was intrusted, 
 
Memoir of Roger B. Taney. 445 
 
 by a foreigner, to the United States for the good of 
 mankind, and that therefore the Government was 
 responsible to the civilized world for the proper in- 
 terpretation of the will as well as for the faithful 
 administration of the trust; that the failure of the 
 Institution would not alone involve the loss of money 
 and reputation, but would prevent the founding of 
 similar establishments through the influence of an 
 unfavorable example. He acquiesced in the analysis 
 of the will as given in the first report of the Secretary, 
 and approved of the plan of increasing and diffusing 
 knowledge by facilitating scientific research and by 
 publishing original works of a scientific character. 
 
 Shortly after the commencement of the operations 
 of the Institution, he was elected Chancellor, or, in 
 other words. Chairman of the Board of Regents, which 
 office he held until his death. He was regular in his 
 attendance at the meetings of the Board, and evinced 
 to the last a remarkable accuracy of memory in refer- 
 ence to all the acts and the numerous incidents con- 
 nected with the history of the Institution. As a pre- 
 siding officer, his manner was admirably adapted to 
 produce harmonious action amidst diversity of oj^inion. 
 When at one period, in the history of the Institution, 
 conflicting views were urged and personal animosities 
 engendered, even then the discussions of the Board 
 were conducted with that dignity of manner and 
 calmness of deliberation which characterized, under 
 his direction, the proceedings of the Supreme Court 
 of the United States. 
 
 In the interim of the annual sessions of the Board 
 of Regents, the Secretary habitually consulted him 
 
446 Memoik of Roger B. Taney. 
 
 with regard to the operations of the Institution, the 
 disposition of the funds, and the course to be pursued 
 in doubtful or perplexing cases. His advice was al- 
 ways judicious, founded as it was on a clear perception 
 of what would be proper in view of the peculiarity of 
 the bequest, and the character of the Government by 
 which the bequest was to be administered. 
 
 In addition to the answer which I have given to 
 the question which you have propounded to me, I beg 
 leave to say that, from an unreserved intimacy with 
 Judge Taney of nearly twenty years, I am led to a 
 very high appreciation of his moral and intellectual 
 character, and to entertain sentiments in regard to 
 him which will ever induce me to cherish his memory 
 as that of a great and good man. 
 
 Yours very respectfully, 
 
 Joseph Heney. 
 To Samuel Tyler, Esq. 
 
 By this letter it is seen that Chief-Justice Taney 
 manifested, as Chancellor of the Smithsonian Institu- 
 tion, the same faithfulness to duty, and the same re- 
 markable administrative ability, which characterized 
 him in every station which he occupied throughout 
 his long, eventful, and trying life. 
 
CHAPTER VIL 
 
 PKIVATE LIFE. 
 
 I FEEL that in this chapter I am undertaking a 
 task almost too delicate for the pen of the histo- 
 rian, while members of the family of Chief-Justice 
 Taney (and they ladies) are still living. The incidents 
 of his domestic circle, which would illustrate with 
 most beauty the private life of the Chief Justice, can- 
 not be unveiled to public view. But in the great trial 
 of life the Chief Justice was destined to walk over 
 the hottest ploughshares ever put under the feet of a 
 public man by his countrymen ; and it is my duty to 
 show, by his virtues, that he j^assed through the ordeal 
 unhurt. I must therefore say more of his private 
 life than has thus far been revealed in this Memoir. 
 
 The private intercourse of Chief- Justice Taney with 
 the officers and other officials of the Supreme Court 
 deserves the first notice. It was such that they all 
 had, and still have, and always will have, his j^raise 
 upon their tongues. His very name warms their 
 hearts and brightens their countenances. The mem- 
 ory of no father was ever cherished by his children 
 with more affectionate reverence, than that of Chief- 
 
 447 
 
448 Memoir of Eogek B. Taney. 
 
 Justice Taney is this day by every officer of the Su- 
 preme Court who was there when he presided over its 
 deliberations. And such was the charm of his man- 
 ner that every newly - appointed officer was, at his 
 very first interview with the Chief Justice, brought to 
 regard him with affectionate reverence. Soon after 
 the death of the Chief Justice, Mr. Lamon, who had 
 been aj^pointed Marshal of the Supreme Court by 
 President Lincoln, remarked to me : " Chief-Justice 
 Taney was the greatest and best man 1 ever saw. I 
 never went into his presence on business that his 
 gracious courtesy and kind consideration did not 
 make me feel that I was a better man for being in his 
 presence." I said, " Your experience is that of every 
 officer about the Court. Mr. Meehan, the Librarian, 
 has often, when I have been in the library, come from 
 the presence of the Chief Justice, and said, ' What a 
 glorious old gentleman the Chief Justice is ! He 
 always treats me in such a way as to increase my 
 respect for myself" 
 
 That a man of such an iron will, such determined 
 purpose, such undaunted courage, and all the heroic 
 elements of character, should have such a delicate 
 sentiment of kindness manifested in his courtesy, has 
 always been a subject of observation by those who 
 knew the Chief Justice best. Its source was his 
 charity of heart and his high breeding. 
 
 It was, for some years, the custom of the Judges of 
 
Memoir of Eogek B. Taney. 449 
 
 the Court of Apjaeals of Maryland to write to Chief- 
 Justice Taney a letter of compliment on his birth- 
 day. I have been able to procure but one of his 
 answers, which is the following letter : 
 
 Washington, March 19, 1860. 
 
 Gentlemen: — I return my cordial thanks for 
 your very kind letter on my birthday. If I have 
 done anything to merit in any degree the approbation 
 you are pleased to express, I owe it to my training in 
 the Maryland Courts and at the Maryland Bar ; and 
 no mark of approval could be more grateful to me, or 
 more highly valued, than the one you have sent me 
 from the highest judicial tribunal of the State. 
 
 At the same time I am sensible of the personal 
 kindness which prompted your letter, and am grate- 
 ful for it. 
 
 With the highest respect and esteem, 
 
 I am, gentlemen, your obedient servant, 
 
 R. B. Taney. 
 
 Hon. John C. Legrand, Chief Justice, 
 
 Hon. J. B. ECCLESTON, 1 
 
 Hon. William F. Tuck, V Judges of the Court of Appeah. 
 Hon. James L. Baetol, J 
 
 Chief-Justice Taney was of a singularly domestic 
 nature. All through life he loved to talk of his early 
 home in Calvert County, Maryland. The friends of 
 his youth were remembered with great warmth of 
 affection. But he lived so long that all had died and 
 left him, excejjt Mr. Justice Morsell, for many years 
 one of the Judges of the Circuit Court in the District 
 
 29 
 
450 Memoir of Roger B. Taney. 
 
 of Columbia. Judge Morsell was older than himself. 
 They were born in the same neighborhood, and were 
 playmates, hunting wild game in the woods, and fish- 
 ing and bathing in the streams and rivers of their 
 native county ; and were linked together by their 
 youthful joys in an enduring friendship. They had 
 now walked down the hill of life together, to rest for- 
 ever at its base ; and the country they both had seen 
 moving in such a grand career was now torn by civil 
 war. As a last parting token of his friendship, Chief- 
 Justice Taney sent his friend a photograph of himself. 
 The note accompanying it, I could not procure. The 
 following is Judge Morsell's acknowledgment. 
 
 George Town, May 5, 1863. 
 
 My Dear Sir : — I have been favored with the 
 receipt of your card, — a most welcome token, indeed, 
 of a highly-prized, early, and long-continued friend- 
 shiji, formed in better days of law and order, and 
 without change continued. Let it never be severed ! 
 With much esteem and respect, yours, 
 
 James S. Morsell. 
 The Hon. Chief-Justice Taney, 
 
 Washington. 
 
 It surely is pleasant and exalting, to contemplate 
 such friendship as this between two such aged men. 
 I record it with unspeakable pleasure, to testify of the 
 noble nature of Judge Morsell, whom I knew well, 
 and to show how Chief-Justice Taney lived in the 
 hearts of those who knew him best. 
 
Memoir of Roger B. Taney. 451 
 
 In the first chapter of this Memoir, Chief-Justice 
 Taney speaks of Joshua Williams, one of his class- 
 mates at Dickinson College. When the Rev. Dr. 
 Sprague was preparing his "Annals of the American 
 Pulpit," he inquired, by letter, of Chief-Justice Taney 
 about Mr. Williams. I find in the fourth volume of 
 the Annals the following letter in answer : 
 
 Washington City, May 20, 1850. 
 
 Dear Sir : — You ask for my recollections of my 
 class-mate Joshua Williams. More than fifty years 
 have passed since we graduated together at Dick- 
 inson College ; but my recollection of him seems as 
 fresh as the day after we parted, for he was not a man 
 to be forgotten by his companions. 
 
 It is not in my power to give you any particular 
 incidents in his life worth repeating.- Indeed, in the 
 calm and quiet life of a student faithfully performing 
 his college duties, and preparing himself for future use- 
 fulness, there is scarcely ever any striking event worth 
 recording in his biograpliy. Such, according to my 
 recollection, was Mr. Williams. He was, I believe, a 
 few years older than myself His standing as a scholar 
 was equal to the highest in the class. He was studi- 
 ous, yet cheerful, social, and a general favorite. His 
 life was pure and unsullied, and it is a pleasure to 
 recall him to memory such as he then was. We all 
 thought him eloquent ; and, although he and I never 
 met after we left college, I have often inquired after 
 him and heard of him, and have been gratified to find 
 that his future did not disaj^point the anticipations of 
 
452 Memoib of Roger B. Taney. 
 
 those who were his companions and fellow-students. 
 I have ever cherished for him a high and cordial 
 regard. 
 
 With great respect and esteem, 
 
 I am, dear sir, your obedient servant, 
 
 E. B. Taney. 
 William B. Spkague, D. D. 
 
 This Mr. Williams became a distinguished minister 
 in the Presbyterian Church, was pastor at Big Spring, 
 Pennsylvania, and died in 1838. 
 
 After Chief-Justice Taney removed to Baltimore 
 City, he formed an enduring friendship with Mr. 
 David M. Perine, a gentleman of the highest char- 
 acter, and the most scrupulous attention to duty in 
 one of the most important public offices in the city. 
 The Chief Justice took j)leasure in visits to his beauti- 
 ful country-seat near Baltimore, to stroll under the 
 shady trees on the banks of artificial lakes so natural 
 as to seem to have been formed in the beginning of 
 things. 
 
 The following letters, which I have procured from 
 Mr. Perine, will show what manner of man the Chief 
 Justice was in his friendships, and what tenderness of 
 feeling he had for his suffering fellow-men : 
 
 Washington, March 16, 1862. 
 My Dear Friend : — To-morrow, if I live to see 
 it, I shall, as you know, be eighty-five years old ; and 
 I cannot suffer it to close without expressing my grati- 
 
Memoir op Eoger B. Taney. 453 
 
 tude to the Giver of all good, that I have been so long 
 spared to those I love, and that age has not found me 
 without true and tried friends to comfort and solace it. 
 And among the foremost in that number, I need not 
 say how sensible I am of your constant and unwearied 
 friendship for now nearly forty years, and never forget 
 the proofs you have given of it in the darkest and 
 most sorrowful scenes of my long life. 
 
 I wish I could have seen my eighty-sixth year be- 
 gin with brighter hopes. The one I have just passed 
 has been a sad one. And there is, I doubt not, a 
 million of persons — men, women, and children — in 
 this now distracted country, who, at my last birthday, 
 were full of bright hopes, and cheerful homes, who 
 are now mourning over ruined fortunes, or weeping 
 for husbands or sons or brothers who have fallen in 
 battle or died of the diseases of a camp life. 
 
 How sad it is to look upon this picture, and see 
 how suddenly it has come upon the country ! Will 
 the year in which I am about to enter be better ? I 
 fear not 
 
 God's will be done ; and we must meet it with the 
 faith of Christians and the firmness and courage of 
 manhood. 
 
 May you and yours pass through it safely and hap- 
 pily is the sincere prayer of me and mine, who all 
 join me in affectionate remembrances. 
 
 Ever your friend, E. B. Taney. 
 
 D. M. Ferine, Esq., Baltimore. 
 
 As the darkness grew thicker over our country torn 
 by civil war, the letters of the Chief Justice to his 
 
454 Memoik of Roger B.Taney. 
 
 friend had less and less of hope for better things, as 
 the following one shows : 
 
 Washington, August 6, 1863. 
 
 My Dear Friend : — I have been sick, very sick, 
 since I last wrote to you, and liave recovered slowly. 
 But I am again in my office, and feel as well as usual, 
 but not so strong, and am obliged to confine myself 
 to my house. 
 
 During this hot season I have often thought of the 
 pleasant days I have passed at your home, enjoying 
 the fresh country air and walking over your grounds. 
 But my walking days are over ; and I feel that I am 
 sick enough for a hospital, and that hospital must be 
 my own house. 
 
 Yet I hope to linger along to the next term of the 
 Supreme Court. Very different, however, that Court 
 will now be from the Court as I have heretofore known 
 it. Nor do I see any ground for hope that it will ever 
 again be restored to the authority and rank which the 
 Constitution intended to confer upon it. The suprem- 
 acy of the military power over the civil seems to be 
 established ; and the public mind has acquiesced in it 
 and sanctioned it. We can pray for better times, and 
 submit with resignation to the chastisements which it 
 may please God to inflict upon us. 
 
 With best regards to the ladies of your family, 
 I am ever your friend, 
 
 E. B. Taney. 
 D. M. Ferine, Esq., Baltimore. 
 
 I next give the last letter which Chief-Justice Taney 
 wrote to Mr. Ferine : 
 
Memoie of Eogee B. Taney. 455 
 
 Washington, March 18, 1864. 
 
 My Dear Friend : — I can hardly tell you with 
 what pleasure I looked upon your well-known hand- 
 writing, when your birthday letter was handed to me 
 yesterday. It brought back to memory many kind- 
 nesses and scenes of unbroken intimacy and friendship 
 for forty years. At the age of eighty-seven, I cannot 
 hope to see many more birthdays in this world, and 
 can hardly hope to live long enough to see more 
 peaceful and happier times. You I trust, who are so 
 much younger than I am, will be spared to see and 
 enjoy them. And that it may please God to lengthen 
 your days in the enjoyment of every blessing, is the 
 sincere and earnest prayer of 
 
 Your friend ever, R. B. Taney. 
 
 D. M. Pekine, Esq., Baltimore. 
 
 On the day that the above letter was written, the 
 Natio7ial Intelligencer, published at Washington, con- 
 tained the following notice of the eighty - seventh 
 birthday of the Chief Justice: 
 
 " The venerable Chief- Justice Taney yesterday fin- 
 ished the eighty-seventh year of his age. Detained 
 at his home more by recent indisposition (from which 
 we are glad to learn he is steadily recovering) than 
 by the infirmities of his age, he was yesterday waited 
 upon, in a body, by his brethren the Associate Justices 
 of the Supreme Court of the United States, who took 
 this occasion to pay their respects officially to their 
 Chief, and at the same time tender him personally 
 
456 Memoir of Eogee B. Taney. 
 
 their congratulations on the returning anniversary of 
 his birthday. 
 
 " That this token of reverence and regard might be 
 the more marked, Mr. Justice Wayne, the presiding 
 Judge of the Court in the absence of the Chief Justice, 
 requested, as we learn, a member of the Bar, while 
 yesterday arguing a cause before that high tribunal, 
 to suspend his remarks at an earlier hour than that at 
 which the Court usually adjourns, that its members 
 might pay a complimentary visit to the Chief on the 
 return of his birthday. 
 
 " Immediately after the interview had by the Judges 
 of the Court, its officers, accompanied by several mem- 
 bers of the Bar, and a few other friends, waited in 
 like manner on the Chief Justice at his house, where, 
 we need not add, all who called were received with 
 that urbanity and affability which characterize the 
 distinguished and venerable jurist in his intercourse 
 with society." 
 
 The son of his old friend Mr. Ferine had sent the 
 Chief Justice, as a birthday present, a carved walnut 
 cigar-box of fine workmanship. The pleasure with 
 which the Chief Justice received the token of respect 
 is manifested in the following letter to the donor : 
 
 Washington, March 18, 1864. 
 
 My Deak Sir: — I thank you for your very kind 
 letter and the beautiful and acceptable present, both 
 of which were received yesterday. I took much 
 
Memoir of Eogek B. Taney. 457 
 
 pleasure in showing your birthday present to the 
 Judges of the Supreme Court and otlier friends, who 
 did me the honor of paying me a birthday visit, and 
 hearing its beauty and taste admired by them all. 
 And I value it the more, because it is from the son 
 of the truest, and now one of the oldest, of my sur- 
 viving friends, and tells me that the friendship which 
 the father and myself have so long cherished for each 
 other will not be forgotten by the son. 
 
 With great regard, very truly, your friend, 
 
 R. B. Taney. 
 Mr. E. Glenn Ferine, Baltimore. 
 
 This letter manifests in a remarkable manner the 
 lively interest which the Chief Justice still took in the 
 ordinary acts of social life. His conduct, in showing 
 his present, is just what he would have done when he 
 was a young man. At this very time, I sat up with 
 him at night during his sickness, and, after he was 
 convalescent, he would, while lying in bed, smoke a 
 cigar, and talk to me to such a late hour that one of 
 his daughters would come into the room to break up 
 the conversation. The topics of conversation were 
 such as showed as great familiarity with every-day 
 life as any gentleman at any age would possess. My 
 brother, Dr. Grafton Tyler, had been for years the 
 family physician of the Chief Justice, and he remarked 
 again and again to me that the Chief Justice was like 
 a disembodied spirit; for that his mind did not, in 
 any degree, participate in the infirmities of the body. 
 
458 Memoir of Eoger B. Taney. 
 
 Knowing that my friend Mr. S. Teaekle Wallis, 
 an eminent lawyer of the Baltimore Bar, was on in- 
 timate social relations with the Chief Justice, at my 
 personal request he handed to me letters which he 
 had received from the Chief Justice. I select the 
 following, because of their allusion to public affairs, as 
 aj^propriate to this Memoir. 
 
 Washington, March 20, 1863. 
 
 My Dear Sir : — I thank you for your birthday 
 letter which I received to-day. After so many years 
 j^assed in the public service, and often called on to act 
 in seasons of j^opular excitement and passion, your 
 approval of my conduct so cordially expressed is most 
 grateful to me ; for I know it is sincere, and comes 
 from one who has had the best opportunities of know- 
 ing me, and who has himself given a bright example 
 of public and private virtue amid severe trials. 
 
 At my advanced age, I can hardly hope to see the 
 end of the evil times on which we have fallen. But 
 I trust you will live to see the civil jjower restored in 
 Maryland to its supremacy over the military, and the 
 homes and firesides of its citizens once more safe under 
 the protection and guardianship of law. Such is the 
 constant and earnest j^rayer of 
 
 Your true and sincere friend, 
 
 R. B. Taney. 
 S. T. Wallis, Esq., Counsellor-at-law, Baltimore. 
 
 On his eighty-seventh birthday, which has already 
 been particularly noticed, Mr. Wallis wrote the Chief 
 
Memoir of Eoger B. Taney. 459 
 
 Justice a letter of compliments. The Chief Justice 
 returned the following answer : 
 
 Washington-, March 20, 1864. 
 
 My Dear Sir: — I received your very kind birth- 
 day letter to-day. When a man has arrived at the 
 age of eighty-seven years, he will always find that he 
 has outlived nearly all of the companions and friends 
 of his early life ; and it is then that he sensibly feels 
 the assurances of regard from men whom he has 
 known from their boyhood and who belong to another 
 generation. He perhaps hopes that their approbation 
 of his life and official conduct is evidence of the judg- 
 ment which impartial and enlightened posterity will 
 pass upon it. I have not only outlived the friends 
 and companions of my early life, but I fear I have 
 outlived the Government of which they were so justly 
 proud, and which has conferred so many blessings 
 upon us. The times are dark with evil omens, and 
 seem to grow darker every day. At my time of life, 
 I cannot expect to live long enough to see these evil 
 days ]3ass away; yet I will indulge the hope that you, 
 who are so much younger, may live to see order and 
 law once more return, and live long to enjoy their 
 blessings. 
 
 With sincere respect and regard, 
 
 I am your friend and servant, 
 
 E. B. Taney. 
 S. T. Wallis, Esq., Baltimore. 
 
 The following letter, which, because of its topics, 
 comes in appropriately here, was written by the Chief 
 
460 Memoir of Eogek B. Taney. 
 
 Justice to his friend, the eminent law-writer, Mr. 
 Conway Robinson. Being intimate myself with Mr. 
 Bobinson, I learned from him the contents of the 
 letter, and at my request he allows me to publish it. 
 
 Washington, April 10, 1863. 
 
 My Deak Sir : — I send you, according to your 
 request, a reference to two State papers which were 
 inadvertently omitted in my opinion in the habeas 
 corpus case of John Merryman. I can hardly account 
 now for the omission. But I had named a day on 
 which I would file the opinion in the Clerk's office of 
 the Circuit Court, and other official duties intervening, 
 I found myself pressed for time. And after it was 
 filed and a copy sent to the President, it was too late 
 to correct it. These papers bear directly and strongly 
 upon the point ; and to show how forcibly they apply, 
 I give the reference in the words in which they should 
 have ai:)peared in the argument, inserted immediately 
 before the last paragraph in the pamphlet edition as 
 follows : 
 
 " The Constitution of the United States was framed 
 upon the principles set forth and maintained in the 
 Declaration of Independence; and in that memorable 
 instrument one of the reasons assigned to justify the 
 people of the several colonies in withdrawing their 
 allegiance from the British monarch, and forming a 
 new and separate government, is that ' He (the king) 
 has afiected to render the military independent and 
 superior to the civil power.' " 
 
 And upon another occasion, scarcely less memo- 
 rable, when Washington resigned his commission as 
 
Memoie, of Eoger B. Taney. 461 
 
 commander-in-ctiief of the American army, and sur- 
 rendered to Congress the great military powers which 
 had been confided to him, Thomas Mifflin, then Presi- 
 dent of Congress, in accepting the resignation in he- 
 half of the body over which he presided, said : 
 
 " Called upon by your country to defend her in- 
 vaded rights, you accepted the sacred charge before it 
 had formed alliances, and while it was without funds 
 or a government to support you. You have conducted 
 the great military contest with wisdom and fortitude, 
 invariably regarding the rights of the civil power 
 through all disasters and changes." 
 
 Such was Washington through all the disasters and 
 changes of a seven years' war, while combating inva- 
 sion from abroad and disaffection at home ; and such 
 the men who declared and achieved independence and 
 formed the Constitution of the United States. They 
 mark with emphasis his invariable respect for the civil 
 power ; and show that they regarded it as one of his 
 strongest claims to the confidence and gratitude of his 
 countrymen. 
 
 So much for the argument. But I may say to you, 
 how finely and nobly Washington's conduct contrasts 
 with the military men of the present day, from the 
 Lieuteuaut-General down. 
 
 Very respectfully and truly yours, 
 
 K. B. Taney. 
 Conway Robinson, Esq. 
 
 Washington's opinion of the relation which the 
 military power bears to the civil, and his determina- 
 tion that it should always act only as subordinate to 
 
462 Memoir of Eogek B. Taney. 
 
 the civil, is evinced by his conduct during "The 
 Whiskey Boys' Insurrection " in 1794. The in- 
 surgents resisted, by force of arms, the authority of 
 both the United States and the State of Pennsylvania. 
 So tender was the Government towards the insurgents, 
 that it endeavored for three years, by offers of con- 
 ciliation, to allay their discontent. At length the 
 President proceeded to effect by force that which per- 
 suasion had failed to accomplish. And even then, 
 Washington, in a letter of October 20, 1794, dated 
 "United States (Bedford)," addressed to "Henry Lee 
 Esq., commander-in-chief of the military army on its 
 march against the insurgents," says : " There is but 
 one point on which I think it proper to add a special 
 recommendation ; it is this, that every officer and sol- 
 dier will constantly bear in mind that he comes to 
 suj^port the laws, and it would be peculiarly unbe- 
 coming in him to be in any way the infractor of them. 
 That the essential principles of free government con- 
 fine the province of the military, when called forth on 
 such occasions, to these two objects: First, to combat 
 and subdue all who may be found in arms in opposi- 
 tion to the national will and authority ; second, to aid 
 and support the civil magistrate in bringing offenders 
 to justice. The dispensation of this justice belongs to 
 the civil magistrate ; and let it ever be our pride and 
 our glory to leave this trust there unviolated." Of 
 all the insurgents, only two were prosecuted for 
 
Memoik of Eogek B. Taney. 463 
 
 treason, and they were pardoned ; so that, by civil 
 clemency, the rebellion was put down without the 
 shedding of blood. I recount this striking instance 
 in the conduct of Washington, to confirm the view 
 of the relation of the military to the civil power 
 taken by the Chief Justice. Washington had the 
 highest moral tone, and the justest appreciation of 
 authority and of individual right in proper adjust- 
 ment, of any great ruler who has yet appeared in the 
 history of nations. 
 
 Chief-Justice Taney had all his life, whenever occa- 
 sion offered, been the composer of strife. It so hap- 
 pened that Mr. Peters, the Reporter of the Supreme 
 Court of the United States, and Mr. Carroll, the Clerk, 
 had got into unpleasant relations, after having been 
 friends. They were both excellent officers, and both 
 especially liked by the Chief Justice. Mr. Carroll 
 was of the family of Charles Carroll of Carrollton, 
 whose counsel the Chief Justice had been for many 
 years, while he was at the bar, and together they had 
 supported General Jackson's administration. So that, 
 besides restoring peace between friends for whom he 
 had so much kindly feeling, it may be supposed the 
 Chief Justice would wish to restore amicable relations 
 between two officers of his Court. Mr. Peters was at 
 his home in Philadelphia. In May, 1848, the Chief 
 Justice thus writes to him : 
 
 " What can I do to put things right between you 
 
464 Memoir of Eogek B. Taney. 
 
 and the Clerk ? When we meet again next winter, I 
 will find time to have a full explanation with both of 
 you, and see what can be done. I am persuaded that 
 there are more misunderstandings than there need be 
 between you, and that both of you sometimes act 
 under the influence of excitement. Remember, I do 
 not complain of this, or find fault with it ; for I know 
 it is unavoidable in the state of feeling in relation to 
 one another which exists between you. But I will see, 
 when we meet again, if there is not a place yet left for 
 the j^eacemaker — for a peacemaker who sincerely 
 respects and esteems both of you ; and who would do 
 much to re-establish friendly relations between you. 
 
 " But in the meantime I must take care that you 
 are not interrupted in the performance of your duties. 
 I am not sure that I understand exactly what records 
 or opinions are still deficient. Do me the fevor to say 
 what you wish to be sent to you, that I may immedi- 
 ately attend to it." 
 
 The Chief Justice was a man of such a high sense 
 of honor, having been bred in the old school of 
 gentlemen, that he did not undertake to reconcile dif- 
 ficulties between gentlemen like Mr. Peters and Mr. 
 Carroll, except upon the basis of honorable explana- 
 tion. Therefore, when he undertook the office of 
 peacemaker, he expected to have some trouble. It 
 has been remarked by one who has read this letter, 
 that it " does a higher honor to the memory of the 
 
Memoir of Eogek B. Taney. 465 
 
 Chief Justice than the ablest opinion he ever gave. 
 The latter may show that he was an able man ; the 
 former proves that he was a good one." 
 
 The relatives of Mrs. Taney were devotedly fond 
 of the Chief Justice, and were a great deal at his 
 house. Mrs. Alice Key Pendleton, wife of the Hon. 
 George H. Pendleton, and daughter of the author of 
 "The Star- Spangled Banner," requested the Chief 
 Justice to give her his photograph with his autograph, 
 and a sentiment. He sent the likeness with the follow- 
 ing letter, written in his eighty-eighth year. 
 
 Washington, June 24, 1864. 
 
 My Dear Alice : — I jDromised to send you a 
 sentiment with my autograph ; but, thinking the 
 matter over since, I have sometimes felt disj^osed to 
 ask you to release me from it; for I have been much 
 puzzled to determine whether the sentiment should be 
 religious, or moral, or political, or judicial. Never- 
 theless, as the promise has been made, I will fulfil it. 
 And as I have the honor to belong to the Judicial 
 Department of the Government, I have selected one 
 which, although applicable to any situation in life, 
 seems especially fit to be borne in mind by every 
 Judge who, in the present times, is called on to ad- 
 minister and maintain the law. 
 
 I have not attached the sentiment to the autograph 
 on the picture ; for if I placed it there, I should ap- 
 pear to be making a speech to every person who 
 looked at it, and, what would be still worse, always 
 
 30 
 
466 Memoir of Roger B. Taney. 
 
 saying over the same thing. I have therefore at- 
 tached it to this note. 
 
 I know you could once read Latin, although it is 
 not a very common accomplishment in ladies of the 
 present day. I presume you have not forgotten it ; 
 and I therefore make no apology for giving you the 
 sentiment in the language of Horace in his third 
 Ode, third Book. 
 
 Affectionately, E. B. Taney. 
 
 " Justum et tenacem propositi virum 
 Non civium ardor prava jubentium, 
 Noil vultus instantis tyranni, 
 Mente quatit 
 
 The photograph had the following autograph : 
 
 " For Mrs. Alice Key Pendleton, as a token of the 
 
 respect and regard of her uncle. 
 
 R. B. Taney. 
 " June 22, 1864." 
 
 And in order to show how dear the Chief Justice 
 was to those who knew him in jorivate, I venture to 
 extract from Mrs. Pendleton's letter to me, without 
 her knowledge, the following passages : 
 
 " I am very glad you are writing uncle's biography. 
 I long to have the beauty of his life and character 
 more fully known and appreciated. And amid the 
 indignation that I feel daily at the wrong done him 
 at the present, I comfort myself with the hope for 
 history to right him. To your hands is intrusted 
 
Memoir of Eogee B. Taney. 467 
 
 this work, and your name has been too long associated 
 in my memory as a household friend, for me to feel 
 otherwise than that the work will be well done. 
 
 "I have also copied the 'sentiment' from uncle, 
 appended to his letter. It has a noble signification 
 as emanating from him. So truly is it the precept and 
 example of his life." 
 
 As I am now portraying the private life of one of 
 the most abused men who ever served his country in 
 high stations, I will show how he impressed all classes 
 of persons who were admitted to his intimacy. Among 
 these was General Robert E. Lee. I inquired of him 
 whether he had any letters from Chief-Justice Taney, 
 and received in answer the following letter : 
 
 Lexington, Va., November 14, 1865. 
 
 My Dear Sir: — I have just received your note 
 of the 5th instant, and wish it was in my power to 
 add to your stock of materials for the life of Chief- 
 Justice Taney. I have no letters from him; and 
 though my memory is full of the pleasure and im- 
 provement I always enjoyed in his company, and in 
 my intercourse with his charming and intellectual 
 family, I have no special reminiscences that would 
 be useful to you. 
 
 I am much pleased to hear that your materials 
 are so ample and satisfactory ; and I hope, when his 
 history is known, that it will exalt him in the estima- 
 
468 Memoir of Eoger B. Taney. 
 
 tion of all honorable men to tte higli position he 
 holds in mine. 
 
 Very respectfully, your obedient servant, 
 
 K. E. Lee. 
 Mr. Samuel Tyler. 
 
 November 6, 1864, the Rev. Dr. Clover, of the Pro- 
 testant Episcopal Church, preached a sermon in Spring- 
 field, 111., the home of President Lincoln, from the 
 Scriptural text : " Some say he is a good man, others 
 say nay." The sermon was devoted entirely to the life 
 and character of Chief-Justice Taney. I make the 
 following extracts from a newspaper report of it : 
 
 " In the relations of social intercourse, it has hap- 
 pily fallen to my lot to know Mr. Taney in that 
 sphere of life which most fairly and truly develops 
 real character — in which a man, thrown off his guard, 
 acts not for public applause, but acts out himself; and 
 in so doing, shows what in him is good and great and 
 noble, or what is mean, debasing, and selfish. In his 
 private and domestic relations, Chief-Justice Taney 
 was most exemplary, and has left a bright example, in 
 this respect, for public men to follow 
 
 " That he was great as a lawyer cannot be doubted ; 
 but in nothing did his attractiveness of character more 
 appear than in his ha^^py and affable manner, coupled 
 with the most graceful and dignified bearing, which 
 rendered his society, even to the humblest, most con- 
 genial and delightful. 
 
Memoir of Eogee B. Taney. 469 
 
 " Few men in his profession were closer students 
 than Mr. Taney, even after he had attained the period 
 allotted to human life. In his library, pondering 
 over some important principle of law, or investigating 
 authorities to enable him to reach a safe and well- 
 grounded conclusion in his decisions, with rare excep- 
 tions was he to be found during the day ; but when 
 evening came, at the simple announcement that some 
 friend was in the joarlor, it mattered not whether young 
 or old, distinguished or obscure, the tall form of the 
 old gentleman would enter, and the marked and 
 peculiar features of his face light up and beam with 
 a pleasant smile of welcome which no words can ex- 
 press." 
 
 It is imj)ossible to have an adequate appreciation 
 of one in his domestic life, unless we have also a view 
 of his domestic circle. Therefore, I give this further 
 extract from the sermon of Dr. Clover : 
 
 " Mrs. Taney was a woman of a noble and culti- 
 vated mind, of deep religious convictions, and of a 
 truly catholic spirit. Courted by the influential, the 
 afiluent, and the fashionable, she cast aside the pleas- 
 ures and attractions of the world, that she might the 
 more fully and freely devote her life to the Saviour. 
 From many an abode of virtuous poverty in the city 
 of Baltimore, the prayer of gratitude has gone up 
 in her behalf to heaven. One of the most unselfish 
 women I have ever known, her life was a beautiful 
 
470 Memoir of Eogee B. Taney. 
 
 exemplification, not only of active benevolence, but 
 of that spirit of true charity so admirably depicted 
 by the Apostle Paul." Such was the wife who knew 
 all the heart-secrets of the Chief Justice, and, by her 
 insi^iring love, gave tone and vigor to liis great soul, 
 and shed around his family circle the divine charm of 
 womanly charity and grace. The Chief Justice and 
 Mrs. Taney seemed to be made for each other. The 
 two together made their home all but perfect in pa- 
 rental love and filial piety. He was a devout Catholic, 
 she a devout Protestant ; but so sure was each that 
 the other was a Christian, that no doubt ever hindered 
 their mutual belief that they would meet in heaven. 
 
 Mr. Campbell, the son-in-law of the Chief Justice, 
 in a letter to me, dated November 4, 1864, writes: 
 " Great men have often simple tastes, and the Chief 
 Justice was no exception. He was passionately fond 
 of flowers, and always thought well of one who liked 
 them." In his love of flowers, he shared in a common 
 love with Mrs. Taney. In his letters to her from 
 Washington, he often alluded to the flowers in the 
 public grounds, as is exemplified in the following 
 
 one : 
 
 Washington, April 1, 1850. 
 
 I write you a brief note, my dear wife, to tell you 
 that I have safely arrived, — with a journey less un- 
 pleasant and fatiguing than I usually exj>erience in the 
 cars ; for the day was fine and the cars not crowded, 
 and Howard and I sat together. We have adjourned 
 
Memoik of Eogee B.Taney. 471 
 
 without transacting any business, as you will see by 
 the newspapers, out of respect to the memory of Mr. 
 Calhoun. His funeral takes place to-morrow, and we 
 shall of course be expected to attend, and therefore 
 do no business. On Wednesday morning we intend 
 to go seriously to work. Judges Daniel and Grier 
 have not arrived yet; but we expect them this even- 
 ing. Judge McLean has come ; but Mrs. McLean is 
 not with him. I hear nothing from Judge McKinley, 
 and do not know whether he will be here or not. 
 
 Having just left you all, my room is lonely and sad 
 to-day, and I feel much more disposed to lie down 
 and think of you all at home than do anything else. 
 This bright weather will, I hope, continue, and enable 
 you to exercise and be more in the open air. How 
 glad I should be to walk with you. 
 
 I find the hyacinths in bloom in the Capitol 
 grounds, and walked about them alone after the Court 
 adjourned, to enjoy the marks of the opening spring. 
 In a week they will be beautiful. Much love to all. 
 Most affectionately, 
 
 R. B. Taney. 
 
 Because of my intimacy from my early years in 
 the family of the Chief Justice, one of his daughters 
 placed in my hands, as the biographer of her father, 
 his letters to her mother running through a period of 
 nearly fifty years. The contents were not known to 
 herself. But so anxious was she that I should realize 
 the beauty, as she termed it, of her father's and 
 mother's married life, that she wished me to look 
 
472 Memoir of Kogek B. Taney. 
 
 into tliis sacred record of their daily thoughts and 
 feelings in regard to their mutual doings. As only a 
 few of such letters can be published, their chief use 
 to me is to write with the greater confidence of the 
 singular j)urity and felicity of the private life which 
 these letters reveal. As Mrs. Taney was a woman of 
 hi2.l1 intelligence as well as of cultivation, the Chief 
 Justice, in his letters, often remarks uj^on public mat- 
 ters in an interesting way. And sometimes he men- 
 tions the mere courtesies which as Chief Justice he 
 was required to fulfil. In a letter of 24th February, 
 1845, he writes : " The Court in a body, with the 
 Marshal, Clerk, and Reporter, waited upon President 
 Polk on last Wednesday morning in due form. We 
 were, as you may suppose, (that is, the President elect 
 and myself,) glad to meet here again under such cir- 
 cumstances, and talked about old times as much as we 
 could in the five minutes we were together. I have 
 not yet been able to wait on Mrs. Polk ; but must do 
 so before I leave Washington. 
 
 " In the evening we went to President Tyler's. 
 There must have been, I think, a thousand people 
 there, — well-dressed, well-behaved peojile ; for none 
 others were there. You know the President and I 
 are good friends, and he and Mrs. President received 
 me with great kindness; and I met there more old 
 friends, and spent a more pleasant evening, than I 
 expected ; except only that I was greatly oppressed, 
 
Memoir of Koger B. Taney. 473 
 
 as I always am on such occasions, by the crowded 
 state of the rooms. I need not give you their names 
 now, for it is not worth the trouble ; and will tell you 
 all about it when I come to Baltimore. President 
 Tyler's Cabinet were all there ; but I suppose you 
 have heard that they are all to go out as soon as 
 Mr. Polk comes in. But we do not yet know who 
 will come in ; and I am too busy in Court to make 
 many inquiries." 
 
 Chief-Justice Taney's affections were by no means 
 circumscribed within the circle of his own home. But 
 wherever the blood of his kindred ran, there his affec- 
 tions extended. He was jsarticularly attached, among 
 his more remote kindred, to his cousin Ethelbert 
 Taney, who lived an humble farmer near Hancock, 
 Md. He had so true a nature, that his attachments 
 grew stronger as age taught him that change is writ- 
 ten on all the things of earth. The following letter 
 reveals the great sorrow of his life to his kinsman 
 Ethelbert Taney : 
 
 Baltimore, October 22, 1855. 
 
 My Deae, Ethelbert : — It gave me much jileasure 
 to receive your letter ; for when we are in affliction, 
 we are most sensible of the kindness and sympathy 
 of our friends. I have indeed passed through most 
 painful scenes, and have not yet gained sufficient 
 composure to attend to business. But it has pleased 
 God mercifully to supjjort me through this visitation, 
 and to recall my bewildered thoughts, and enable me to 
 
474 Memoik of Rogek B. Taney. 
 
 feel this chastisement comes from Him, and that it is 
 my duty to submit to it with calmness and resigna- 
 tion. And I do not doubt that, severe as the trial is 
 to those who survive, it is, in the mysterious ways of 
 Providence, introduced in justice and mercy to the 
 living and the dead. 
 
 You too have lost a friend in my excellent wife. 
 For neither she nor I ever lost our interest in you, 
 and took pleasure in hearing from time to time of 
 your good conduct and success in life. 
 
 My age and feeble health jjut it out of my power 
 to accept your kind invitation to visit you. I should 
 be glad to spend some time with you and your 
 family ; but my health has suffered from this shock, 
 and, at my time of life, I can hardly hope it will be 
 much better. My great duty is to prepare myself for 
 that change which must soon come ; and I trust that 
 I shall mercifully be enabled to do so. 
 
 May you and those around you be long spared, and 
 be a blessing to one another ; and may we all meet 
 hereafter in a happy eternity, is the prayer of 
 Your affectionate kinsman, 
 
 R. B. Taney. 
 Mr. Ethelbeet Taney, 
 
 Near Hancock, Maryland. 
 
 In this letter is shown the great sorrow of the 
 Chief Justice at the death of his wife. It was this 
 great affliction which prevented the Chief Justice from 
 ever resuming his autobiography. He had begun it 
 the year before at Old Point Comfort, where the sad 
 
Memoir of Eogee B. Taney. 476 
 
 event occurred ; and was writing it there when the 
 blow fell upon him. He could not continue a work 
 which would keep constantly in his mind so great an 
 affliction. 
 
 The following extract is from another letter, writ- 
 ten by the Chief Justice, to Mr. Ethelbert Taney. It 
 shows his abiding and well-considered faith in his 
 church. Such a declaration of his religious faith 
 would only be made in the seclusion of private friend- 
 ship. Never did he obtrude his religious doctrines 
 upon any one. He often talked to me, in incidental 
 conversations, on the general subject of religion ; but 
 the mantle of his charity was as broad as the sinning 
 world. 
 
 " You are the only one left of the name from whom 
 I ever receive a letter ; and it is always with pleasure 
 that I read a letter from you. I am truly glad to 
 learn that you have recovered your health, and, as 
 age is advancing upon you, that you have so many 
 comforts and blessings about you, which I trust will 
 continue to cheer you to the close of your life. When 
 I count my years, I know that the close of mine can- 
 not be distant, and that my duty is to be ready to 
 meet it when it comes. Most thankful I am, that the 
 reading, reflection, studies, and experience of a long 
 life have strengthened and confirmed my faith in the 
 Catholic Church, which has never ceased to teach her 
 children how they should live and how they should 
 die." 
 
476 Memoir of Roger B. Taney. 
 
 As religion was so prominent in the life of Chief- 
 Justice Taney, it becomes me to give it due prom- 
 inence in his biography. Therefore it is that I 
 publish the following letter from Father McElroy, 
 whom I have had the honor to know from my boy- 
 hood as one of the most useful and pious of men. He 
 took charge of the little church in Frederick City 
 (which I mentioned in the second chapter) the 29th 
 September, 1822, when an intimacy and true friend- 
 ship commenced between him and Chief-Justice Taney. 
 He is still living in the maturity of his faculties at the 
 age of ninety years. The first part of the letter re- 
 lates to the Chief Justice while he lived in Frederick 
 City: 
 
 Feedeeick, March 2, 1871. 
 
 My Dear Sir : — In answer to yours of the 28th 
 ultimo, I have to state, at your request, the few j^ar- 
 ticulars of which I am cognizant concerning Judge 
 Taney's practical religion. 
 
 An essential precept (as we think) of the Catholic 
 Church is confession for the remission of sins — very 
 humiliating to the pride of human nature ; but the 
 well-known humility of Mr. Taney made the practice 
 of confession easy to him, Often have I seen him 
 stand at the outer door leading to the confessional, in 
 a crowd of penitents, majority colored, waiting his turn 
 for admission. I proposed to introduce him by another 
 door to my confessional, but he would not accept of 
 any deviation from the established custom. 
 
 A few days after the death of his wife, I called on 
 
Memoir of Eogee B. Taney. 477 
 
 him in Baltimore. He was much crushed and broken 
 in spirits after such a severe bereavement, as might be 
 expected. He received me, however, with his usual 
 kindness and courtesy. During my visit, a gentleman, 
 with his carriage, sent to let Mr. Taney know that he 
 came expressly to give him a little airing in a drive to 
 the country for an hour or two. He [Mr. Taney] sent 
 for answer that he must decline his kind offer ; and 
 then, turning to me, he said : " The truth is, Father, 
 that I have resolved that my first visit should be to 
 the Cathedral, to invoke strength and grace from God, 
 to be resigned to his holy will, by approaching the 
 altar and receiving holy communion," — preceded, of 
 course, by confession. 
 
 I must confess, this edified me very much. In 
 Washington, he continued to practise all the duties 
 prescribed by the Catholic Church. 
 
 I am pleased to find you engaged earnestly at the 
 life of this great and good man, and hope to see it 
 soon circulated extensively, as no doubt it will be. 
 
 With great respect, I am 
 
 Your obedient servant, 
 
 John McEleoy. 
 Mr. Samuel Tyler. 
 
 A little before this time, Mr. Justice Daniel, of the 
 Supreme Court, (while all the Judges were boarding 
 at the same house in Washington,) just before the hour 
 for going up to the Court, opened the door of the 
 room of the Chief Justice, and found him on his 
 knees at prayer. He withdrew instantly, much mor- 
 
478 Memoir op Kogek B. Taney. 
 
 tified that he bad forgotten to rap before be entered 
 tbe room. He made an apology as soon as possible 
 for tbe intrusion, which the Chief Justice accepted, 
 with the remark that it was his custom, before he 
 began the duties of the day, to seek divine guidance 
 through prayer. Mr. Justice Daniel, though a par- 
 ticular friend of the Chief Justice, had never before 
 learned this religious practice. My information is 
 from Justice Daniel himself, and from a member of 
 the Cliief Justice's family, and other intimates of the 
 household. 
 
 Chief- Justice Taney's religion was the moving 
 principle of his life. It filled him with every Chris- 
 tian grace. Faith, hope, and charity led him in the 
 high career which we have been reviewing. The 
 humblest received his kindness, while the great were 
 charmed with his courtesy. The servants of his 
 family could hardly understand his kindness, when 
 they contrasted it with the treatment of their servants 
 by others. In early life he manumitted all the slaves 
 he inherited from his father. The old ones he sup- 
 ported by monthly allowances of money till they died. 
 The allowances were always in small silver pieces — 
 none exceeding fifty cents — as more convenient, and 
 not so liable to be taken improperly by those with 
 whom they might deal. Each servant had a separate 
 wallet for their allowance, which was brought monthly 
 to the member of the Chief Justice's family who at- 
 tended to the matter. 
 
Memoir of Rogek B. Taney. 479 
 
 In 1860, the distinguished law-writer, Mr. Conway 
 Robinson, asked Chief-Justice Taney for his photo- 
 graph in his judicial gown, to be j)resented to two of 
 the Judges of the Queen's Bench in England, whose 
 acquaintance Mr. Robinson had made when in Eng- 
 land. The Chief Justice, accordingly, had a large- 
 size likeness of himself taken for the Judges. And, 
 at the same time, he had two from the same nega- 
 tive put into gilt frames for his old negro servant- 
 woman and his negro man-servant. At the bottom 
 of one likeness was written : " To Martha Hill, 
 as a mark of my esteem. R. B. Taney. February 
 14, 1860, Washington." At the bottom of the 
 other : " To Madison Franklin, as a mark of my 
 esteem. R. B. Taney. February 14, 1860, Wash- 
 ington." 
 
 But the Chief Justice did so many of these little 
 charities, which he little thought would ever be brought 
 to the notice of men, that I must recount no more. I 
 recount what I have, more to put to shame those who 
 have traduced the Chief Justice, than for any good it 
 may do as an example to men walking in the paths 
 of ambition and power. 
 
 Chief-Justice Taney had gone on the Bench of the 
 Supreme Court when he was in full practice at the 
 Bar, and was tliereby cut off from all possibility of 
 adding to his very small fortune. That fortune, small 
 as it was, had been invested exclusively in Virginia 
 
480 Memoik op Kogee B. Taney. 
 
 State stocks. The following correspondence in regard 
 to that investment explains itself. 
 
 Baltimore, November 28, 1866. 
 
 Deae Sir : — In compliance with your request, I 
 herewith send you a copy of Mr. Taney's letter to me 
 of the 18th July, 1861 ; and, in relation to the subject- 
 matter referred to in that letter, it may be proper for 
 me to state, that, after Mr. Taney moved from Balti- 
 more to Washington, he appointed me his attorney 
 in fact to receive the interest due on his Virginia State 
 loan ; and from that time I was in the habit for years 
 of collecting it through the Union Bank of Maryland ; 
 and in the latter part of June, 1861, I sent the order 
 for its payment, according to my usual custom, through 
 that bank, not knowing at the time that any law had 
 been passed upon the subject ; and it was only when 
 my order was returned that I knew of the existence 
 of such a law. I immediately communicated the facts 
 to Mr. Taney, and declined to renew the order ; and 
 his letter to me of the 18th July, 1861, was his answer 
 to that communication. 
 
 It is hardly necessary for me to add, that no part 
 of the interest due from the 1st January, 1861, was 
 ever received by Mr. Taney. 
 
 I am, very respectfully yours, &c., 
 
 D. M. Peeine. 
 Samuel Tyler, Esq., Frederick, Md. 
 
 The answer of Chief-Justice Taney, spoken of by 
 Mr. Ferine, was the following letter to him : 
 
Memoir of Kogee B. Taney. 481 
 
 Washington, July 18, 1861. 
 
 My Dear Sir : — I have received your letter in- 
 forming me that the Union Bank of Maryland had 
 received a letter from the bank in Richmond request- 
 ing the return of your order for the interest due me 
 on my Virginia State stock, and the bank in Rich- 
 mond would try and get it j^aid. 
 
 You did right in declining to renew the order until 
 you communicated with me. I cannot receive the 
 money. It is true, it is due to me from the State ; but, 
 under the law recently j)assed, the payment of divi- 
 dends to stockholders in the non-seceding States is 
 forbidden ; and if mine is paid, it is a matter of favor 
 and not of right, under the existing law of the State. 
 If I were a private individual, I would accept it ; but 
 in my official position, and in the jiresent posture of 
 public affairs, I cannot consent to an exception in my 
 favor when other stockholders in Maryland are refused 
 payment. 
 
 I am sensible that this proposition has arisen from 
 the joersonal kindness of friends in Richmond, who 
 know that public life has not enriched me ; and I am 
 very sure that it never entered their minds that any 
 one would suspect them of unworthy motives in offer- 
 ing it or me in receiving it. But yet I think the 
 offer was made inadvertently, and under the impulses 
 of kind feelings which prevented them from looking 
 at the interpretation which baser minds might put 
 upon the offer. Malignity would not fail to impute 
 unworthy motives to them and to me ; and in the 
 present frenzied state of the public mind, men, who do 
 not know my Virginia friends or me, would be ready 
 
 31 
 
482 Memoir of Roger B. Taney. 
 
 to believe it. I mean to stand, in relation to this 
 debt, upon the same ground with the other Mary- 
 land creditors, and cannot consent to any exception 
 in my favor. 
 
 Your friend ever, 
 
 E. B. Taney. 
 D. M. Pekine, Esq., Baltimore. 
 
 Another striking instance of the scrupulous regard 
 which Chief-Justice Taney had for his official reputa- 
 tion came under my own observation. His body- 
 servant Madison, whom I have mentioned, was drafted 
 during the late war as a soldier. He had waited on 
 the Chief Justice so long that he had become indis- 
 pensable to one of such extreme old age as the Chief 
 Justice. My brother, the physician of the Chief Jus- 
 tice and of his family, had long known that Madison 
 had organic disease of the heart, which wholly dis- 
 qualified him for the duties of a soldier. This the 
 Chief Justice knew himself. But when my brother 
 proposed to make an affidavit to that effect, and write 
 to the proper officer, and have Madison excused, the 
 Chief Justice said he would rather buy a substitute, 
 and did pay one hundred dollars for a substitute, 
 while the Government of the United States was, in 
 violation of the Constitution, withholding three per 
 cent, of his salary. 
 
 Silence is the best criticism, when the facts of his 
 
Memoir of Kogee B. Taney. 483 
 
 life aro revealed, upon the conduct of the revilers of 
 Chief-J ustice Taney. Because, if I were to attempt to 
 portray in words the strange injustice with which a 
 large portion of his own countrymen have abused and 
 persecuted him, while he was achieving such glory for 
 the history of their common country, no matter how 
 severe nay censures might be, there would still be 
 something wanting in the force of rejorobation. I 
 leave them, when they may have read this Memoir, 
 to their own reflections, trusting that they may suffer 
 nothing more tlian the pain of the repentance which 
 enables those who have done injustice to respect 
 themselves. 
 
 It will recur to the reader with what affection 
 Chief-Justice Taney writes of his mother in the first 
 chapter of this Memoir. She was a woman of the 
 most eminent virtues. It will be remembered, too, 
 that, in the second cha])ter of this Memoir, it is stated 
 that, when the Chief Justice left Frederick to reside 
 in Baltimore, he requested a friend, much younger 
 than himself, to see that at his death he should be 
 buried beside his mother in the graveyard by the little 
 church where he worshipjDed. The following letter 
 shows that, after forty years with all their trials had 
 rolled on, his heart still clung to his mother with its 
 early affection, and that his purpose to be buried by 
 her side was unchanged : 
 
484 Memoik of Eogek B. Taney. 
 
 "Washington", May 6, 1864. 
 
 My Dear Sir : — I learned accidentally, some 
 months ago, that some kind and pious hand had re- 
 moved from the tomb of my beloved mother the moss 
 and rubbish which fifty years had accumulated upon 
 it, and restored it to the condition in which it was 
 when placed there by her weeping children. Residing 
 in a distant place, I could not myself guard it from 
 desecration, nor even the ordinary injuries of time ; 
 and you may readily imagine how grateful I felt to 
 the unknown friend who had, unasked and without 
 my knowledge, performed that duty for me. I have 
 often inquired and tried to discover to whom I was 
 indebted for an act so touching and pious, but without 
 success, until a few days ago, when my excellent friend 
 and former pastor, the Rev. Father McElroy, called 
 to see me, and from him I learned for the first time 
 that I owed it to you, to whom I had hitherto been an 
 entire stranger. But you are not now, nor can you 
 hereafter be, a stranger. I am most grateful for your 
 kindness, and when the brief sj^ace of life in this 
 world which may yet be vouchsafed to me shall have 
 passed, and I am laid by the side of my mother, I 
 hope you will be near, and will feel assured that 
 among my last thoughts will be the memory of your 
 kindness. 
 
 With great respect and regard, 
 
 Your grateful friend, 
 
 R. B. Taney. 
 Mr. H. McAleee, Frederick City, Md. 
 
 How little did the Chief Justice dream, when, in 
 
Memoir of Roger B. Taney. 485 
 
 the seclusion of his study, he penned this exquisite 
 letter, it would be handed down to future ages as one 
 of the chief witnesses to his great character, testifying 
 that no man with such a heart could be an unjust 
 Judge. 
 
 Chief-Justice Taney was a constant reader to the 
 end of his life of the current literature of the day. 
 He has often talked to me, with great satisfaction, of 
 Macaulay's "History of England," and Campbell's 
 " Lives of the Chief Justices and Lord Chancellors 
 of England." I found him, soon after it appeared, 
 reading Lord Campbell's disquisition on Shakespeare. 
 He laughed, and said : " Lord Campbell has failed to 
 convince himself that Shakespeare was an attorney's 
 clerk, but he has convinced me." Shakespeare was a 
 favorite author of his, and therefore he readily entered 
 into the topics of Lord Campbell's argument. Though 
 not what might be called a novel reader, he neverthe- 
 less read novels to the last. The " British Quarterlies " 
 and " Blackwood " he read with singular interest. 
 Newspapers, on all sides of politics, he had read to 
 him daily. Whenever friends came in to see him, he, 
 to the very last, inquired about everything that was 
 going on. In fact, he looked every day with unabated 
 interest over the great spectacle of the world, and 
 scanned all the doings of man with profound insight 
 and far-seeing forecast. He was emphatically an actor 
 in the drama of life. But the curtain falls. On the 
 
486 Memoir of Eogee B. Taney. 
 
 12th of October, 1864, in the eighty-eighth year of 
 his age, he died. He was buried by the side of 
 his mother. 
 
 I append to this Memoir the proceedings of the Bar 
 of the Supreme Court of the United States on the 
 occasion of the death of Chief-Justice Taney. And 
 though simiLir proceedings were had by the Bars all 
 over the United States, I select from all the speeches 
 made that of Mr. B. E.. Curtis, made at Boston, as 
 worthy both of himself and of Chief-Justice Taney, 
 and proper to be preserved as a part of this Memoir. 
 
 Upon the occasion of the death of Chief-Justice 
 Taney, in vacation, the members of the Bar of the 
 Supreme Court of the United States, and other officers 
 of the Court, having assembled in the court-room in 
 the Capitol, at noon, on Tuesday, the sixth day of 
 December, A. D. 1864, being the second day of the 
 Term, the following proceedings took place : 
 
 The meeting was called to order by James M. 
 Carlisle, Esq., of Washington ; and on his motion 
 Jonathan Meredith, Esq., of Maryland, was called to 
 the chair, and D. W. Middleton, Clerk of the Court, 
 was appointed Secretary. 
 
 Upon being conducted to the chair, Mr. Meredith 
 spoke as follows : 
 
 " Gentlemen of the Bar : Before I take the seat 
 to which you have been pleased to invite me, I desire 
 to express not my own acknowledgment only, but that 
 of the Maryland Bar, for the honor reflected on both. 
 
Memoir of Roger B. Taney. 487 
 
 " Translated from that Bar, bearing the palm of 
 professional renown, to preside over the deliberations 
 of the most august tribunal of our country, the death 
 of our late venerable Chief Justice — the last star in 
 the glorious galaxy of the olden race of Maryland 
 lawyers — could not fail to be sensibly felt and deeply 
 deplored, not alone by his time-worn associates, but by 
 those youthful aspirants for whom he marshalled the 
 way and smoothed the ascent to that 'vantage ground' 
 on which he had stood so long, so firmly, and so 
 proudly. As their representative, I am here to mingle 
 their sorrow with the sorrow of the whole American 
 Bar, for the loss of a deeply-read and profoundly- 
 learned lawyer, of an eloquent advocate, of a dignified, 
 enlightened, and upright judge, and of a Christian gen- 
 tleman, whose purity of life was high above all reproach. 
 Let us, then, banded as brothers, now unite in paying 
 a last sad tribute to the memory of a great and good 
 man." 
 
 On motion, the Chair appointed the following 
 members of the Bar a committee to report and re- 
 commend such resolutions and other proceedings as 
 may be appropriate : 
 
 Ohio: Hon. Thomas Ewing, Mr. Henry Stan- 
 berry. Maryland : Hon. Reverdy Johnson, Mr. Wm. 
 Schley. Pennsylvania : Hon. J. S. Black, Hon. Wm. 
 B. Reed. Hew York: Hon. Charles O'Conor, Hon. 
 J. V. L. Pruyn. JVew Jersey : Hon. J. C. Ten Eyck, 
 Mr. C. Parker. Illinois : Hon. O. H. Browning, Mr. 
 S. W. Fuller. Wisconsin : Hon. J. R. Doolittle, Hon. 
 J. S. Brown. Missouri: Hon. J. S. Green, Mr. T, 
 T. Gantt. California: Hon. Cornelius Cole, Mr. 
 
488 Memoir of Eogee B. Taney. 
 
 John B. Williams. District of Columbia : Mr. P. R. 
 Fendall, Mr. J. M. Carlisle. Massachusetts : Hon. 
 Caleb Cushing, Mr. Sidney Bartlett. Kansas : Hon. 
 Samuel A. Stinson. 
 
 The Committee, by Mr. Ewing, their chairman, 
 reported the following preamble and resolutions, which 
 were, on his request, read by Mr. Carlisle, the mover 
 in committee. 
 
 In presenting the re|)ort, Mr. Ewing said : 
 " 3Ir. Chairman : I am instructed by the Committee 
 to say that they have had the subject under con- 
 sideration, and have agreed upon a report to be now 
 presented. We all unite in the feelings expressed by 
 yourself, Mr. Chairman, with respect to the deceased. 
 I, for one, knew him from his first accession to the 
 Bench. I have been present at every Term when he 
 has presided in this Court since that time, from the 
 first to the last ; and I can bear ample testimony to his 
 courtesy, to his kindness, to his consideration of the 
 members of the Bar, to his judicial capacity, and his 
 integrity as a Judge. Of a judge, it is true, little can 
 be said, unless he be a judge in troubled times. The 
 history of our Judiciary and the history of our Bar is 
 written and spoken in few, brief words. All that we 
 can say of the ablest and the best is what we are pre- 
 pared to say of our deceased Chief Justice. I submit 
 the report, and ask Mr. Carlisle to read it." 
 Mr. Carlisle read the report as follows : 
 "Eoger Brooke Taney, of Maryland, fifth Chief 
 Justice of the Supreme Court of the United States, 
 having departed this life on the evening of Wednes- 
 day, the twelfth day of October last, at his residence 
 
Memoir of Eogek B. Taney. 489 
 
 in the city of Washington, in vacation of the Court, 
 the naembers of the Bar and other officers of the Court 
 desire, at the earliest moment and in advance of the 
 business of the Term, to place upon record their pro- 
 found sense of this national calamity, and a testimo- 
 nial, individually and collectively, of their aflPectionate 
 veneration for his memory. 
 
 " A man of spotless and benevolent life, he must, 
 alike in the humblest as in the highest sphere, every- 
 where and always, have commanded the sympathy, 
 respect, and homage of all good men who knew him 
 or felt his influence. To see him and to speak with 
 him was enough to give assurance of this. To know 
 him intimately was to make this assurance doubly sure. 
 
 " But his was not the destiny of private life, where 
 virtue, benevolence, and religion jjursue the noiseless 
 tenor of their way. And yet, upon the broad and 
 lofty theatre to which he was called, and where, for 
 more than a quarter of a century, he sat in judgment, 
 between sovereign States as between private litigants, 
 ' without fear and without reproach,' there was ever 
 apparent this deep undercurrent, which marked him 
 as the model of a good man and a Christian gen- 
 tleman. 
 
 " Unambitious of political distinction Or political 
 office, he nevertheless served his native State as 
 member of the House of Delegates, as Senator, and as 
 Attorney-General of Maryland, when the interests of 
 the State and people summoned him from his chosen 
 quiet and thoughtful path of the jurist. He first ex- 
 tended his sphere of professional usefulness to the 
 national councils when he had become the acknowl- 
 
490 Memoib or Kogee B. Taney. 
 
 edged head of the Maryland Bar, which, among the 
 names of those who had preceded him, boasted of 
 Martin, Dulaney, Pinkney, Wirt, and Harper. 
 
 " It was a notable tribute to his distinction as a 
 lawyer and his worth as a ^Drivate gentleman, that he 
 was called by President Jackson to the office of At- 
 torney-General at a time of great party strife, when a 
 new order of things was about to be inaugurated, and 
 when he was known to belong to the constitutional 
 school, of which Chief-Justice Marshall was the living 
 type, as his name remains the enduring monument. 
 
 " The brief period during which Mr. Taney held 
 the office of Secretary of the Treasury, from which he 
 was called to preside in this Court, was marked by the 
 same firm, steady, and conscientious discharge of duty 
 which characterized him in every situation of life, pub- 
 lic or private. His convictions were ever the result of 
 patient deliberation upon the whole matter before him; 
 truth and right being his constant end and aim. 
 
 " Profoundly learned in the law, and naturally 
 gifted with a clear, direct, and logical mind, he never- 
 theless listened for instruction from the humblest ad- 
 vocate who appeared before him in any cause. With 
 all the qualities of a great Judge, and with the natural 
 consciousness of his superiority to ordinary men, he 
 was ever attentive and respectful to those whose duty 
 brought them before him to attempt to influence his 
 determination as a Judge ; and none who knew him 
 could doubt that his conclusions were always the result 
 of conscientious and enlightened study and reflection. 
 
 " The Bar of this Court, as a body, heartily unite in 
 this tribute to the memory of this great and good 
 
Memoir of Koger B. Taney. 491 
 
 magistrate. His enduring record is perpetuated in 
 the official reports of this Court. His judgments, like 
 those of his illustrious predecessors, will be studied by 
 successive generations of barristers, and emulated by 
 successive generations of Judges, as long as American 
 jurisprudence shall exist. Wlierefore : 
 
 "Resolved, That the members of the Bar and officers 
 of the Court, deeply impressed by the great and good 
 qualities and acquirements, and the illustrious lite of 
 the late Chief-Justice Roger Brooke Taney, deplore 
 the decree, inevitable at his advanced age, which has 
 removed him from his place of usefulness, dignity, and 
 honor here. 
 
 "Resolved, That they will wear the usual badge of 
 mourning during the Term. 
 
 "Resolved, That the Cliairman of this Committee 
 move the Court, at its meeting to-morrow, to direct 
 these proceedings to be entered on the Minutes, and 
 that a copy be transmitted to the family of the de- 
 ceased Chief Justice, with the respectful assurance of 
 the sincere sympathy of the Bar." 
 
 After the reading of the resolutions, Mr. Stan- 
 berry, of Ohio, said : 
 
 "3Ir. Ghairman : There are but few, I think not 
 more than three or four, of our brethren of the Bar 
 now present who were here when Chief-Justice Taney 
 took his seat on this Bench. I perfectly recollect the 
 time and the circumstances. There was a feeling of 
 disappointment, an impression that a more acceptable 
 appointment might have been made ; for at that time 
 Webster, Binney, Wood, and Sergeant were at the 
 Bar, and there was at least one Judge on the Bench 
 
492 Memoir of Koger B. Taney. 
 
 eminently fit for the place. The new Chief Justice 
 took his seat under these unfavorable circumstances. 
 It was not long, sir, before these doubts and apprehen- 
 sions were all dissipated, and very soon it came to be 
 generally acknowledged that the Chief Justice was 
 fully equal to the duties and responsibilities of his 
 high position. 
 
 " For more than a quarter of a century, year after 
 year, I have argued cases in this Court whilst Chief- 
 Justice Taney jjresided. That long experience gives 
 me warrant and confidence in saying that he never 
 failed to sustain the dignity and requirements of the 
 office. Nay, Mr. Chairman, not to the last. Although 
 before the close he had long j^assed the age when the 
 most vigorous show signs of mental decay, his intellect 
 seemed as clear as ever. 
 
 " But at this time, missing his kind and courteous 
 presence in that accustomed seat, it is the man rather 
 than the Judge whose loss afilicts me. It is that quiet 
 dignity, that perfect composure, and, above all, that 
 amiability and goodness of heart for which that ven- 
 erable magistrate was so distinguished. He will be 
 fortunate, who, succeeding to that vacant chair, shall 
 occupy it so long and so well." 
 
 Mr. Stanberry was followed by Mr. Reverdy 
 Johnson, of Maryland, who spoke as follows: 
 
 " J/r. Chairman : As a member of the Maryland 
 Bar, with which the late Chief Justice was so lone 
 associated, it will not, I am sure, be esteemed obtrusive 
 if I ask permission to add my personal regrets to the 
 general sorrow which the Bar of the Union feels at 
 his loss. In the beginning of my professional career, 
 
Memoir of Roger B. Taney. 493 
 
 I soon learned the great excellence, professional and 
 social, of the deceased. My first acquaintance with 
 him dates back as far as 1815. In that year I was 
 admitted to practice in the Court of Appeals of my 
 State. Its Bar was then adorned by Winder, Dorsey, 
 Harper, Pinkney, and Martin, all of them men of 
 profound legal learning, some of them of dazzling and 
 extraordinary eloquence. Without meaning in the 
 slightest degree to detract from the reputation of their 
 brethren in other States, — for in all at that time there 
 were, as there have been since, men of distinguished 
 ability, — I think lam safe in saying that they were at 
 least the equals of the most eminent of the profession. 
 In this galaxy of talent, Mr. Taney shone with a 
 splendor that challenged admiration, and made him, 
 in the opinion of all, their equal. Whilst enjoying 
 the confidence of his elder brethren and admitted to 
 be every way their peer, he was especially dear to his 
 juniors. It was my good fortune to have his con- 
 fidence and his friendship almost from the first, and 
 greatly did I profit by it. Often his associate, and 
 often his opponent, I had constant opportunities of 
 judging of his legal learning, of his ability in its use, 
 aiid the fair and elevated ground upon which he ever 
 acted. In neither relation is it possible to exaggerate 
 his excellence. In those respects, he was a model that 
 his elder contemporaries were proud of, and his juniors 
 admired and kept before them as an example. 
 
 " In social life he was as attractive as he was instruc- 
 tive and eminent in professional life. No one knows 
 this better, Mr. Chairman, than you and I do. During 
 the many years of his practice at the Baltimore Bar, 
 
494 Memoik of Eoger B. Taney. 
 
 and after his elevation to the Bench, whilst he con- 
 tinued a resident of our city, we, in common with all 
 of our brethren, (for he was kind to all,) had constant 
 opportunities of witnessing his demeanor, causing us 
 to esteem him as much as a man, as we admired him 
 as a lawyer and a Judge. 
 
 "Of his eminence in the latter character, in this 
 presence, it is idle to speak. All of those who are 
 around me to pay fitting respect to his memory have 
 been themselves, during the sessions of the Supreme 
 Court, the daily observers of it. In everything he 
 said from the Bench, and in his uniform conduct as 
 its chief, all saw how peculiarly fitted he was for his 
 high office. Whilst his mind evidently was as capable 
 of mastering, and uniformly mastered, the great, the 
 momentous judicial questions which were often before 
 him, it was as capable of solving, and did solve, the 
 minutest which the rules of practice involved, and 
 upon the correctness of which so much of a Judge's 
 usefulness depends. 
 
 " At a recent meeting of our own Bar, Mr. Chair- 
 man, you will remember that I deemed it due to his 
 character to vindicate it from an imjiutation utterly 
 unjust, because utterly false. It is not amiss to repeat 
 it here. In the opinion that he delivered in the Dred 
 Scott case, speaking of the African race in this coun- 
 try, he said ' they had no rights which the white man 
 was bound to respect.' Relying on this extract alone, 
 though knowing that it is but the part of a sentence, 
 by a certain class he has been denounced in bitter and 
 malignant terms as entertaining the inhuman senti- 
 ment that the words taken by themselves convey ; and 
 
Memoir of Kogee B. Taney. 495 
 
 this, too, although it is perfectly manifest, from what he 
 said immediately before and after, that he mentioned 
 the fact not to justify, but to deplore it. He gave it 
 as an historical fact ; and the archives, legislative and 
 judicial, of all the Colonies, at and for some years after 
 our Declaration of Independence, prove beyond all 
 doubt that in that age the race was so esteemed. So 
 far from entertaining himself any such opinion, long- 
 before that case was decided, he had manumitted the 
 slaves that he owned, that they might have rights 
 which all men would be bound to respect, and never 
 declined to give his professional aid to such of the 
 race as applied to the Courts to secure the rights of 
 freedom. The charge is but one of the many calum- 
 nies with which the prejudices or passions of political 
 partisans, in time of high excitement, cause them, in 
 total disregard of truth, to fill the public ear. In this 
 instance, I sujjpose, for a time, and with a certain 
 jDortion of our people, it answered its purpose. But, 
 if not already, it will be hereafter forgotten ; and fair 
 and intelligent men of the future, as do those of the 
 present day, should they ever refer to it, will only 
 marvel tliat an accusation so wholly groundles could at 
 any time have been listened to by honest men, even for 
 a moment, with anything but disgust and indignation. 
 " Mr. Chairman, I ask the patience of yourself and 
 the meeting a few moments longer, to defend our late 
 chief from a charge of a different character. This, 
 perhaps, may be thought superfluous when it is known 
 that, with many of the good and great men who made 
 it, and once believed it, his pure administration of his 
 late office soon satisfied them that they had done him 
 
496 Memoik op Eogek B. Taney. 
 
 injustice. What I refer to is his order as Secretary of 
 the Treasury, in September, 1833, for the withdrawal 
 of the deposits from the late Bank of the United 
 States. Mr. Duane, his immediate predecessor in that 
 department, on the 23d of that month, was removed 
 by President Jackson because he would not give the 
 order, and it was alleged that Mr. Taney was appointed 
 to be the mere instrument, in that particular, of the 
 President's will. In this, as in the other instance, 
 though the parties making the charge were men of 
 high character and conscientiously believed in its 
 truth, the charge itself was equally without founda- 
 tion in fact. I say this with contidence. • 
 
 " I was, as I have stated, for some years immediately 
 preceding Mr. Taney's appointment to the Bench, on 
 the most intimate terms with him, and, as I have every 
 reason to believe, possessed his confidence. He often 
 conversed with me on all the political topics of the 
 day, and, amongst others, frequently of the character, 
 tendency, and actual condition of the bank. At this 
 time he had no reason to believe that he would be a 
 member of Jackson's Administration, nor had he, I am 
 sure, any wish upon the subject. The only office he 
 could have thought of, if he thought of any, as he did 
 not, was that of Attorney-General, then filled by the 
 late Mr. Berrien with the approval of the country, and 
 its duties discharged with consummate ability. He 
 had, of course, no reason to anticipate a vacancy. In 
 this condition he over and over again expressed to me 
 his conviction that the bank, as he thought it was being 
 administered, was dangerous to the true interests of 
 the country, because, as he said, it was being used for 
 
Memoie, of Eogee B. Taney. 497 
 
 party political purposes ; and that, under such man- 
 agement, its ruin was but a question of time. He, 
 therefore, considered it to be the duty and the interest 
 of the Government (the charter clearly giving the 
 power) to remove the public money from its custody, 
 and said that if the authority was with him he would 
 lose no time in exercising it. In this opinion I am 
 sure he continued to the period of his becoming At- 
 torney-General. When, therefore, Mr. Duane was 
 removed, and he was appointed, the order he gave 
 was his alone, and was but the carrying out of a 
 measure which he had long deemed — whether cor- 
 rectly or not is immaterial — to be important to the 
 public good. 
 
 " As to his acting in the matter merely at the bid- 
 ding of General Jackson and against his own convic- 
 tions of duty, and to attain a selfish end, no one who 
 knew him as well as you and I did, Mr. Chairman, 
 could believe ; for if his kindness of nature was re- 
 markable, his firmness was, if possible, even more so. 
 There was no man living to whom he would have 
 yielded a matured opinion of his own on a question of 
 moral or political duty ; and he was not more able to 
 form one, than ever resolute in adhering to it when 
 formed, against every possible extraneous influence. 
 If influence, therefore, was exerted at all in relation to 
 the measure, it was the influence of Taney on Jackson, 
 and not of Jackson on Taney. And let me further 
 add that, when in February, 1840, the bank finally 
 suspended payment, and was soon found to be insol- 
 vent, barely able to pay its debts, the stockholders 
 losing all, he reminded me how the fact established 
 
 32 
 
498 Memoir of Rogee B. Taney, 
 
 the correctness of his predictions years before. That 
 he had the legal right to pass the order, the bank 
 never questioned, nor could it be questioned. He was 
 said to have been but an instrument ; when, on the 
 contrary, his was the mind that determined upon and 
 adopted the measure. 
 
 " What I have said, sir, has seemed to me to be due 
 to the memory of the great Judge in whose honor we 
 have assembled. It seemed to be a duty which I owed 
 not only to a long friendship, but to a conviction 
 which I shared with every enlightened jurist in the 
 land, that jurisprudence itself had in him an able and 
 enlightened disciple, whose labors in its behalf have 
 greatly contributed to promote the highest interests of 
 the country, and to keep, with the aid of his upright 
 and learned associates, the character of our greatest 
 tribunal as pure and high as it was left by Marshall. 
 And the calm judgment of posterity, uncorrupted or 
 unaffected by partisan passion, will ratify the conclu- 
 sion of the Bar of the Union that a purer and abler 
 Judge never lived than Roger B. Taney." 
 
 Upon the conclusion of Mr. Johnson's remarks, 
 Mr. Charles O'Conor, of New York, rose and said : 
 
 " 3Ir. Chairman : The local Bar and Judiciary 
 throughout the country have been already heard. Each 
 in its proper place has expressed, in as strong terms as 
 could be employed, a deep sense of the public loss 
 sustained in the death of Chief-Justice Taney. His 
 transcendent merits have been portrayed with a force 
 measured only by the utmost capacity of human speech. 
 The eulogies pronounced, as well elsewhere as here 
 at this time, would seem, as we read or listen, to have 
 
Memoir of Eogee B. Taney. 499 
 
 exhausted all power of expressing tlie emotion of grief 
 for his departure from among us, and that of admira- 
 tion for his high personal qualities. Yet I believe 
 that no one who knew the illustrious deceased can fail 
 to feel that language has not yet issued from human 
 lips in any degree adequate to the melancholy dignity 
 of the occasion. Nor is this because the wise, the 
 learned, and the good of our land, who unite with us 
 as mourners, have not used the most appropriate words 
 that acquirement and genius could supply, but because 
 human language is a feeble instrument, and wholly 
 insufficient to express some ideas. They rise above its 
 sphere ; they are beyond its reach. 
 
 " Although our venerable and venerated friend had 
 reached a period of life at which, in most instances, 
 human usefulness is no longer displayed, it is not 
 singular that his death should be deplored as a dep- 
 rivation. From his clear, vigorous, and perfectly 
 unimpaired intellect, there shone out, even to the latest 
 moment, a force that seemed proof against decay. 
 Well might we be excused for failing to realize his 
 liability to the common lot, and for feeling towards 
 him as towards one who was to bless the earth with his 
 presence througli all time. 
 
 "In approaching the subject before us, two great 
 ideas present themselves: first, the majesty and power 
 of this great tribunal, the Supreme Qourt of the United 
 States; next, the chief column among the illustrious 
 magistracy by which this grand moral structure is up- 
 held. The history of the Court, and the character 
 displayed by its Chief Justices, are most impressive 
 and commanding. Whilst we may feel within us what 
 
500 Memoir of Roger B. Taney. 
 
 seems a due perception of them, conscious incapacity 
 compels us to shrink from any effort to portray in fit- 
 ting colors the dignity of the one or the merits of the 
 other. I will not attempt it. I will not recur to past 
 history. I will speak only as a living witness, and of 
 my own times. These bring into view the last two of 
 our Chief Justices. Their acts have made their names 
 immortal. They have left to us, and transmitted to 
 posterity for their admiration and guidance, a series of 
 judgments, not merely marked by 25rofound learning 
 and ability, but placing this august tribunal foremost 
 amongst human authorities. The jurisconsult, of what- 
 ever clime or future age, cannot find a safer j)recedent 
 than in these. They embody and enforce the cardinal 
 virtues. Wisdom, Justice, Temperance, and Fortitude. 
 " Who shall hesitate to recognize the moral great- 
 ness of the Supreme Court under the presidency of 
 John Marshall, and his most fit and worthy successor, 
 Roger B. Taney? It secured justice to the humblest 
 individual who appealed to it for the protection or en- 
 forcement of his rights ; but, when occasion required, 
 it also summoned to its Bar the greatest States in our 
 united galaxy, and with mild dignity, but resistless 
 power, executed justice upon them. It curbed their 
 every attempt to transcend the just limits of their 
 authority. Need I relate instances? The populous 
 and powerful State which I have the honor here, this 
 day, in part to represent — imperial New York — was 
 called hither to answer wherefore she had ventured to 
 deal lightly with the obligation of a contract. She 
 obeyed the summons and abided judgment. Her great 
 river was connected with the ocean as an arm thereof; 
 
Memoir of Roger B. Taney. 501 
 
 it was of right, and according to our fundamental law, 
 justly open to navigation by all the people of our 
 republic ; yet New York had assumed to exercise ex- 
 clusive authority over it. She was again called hither 
 to justify, if she could, this high assumption. Again 
 she came. She came full of j^ride and confidence. It 
 was the pride of a mistaken conviction ; the confidence 
 of rectitude in her motives and supposed ability to 
 vindicate her action. Her first minds, her loftiest 
 intellects, appeared as her champions. Her states- 
 men, her lawyers, her social leaders, her whole people, 
 sustained her with earnest zeal and perfect belief in 
 her right to exercise this power. Some might say she 
 went away rebuked ; but not so. She was not less 
 steadfast in her dutiful obedience than firm in the 
 23ride of her conscious rectitude. She heard the judg- 
 ment of this Court, and standing corrected, not re- 
 buked, she retired from its presence more majestic in 
 her obedient submission than if she had gone forth 
 triumphant. She was corrected, but not humiliated. 
 Virginia, too, was in like manner corrected ; and in- 
 stances might be multiplied ; but let these suffice. Such 
 has the Supreme Court of the United States hitherto 
 been ; such no amount of mere j^hysical jjower could 
 have made it. Its real eminence, its moral grandeur, 
 is due to the pure and enlightened intelligence which 
 has directed its judgments. 
 
 " I will not attempt the hopeless task of intensifying 
 by mere words the strong emotions of affectionate and 
 reverential regret for our great loss universally felt. 
 Those who knew Chief-Justice Taney, who witnessed 
 in his administration of justice the gracious dignity 
 
502 Memoir of Eoger B. Taney. 
 
 of his bearing and the stern impartiality of his judg- 
 ment, find in their own vivid recollections a voice 
 with which mine cannot compete. Those who have 
 not enjoyed that high privilege will gather from the 
 perusal of his recorded decisions far better conceptions 
 of his worth and intellectual greatness than any mere 
 eulogium could inspire. 
 
 " I will only add my fervent prayer and express 
 my anxious hope that He who determines the fate of 
 nations, who has fostered this mighty Republic unto 
 unsurpassed greatness — He, at whose footstool she 
 now sits, though bereaved of her chief judicial magis- 
 trate, still radiant in the fulness of her power and 
 majesty, may so direct the counsels of those who rule 
 her destinies, that the future historian of our times 
 may not be impelled to write, as he drops a tear upon 
 the grave of Taney, Ultimus Romanorum." 
 
 At the conclusion of these remarks, the resolutions 
 were unanimously adopted, and the meeting adjourned 
 sine die. 
 
 Supreme Court of the United States, Dec&niher 7, 1864. 
 Present : The Hon. Jas. M. Wayne, Hon. Samuel 
 Nelson, Hon. Eobert C. Grier, Hon. Nathan Clif- 
 ford, Hon. Noah H. Swayne, Hon. Samuel F. Miller, 
 Associate Justices. 
 
 At the opening of the Court, Mr. Ewing rose, and, 
 with appropriate remarks, presented to the Court the 
 proceedings of the Bar, and moved that they be en- 
 tered on the Minutes of the Term. 
 
 After the reading of the resolutions, Mr. Justice 
 
Memoir of Roger B. Taney. 603 
 
 Wayne, the senior Associate Justice, presiding, replied 
 as follows : 
 
 " Gentlemen of the Bar : The Court receive with 
 sensibility your resolutions commemorative of the life, 
 the virtues, and the judicial eminence of our deceased 
 friend and brother ; and we cherish his memory with 
 affectionate recollections and with respectful veneration. 
 
 " You have discriminated accurately and with feel- 
 ing, the remarkable points of his life and character. 
 Your tribute will be soothing to the hearts of his 
 family, and it, with other notices of his death in the 
 circuits, will be a memorial of his character, which 
 law3'ers and judges may emulate with advantage. 
 
 " His life was honorable and useful. In early man- 
 hood it gave assurances that in both respects he would 
 become distinguished. It disclosed the qualities and 
 acquirements which were the foundation of his dis- 
 tinction. They were the anticipations of it. 
 
 " In a few years after his admission to the Bar he was 
 recognized to be a sound lawyer, by the distinguished 
 advocates of that day in the Courts of Maryland, whose 
 reputations were known in every part of the United 
 States. His general demeanor, studious habits, and 
 pure life, gave him the good-will and confidence of the 
 people of the town and county in which he lived, and, 
 without having been voluntarily a candidate, they 
 elected him, at different times, their rejoresentative 
 in places of trust and jjolitical interest, in which the 
 whole State was concerned. In his discharge of them 
 he was marked to be one who could be relied upon 
 in those public exigencies which require firm char- 
 acter and statesmanlike ability to manage and control 
 
504 Memoie or Eogee B. Taney. 
 
 successfully. In such public employments, and in the 
 practice of his profession, it was admitted by his asso- 
 ciates, and the able men who watched his course with 
 interest and with expectation, that he had made him- 
 self familiar with the history of the law, in all its 
 relations, for the organization of government for the 
 preservation of human rights, and also with those 
 principles which had, from the instincts of men as to 
 right and wrong, or which had been arbitrarily made 
 in ancient and later times, to rule the rights of prop- 
 erty and the general conduct of persons in society in 
 connection with their obligations to authority. He 
 had read and reflected upon all that had been written 
 concerning society and the control of it ; also as to its 
 actual condition, as made known by sacred and profane 
 history, and the history of modern times. That course 
 of reading and reflection familiarized him with the 
 consideration of human rights, and strengthened his 
 ability and disposition to maintain them. But he was 
 no enthusiast. He thought that men had not been 
 solely the victims of j)ower, but of circumstances, in 
 all times, and in our day, before modern civilization 
 had received the full impress of the principles and 
 divine tendencies of Christianity, and when rulers and 
 legislators forgot those obligations by permitting the 
 violation of them for the advancement of State pol- 
 icy and trade. He thought that God had designed 
 for men rights, whatever might be the condition of 
 their humanity, which could not be taken from them 
 by fraud, by violence, or by avarice, with impunity 
 from God's chastisement. Under such convictions he 
 gave freedom to the slaves he had inherited, aided 
 
Memoir of Roger B. Taney. 505 
 
 them in tlieir employments, and took care of them 
 when they were in want. He often said that they 
 had been grateful, and they had never caused him a 
 moment's regret for what he had done. 
 
 " By temperament he was ardent. Its impulses, 
 however, could only be seen in his eyes and heard in 
 fervent language, when it was excited by an occasion ; 
 but he was never impetuous or vehement. He was 
 courteous at all times, to every one, without affectation. 
 He was cautious and circumspect without being inde- 
 cisive ; and the firm resolves of his purposes and prin- 
 ciples were habitually expressed in words showing the 
 sincerity of his convictions, without offence to any who 
 thought differently. He was generous, and the only 
 measure of his liberalities was his inability to give 
 more. He was the willing advocate, professionally, of 
 any one oppressed under color of the law, or who was 
 too poor to litigate a legal right, or to seek in Court 
 the redress of a wrong. In doing so he encountered 
 responsibilities by opposing preconceived public opin- 
 ion, and corrected this by reconciling popular misap- 
 prehension to himself and his client. Tiie control of 
 himself and his temper was no doubt the result in part 
 of a practised philosophy, but it had its foundation in a 
 higher source. In the full maturity of his life and 
 mind he made a profession of his Christian belief, and, 
 with the usual constancy of his nature, he died in the 
 faith of his ancestors, in the communion of the Roman 
 Catholic Church. 
 
 " He lived in Frederick City for twenty-three years, 
 and then left it to reside in Baltimore. The prospect 
 there of a larger practice and greater professional 
 
506 Memoir of Koger B. Taney, 
 
 eminence induced him to do so. Several of the dis- 
 tinguished lawyers of the Baltimore Bar had died 
 within a few years, leaving it without a leader. He 
 took that position, and maintained it with inci'eased 
 reputation, when he was called to Washington, having 
 received the appointment of Attorney-General of the 
 United States. He was at tliat time the Attorney- 
 General of Maryland. He had been called to that 
 office by the Governor and Council, though they dif- 
 fered in politics, at a time of strong excitement. He 
 was an avowed supporter on the side in opposition to 
 that which they took. It was a magnanimous disre- 
 gard of their differences, for which the Governor and 
 his Council were honored and are still remembered. 
 It led to his appointment as Attorney-General of the 
 United States, by which his State reputation became 
 national. When the latter office became vacant, 
 though the claims of other distinguished lawyers 
 and politicians were discussed, yet his fitness for the 
 discharge of the duties of the office, and for the 
 support of the principles of the Administration of 
 which he was to become a member, were admitted by 
 all. He was a worthy successor of those able men 
 who had held the office for twenty years. It would be 
 out of place at this time to particularize the cases of 
 his official success and ability. His arguments were 
 listened to with the marked attention of the Court, 
 and, whether successful or otherwise in the case, his 
 brief comprehended all the points of it, and all the 
 law applicable to them. 
 
 " Of the political course of Chief-Justice Taney 
 when he was the Attorney-General and the Secretary 
 
Memoir of Roger B. Taney. 507 
 
 of the Treasury, we need only say that the heated 
 party contests of that day have passed away, with tlie 
 admission of all who were engaged in them that his 
 course was sincere, and sustained with ability ; and 
 that his virtues as a statesman and Judge were worthy 
 of all the honors bestowed upon him, and that they 
 have been illustrated by services to his country which 
 will place him in its history among our ablest and 
 best men. 
 
 "As his predecessor, our great Judge Marshall, had 
 been, he was made Chief Justice, having but recently 
 held high political office. Both were leaders in sup- 
 port of the policy of the Administrations of which 
 they had been Cabinet officers. Each had to meet 
 opposition of talent and eloquence — Marshall, from 
 those who had the impress of services in our long 
 revolutionary struggle with England for national in- 
 dependence, and for their conspicuous agency in the 
 formation of the Constitution of the United States ; 
 his successor, the opposition of the men of talent and 
 virtue who had, as legislators and in arms, carried the 
 nation through a successful war with the same Power 
 in support of its commercial interests and its rights 
 of navigation. Neither of them passed through their 
 political trials without being assailed by party resent- 
 ments, but both received generous recantations from 
 those who uttered them, in the sjjirit of kindness, con- 
 fidence, and admiration of the purity of their lives 
 and the able discharge of their official duties. 
 
 " It is a happy occurrence that two such men should 
 have been Chief Justices in succession, and that the 
 life of each of them should have been prolonged to 
 
508 Memoir of Eoger B. Taney. 
 
 their respective ages. They presided in this Court 
 for sixty-three years, and by their decisions, aided by 
 their associates and by the learning of the District 
 Judges of the United States, we have a body of law, 
 constitutional and otherwise, and in every department 
 of the profession, unsurpassed in the records of Courts, 
 for the security which it gives to political, personal, 
 and municipal rights. It is truly a system upon 
 which we can rely as our sure foundation for securing 
 the rights and independence of the States of this 
 Union, and our national liberty. Gentlemen of the 
 Bar, it is a jiart of our mission to maintain it, and if 
 it shall be done by us with discretion, exempted from 
 the withering corruptions of party s^^irit, our great 
 country will again become what it was before it became 
 distracted by rebellion and scourged by civil war. 
 
 " The Court direct that your resolutions shall be 
 placed on the Minutes, and that they shall have such 
 other direction as you may desire." 
 
 And thereupon the Court adjourned. 
 
 At a meeting of the members of the Bar of the 
 First Circuit, held at Boston on Saturday, the 15th 
 day of October, A. D. 1864, to take measures for 
 giving expression to the feelings of the Bar on occa- 
 sion of the death of Chief-Justice Taney, the meeting 
 having been called to order by Richard H. Dana, Jr., 
 Attorney of the United States, Sidney Bartlett was 
 appointed Chairman, and Elias Merwin, Secretary. 
 
 On motion of Mr. Dana, a Committee, consisting of 
 Benjamiu R. Curtis, Caleb Cushing, Richard H. Dana, 
 Jr., and Sidney Bartlett, was appointed to prepare 
 
Memoir of Koger B. Taney. 509 
 
 and report resolutions for the consideration of the 
 Bar. 
 
 At an adjourned meeting, lield Monday the 17th 
 day of October, A. D. 1864, the following resolutions, 
 reported by Benjamin E. Curtis in behalf of the Com- 
 mittee, were unanimously adopted, namely : 
 
 "Resolved, That the members of this Bar render the 
 tribute of their admiration and reverence for the pre- 
 eminent abilities, profound learning, incorruptible 
 integrity, and signal j^rivate virtues, exhibited in the 
 long and illustrious judicial career of the late la- 
 mented Chief-Justice Taney. 
 
 "Resolved, That the Attorney of the United States 
 be requested to communicate these proceedings to the 
 Court, and ask to have them entered on the records 
 of the Court. 
 
 " Sidney Baetlett, Chairman. 
 " Elias Merwin, Secretary." 
 
 Mr. B. R. Curtis then addressed the Court : 
 
 "May it jilease the Court: I have been requested to 
 second the resolutions which Mr. Attorney has pre- 
 sented. I suppose the reason for this request is, that 
 for six years I was in such official connection with the 
 late Chief Justice as enabled me to know him better 
 than the other members of this Bar. My intimate 
 association with him began in the autumn of 1851. 
 He was then seventy-three years old, — a period of 
 life when, the Scripture admonishes us and the ex- 
 perience of mankind proves, it is best for most men 
 to seek that repose which belongs to old age. But it 
 was not best for him. 
 
 " I observe that it has been recently said, by one 
 
610 Memoir of Eogee B. Taney. 
 
 who had known him upwards of forty years, that 
 during all those years there had never been a time 
 when his death might not reasonably have been an- 
 ticipated within the next six months. Such was the 
 impression produced on me when I first knew him. 
 His tall, thin form, not much bent with the weight of 
 years, but exhibiting in his carriage and motions great 
 muscular weakness, the apparent feebleness of his vital 
 powers, the constant and rigid care necessary to guard 
 what little health he had, strongly impressed casual 
 observers with the belief that the remainder of his 
 days must be short. But a more intimate acquaintance 
 soon produced the conviction that his was no ordinary 
 case, because he was no ordinary man. An accurate 
 knowledge of his own physical condition and its neces- 
 sities ; an unyielding will, which, while it conformed 
 everything to those necessities, braced and vivified the 
 springs of life; a temper which long discipline had 
 made calm and cheerful ; and the consciousness that 
 he occupied and continued usefully to fill a great and 
 difficult office, whose duties were congenial to him. 
 gave assurance, which the event has justified, that 
 his life would be prolonged much beyond the allotted 
 years of man. 
 
 " In respect to his mental powers, there was not 
 then, nor at any time while I knew him intimately, 
 any infirmity or failure whatever. I believe the 
 memory is that faculty which first feels the stifihess 
 of old age. His memory was and continued to be as 
 alert and true as that of any man I ever knew. In 
 consultation with his brethren he could, and habitually 
 did, state the facts of a voluminous and complicated 
 
Memoir of Eoger B. Taney. 511 
 
 case, with every important detail of names and dates, 
 with extraordinary accuracy, and I may add with ex- 
 traordinary clearness and skill. And his recollection 
 of principles of law and of the decisions of the Court 
 over which he presided was as ready as his memory 
 of facts. 
 
 " He had none of the querulousness which too often 
 accompanies old age. There can be no doubt that his 
 was a vehement and passionate nature ; but he had 
 subdued it. I have seen him sorely tried, when the 
 duly observable effects of the trial were silence and 
 a flushed cheek. So long as he lived, he preserved 
 that quietness of temper and that consideration for the 
 feelings and wishes of others which were as far as pos- 
 sible removed from weak and selfish querulousness. 
 And I believe it may truly be said, that though the 
 increasing burden of years had somewhat diminished 
 his bodily strength, yet down to the close of the last 
 term of the Supreme Court, his presence was felt to be 
 as important as at any period of his life. 
 
 " I have been long enough at the Bar to remember 
 Mr. Taney's appointment ; and I believe it was then a 
 general impression, in this j^art of the country, that he 
 was neither a learned nor a profound lawyer. This 
 was certainly a mistake. His mind was thoroughly 
 imbued with the rules of the common law and of 
 equity law ; and, whatever may have been true at the 
 time of his appointment, when I first knew him, he 
 was master of all that peculiar jurisprudence which it 
 is the special province of the Courts of the United 
 States to administer and apply. His skill in applying 
 it was of the highest order. His j)ower of subtle 
 
512 Memoik of Eogek B. Taney. 
 
 analysis exceeded that of any man I ever knew, — a 
 power not without its dangers to a judge as well as to 
 a lawyer ; but in his case, it was balanced and checked 
 by excellent common sense and by great experience 
 in practical business, both public and private. His 
 physical infirmities disqualified him from making 
 those learned researches, with the results of which 
 other great judges have illustrated and strengthened 
 their written judgments; but it can be truly said of 
 him that he rarely felt the need of them. The same 
 cause prevented him from writing so large a propor- 
 tion of the opinions of the Court as his eminent pre- 
 decessor ; and it has seemed to me jjrobable, that for 
 this reason his real importance in the Court may not 
 have been fully appreciated, even by the Bar of his 
 own time. For it is certainly true, and I am happy 
 to be able to bear direct testimony to it, that the sur- 
 passing ability of the Chief Justice, and all his great 
 qualities of character and mind, were more fully and 
 constantly exhibited in the consultation-room, while 
 presiding over and assisting the deliberations of his 
 brethren, than the public knew, or can ever justly 
 appreciate. There, his dignity, his love of order, his 
 gentleness, his caution, his accuracy, his discrimination, 
 were of incalculable importance. The real intrinsic 
 character of the tribunal was greatly influenced by 
 them ; and always for the better. 
 
 " How he presided over the public sessions of the 
 Court some who hear me know. The blandness of 
 his manner, the promptness, precision, and firmness 
 which made every word he said weighty, and made 
 very few words necessary, and the unflagging attention 
 
Memoik of Roger B. Taney. 513 
 
 which he fixed on every one who addressed the Court, 
 ■will be remembered by all. 
 
 " But all may not know that he had some other 
 attainments and qualities important to the prompt, 
 orderly, and safe dispatch of business. In the time 
 of his predecessor, the practice of the Court is under- 
 stood to have been somewhat loosely administered. 
 The amount of business in the Court was then com- 
 paratively so small, that this occasioned no real detri- 
 ment, probably no considerable inconvenience. But 
 when the docket became crowded with causes and 
 heavy arrears were accumulated, it would have been 
 quite otherwise. The Chief Justice made himself en- 
 tirely familiar with the rules of practice of the Court 
 and with the circumstances out of which they had 
 arisen. He had a natural aptitude to understand and, 
 so far as was needed, to reform the system. It was 
 almost a necessity of his character to have it prac- 
 tically complete. It was a necessity of his character 
 to administer it with unyielding firmness. I have not 
 looked back to the reports to verify the fact, but I 
 have no doubt it may be found there, that even when 
 so infirm that he could not write other opinions, he 
 uniformly wrote the opinions of the Court upon new 
 points of its jiractice. He had no more than a just 
 estimate of their importance. Tlie business of the 
 Supreme Court came thither from nearly the whole of 
 a continent. It arose out of many systems of laws, 
 differing from each other in important particulars. It 
 was conducted by counsel who travelled long distances 
 to attend the Court. It included the most diverse 
 cases, tried in the lower Courts in many different 
 
 33 
 
514 Memoir of Kogee B. Taney. 
 
 modes of procedure — some according to the course of 
 the cominon law; some under the pleadings and prac- 
 tice of the courts of chancery in England ; some 
 under forms borrowed from the French law; many 
 under special lawS of the United States framed for the 
 execution of treaties ; and many more so anomalous 
 that it would not be easy to reduce them to any classi- 
 ficatiun. And the tribunal itself, though it was abso- 
 lutely supreme, within the limits of its pjowers, was 
 bounded and circumscribed in its jurisdiction by the 
 Constitution and by Acts of Congress, which it was 
 necessary constantly to regard. Let it be remembered, 
 also, for just now we may be in some danger of for- 
 getting it, that questions of jurisdictiou were questions 
 of power as between the United States and the several 
 States. The practice of the Court therefore involved 
 not merely the orderly and convenient conduct of this 
 vastly diversified business, drawn from a territory so 
 vast, but questions of constitutional law, running deep 
 into the frauiework of our complicated political system. 
 Upon this entire subject the Chief Justice was vigilant, 
 steady, and thoroughly informed. Doubtless it would 
 be the tendency of most second-rate minds, and of not 
 a few first-rate minds, to press such a jurisdiction out 
 to its extremest limits, and occasionally beyond them; 
 while for timid men, or for those who might come 
 to that Bench with formed prejudices, the opposite 
 danger would be imminent. Perhaps I may be per- 
 mitted to say that, though on the only important occa- 
 sions on which I had the misfortune to differ with the 
 Chief Justice on such points, I thought he and they 
 who agreed with him carried the powers of the Court 
 
Memoik of Roger B. Taney. 515 
 
 too far, yet, speaking for myself, I am quite sure he 
 fell into neither of these extremes. The great powers 
 intrusted to the Court by the Constitution and laws of 
 his country he steadily and firmly upheld and admin- 
 istered; and, so far as I know, he showed no disposi- 
 tion to exceed them. 
 
 " I have already adverted to the fact that his physi- 
 cal infirmities rendered it difficult for him to write a 
 large proj)ortion of the opinions of the Court. But my 
 own impression is that this was not the only reason 
 why he was thus abstinent. He was as absolutely free 
 from the slightest trace of vanity and self-conceit as 
 any man I ever knew. He was aware that many of 
 his associates were ambitious of doing this conspicuous 
 part of their joint labor. The preservation of the 
 harmony of the members of the Court, and of their 
 good-will to himself, was always in his mind. And I 
 have not the least doubt that these considerations often 
 influenced him to request others to prepare opinions, 
 which he could and otherwise would have written. 
 As it was, he has recorded many which are important, 
 some which are very important. This does not seem 
 to me to be the occasion to specify, still less to criticize 
 them. They are all characterized by that purity of 
 style and clearness of thought which marked whatever 
 he wrote or spoke ; and some of them must always be 
 known and recurred to as masterly discussions of their 
 subjects. 
 
 " It is one of the favors which the providence of 
 God has bestowed on our once happy country, that 
 for the period of sixty-three years this great office has 
 been filled by only two persons, each of whom has 
 
516 Memoir of Eogek B. Taney. 
 
 retained, to extreme old age, his great and useful 
 qualities and powers. The stability, uniformity, and 
 completeness of our national jurisprudence are in no 
 small degree attributable to this act. The last of 
 them has now gone. God grant that there may be 
 found a successor true to the Constitution, able to ex- 
 pound and willing to apply it to the portentous ques- 
 tions which the passions of men have made." 
 
 End of the Memoie. 
 
APPENDIX. 
 
 Supreme Court of the United States, December Term, 1856. 
 19 Howard E., 393. 
 
 Dred Scott, Plaintiff in Error, vs. Jolin F. A. Sanford. 
 
 Mr. Chief-Justice Tauey delivered the opinion of the Court : 
 This case has been twice argued. After the argument at 
 the last Term, differences of opinion were found to exist among 
 the members of the Court ; and, as the questions in controversy 
 are of the highest importance, and the Court was at that time 
 much pressed by the ordinary business of the term, it was deemed 
 advisable to continue the case, and direct a re-argument on some 
 of the points, in order that we might have an opportunity of giving 
 to the whole subject a more deliberate consideration. It has 
 accordingly been again argued by counsel, and considered by 
 the Court ; and I now proceed to deliver its opinion. 
 
 There are two leading questions presented by the record : 
 
 1. Had the Circuit Court of the United States jurisdiction to 
 hear and determine the case between these parties ? And, 
 
 2. If it had jurisdiction, is the judgment it has given errone- 
 ous or not ? 
 
 The plaintiff in error, who was also the plaintiff in the Court 
 below, was, with his wife and children, held as slaves by the 
 defendant in the State of Missouri ; and he brought this action in 
 the Circuit Court of the United States for that district, to assert 
 the title of himself and his family to freedom. 
 
 The declaration is in the form usually adopted in that State to 
 try questions of this description, and contains the averment neces- 
 sary to give the Court jurisdiction ; that he and the defendant are 
 citizens of different States — that is, that he is a citizen of Missouri, 
 and the defendant a citizen of New York. 
 
 The defendant pleaded in abatement to the jurisdiction of the 
 
 517 
 
518 Appendix. 
 
 Court, that the plaintiff was not a citizen of the State of Missouri, 
 as alleged in his declaration, being a negro of African descent, 
 whose ancestors were of pure African blood, and who were brought 
 into this country and sold as slaves. 
 
 To this plea the plaintiff demurred, and the defendant joined in 
 demurrer. The Court overruled the plea, and gave judgment that 
 the defendant should answer over. And he therefore put in 
 sundry pleas in bar, upon which issues were joined ; and at the 
 trial the verdict and judgment were in his favor. Whereupon the 
 plaintiff brought this writ of error. 
 
 Before we speak of the pleas in bar, it will be proper to dispose 
 of the questions which have arisen on the plea in abatement. 
 
 That plea denies the right of the plaintiff to' sue in a court of 
 the United States, for the reasons therein stated. 
 
 If the question raised by it is legally before us, and the Court 
 should be of opinion that the facts stated in it disqualify the 
 plaintiff from becoming a citizen, in the sense in which that word 
 is used in the Constitution of the United States, then the judg- 
 ment of the Circuit Court is erroneous, and must be reversed. 
 
 It is suggested, however, that this plea is not before us ; and 
 that, as the judgment in the court below on this plea was in favor 
 of the plaintiff, he does not seek to reverse it, or bring it before 
 the Court for revision by his writ of error ; and also that the 
 defendant waved this defence by pleading over, and thereby ad- 
 mitted the jurisdiction of the Court. 
 
 But, in making this objection, we think the peculiar and limited 
 jurisdiction of courts of the United States has not been adverted 
 to. This peculiar and limited jurisdiction has made it necessary, 
 in these courts, to adopt different rules and principles of pleading, 
 so far as jurisdiction is concerned, from those which regulate 
 courts of common law in England, and in the different States of 
 the Union which have adopted the common law rules. 
 
 In these last-mentioned courts, where their character and rank 
 are analogous to that of a Circuit Court of the United States, — in 
 other words, where they are what the law terms courts of general 
 jurisdiction, — they are presumed to have jurisdiction, unless the 
 contrary appears. No averment in the pleadings of the plaintiff 
 is necessary in order to give jurisdiction. If the defendant objects 
 to it, he must plead it specially ; and unless the fact on which ho 
 
Appendix, 619 
 
 relies is found to be true by a jury, or admitted to be true bv the 
 plaintiff, the jurisdiction cannot be disputed in an appellate court. 
 
 Now, it is not necessary to inquire whether in courts of that de- 
 scription a party who pleads over in bar, when a plea to the juris- 
 diction has been ruled against him, does or does not waive his 
 plea; nor whether upon a judgment in his favor on the pleas in 
 bar, and a writ of error brought by the plaintiff, the question 
 upon the plea in abatement would be open for revision in the 
 appellate court. Cases that may have been decided iu such 
 courts, or rules that may have been laid down by common-law 
 pleaders, can have no influence in the decision in this Court. Be- 
 cause, under the Constitution and laws of the United States, the 
 rules which govern the pleadings in its courts, in questions of 
 jurisdiction, stand on different principles, and are regulated by 
 different laws. 
 
 This difference arises, as we have said, from the peculiar char- 
 acter of the Government of the United States. For, although it 
 is sovereign and supreme in its appropriate sphere of action, yet it 
 does not possess all the powers which usually belong to the sov- 
 ereignty of a nation. Certain specified powers, enumerated in the 
 Constitution, have been conferred upon it ; and neither the legis- 
 lative, executive, or judicial department of the Government can 
 lawfully exercise any authority beyond the limits marked out by 
 the Constitution. And in regulating the judicial department, the 
 cases in which the courts of the United States shall have jurisdic- 
 tion are particularly and specifically enumerated and defined ; and 
 they are not authorized to take cognizance of any case which does 
 not come within the description therein specified. Hence, when 
 a plaintiff sues in a court of the United States, it is necessary that 
 he should show, in his pleading, that the suit he brings is within the 
 jurisdiction of the court, and that he is entitled to sue there. 
 And if he omits to do this, and should, by any oversight of the 
 Circuit Courtj obtain a judgment in his favor, the judgment would 
 be reversed in the appellate court for want of jurisdiction in the 
 court below. The jurisdiction would not be presumed, as in the 
 ease of a common-law English or State court, unless the contrary 
 appeared. But the record, when it comes before the appellate 
 court, must show, affirmatively, that the inferior court had author- 
 ity, under the Constitution, to hear and determine the case. And 
 
520 Appendix. 
 
 if the plaintiff claims a right to sue in a Circuit Court of the 
 United States, under that provision of the Constitution which 
 gives jurisdiction in controversies between citizens of different 
 States, he must distinctly aver in his pleading that they are citi- 
 zens of different States ; and he cannot maintain his suit without 
 showing that fact in the pleadings. 
 
 This point was decided in the case of Bingham vs. Cabot, (in 3 
 DalL, 382,) and ever since adhered to by the Court. And in 
 Jackson vs. Ashton, (8 Pet., 148,) it was held that the objection 
 to which it was open could not be waived by the opposite party, 
 because consent of parties could not give jurisdiction. 
 
 It is needless to accumulate cases on this subject. Those already 
 referred to, and the cases of Capron vs. Van Noorden, (in 2 Cr., 
 126,) and Montalet vs. Murray, (4 Cr., 46,) are sufficient to show 
 the rule of which we have spoken. The case of Capron vs. Van 
 Noorden strikingly illustrates the difference between a common- 
 law court and a court of the United States. 
 
 If, however, the fact of citizenship is averred in the declaration, 
 and the defendant does not deny it, and put it in issue by plea in 
 abatement, he cannot offer evidence at the trial to disprove it, and 
 consequently cannot avail himself of the objection in the appellate 
 court, unless the defect should be apparent in some other part of 
 the record. For if there is no plea in abatement, and the want 
 of jurisdiction does not appear in any other part of the transcript 
 brought up by the writ of error, the undisputed averment of citi- 
 zenship in the declaration must be taken in this Court to be true. 
 In this case, the citizenship is averred ; but it is denied by the de- 
 fendant in the manner required by the rules of pleading, and the 
 fact upon which the denial is based is admitted by the demurrer. 
 And if the plea and demurrer, and judgment of the court below 
 upon it, are before us upon this record, the question to be decided 
 is, whether the facts stated in the plea are sufficient to show that 
 the plaintiff is not entitled to sue as a citizen in a court of the 
 United States. 
 
 We think they are before us. The plea in abatement and the 
 judgment of the court upon it are a part of the judicial proceed- 
 ings in the Circuit Court, and are there recorded as such ; and a 
 writ of error always brings up to the superior court the whole 
 record of the proceedings in the court below. And in the case of 
 
Appendix. 521 
 
 the United States vs. Smith, (11 Wheat., 172,) this Court said, that 
 the case being brought up by writ of error, the whole record was 
 under the consideration of this Court. And this being the case in 
 the present instance, the plea in abatement is necessarily under con- 
 sideration ; and it becomes, therefore, our duty to decide whether 
 the facts stated in the plea are or are not sufficient to show that 
 the plaintiff is not entitled to sue as a citizen in a court of the 
 United States. 
 
 This is certainly a very serious question, and one that now for 
 the first time has been brought for decision before this Court. But 
 it is brought here by those who have a right to bring it, and it is 
 our duty to meet it and decide it. 
 
 The question is simply this : Can a negro, whose ancestors were 
 imported into this country, and sold as slaves, become a member 
 of the political community formed and brought into existence by 
 the Constitution of the United States, and as such become entitled 
 to all the rights and privileges and immunities guaranteed by that 
 instrument to the citizen? One of which rights is the privilege 
 of suing in a court of the United States in the cases specified in 
 the Constitution. 
 
 It will be observed that the plea applies to that class of persons 
 only whose ancestors were negroes of the African race, and im- 
 ported into this country, and sold and held as slaves. The only 
 matter in issue before the Court, therefore, is whether the descend- 
 ants of such slaves, when they shall be emancipated, or who are 
 born of parents who had become free before their birth, are citi- 
 zens of a State in the sense in which the word citizen is used in 
 the Constitution of the United States. And this being the only 
 matter in dispute on the pleadings, the Court must be understood 
 as speaking in this opinion of that class only, that is, of those per- 
 sons who are the descendants of Africans who were imported into 
 this country and sold as slaves. 
 
 The situation of this population was altogether unlike that of the 
 Indian race. The latter, it is true, formed no part of the colonial 
 communities, and never amalgamated with them in social connec- 
 tions or in government. But although they were uncivilized, they 
 were yet a free and independent people, associated together in 
 nations or tribes, and governed by their own laws. Many of these 
 political communities were situated in territories to which the 
 
622 Appendix. 
 
 white race claimed the ultimate right of dominion. But that claim 
 \Yas acknowledged to be subject to the right of the Indians to 
 occupy it as long as they thought proper, and neither the English 
 nor colonial Governments claimed or exercised any dominion over 
 the tribe or nation by whom it was occupied, nor claimed the 
 right to the possession of the territory, until the tribe or nation 
 consented to cede it. These Indian Governments were regarded 
 as foreign governments, as much so as if an ocean had separated the 
 red man from the white ; and their freedom has constantly been 
 acknowledged, from the time of the first emigration to the Eng- 
 lish colonies to the present day, by the diiferent governments 
 which succeeded each other. Treaties have been negotiated with 
 them, and their alliance sought for in war ; and the people who 
 compose these Indian political communities have always been 
 treated as foreigners not living under our Government. It is true, 
 that the course of events has brought the Indian tribes within the 
 limits of the United States under subjection to the white race; 
 and it has been found necessary, for their sake as well as our own, 
 to regard them as in a state of pupilage, and to legislate to a 
 certain extent over them and the territory they occupy. But they 
 may, without doubt, like the subjects of any other foreign govern- 
 ment, be naturalized by the authority of Congress, and become 
 citizens of a State and of the United States ; and if an individual 
 should leave his nation or tribe, and take up his abode among the 
 white population, he would be entitled to all the rights and 
 privileges which would belong to an emigrant from any other 
 foreign people. 
 
 We proceed to examine the case as presented by the pleadings. 
 
 The words, " people of the United States " and " citizens," are 
 synonymous terms, and mean the same thing. They both describe 
 the political body who, according to our republican institutions, 
 form the sovereignty, and who hold the power and conduct the 
 Government through their representatives. They are what we 
 familiarly call the " sovereign people ; " and every citizen is one 
 of this people, and a constituent member of this sovereignty. The 
 question before us is, whether the class of persons described in the 
 plea in abatement compose a portion of this people, and are con- 
 stituent members of this sovereignty ? We think they are not ; 
 and that they are not included, and were not intended to be 
 
Appendix. 523 
 
 included, under the word "citizens" in the Constitution, and there- 
 fore can claim none of the rights and privileges which that instru- 
 ment provides for and secures to citizens of the United States. On 
 the contrary, they were, at that time, considered as a subordinate 
 and inferior class of beings, who had been subjugated by the dom- 
 inant race; and, whether emancipated or not, yet remained subject 
 to their authority, and had no rights or privileges but such as 
 those who held the power and the Government might choose to 
 grant them. 
 
 It is not the province of the Court to decide upon the justice or 
 injustice, policy or impolicy, of these laws. The decision of that 
 question belonged to the political or law-making power ; to those 
 who formed the sovereignty and framed the Constitution. The 
 duty of the Court is to interpret the instrument they have framed, 
 with the best lights we can obtain on the subject, and to adminis- 
 ter it as we find it, according to its true intent and meaning when 
 it was adopted. 
 
 In discussing this question, we must not confound the rights of 
 citizenship which a State may confer within its own limits and 
 the rights of citizenship as a member of the Union. It does not 
 by any means follow, because he has all the rights and privileges 
 of a citizen of a State, that he must be a citizen of the United 
 States. He may have all of the rights and privileges of the citizen 
 of a State, and yet not be entitled to the rights and privileges of a 
 citizen in any other State. For, previous to the adoption of the 
 Constitution of the United States, every State had the undoubted 
 right to confer on whomsoever it pleased the character of citizen, 
 and to endow him with all its rights. But this character of course 
 was confined to the boundaries of the State, and gave him no 
 rights or privileges in other States beyond those secured to him hy 
 the laws of nations and the comity of States. Nor have the sev- 
 eral States surrendered the power of conferring these rights and 
 privileges by adopting the Constitution of the United States. 
 Each State may still confer them upon an alien, or any one it 
 thinks proper, or upon any class or description of persons ; yet he 
 would not be a citizen, in the sense in which that word is used in 
 the Constitution of the United States, nor entitled to such in one 
 of its courts, nor to the privileges and immunities of a citizen in 
 the other States. The rights which he would acquire would be 
 
624 Appendix. 
 
 restricted to the State which gave them. The Constitution has 
 conferred on Congress the right to establish a uniform rule of nat- 
 uralization, and this right is evidently exclusive, and has always 
 been held by this Court to be so. Consequently, no State, since 
 the adoption of the Constitution of the United States, can, by nat- 
 uralizing an alien, invest him with the rights and privileges secured 
 to a citizen of a State under the Federal Government ; although, 
 so far as the State alone was concerned, he would undoubtedly be 
 entitled to the rights of a citizen, and clothed with all the rights 
 and immunities which the Constitution and laws of the State 
 attached to that character. 
 
 It is very clear, therefore, that no State can, by any act or law 
 of its own, passed since the adoption of the Constitution, introduce 
 a new member into the political community created by the Con- 
 stitution of the United States. It cannot make him a member of 
 this community by making him a member of its own. And for 
 the same reason it cannot introduce any person, or description of 
 persons, who were not intended to be embraced in this new politi- 
 cal family, which the Constitution brought into existence, but were 
 intended to be excluded from it. 
 
 The question then arises, whether the provisions of the Consti- 
 tution, in relation to the personal rights and privileges to which 
 the citizenship of a State should be entitled, embraced the negro- 
 African race, at that time in this country, or who might afterwards 
 be imported, who had then or should afterwards be made free in 
 any State ; and to put it in the power of a single State to make 
 him a citizen of the United States, and endue him with the full 
 rights of citizenship in every other State without their consent?' 
 Does the Constitution of the United States act upon him whenever 
 he shall be made free under the laws of a State, and raised there 
 to the rank of a citizen, and immediately clothe him with all the 
 privileges of a citizen in every other State, and in its own courts ? 
 
 The Court think the affirmative of these propositions cannot be 
 maintained. And if it cannot, the plaintiff in error could not be 
 a citizen of the State of Missouri, within the meaning of the Con- 
 stitution of the United States, and consequently was not entitled 
 to sue in its courts. 
 
 It is true, every person, and every class and description of per- 
 Bons, who were at the time of the adoption of the Constitution 
 
Appendix. 525 
 
 recognized as citizens in the several States, became also citizens of 
 this new political body, but none other ; it was formed by them, 
 and for them and their posterity, but no one else. And the per- 
 sonal rights and privileges guaranteed to citizens of this new sov- 
 ereignty were intended to embrace those only who were then 
 members of the several State communities, or who should after- 
 wards, by birthright or otherwise, become members, according to 
 the provisions of the Constitution and the principles on which it 
 was founded. It was the union of those who were at that time 
 members of distinct and separate political communities into one 
 political family, whose power, for certain specified purposes, was 
 to extend over the whole territory of the United States. And it 
 gave to each citizen rights and privileges outside of his State which 
 he did not before possess, and placed him in every other State 
 upon a perfect equality with its own citizens as to rights of person 
 and rights of property ; it made him a citizen of the United States. 
 
 It becomes necessary, therefore, to determine who were citizens 
 of the several States when the Constitution was adopted. And in 
 order to do this, we must recur to the governments and institutions 
 of the thirteen Colonies when they separated from Great Britain, 
 and formed new sovereignties, and took their places in the family 
 of independent nations. We must inquire who, at that time, were 
 recognized as the people or citizens of a State, whose rights and 
 liberties had been outraged by the English Government; and who 
 declared their independence, and assumed the powers of Govern- 
 ment to defend their rights by force of arms. 
 
 In the opinion of the Court, the legislation and histories of the 
 times, and the language used in the Declaration of Independence, 
 show that neither the class of persons who had been imported as 
 slaves, nor their descendants, whether they had become free or 
 not, were then acknowledged as a part of the people, nor in- 
 tended to be included in the general words used in that memorable 
 instrument. 
 
 It is difficult at this day to realize the state of public opinion, 
 in relation to that unfortunate race, which prevailed in the civilized 
 and enlightened portions of the world at the time of the Declara- 
 tion of Independence, and when the Constitution was framed and 
 adopted. But the public history of every European nation dis- 
 plays it in a manner too plain to be mistaken. 
 
526 Appendix. 
 
 They had for more than a century before been regarded as 
 beings of an inferior order, and altogether unfit to associate with 
 the white race, either in social or political relations ; and so far 
 inferior, that they had no rights which the white man was bound 
 to respect; and that the negro might justly and lawfully be re- 
 duced to slavery for his benefit. He was bought and sold, and 
 treated as an ordinary article of merchandise and traffic, whenever 
 a profit could be made by it. This opinion was at that time fixed 
 and universal in the civilized portion of the white race. It was 
 regarded as an axiom in morals as well as in politics, which no one 
 thought of disputing, or supposed to be open to dispute ; and men 
 in every grade and position in society daily and habitually acted 
 upon it in their private pursuits, as well as in matters of public 
 concern, without doubting for a moment the correctness of this 
 opinion. 
 
 And in no nation was this opinion more firmly fixed, or more 
 uniformly acted upon, than by the English Government and Eng- 
 lish people. They not only seized them on the coast of Africa, 
 and sold them or held them in slavery for their own use ; but 
 they took them as ordinary articles of merchandise to every 
 country where they could make a profit on them, and were far 
 more extensively engaged in this commerce than any other nation 
 in the world. 
 
 The opinion thus entertained and acted upon in England was 
 naturally impressed upon the colonies they founded on this side 
 of the Atlantic. And, accordingly, a negro of the African race 
 was regarded by them as an article of property, and held and 
 bought and sold as such in every one of the thirteen Colonies 
 which united in the Declaration of Independence, and afterwards 
 formed the Constitution of the United States. The slaves were 
 more or less numerous in the different colonies, as slave labor was 
 found more or less profitable. But no one seems to have doubted 
 the correctness of the prevailing opinion of the time. 
 
 The legislation of the different colonies furnishes positive and 
 indisputable proof of this fact. 
 
 It would be tedious, in this opinion, to enumerate the various 
 laws passed upon this subject. It will be sufficient, as a sample 
 of the legislation which then generally prevailed throughout the 
 British colonies, to give the laws of two of them, — one being still 
 
Appendix. 527 
 
 a large slave-holding State, and the other the first State in which 
 slavery ceased to exist. 
 
 The province of Maryland, in 1717, (cli. 13, s. 5,) passed a law 
 declaring " that if any free negro or mulatto intermarry with any 
 white woman, or if any white man shall intermarry with any 
 negro or mulatto woman, such negro or mulatto shall become a 
 slave during life, excepting mulattoes born of white women, who, 
 for such intermarriage, shall only become servants for seven years, 
 to be disposed of as the Justices of the County Court, where such 
 marriage so happens, shall think fit ; to be applied by them to- 
 wards the support of a public school within said county. And 
 any white man or white woman who shall intermarry as aforesaid, 
 with any negro or mulatto, such white man or white woman shall 
 become servants during the term of seven years, and shall be dis- 
 posed of by the justices as aforesaid, and be applied to the uses 
 aforesaid." 
 
 The other colonial law to which we refer was passed by Massa- 
 chusetts in 1705 (ch. 6). It is entitled " An Act for the better 
 preventing of a spurious and mixed issue," etc. ; and it provides 
 that " if any negro or mulatto shall presume to smite or strike 
 any person of the English or other Christian nation, such negro or 
 mulatto shall be severely whipped, at the discretion of the justices 
 before whom the oflfender shall be convicted." 
 
 And " that none of her Majesty's English or Scottish subjects, 
 nor of any other Christian nation, within this province, shall con- 
 tract matrimony with any negro or mulatto ; nor shall any person 
 duly authorized to solemnize marriage presume to join any such in 
 marriage, on pain of forfeiting the sum of fifty pounds ; one moiety 
 thereof to her Majesty, for and towards the support of the Govern- 
 ment within this province, and the other moiety to him or them that 
 shall inform and sue for the same, in any of her Majesty's Courts 
 of Record within the province, by bill, plaint, or information." 
 
 We give both of these laws in the words used by the respective 
 legislative bodies, because the language in which they are framed, 
 as well as the provisions contained in them, show, too plainly to 
 be misunderstood, the degraded condition of this unhappy race. 
 They were still in force when the Revolution began, and are a 
 faithful index to the state of feeling towards the class of persons 
 of whom they speak, and of the position they occupied throughout 
 
528 Appendix. 
 
 the thirteen Colonies, in the eyes and thoughts of the men who 
 framed the Declaration of Independence and established the State 
 constitutions and governments. They show that a perpetual and 
 impassable barrier was intended to be erected between the white 
 race and the one they had reduced to slavery, and governed as 
 subjects with absolute and despotic power ; and which they then 
 looked upon as so far below them in the scale of created beings, 
 that intermarriages between white persons and negroes or mulat- 
 toes were regarded as unnatural and immoral, and punished as 
 crimes, not only in the parties, but in the person who joined them 
 in marriage. And no distinction in this respect was made between 
 the free negro or mulatto and the slave, but this stigma, of the 
 deepest degradation, was fixed upon the whole race. 
 
 We refer to these historical facts for the purpose of showing the 
 fixed opinions concerning that race, upon which the statesmen of 
 that day spoke and acted. It is necessary to do this, in order to 
 determine whether the general terms used in the Constitution of 
 the United States, as to the rights of man and the rights of the 
 people, were intended to include them, or to give to them or their 
 posterity the benefit of any of its provisions. 
 
 The language of the Declaration of Independence is equally 
 conclusive. 
 
 It begins by declaring that, " when in the course of human 
 events it becomes necessary for one people to dissolve the political 
 bands which have connected them with another, and to assume 
 among the powers of the earth the separate and equal station to 
 which the laws of nature and nature's God entitle them, a decent 
 respect for the opinions of mankind requires that they should de- 
 clare the causes which impel them to the separation." 
 
 It then proceeds to say : "We hold these truths to be self-evident ; 
 that all men are created equal ; that they are endowed by their 
 Creator with certain unalienable rights ; that among them are life, 
 liberty, and the pursuit of happiness ; that to secure these rights 
 governments are instituted, deriving their just powers from the 
 consent of the governed." 
 
 The general words above quoted would seem to embrace the 
 whole human family, and if they were used in a similar instrument 
 at this day would be so understood. But it is too clear for dis- 
 pute, that the enslaved African race were not intended to be in- 
 
Appendix. 529 
 
 eluded, and formed no part of the people who framed and adopted 
 this declaration ; for if the language, as understood in that day, 
 would embrace them, the conduct of the distinguished men who 
 framed the Declaration of Independence would have been utterly 
 and flagrantly inconsistent with the principles they asserted ; and 
 instead of the sympathy of mankind, to which they so confidently 
 appealed, they would have deserved and received universal rebuke 
 and reprobation. 
 
 Yet the men who framed this declaration were great men, — 
 high in literary acquirements, high in their sense of honor, and 
 incapable of asserting principles inconsistent with those on which 
 they were acting. They perfectly understood the meaning of the 
 language they used, and how it would be understood by others ; 
 and they knew that it would not, in any part of the civilized world, 
 be supposed to embrace the negro race, which, by common consent, 
 had been excluded from civilized governments and the family of 
 nations, and doomed to slavery. They spoke and acted according 
 to the then established doctrines and principles, and in the ordi- 
 nary language of the day, and no one misunderstood them. The 
 unhappy black race were separated from the white by indelible 
 marks and laws long before established, and were never thought 
 of or spoken of except as jsroperty, and when the claims of the 
 owner or the profit of the trader were supposed to need protection. 
 
 This state of public opinion had undergone no change when the 
 Constitution was adopted, as is equally evident from its provisions 
 and language. 
 
 The brief preamble sets forth by whom it was formed, for what 
 purposes, and for whose benefit and protection. It declares that 
 it is formed by the people of the United States, that is to say, by 
 those who were members of the different political communities in 
 the several States ; and its great object is declared to be to secure 
 the blessings of liberty to themselves and their posterity. It speaks 
 in general terms of the people of the United States, and of oiiizeiis 
 of the several States, when it is providing for the exercise of the 
 powers granted or the privileges secured to the citizen. It does 
 not define what description of persons are intended to be included 
 under these terms, or who shall be regarded as a citizen and one 
 of the people. It uses them as terms so well understood, that no 
 further description or definition was necessary. 
 34 
 
530 Appendix. 
 
 But there are two clauses in the Constitution which point 
 directly and specifically to the negro race as a separate class of 
 persons, and show clearly that they were not regarded as a portion 
 of the people or citizens of the Government then formed. 
 
 One of these clauses reserves to each of the thirteen States the 
 right to import slaves until the year 1808, if it thinks proper. 
 And the importation which it thus sanctions was unquestionably 
 of persons of the race of which we are speaking, as the traffic in 
 slaves in the United States had always been confined to them. 
 And by the other provision, the States pledge themselves to each 
 other to maintain the right of property of the master, by deliver- 
 ing up to him any slave who may have escaped from his service, 
 and be found within their respective territories. By the first 
 above-mentioned clause, therefore, the right to purchase and hold 
 this property is directly sanctioned and authorized for twenty 
 years by the people who framed the Constitution. And by the 
 second, they pledge themselves to maintain and uphold the right 
 of the master in the manner specified, as long as the Government 
 they then formed should endure. And these two provisions show, 
 conclusively, that neither the description of persons therein re- 
 ferred to, nor their descendants, were embraced in any of the other 
 provisions of the Constitution ; for certainly these two clauses were 
 not intended to confer on them or their posterity the blessings 
 of liberty, or any of the personal rights so carefully provided for 
 the citizen. 
 
 No one of that race had ever migrated to the United States 
 voluntarily ; all of them had been brought here as articles of mer- 
 chandise. The number that had been emancipated at that time 
 were but few in comparison with those held in slavery ; and they 
 were identified in the public mind with the race to which they 
 belonged, and regarded as a part of the slave population rather 
 than the free. It is obvious that they were not even in the minds 
 of the framers of the Constitution when they were conferring spe- 
 cial rights and privileges upon the citizens of a State in every 
 other part of the Union. 
 
 Indeed, when we look to the condition of this race in the several 
 States at the time, it is impossible to believe that these rights and 
 privileges were intended to be extended to them. 
 
 It is very true, that in that portion of the Union where the labor 
 
Appendix. 531 
 
 of the negro race was found to be unsuited to the climate and 
 unprofitable to the master, but few slaves were held at the time of 
 the Declaration of Independence ; and when the Constitution was 
 adopted, it had entirely worn out in one of them, and measures 
 had been taken for its gradual abolition in several others. But 
 this change had not been produced by any change of opinion in 
 relation to this race, but because it was discovered, from experi- 
 ence, that slave labor was unsuited to the climate and productions 
 of these States ; for some of the States, where it had ceased, or 
 nearly ceased to exist, were actively engaged in the slave-trade, 
 procuring cargoes on the coast of Africa, and transporting them 
 for sale to those parts of the Union where their labor was found 
 to be profitable, and suited to the climate and productions. And 
 this traffic was openly carried on, and fortunes accumulated by it, 
 without reproach from the people of the States where they resided. 
 And it can hardly be supposed that, in the States where it was 
 then countenanced in its worst form, that is, in the seizure aud 
 transportation, the people could have regarded those who were 
 emancipated as entitled to equal rights with themselves. 
 
 And we may again refer, in support of this proposition, to the 
 plain and unequivocal language of the laws of the several States; 
 some passed after the Declaration of Independence and before the 
 Constitution was adopted, and some since the Government went 
 into operation. 
 
 We need not refer, on this point, particularly to the laws of the 
 present slave-holding States. Their statute-books are full of pro- 
 visions in relation to this class, in the same spirit with the Maryland 
 law which we have before quoted. They have continued to treat 
 them as an inferior class, and to subject them to strict police regu- 
 lations, drawing a broad line of distinction between the citizen 
 and the slave races, and legislating in relation to them upon the 
 same principle which prevailed at the time of the Declaration of 
 Independence. As relates to these States, it is too plain for argu- 
 ment, that they have never been regarded as a part of the people 
 or citizens of the State, nor supposed to possess any political rights 
 which the dominant race might not withhold or grant at their 
 pleasure. And as long ago as 1822, the Court of Appeals of Ken- 
 tucky decided that free negroes and mulattoes were not citizens 
 within the meaning of the Constitution of the United States ; and 
 
532 Appendix. 
 
 the correctness of this decision is recognized, and the same doctrine 
 affirmed, in 1 Meigs's Tenn. Eeports, 331. 
 
 And if we turn to the legislation of the States where slavery 
 had worn out, or measures taken for its speedy abolition, we shall 
 find the same opinions and principles equally fixed and equally 
 acted upon. 
 
 Thus, Massachusetts, in 1786, passed a law similar to the colo- 
 nial one of which we have spoken. The law of 1786, like the law 
 of 1705, forbids the marriage of any white person with any negro, 
 Indian, or mulatto, and inflicts a penalty of fifty pounds upon any 
 one who shall join them in marriage ; and declares all such mar- 
 riages absolutely null and void, and degrades thus the unhappy 
 issue of the marriage by fixing upon it the stain of bastardy. And 
 this mark of degradation was renewed, and again impressed upon 
 the race, in the careful and deliberate preparation of their revised 
 code published in 1836. This code forbids any person from join- 
 ing in marriage any white person with any Indian, negro, or 
 mulatto, and subjects the party who shall ofiend in this respect to 
 imprisonment, not exceeding six months, in the common jail, or to 
 hard labor, and to a fine of not less than fifty nor more than two 
 hundred dollars; and like the law of 1786, it declares the mar- 
 riage to be absolutely null and void. It will be seen that the pun- 
 ishment is increased by the code upon the person who shall many 
 them, by adding imprisonment to a pecuniary penalty. 
 
 So, too, in Connecticut. We reter mcjre particularly to the 
 legislation of this State, because it was not only among the first 
 to put an end to slavery within its own territory, but was the first 
 to fix a mark of reprobation upon the African slave-trade. The 
 law last mentioned was passed in October, 1788, about nine 
 months after the State had ratified and adopted the present Con- 
 stitution of the United States ; and by that law it prohibited its 
 own citizens, under severe penalties, from engaging in the trade, 
 and declared all policies of insurance on the vessel or cargo made 
 in the State to be null and void. But up to the time of the adop- 
 tion of the Constitution, there is nothing in the legislation of 
 the State indicating any change of opinion as to the relative rights 
 and position of the white and black races in this country, or indi- 
 cating that it meant to place the latter, when free, upon a level 
 with its citizens; and certainly nothing which would have led 
 
Appendix. 533 
 
 the slave-holding States to suppose that Connecticut designed to 
 I claim for them, under the new Constitution, the equal rights and 
 privileges and rank of citizens in every other State. 
 
 The first step taken by Connecticut upon this subject was as 
 early as 1774, when it passed an act forbidding the further im- 
 portation of slaves into the State. But the section containing the 
 prohibition is introduced by the following preamble : 
 
 " And whereas the increase of slaves in this State is injurious 
 to the poor, and inconvenient." 
 
 This recital would appear to have been carefully introduced in 
 order to prevent any misunderstanding of the motive which 
 induced the Legislature to pass the law, and place it distinctly 
 upon the interest and convenience of the white population, ex- 
 cluding the inference that it might have been intended in any 
 degree for the benefit of the other. 
 
 And in the Act of 1784, by which the issue «f slaves, born 
 after the time therein mentioned, were to be free at & certain age, 
 the section is again introduced by a preamble assigning a similar 
 motive for the act. It is in these words : 
 
 " Whereas sound policy requires that the abolition of slavery 
 should be effected as soon as may be consistent with the rights of 
 individuals, and the public safety and welfare," — showing that 
 the right of property in the master was to be protected, and that 
 the measure was one of policy, and to prevent the injury and 
 inconvenience to the whites of a slave population in the State. 
 
 And still further pursuing its legislation, we find that in the 
 same statute passed in 1774, which prohibited the further importa- 
 tion of slaves into the State, there is also a provision by which 
 any negro, Indian, or mulatto servant, who was found wandering 
 out of the town or place to which he belonged, without a written 
 pass, such as is therein described, was made liable to be seized by 
 any one, and taken before the next authority to be examined and 
 delivered up to his master, who was required to pay the charge 
 which had accrued thereby. And a subsequent section of the 
 same law provides, that if any free negro shall travel without such 
 a pass, and shall be stopped, seized, or taken up, he shall pay all 
 charges arising thereby. And this law was in full operation when 
 the" Constitution of the United States was adopted, and was not 
 repealed until 1797. So that up to that time, free negroes and 
 
534 Appendix. 
 
 mulattoes were associated with servants and slaves in the police 
 regulations established by the laws of the State. 
 
 And again, in 1833, Connecticut passed another law which 
 made it penal to set up or establish any school in that State for 
 the instruction of persons of the African race not inhabitants of 
 the State, or to instruct or teach in any such school or institution, 
 or board or harbor for that purpose any such person, without the 
 previous consent in writing of the civil authority of the town in 
 which such school or institution might be. 
 
 And it appears by the case of Crandall vs. The State, reported 
 in 10 Conn. Rep., 340, that upon an information filed against 
 Prudence Crandall for a violation of this lavv, one of the points 
 raised in the defence was, that the law was a violation of the Con- 
 stitution of the United States, and that the persons instructed, 
 although of the African race, were citizens of other States, and 
 therefore entitled to the rights and privileges of citizens in the 
 State of Connecticut. But Chief-Justice Daggett, before whom 
 the case was tried, held that persons of that description were not 
 citizens of a State within the meaning of the word " citizen " in 
 the Constitution of the United States, and were not, therefore, 
 entitled to the privileges and immunities of citizens in other States. 
 
 The case was carried up to the Supreme Court of Errors of the 
 State, and the question fully argued there. But the case went off 
 upon another point, and no opinion was expressed on this question. 
 
 We have made this particular examination into the legislative 
 and judicial action of Connecticut, because, from the early hostility 
 displayed to the slave-trade on the coast of Africa, we may expect 
 to find the laws of that State as lenient and favorable to the sub- 
 ject race as those of any other State in the Union ; and if we find 
 that at the time the Constitution was adopted, they were not even 
 there raised to the rank of citizens, but were still held and treated 
 as property, and the laws relating to them passed with reference 
 altogether to the interest and convenience of the white race, we 
 shall hardly find them elevated to a higher rank anywhere else. 
 
 A brief notice of the laws of two other States, and we shall pass 
 on to other considerations. 
 
 By the laws of New Hampshire, collected and finally passed in 
 1815, no one was permitted to be enrolled in the militia of the 
 State but free white citizens ; and the same provision is found in 
 
Appendix. 535 
 
 a subsequent collection of the laws made in 1855. Nothing could 
 more strongly mark the entire repudiation of the African race. 
 The alien is excluded, because, being born in a foreign country, he 
 cannot be a member of the community until he is naturalized. 
 But why are the African race, born in the State, not permitted to 
 share in one of the highest duties of the citizen? The answer is 
 obvious : he is not, by the institutions and laws of the State, num- 
 bered among its people. He forms no part of the sovereignty of 
 the State, and is not therefore called on to uphold and defend it. 
 
 Again, in 1822, Rhode Island, in its revised code, passed a law 
 forbidding persons who were authorized to join persons in mar- 
 riage, from joining in marriage any white person with any negro, 
 Indian, or mulatto, under the penalty of two hundred dollars, and 
 declaring all such marriages absolutely null and void ; and the 
 same law was again re-enacted in its revised code of 1844. So 
 that, down to the last-mentioned period, the strongest mark of 
 inferiority and degradation was fastened upon the African race in 
 that State. 
 
 It would be impossible to enumerate and compress in the space 
 usually allotted to an opinion of a court, the various laws, mark- 
 ing the condition of this race, which were passed from time to time 
 after the Revolution, and before and since the adoption of the 
 Constitution of the United States. In addition to those already 
 referred to, it is sufficient to say, that Chancellor Kent, whose 
 accuracy and research no one will question, states in the sixth edi- 
 tion of his Commentaries, (published in 1848, 2d vol., 258, note b,) 
 that in no part of the country, except Maine, did the African race, 
 in point of fact, participate equally with the whites in the exercise 
 of civil and political rights. 
 
 The legislation of the States therefore shows, in a manner not 
 to be mistaken, the inferior and subject condition of that race 
 at the time the Constitution was adopted, and long afterwards, 
 throughout the thirteen States by which that instrument was 
 framed ; and it is hardly consistent with the respect due to these 
 States, to suppose that they regarded at that time, as fellow-citi- 
 zens and members of the sovereignty, a class of beings whom they 
 had thus stigmatized; whom,- as we are bound, out of respect 
 to the State sovereignties, to assume they had deemed it just and 
 necessary thus to stigmatize, and upon whom they had impressed 
 
536 Appendix. 
 
 such deep and enduring marks of inferiority and degradation ; or, 
 that when they met in convention to form the Constitution, they 
 looked upon them as a portion of their constituents, or designed 
 to include them in the provisions so carefully inserted for the 
 security and protection of the liberties and rights of their citizens. 
 It cannot be supposed that they intended to secure to them rights, 
 and privileges, and rank, in the new political body throughout the 
 Union, which every one of them denied within the limits of its 
 own dominion. More especially, it cannot be believed that the 
 large slave-holding States regarded them as included in the word 
 citizens, or would have consented to a Constitution which might 
 compel them to receive them in that character from another State. 
 For if they were so received, and entitled to the privileges and 
 immunities of citizens, it would exempt them from the operation 
 of the special laws and from the police regulations, which they 
 considered to be necessary for their own safety. It would 
 give to persons of the negro race, who were recognized as citi- 
 zens in any one State of the Union, the right to enter every 
 other State whenever they pleased, singly or in companies, with- 
 out pass or passport, and without obstruction, to sojourn there 
 as long as they pleased, to go where they pleased at every hour 
 of the day or night without molestation, unless they committed 
 some violation of law for which a white man would be punished ; 
 and it would give them the full liberty of speech in public and in 
 private upon all subjects upon which its own citizens might speak ; 
 to hold public meetings upon political affairs, and to keep and 
 carry arms wherever they went. And all of this would be done in 
 the face of the subject race of the same color, both free and slaves, 
 and inevitably producing discontent and insubordination among 
 them, and endangering the peace and safety of the State. 
 
 It is impossilsle, it would seem, to believe that the great men of 
 the slave-holding States, who took so large a share in framing the 
 Constitution of the United States, and exercised so much influence 
 in procuring its adoption, could have been so forgetful or regard- 
 less of their own safety and the safety of those who trusted and 
 confided in them. 
 
 Besides, this want of foresight and care would have been utterly 
 inconsistent with the caution displayed in providing for the ad- 
 mission of new members into this political family. For, when 
 
Appendix. 537 
 
 they gave to tlie citizens of each State the privileges and immuni- 
 ties of citizens in the several States, they, at the same time, took 
 from the several States the power of naturalization, and confined 
 that power exclusively to the Federal Government. No State 
 was willing to permit another State to determine who should or 
 should not he admitted as one of its citizens, and entitled to de- 
 mand equal rights and privileges with their own people, within 
 their own territories. The right of naturalization was, therefore, 
 with one accord, surrendered by the States, and confided to the 
 Federal Government. And this power granted to Congress to 
 establish a uniform rule of naturalization is, by the well understood 
 meaning of the word, confined to persons born in a foreign coun- 
 try, under a foreign government. It is not a power to raise to the 
 rank of a citizen any one born in the United States, who, from 
 birth or parentage, by the laws of the country, belongs to an 
 inferior and subordinate class. And when we find the States 
 guarding themselves from the indiscreet or improper admission by 
 other States of emigrants from other countries, by giving the 
 power exclusively to Congress, we cannot fail to see that they 
 could never have left with the States a much more important 
 power, — that is, the power of transforming into citizens a numer- 
 ous class of persons who, in that character, would be much more 
 dangerous to the peace and safety of a large portion of the Union 
 than the few foreigners one of the States might improperly natu- 
 ralize. The Constitution, upon its adoption, obviously took from 
 the States all power by any subsequent legislation to introduce as 
 a citizen into the political family of the United States any one, no 
 matter where he was born, or what might be his character or con- 
 dition ; and it gave to Congress the power to confer this character 
 upon those only who were born outside of the dominions of the 
 United States. And no law of a State, therefore, passed since the 
 Constitution was adopted, can give any right of citizenship out- 
 side of its own territory. 
 
 A clause similar to the one in the Constitution, in relation to 
 the rights and immunities of citizens of one State in the other 
 States was contained in the Articles of Confederation. But there 
 is a difference of language which is worthy of note. The provi- 
 sion in the Articles of Confederation was, " that the free inhabi- 
 tants of each of the States (paupers, vagabonds, and fugitives from 
 
538 Appendix. 
 
 justice, excepted) should be entitled to all the privileges and im- 
 munities of free citizens in the several States." 
 
 It will be observed that under this Confederation each State 
 had the right to decide for itself, and in its own tribunals, whom 
 it would acknowledge as a free inhabitant of another State. The 
 term ./ree inhabitant, in the generality of its terms, would cer- 
 tainly include one of the African race who had been manumitted. 
 But no example, we think, can be found of his admission to all 
 the privileges of citizenship in any State of the Union after these 
 Articles were formed, and while they continued in force. And, 
 notwithstanding the generality of the words " free inhabitants," it 
 is very clear that, according to their accepted meaning in that 
 day, they did not include the African race, whether free or not ; 
 for the fifth section of the ninth article provides that Congress 
 should have the power " to agree upon the number of land forces 
 to be raised, and to make requisitions from each State for its quota 
 in proportion to the number of lohke inhabitants in such State, 
 which requisition should be binding." 
 
 Words could hardly be used which more strongly mark the 
 line of distinction between the citizen and the subject ; the free 
 and the subjugated races. The latter were not even counted when 
 the inhabitants of a State were to be embodied in proportion to 
 its numbers for the general defence. And it cannot for a moment 
 be supposed, that a class of persons thus separated and I'ejected 
 from those who formed the sovereignty of the States, were yet 
 intended to be Included under the words " free inhabitants," in 
 the preceding article, to whom privileges and immunities were so 
 carefully secured in every State. 
 
 But although this clause of the Articles of Confederation is the 
 same in principle with that inserted in the Constitution, yet the 
 comprehensive word inhabitant, which might be construed to in- 
 clude an emancipated slave, is omitted ; and the privilege is con- 
 fined to citizens of the State. And this alteration in words would 
 hardly have been made, unless a different meaning was intended 
 to be conveyed, or a possible doubt removed. The just and fair 
 inference is, that as this privilege was about to be placed under 
 the protection of the general Government, and the words ex- 
 pounded by its tribunals, and all power in relation to it taken 
 from the State and its courts, it was deemed prudent to describe 
 
Appendix. 639 
 
 with, precision and caution the persons to whom this high privi- 
 lege was given, and the word citizen was on that account substi- 
 tuted for the words free inhabitant. Tlie word citizen excluded, 
 and no doubt intended to exclude, foreignei's who had not become 
 citizens of some one of the States when the Constitution was 
 adopted ; and also every description of persons who were not fully 
 recognized as citizens in the several States. This, upon any fair 
 construction of the instruments to which we have referred, was 
 evidently the object and purpose of this change of words. 
 
 To all this mass of proof we have still to add, that Congress 
 has repeatedly legislated upon the same construction of the Con- 
 stitution that we have given. Three laws, two of which were 
 passed almost immediately after the Government went into opera- 
 tion, will be abundantly sufficient to show this. The first two are 
 particularly worthy of notice, because many of the men who 
 assisted in framing the Constitution, and took an active part in 
 procuring its adoption, were then in the halls of legislation, and 
 certainly understood what they meant when they used the words 
 " people of the United States " and " citizens " in that well-con- 
 sidered instrument. 
 
 The first of these acts is the naturalization law, which was 
 passed at the second session of the first Congress, March 26, 1790, 
 and confines the right of becoming citizens " to aliens being free 
 white persons." 
 
 Now the Constitution does not limit the power of Congress in 
 this respect to white persons. And they may, if they think proper, 
 authorize the naturalization of any one, of any color, who was 
 born under allegiance to another Government. But the language 
 of the law above quoted shows that citizenship at that time was 
 perfectly understood to be confined to the white race ; and that 
 they alone constituted the sovereignty in the Government. 
 
 Congress might, as we before said, have authorized the naturali- 
 zation of Indians, because they were aliens and foreigners. But, 
 in their then untutored and savage state, no one would have 
 thought of admitting them as citizens in a civilized community. 
 And, moreover, the atrocities they had but recently committed, 
 when they were the allies of Great Britain in the Revolutionary 
 War, were yet fresh in the recollection of the people of the United 
 States, and they were even then guarding themselves against the 
 
540 Appendix. 
 
 threatened renewal of Indian hostilities. No one supposed then 
 that any Indian would ask for, or was capable of enjoying, the 
 privileges of an American citizen, and the word white was not 
 used with any particular reference to them. 
 
 Neither was it used with any reference to the African race im- 
 ported into or born in this country ; because Congress had no 
 power to naturalize them, and therefore there was no necessity for 
 using particular words to exclude them. 
 
 It would seem to have been used merely because it followed out 
 the line of division which the Constitution has drawn between the 
 citizen race, who formed and held the Government, and the Afri- 
 can race, which they held in subjection and slavery, and governed 
 at their own pleasure. 
 
 Another of the early laws of which we have spoken is the first 
 militia law, which was passed in 1792, at the first session of the 
 second Congress. The language of this law is equally plain and 
 significant with the one just mentioned. It directs that every 
 " free, able-bodied white male citizen " shall be enrolled in the 
 militia. The word white is evidently used to exclude the African 
 race, and the word " citizen " to exclude unnaturalized foreigners ; 
 the latter forming no part of the sovereignty, owing it no alle- 
 giance, and therefore under no obligation to defend it. The Afri- 
 can race, however, born in the country, did owe allegiance to the 
 Government, whether they were free or slave ; but it is repudiated, 
 and rejected from the duties and obligations of citizenship in 
 marked language. 
 
 The third act to which we have alluded is even still more de- 
 cisive; it was passed as late as 1813,(2 Stat., 809,) and it pro- 
 vides : " That from and after the termination of the war in which 
 the United States are now engaged with Great Britain, it shall not 
 be lawful to employ, on board of any public or private vessels of 
 the United States, any person or persons except citizens of the 
 United States, or persons of color, natives of the United States." 
 
 Here the line of distinction is drawn in express words. Persons 
 of color, in the judgment of Congress, were not included in the 
 word citizens, and they are described as another and different class 
 of persons, and authorized to be employed, if born in the United 
 States. 
 
 And even as late as 1 820, (chap. 104, sec. 8,) in the charter to 
 
Appendix. 541 
 
 the city of Washington, the corporation is authorized " to restrain 
 and prohibit the nightly and other disorderly meetings of slaves, 
 free negroes, and mulattoes," thus associating them together in its 
 legislation ; and after prescribing the punishment that may be 
 inflicted on the slaves, proceeds in the following words : " And to 
 punish such free negroes and mulattoes by penalties not exceeding 
 twenty dollars for any one offence ; and in case of the inability of 
 any such free negro or mulatto to pay any such penalty and cost 
 thereon, to cause him or her to be confined to labor for any time 
 not exceeding six calendar months." And in a subsequent jsart of 
 the same section, the act authorizes the corj)oration " to prescribe 
 the terms and conditions upon which free negroes and mulattoes 
 may reside in the city." 
 
 This law, like the laws of the States, shows that this class of 
 persons were governed by special legislation directed expressly to 
 them, and always connected with provisions for the government 
 of slaves, and not with those for the government of free white citi- 
 zens. And after such an uniform course of legislation as we have 
 stated, by the Colonies, by the States, and by Congress, running 
 through a period of more than a century, it would seem that to 
 call persons thus marked and stigmatized, " citizens " of the United 
 States, " fellow-citizens," a constituent part of the sovereignty, 
 would be an abuse of terms, and not calculated to exalt the char- 
 acter of an American citizen in the eyes of other nations. 
 
 The conduct of the Executive Department of the Government 
 has been in perfect harmony upon this subject with this course of 
 legislation. The question was brought officially before the late 
 William Wirt, when he was the Attorney-General of the United 
 States, in 1821, and he decided that the words "citizens of the 
 United States " were used in the acts of Congress in the same sense 
 as in the Constitution ; and that free persons of color were not 
 citizens within the meaning of the Constitution and laws; and 
 this opinion has been coiii;..ned by that of the late Attorney-Gen- 
 eral, Caleb Gushing, in a recent case, and acted upon by the Secre- 
 tary of State, who refused to grant passports to them as " citizens 
 of the United States." 
 
 But it is said that a person may be a citizen, and entitled to 
 that character, although he does not possess all the rights which 
 may belong to other citizens ; as, for example, the right to vote, or 
 
642 Appendix. 
 
 to hold particular offices ; and that yet, when he goes into another 
 State, he is entitled to be recognized there as a citizen, although 
 the State may measure his rights by the rights which it allows to 
 persons of a like character or class resident in the State, and refuse 
 to him the full rights of citizenship. 
 
 This argument overlooks the language of the provision in the 
 Constitution of which we are speaking. 
 
 Undoubtedly, a person may be a citizen, that is, a member of 
 the community, who form the sovereignty, although he exercises 
 no share of the political power, and is incapacitated from holding 
 particular offices. Women and minors, who form a part of the 
 political family, cannot vote ; and when a property qualification 
 is required to vote or hold a particular office, those who have not 
 the necessary qualification cannot vote or hold the office ; yet they 
 are citizens. 
 
 So, too, a person may be entitled to vote by the law of the State 
 who is not a citizen even of the State itself. And in some of the 
 States of the Union foreigners not naturalized are allowed to vote. 
 And the State may give the right to free negroes and mulattoeSj 
 but that does not make them citizens of the State, and still less of 
 the United States. And the provision in the Constitution giving 
 privileges and immunities in other States does not apply to them. 
 
 Neither does it apply to a person who, being a citizen of a State, 
 migrates to another State. For then he becomes subject to the 
 laws of the State in which he lives, and he is no longer a citizen 
 of the State from which he removed. And the State in which he 
 resides may then, unquestionably, determine his status or condition, 
 and place him among the class of persons who are not recognized 
 as citizens, but belong to an inferior and subject race ; and may 
 deny him the privileges and immunities enjoyed by its citizens. 
 
 But so far as mere rights of person are concerned, the provision 
 in question is confined to citizens of a State who are temporarily 
 in another State without taking up their residence there. It gives 
 them no political rights in the State, as to voting or holding office, 
 or in any other respect. For a citizen of one State has no right to 
 participate in the government of another. But if he ranks as a 
 citizen in the State to which he belongs, within the meaning of the 
 Constitution of the United States, then, whenever he goes into 
 another State, the Constitution clothes him, as to the rights of per- 
 
Appendix. 543 
 
 son, -with all the privileges and immunities which belong to citi- 
 zens of the State. And if persons of the African race are citizens 
 of a State, and of the United States, they would be entitled to all 
 of these privileges and immunities in every State ; and the State 
 could not restrict them ; for they would hold these privileges and 
 immunities under the paramount authority of the Federal Gov- 
 ernment, and its courts would be bound to maintain and enforce 
 them, the Constitution and laws of the State to the contrary not- 
 withstanding. And if the States could limit or restrict them, or 
 place the party in an inferior grade, this clause of the Constitution 
 would be unmeaning, and could have no operation; and would 
 give no rights to the citizen when in another State. He would 
 have none but what the State itself chose to allow him. This is 
 evidently not the construction or meaning of the clause in ques- 
 tion. It guarantees rights to the citizen, and the State cannot with- 
 hold them. And these rights are of a character and would lead 
 to consequences which make it absolutely certain that the African 
 race was not included under the name of citizens of a State, and 
 was not in the contemplation of the framers of the Constitution 
 when these privileges and immunities were provided for the pro- 
 tection of the citizen in other States. 
 
 The case of Legrand v,s. Darnall (2 Peters, 664) has been referred 
 to for the purpose of showing that this Court has decided that the 
 descendant of a slave may sue as a citizen in a court of the United 
 States ; but the case itself shows that the question did not arise 
 and could not have arisen in the case. 
 
 It appears from the report, that Darnall was born in Maryland, 
 and was the son of a white man by one of his slaves, and his father 
 executed certain instruments to manumit him, and devised to him 
 some landed property in the State. This property Darnall after- 
 wards sold to Legrand, the appellant, who gave his notes for the 
 purchase-money. But becoming afterwards apprehensive that the 
 appellee had not been emancipated according to the laws of Ma- 
 ryland, he refused to pay the notes until he could be better satis- 
 fied as to Darnall's right to convey. Darnall, in the mean time, 
 had taken up his residence in Pennsylvania, and brought suit on 
 the notes, and recovered judgment in the Circuit Court for the 
 District of Maryland. 
 
 The whole proceeding, as appears by the report, was an amicable 
 
544 Appendix. 
 
 one: Legrand being perfectly willing to pay the money, if he 
 could obtain a title, and Darnall not wishing him to pay unless he 
 could make him a good one. In point of fact, the whole proceed- 
 iug was under the direction of the counsel who argued the case 
 for the appellee, who was a mutual friend of the parties, and con- 
 fided in by both of them, and whose only object was to have the 
 rights of both parties established by judicial decision in the most 
 speedy and least expensive manner. 
 
 Legrand, therefore, raised no objection to the jurisdiction of the 
 court in the suit at law, because he was himself anxious to obtain 
 the judgment of the court upon his title. Consequently, there 
 was nothing in the record before the court to show that Darnall 
 was of African descent, and the usual judgment and award of ex- 
 ecution was entered. And Legrand thereupon filed his bill on 
 the equity side of the Circuit Court, stating that Darnall was bom 
 a slave, and had not been legally emancipated, and could not 
 therefore take the land devised to him, nor make Legrand a good 
 title ; and praying an injunction to restrain Darnall from proceed- 
 ing to execution on the judgment, which was granted. Darnall 
 answered, averring in his answer that he was a free man, and 
 capable of conveying a good title. Testimony was taken on this 
 point, and at the hearing the Circuit Court was of opinion that 
 Darnall was a free man and his title good, and dissolved the in- 
 junction and dismissed the bill ; and that decree was afiirmed here, 
 upon the appeal of Legrand. 
 
 Now, it is difficult to imagine how any question about the citi- 
 zenship of Darnall, or his right to sue in that character, can be 
 supposed to have arisen or been decided in that case. The fact 
 that he was of African descent was first brought before the court 
 upon the bill in equity. The suit at law had been passed into 
 judgment and award of execution, and the Circuit Court as a 
 court of law had no longer any authority over it. It was a valid 
 and legal judgment, which the court that rendered it had not the 
 power to reverse or set aside. And unless it had jurisdiction as a 
 court of equity, to restrain him from using its process as a court of 
 law, Darnall, if he thought proper, would have been at liberty to 
 proceed on his judgment, and compel the payment of the money, 
 although the allegations in the bill were true, and he was incapa- 
 ble of making a title. No other court could have enjoined him, 
 
Appendix. 545 
 
 for certainly no State equity court could interfere in that way with 
 the judgment of the Circuit Court of the United States. 
 
 But the Circuit Court as a court of equity certainly had equity 
 jurisdiction over its own judgment as a court of law, without re- 
 gard to the character of the parties ; and had not only the right, 
 but it was its duty — no matter who were the parties in the judg- 
 ment — to prevent them from proceeding to enforce it by execu- 
 tion, if the court was satisfied that the money was not justly and 
 equitably due. The ability of Darnall to convey did not depend 
 upon his citizenship, but upon his title to freedom. And if he 
 was free, he could hold and convey property, by the laws of Mary- 
 land, although he was not a citizen. But if he was by law still 
 a slave, he could not. It was therefore the duty of the court, 
 sitting as a court of equity in the latter case, to prevent him from 
 using its process, as a court of common law, to compel the pay- 
 ment of the purchase-money, when it was evident that the pur- 
 chaser must lose the land. But if he was free, and could make 
 a title, it was equally the duty of the court not to suffer Legrand 
 to keep the land, and refuse the payment of the money, upon the 
 ground that Darnall was incapable of suing or being sued as a 
 citizen in a court of the United States. The character or citi- 
 zenship of the parties had no connection with the question of 
 jurisdiction, and the matter in dispute had no relation to the citi- 
 zenship of Darnall. Nor is such a question alluded to in the 
 opinion of the court. 
 
 Besides, we are by no means prepared to say that there are not 
 many cases, civil as well as criminal, in which a Circuit Court of 
 the United States may exercise jurisdiction, although one of the 
 African race is a party ; that broad question is not before the 
 Court. The question with which we are now dealing is, whether 
 a person of the African race can be a citizen of the United States, 
 and become thereby entitled to a special privilege, by virtue of 
 his title to that character, and which, under the Constitution, no 
 one hut a citizen can claim. It is manifest that the case of Le- 
 grand and Darnall has no bearing on that question, and can have 
 no application to the case now before the Court. 
 
 This case, however, strikingly illustrates the consequences that 
 would follow the construction of the Constitution which would 
 give the power contended for to a State. It would, in effect, give 
 35 
 
546 Appendix. 
 
 it also to an individual. For if the father of young Darnall had 
 manumitted him in his lifetime, and sent him to reside in a State 
 ■which recognized him as a citizen, he might have visited and 
 sojourned in Maryland when he pleased, and as long as he pleased, 
 as a citizen of the United States ; and the State oiBcers and tri- 
 bunals would be compelled, by the paramount authority of the 
 Constitution, to receive him and treat him as one of its citizens, 
 exempt from the laws and police of the State in relation to a per- 
 son of that description, and allow him to enjoy all the rights and 
 privileges of citizenship, without respect to the laws of Maryland, 
 although such laws were deemed by it absolutely essential to its 
 own safety. 
 
 The only two provisions which point to them and include them 
 treat them as property, and make it the duty of the Government 
 to protect it ; no other power, in relation to this race, is to be found 
 in the Constitution ; and as it is a Government of special, dele- 
 gated powers, no authority beyond these two provisions can be 
 constitutionally exercised. The Government of the United States 
 had no right to interfere for any other purpose but that of pro- 
 tecting the rights of the owner, leaving it altogether with the 
 several States to deal with this race, whether emancipated or not, 
 as each State may think justice, humanity, and the interests and 
 safety of society require. The States evidently intended to reserve 
 this power exclusively to themselves. 
 
 No one, we presume, supposes that any change in public opinion 
 or feeling, in relation to this unfortunate race, in the civilized na- 
 tions of Europe or in this country, should induce the Court to give 
 to the words of the Constitution a more liberal construction in 
 their favor than they were intended to bear when the instrument 
 was framed and adopted. Such an argument would be altogether 
 inadmissible in any tribunal called on to interpret it. If any of its 
 provisions are deemed unjust, there is a mode prescribed in the 
 instrument itself by which it may be amended ; but while it 
 remains unaltered, it must be construed now as it was understood 
 at the time of its adoption. It is not only the same in words, but 
 the same in meaning, and delegates the same powers to the Gov- 
 ernment, and reserves and secures the same rights and privOeges 
 to the citizens ; and as long as it continues to exist in its present 
 form, it speaks not only in the same words, but with the same 
 
Appendix. 547 
 
 meaning and intent with which it spoke when it came from the 
 hands of its framers, and was voted on and adopted by the 
 people of the United States. Any other rule of construction would 
 abrogate the judicial character of this Court, and make it the 
 mere reflex of the popular opinion or passion of the day. This 
 Court was not created by the Constitution for such purposes. 
 Higher and graver trusts have been confided to it, and it must 
 not falter in the path of duty. 
 
 What the construction was at that time, we think can hardly 
 admit of doubt. We have the language of the Declaration of In- 
 dependence and of the Articles of Confederation, in addition to 
 the plain words of the Constitution itself; we have the legislation 
 of the different States, before, about the time, and since, the Con- 
 stitution was adopted ; we have the legislation of Congress from 
 the time of its adoption to a recent period ; and we have the con- 
 stant and uniform action of the Executive Department, all con- 
 curring together and leading to the same result. And if anything 
 in relation to the construction of the Constitution can be regarded 
 as settled, it is that which we now give to the word " citizen " and 
 the word " people." 
 
 And upon a full and careful consideration of the subject, the 
 Court is of opinion, that, upon the facts stated in the plea in abate- 
 ment, Dred Scott was not a citizen of Missouri within the mean- 
 ing of the Constitution of the United States, and not entitled as 
 such to sue in its courts ; and, consequently, that the Circuit Court 
 had no jurisdiction of the case, and that the judgment on the plea 
 in abatement is erroneous. 
 
 We are aware that doubts are entertained by some of the Court, 
 whether the plea in abatement is legally before the Court upon 
 this writ of error ; but if that plea is regarded as waived, or out 
 of the case upon any other ground, yet the question as to the juris- 
 diction of the Circuit Court is presented on the face of the bill of 
 exception itself, taken by the plaintiff" at the trial ; for he admits 
 that he and his wife were born slaves, but endeavors to make out 
 his title to freedom and citizenship by showing that they were 
 taken by their owner to certain places, hereinafter mentioned, 
 where slavery could not by law exist, and that they thereby be- 
 came free, and upon their return to Missouri became citizens of 
 that State. 
 
548 Appendix, 
 
 Now, if the removal of which he speaks did not give them their 
 freedom, then by his own admission he is still a slave ; and what- 
 ever opinions may be entertained in favor of the citizenship of a 
 free person of the African race, no one supposes that a slave is a 
 citizen of the State or of the United States. If, therefore, the acts 
 done by his owner did not make them free persons, he is still a 
 slave, and certainly incapable of suing in the character of a citizen. 
 
 The principle of law is too well settled to be disputed, that a 
 court can give no judgment for either party, where it has no juris- 
 diction ; and if, upon the showing of Scott himself, it appeared 
 that he was still a slave, the case ought to have been dismissed, 
 and the judgment against him and in favor of the defendant for 
 costs, is, like that on the plea in abatement, erroneous, and the 
 suit ought to have been dismissed by the Circuit Court for want 
 of jurisdiction in that court. 
 
 But before we proceed to examine this part of the case, it may 
 be proper to notice an objection taken to the judicial authority of 
 this Court to decide it ; and it has been said, that as this Court has 
 decided against the jurisdiction of the Circuit Court on the plea in 
 abatement, it has no right to examine any question presented by 
 the exception ; and that anything it may say upon that part of 
 the case will be extrajudicial, and mere obiter dicta. 
 
 This is a manifest mistake ; there can be no doubt as to the 
 jurisdiction of this Court to revise the judgment of the Circuit 
 Court, and to reverse it for any error apparent on the record, 
 whether it be the error of giving judgment in a case over which 
 it had no jurisdiction, or any other material error ; and this, too, 
 whether there is a plea in abatement or not. 
 
 The objection appears to have arisen from confounding writs of 
 error to a State court with writs of error to a Circuit Court of the 
 United States. Undoubtedly, upon a writ of error to a State 
 court, unless the record shows a case that gives jurisdiction, the 
 case must be dismissed for want of jurisdiction in this Court. And 
 if it is dismissed on that ground, we have no right to examine 
 and decide upon any question presented by the bill of exceptions, 
 or any other part of the record. But writs of error to a State 
 court, and to a Circuit Court of the United States, are regulated 
 by different laws, and stand upon entirely different principles. 
 And in a writ of error to a Circuit Court of the United States, the 
 
Appendix. 549 
 
 whole record is before this Court for examination and decision ; 
 and, if the sum in controversy is large enough to give jurisdiction, 
 it is not only the right, but it is the judicial duty, of the Court to 
 examine the whole case as presented by the record ; and if it 
 appears upon its face that any material error or errors have been 
 committed by the court below, it is the duty of this Court to 
 reverse the judgment, and remand the case. And certainly an 
 error in passing a judgment upon the merits in favor of either 
 party, in a case which it was not authorized to try, and over 
 which it had no jurisdiction, is as grave an error as a court can 
 commit. , 
 
 The plea in abatement is not a plea to the jurisdiction of this 
 Court, but to the jurisdiction of the Circuit Court And it appears 
 by the record before us that the Circuit Court committed an error 
 in deciding that it had jurisdiction upon the facts in the case, 
 admitted by the pleadings. It is the duty of the appellate 
 tribunal to correct this error ; but that could not be done by dis- 
 missing the case for want of jurisdiction here, — for that would 
 leave the erroneous judgment in full force, and the injured party 
 without remedy. And the appellate court, therefore, exercises the 
 power for which alone appellate courts are constituted, by revers- 
 ing the judgment of the court below for this error. It exercises 
 its proper and appropriate jurisdiction over the judgment and 
 proceedings of the Circuit Court, as they appear upon the record 
 brought up by the writ of error. 
 
 The correction of one error in the court below does not deprive 
 the appellate court of the power of examining further into the 
 record, and correcting any other material errors which may have 
 been committed by the inferior court. There is certainly no rule 
 of „ law, nor any practice, nor any decision of a court, which even 
 questions this power in the appellate tribunal. On the contrary, 
 it is the daily practice of this Court, and of all appellate courts 
 where they reverse the judgment of an inferior court for error, to 
 correct by its opinions whatever errors may appear on the record 
 material to the case ; and they have always held it to be their 
 duty to do so where the silence of the court might lead to miscon- 
 struction or future controversy, and the point has been relied on 
 by either side, and argued before the court. 
 
 In the case before us, we have already decided that the Circuit 
 
550 Appendix. 
 
 Court erred in deciding that it had jurisdiction upon the facts 
 admitted by the pleadings. And it appears that, in the further 
 progress of the case, it acted upon the erroneous principle it had 
 decided on the pleadings, and gave judgment for the defendant, 
 where, upon the facts admitted in the exception, it had no juris- 
 diction. 
 
 We are at a loss to understand upon what principle of law, 
 applicable to appellate jurisdiction, it can be supposed that this 
 Court has not judicial authority to correct the last-mentioned 
 error, because they had before corrected the former ; or by what 
 process of reasoning it can be made out, that the error of an 
 inferior court in actually pronouncing judgment for one of the 
 parties, in a case in which it had no jurisdiction, cannot be looked 
 into or corrected by this Court, because we have decided a similar 
 question presented in the pleadings. The last point is distinctly 
 presented by the facts contained in the plaintiiT's own bill of 
 exceptions, which he himself brings here by this writ of error. It 
 was the point which chiefly occupied the attention of the counsel 
 on both sides in the argument, and the judgment which this Court 
 must render upon both errors is precisely the same. It must, in 
 each of them, exercise jurisdiction over the judgment, and reverse 
 it for the errors committed by the court below ; and issue a man- 
 date to the Circuit Court to conform its judgment to the opinion 
 pronounced by this Court, by dismissing the case for want of juris- 
 diction in the Circuit Court. This is the constant and invariable 
 practice of this Court, where it reverses a judgment for want of 
 jurisdiction in the Circuit Court. 
 
 It can scarcely be necessary to pursue such a question further. 
 The want of jurisdiction in the court below may appear on the 
 record without any plea in abatement. This is familiarly the case 
 where a court of chancery has exercised jurisdiction in a case 
 where the plaintiff had a plain and adequate remedy at law, and 
 it so appears by the transcript when brought here by appeal. So, 
 also, where it appears that a court of admiralty has exercised 
 jurisdiction in a case belonging exclusively to a court of common 
 law. In these cases there is no plea in abatement. And for the 
 same reason, and upon the same principles, where the defect of 
 jurisdiction is patent upon the record, this Court is bound to 
 reverse the judgment, although the defendant has not pleaded in 
 abatement to the jurisdiction of the inferior court. 
 
Appendix. 551 
 
 The cases of Jackson vs. Asliton, and of Capron vs. Van Noor- 
 den, to which we have referred in a previous part of this opinion, 
 are directly in point. In the last-mentioned case, Capron brought 
 an action against Van Noorden in a Circuit Court of the United 
 States, without showing, by the usual averments of citizenship, 
 that the court had jurisdiction. There was no plea in abatement 
 put in, and the parties went to trial upon the merits. The court 
 gave judgment in favor of the defendant, with costs. The plaintiif 
 thereupon brought his writ of error, and this Court reversed the 
 judgment given in favor of the defendant, and remanded the case 
 with directions to dismiss it, because it did not appear by the 
 transcript that the Circuit Court had jurisdiction. 
 
 The case before us still more strongly imposes upon this Court 
 the duty of examining whether the court below has not committed 
 an error in taking jurisdiction and giving a judgment for costs in 
 favor of the defendant; for in Capron vs. Van Noorden the judg- 
 ment was reversed, because it did not appear that the parties were 
 citizens of different States. They might or might not be. But 
 in this case it does appear that the plaintiif was born a slave ; and 
 if the facts upon which he relies have not made him free, then it 
 appears affirmatively on the record that he is not a citizen, and 
 consequently his suit against Sandford was not a suit between 
 citizens of different States, and the court had no authority to pass 
 any judgment between the parties. The suit ought, in this view 
 of it, to have been dismissed by the Circuit Court; and its judg- 
 ment in favor of Sandford is erroneous, and must be reversed. 
 
 It is true that the result either way, by dismissal or by a judg- 
 ment for the defendant, makes very little, if any, difference in a 
 pecuniary or personal point of view to either party. But the 
 fact that the result would be very nearly the same to the parties 
 in either form of judgment, would not justify this court in sanc- 
 tioning an error in the judgment which is patent on the record, 
 and which, if sanctioned, might be drawn into precedent, and lead 
 to serious mischief and injustice in some future suit. 
 
 "We proceed, therefore, to inquire whether the facts relied on by 
 the plaintiff entitle him to his freedom. 
 
 The case, as he himself states it on the record brought here by 
 his writ of error, is this : 
 
 The plaintiff was a negro slave belonging to Dr. Emerson, who 
 
552 Appendix. 
 
 was a surgeon in the army of the United States. In the year 
 1834, he took the plaintiff from the State of Missouri to the mili- 
 tary post at Eock Island, in the State of Illinois, and held him 
 there as a slave until the month of April or May, 1836. At the 
 time last mentioned, said Dr. Emerson removed the plaintiff 
 from said military post at Rock Island to the military post at 
 Fort Snelling, situate on the west bank of the Mississippi River, 
 in the territory known as Upper Louisiana, acquired by the 
 United States of France, and situate north of the latitude of 
 thirty-six degrees thirty minutes north, and north of the State of 
 Missouri. Said Dr. Emerson held the plaintiff in slavery, at said 
 Fort Snelling, from said last-mentioned date until the year 1838. 
 
 In the year 1835, Harriet, who is named in the second count 
 of the plaintiff's declaration, was the negro slave of Major Talia- 
 ferro, who belonged to the army of the United States. In that 
 year, 1835, said Major Taliaferro took said Harriet to said Fort 
 Snelling, a military post, situated as hereinbefore stated, and kept 
 her there as a slave until the year 1836, and then sold and de- 
 livered her as a slave, at said Fort Snelling, unto the said Dr. 
 Emerson hereinbefore named. Said Dr. Emerson held said Harriet 
 in slavery at said Fort Snelling until the year 1838. 
 
 In the year 1836, the plaintiff and Harriet intermarried, at 
 Fort Snelling, with the consent of Dr. Emerson, who then claimed 
 to be their master and owner. Eliza and Lizzie, named in the 
 third count of the plaintiff's declaration, are the fruit of that mar- 
 riage. Eliza is about fourteen years old, and was born on board 
 the steamboat Gipsey, north of the north line of the State of Mis- 
 souri, and upon the river Mississippi. Lizzie is about seven years 
 old, and was born in the State of Missouri, at the military post 
 called Jefferson Barracks. 
 
 In the year 1838, said Dr. Emerson removed the plaintiff and 
 said Harriet, and their said daughter Eliza, from said Fort Snel- 
 ling to the State of Missouri, where they have ever since resided. 
 
 Before the commencement of this suit, said Dr. Emerson sold 
 and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the 
 defendant, as slaves, and the defendant has ever since claimed to 
 hold them, and each of them, as slaves. 
 
 In considering this part of the controversy, two questions arise : 
 1. Was he, together with his family, free in Missouri by reason 
 
Appendix. 553 
 
 of the stay in the territory of the United States hereinbefore men- 
 tioned ? And, 2. If they were not, is Scott himself free by reason 
 of his removal to Rock Island, in the State of Illinois, as stated 
 in the above admissions ? 
 
 We proceed to examine the first question. 
 
 The Act of Congress, upon which the plaintiff relies, declares 
 that slavery and involuntary servitude, except as a punishment 
 for crime, shall be forever prohibited in all that part of the terri- 
 tory ceded by France, under the name of Louisiana, which lies 
 north of thirty-six degrees thirty minutes north latitude, and not 
 included within the limits of Missouri. And the difficulty which 
 meets us at the threshold of this part of the inquiry is, whether 
 Congress was authorized to pass this law under any of the powers 
 granted to it by the Constitution ; for if the authority is not given 
 by that instrument, it is the duty of this Court to declare it void 
 and inoperative, and incapable of conferring freedom upon any 
 one who is held as a slave under the laws of any one of the States. 
 
 The counsel for the plaintifi" has laid much stress upon that arti- 
 cle in the Constitution which confers on Congress the power " to dis- 
 pose of and make all needful rules and regulations respecting the 
 territory or other property belonging to the United States ; " but, in 
 the judgment of the Court, that provision has no bearing on the 
 present controversy, and the power there given, whatever it may 
 be, is confined, and was intended to be confined, to the territory 
 which at that time belonged to or was claimed by the United 
 States, and was within their boundaries as settled by the treaty 
 with Great Britain, and can have no influence upon a territory 
 afterwards acquired from a foreign Government. It was a special 
 provision for a known and particular territory, and to meet a 
 present emergency, and nothing more. 
 
 A brief summary of the history of the times, as well as the 
 careful and measured terms in which the article is framed, will 
 show the correctness of this proposition. 
 
 It will be remembered that, from the commencement of the 
 Revolutionary war, serious difficulties existed between the States, 
 in relation to the disposition of large and unsettled territories 
 which were included in the chartered limits of some of the States. 
 And some of the other States, and more especially Maryland, 
 which had no unsettled lands, insisted that as the unoccupied 
 
554 Appendix. 
 
 lands, if wrested from Great Britain, would owe their preservation 
 to the common purse and the common sword, the money arising 
 from them ought to be applied in just proportion among the sev- 
 eral States to pay the expenses of the war, and ought not to be 
 appropriated to the use of the State in whose chartered limits they 
 might happen to lie, to the exclusion of the other States, by whose 
 combined efforts and common expense the territory was defended 
 and preserved against the claim of the British Government. 
 
 These difficulties caused much uneasiness during the war, while 
 the issue was in some degree doubtful, and the future boundaries 
 of the United States yet to be defined by treaty, if we achieved our 
 independence. 
 
 The majority of the Congress of the Confederation obviously 
 concurred in opinion with the State of Maryland, and desired to 
 obtain from the States which claimed it a cession of this territory, 
 in order that Congress might raise money on this security to carry 
 on the war. This appears by the resolution passed on the 6th of 
 September, 1780, strongly urging the States to cede these lands to 
 the United States, both for the sake of peace and union among 
 themselves, and to maintain the public credit ; and this was fol- 
 lowed by the resolution of October 10th, 1780, by which Congress 
 pledged itself, that if the lands were ceded, as recommended by 
 the resolution above mentioned, they should be disposed offer the 
 common benefit of the United States, and be settled and formed 
 into distinct republican States, which should become members of 
 the Federal Union, and have the same rights of sovereignty and 
 freedom and independence as other States. 
 
 But these difficulties became much more sei-ious after peace took 
 place, and the boundaries of the United States were established. 
 Every State, at that time, felt severely the pressure of its war 
 debt ; but in Virginia, and some other States, there were large ter- 
 ritories of unsettled lands, the sale of which would enable them to 
 discharge their obligations without much inconvenience; while 
 other States, which had no such resource, saw before them many 
 years of heavy and burdensome taxation ; and the latter insisted, 
 for the reasons before stated, that these unsettled lands should be 
 treated as the common property of the States, and the proceeds 
 applied to their common benefit. 
 
 The letters from the statesmen of that day will show how much 
 
Appendix. 555 
 
 this controversy occupied their thoughts, and the dangers that 
 were apprehended from it. It was the disturbing element of 
 the time, and fears were entertained that it might dissolve the Con- 
 federation by which the States were then united. 
 
 These fears and dangers were, however, at once removed, when 
 the State of Virginia, in 1784, voluntarily ceded to the United 
 States the immense tract of country lying northwest of the river 
 Ohio, and was within the acknowledged limits of the State. The 
 only object of the State in making this cession, was to put an end 
 to the threatening and exciting controversy, and to enable the 
 Congress of that time to dispose of the lands, and appropriate the 
 proceeds as a common fund for the common benefit of the States. 
 It was not ceded because it was inconvenient to the State to hold 
 and govern it, nor from any expectation that it could be better or 
 more conveniently governed by the United States. 
 
 The example of Virginia was soon afterwards followed by other 
 States, and, at the time of the adoption of the Constitution, all 
 of the States similarly situated had ceded their unappropriated 
 lands, except North Carolina and Georgia. The main object for 
 which these cessions were desired and made was on account of 
 their money value, and to put an end to a dangerous controversy 
 as to who was justly entitled to the proceeds when the lands should 
 be sold. It is necessary to bring this part of the history of these 
 cessions thus distinctly into view, because it will enable us the 
 better to comprehend the phraseology of the article in the Consti- 
 tution so often referred to in the argument. 
 
 Undoubtedly, the powers of sovereignty and the eminent domain 
 were ceded with the land. This was essential, in order to make it 
 effectual, and to accomplish its objects. But it must be remem- 
 bered that, at that time, there was no Government of the United 
 States in existence, with enumerated and limited powers ; what 
 was then called the United States were thirteen separate, sovereign, 
 independent States, which had entered into a league or confedera- 
 tion for their mutual protection and advantage ; and the Congress 
 of the United States was composed of the representatives of these 
 separate sovereignties, meeting together as equals, to discuss and 
 decide on certain measures which the States, by the Articles of 
 Confederation, had agreed to submit to their decision. But this 
 Confederation had none of the attributes of sovereignty in legis- 
 
556 Appendix. 
 
 lative, executive, or judicial power. It was little more than a 
 Congress of ambassadors, authorized to represent separate nations 
 in matters in which they had a common concern. 
 
 It was this Congress that accepted the cession from Virginia. 
 They had no power to accept it under the Articles of Confedera- 
 tion. But they had an undoubted right, as independent sovereign- 
 ties, to accept any cession of territory for their common benefit, 
 which all of them assented to ; and it is equally clear, that as their 
 common property, and having no superior to control them, they 
 had the right to exercise absolute dominion over it, subject only 
 to the restrictions which Virginia had imposed in her act of ces- 
 sion. There was, as we have said, no Government of the United 
 States then in existence with special enumerated and limited 
 powers. The territory belonged to sovereignties, who, subject to 
 the limitations above mentioned, had a right to establish any form 
 of government they pleased, by compact or treaty among them- 
 selves, and to regulate rights of person and rights of property in 
 the territory, as they might deem proper. It was by Congress, 
 representing the authority of these several and separate sovereign- 
 ties, and acting under their authority and command, (but not from 
 any authority derived from the Articles of Confederation,) that 
 the instrument usually called the ordinance of 1787 was adopted; 
 regulating in much detail the principles and the laws by which 
 this territory should be governed ; and among other provisions 
 slavery is prohibited in it. We do not question the power of the 
 States, by agreement among themselves, to pass this ordinance, 
 nor its obligatory force in the territory, while the confederation 
 or league of the States in their separate sovereign character con- 
 tinued to exist. 
 
 This was the state of things when the Constitution of the United 
 States was formed. The territory ceded by Virginia belonged to 
 the several confederated States as common property, and they had 
 united in establishing in it a system of government and jurispru- 
 dence, in order to prepare it for admission as States, according to the 
 terms of the cession. They were about to dissolve this federative 
 Union, and to surrender a portion of their independent sovereignty 
 to a new Government, which, for certain purposes, would make 
 the people of the several States one people, and which was to be 
 supreme and controlling within its sphere of action throughout 
 
Appendix. 557 
 
 the United States ; but this Government was to be carefully lim- 
 ited in its powers, and to exercise no authority beyond those ex- 
 pressly granted by the Constitution, or necessarily to be implied 
 from the language of the instrument, and the objects it was in- 
 tended to accomplish ; and as this league of States would, upon 
 the adoption of the new Government, cease to have any power 
 over the territory, and the ordinance they had agreed upon be 
 incapable of execution, and a mere nullity, it was obvious that 
 some provision was necessary to give the new Government suffi- 
 cient power to enable it to carry into effect the objects for which 
 it was ceded, and the compacts and agreements which the States 
 had made with each other in the exercise of their powers of sover- 
 eignty. It was necessary that the lands should be sold to pay 
 the war debt ; that a government and system of jurisprudence 
 should be maintained in it, to protect the citizens of the United 
 States who should migrate to the territory, in their rights of per- 
 son and of property. It was also necessary that the new Govern- 
 ment, about to be adopted, should be authorized to maintain the 
 claim of the United States to the unappropriated lands in North 
 Carolina and Georgia, which had not then been ceded, but the 
 cession of which was confidently anticipated upon some terms that 
 would be arranged between the general Government and these 
 two States. And, moreover, there were many articles of value 
 besides this property in land, such as arms, military stores, muni- 
 tions, and ships of war, which were the common property of the 
 States, when acting in their independent character as confederates, 
 which neither the new Government nor any one else would have 
 a right to take possession of, or control, without authority from 
 them ; and it was to place these things under the guardianship 
 and protection of the new Government, and to clothe it with the 
 necessary powers, that the clause was inserted in the Constitution 
 which gives Congress the power " to dispose of and make all need- 
 ful rules and regulations respecting the territory or other property 
 belonging to the United States." It was intended for a specific 
 purpose, to provide for the things we have mentioned. It was to 
 transfer to the new Government the property then held in com- 
 mon by the States, and to give to that Government power to apply 
 it to the objects for which it had been destined by mutual agree- 
 ment among the States before their league was dissolved. It 
 
558 Appendix. 
 
 applied only to the property whicli the States held in common at 
 that time, and has no reference whatever to any territory or other 
 property which the new sovereignty might afterwards itself 
 acquire. 
 
 The language used in the clause, the arrangement and combina- 
 tion of the powers, and the somewhat unusual phraseology it uses, 
 when it speaks of the political power to be exercised in the gov- 
 ernment of the territory, all indicate the design and meaning of 
 the clause to be such as we have mentioned. It does not speak of 
 any territory, nor of territories, but uses language which, according 
 to its legitimate meaning, points to a particular thing. The power 
 is given in relation only to the territory of the United States, — 
 that is, to a territory then in existence, and then known or claimed 
 as the territory of the United States. It begins its enumeration 
 of powers by that of disposing, in other words, making sale of the 
 lands, or raising money from them, which, as we have already 
 said, was the main object of the cession, and which is accordingly 
 the first thing provided for in the article. It then gives the power 
 which was necessarily associated with the disposition and sale of 
 the lands, — that is, the power of making needful rules and regu- 
 lations respecting the territory. And whatever construction may 
 now be given to these words, every one, we think, must admit 
 that they are not the words usually employed by statesmen in 
 giving supreme power of legislation. They are certainly very 
 unlike the words used in the power granted to legislate over terri- 
 tory which the new Government might afterwards itself obtain by 
 cession from a State, either for its seat of government, or for forts, 
 magazines, arsenals, dock-yards, and other needful buildings. 
 
 A.nd the same power of making needful rules respecting the 
 territory is, in precisely the same language, applied to the other 
 property belonging to the United States, — associating the power 
 over the territory in this respect with the power over movable or 
 personal property, — that is, the ships, arms, and munitions of war, 
 which then belonged in common to the State sovereignties. And 
 it will hardly be said that this power, in relation to the last-men- 
 tioned objects, was deemed necessary to be thus specially given to 
 the new Government in order to authorize it to make needful 
 rules and regulations respecting the ships it might itself build, or 
 arms and munitions of war it might itself manufacture or provide 
 for the public service. 
 
Appendix. 559 
 
 No one, it is believed, would think a moment of deriving the 
 power of Congress to make needful rules and regulations in rela- 
 tion to property of this kind from this clause of the Constitution. 
 Nor can it, upon any fair construction, be applied to any property 
 but that which the new Government was about to receive from 
 the confederated States. And if this be true as to this property, 
 it must be equally true and limited as to the territory, which is so 
 carefully and precisely limited with it, and, like it, referred to 
 as property in the power granted. The concluding words of the 
 clause appear to render this construction irresistible ; for, after 
 the provisions we have mentioned, it proceeds to say, " that nothing 
 in the Constitution shall be so construed as to prejudice any 
 claims of the United States, or of any particular State." 
 
 Now, as we have before said, all of the States, except North 
 Carolina and Georgia, had made the cession before the Constitu- 
 tion was adopted, according to the resolution of Congress of Octo- 
 ber 10, 1780. The claims of other States, that the unappropriated 
 lands in these two States should be applied to the common benefit, 
 in like manner, was still insisted on, but refused by the States. 
 And this member of the clause in question evidently applies to 
 them, and can apply to nothing else. It was to exclude the con- 
 clusion that either party, by adopting the Constitution, would 
 surrender what they deemed their rights. And when the latter 
 provision relates so obviously to the unappropriated lands not yet 
 ceded by the States, and the first clause makes provision for those 
 then actually ceded, it is impossible, by any just rule of construction, 
 to make the first provision general, and to extend to all territories 
 which the Federal Government might in any way afterwards 
 acquire, when the latter is plainly and unequivocally confined to 
 a particular territory ; which was a part of the same controveray, 
 and involved in the same dispute, and depended upon the same 
 principles. The union of the two provisions in the same clause 
 shows that they were kindred subjects ; and that the whole clause 
 is local, and relates only to lands, within the limits of the United 
 States, which had been or then were claimed by a State; and 
 that no other territory was in the mind of the framers of the Con- 
 stitution, or mtended to be embraced in it. Upon any other con- 
 struction it would be impossible to account for the insertion of the 
 last provision in the place where it is found, or to comprehend 
 
560 Appendix. 
 
 why, or for what object, it was associated with the previous pro- 
 vision. 
 
 This view of the subject is confirmed by the manner in which 
 the present Government of the United States dealt with the sub- 
 ject as soon as it came into existence. It must be borne in mind 
 that the same States that formed the Confederation also formed 
 and adopted the new Government, to which so large a portion of 
 their former sovereign powers was surrendered. It must also be 
 borne in mind that all of these same States which had then rati- 
 fied the new Constitution were represented in the Congress which 
 passed the first law for the government of this territory ; and many 
 of the members of that legislative body had been deputies from 
 the States under the Confederation, — had united in adopting the 
 ordinance of 1787, and assisted in forming the new Government 
 under which they were then acting, and whose powers they were 
 then exercising. And it is obvious, from the law they passed to 
 carry into eifect the principles and provisions of the ordinance, 
 that they regarded it as the act of the States done in the exercise 
 of their legitimate powers at the time. The new Government took 
 the territory as it found it, and in the condition in which it was 
 transferred, and did not attempt to undo anything that had been 
 done. And among the earliest laws passed under the new Gov- 
 ernment is one reviving the ordinance of 1787, which had be- 
 come inoperative and a nullity upon the adoption of the Constitu- 
 tion. This law introduces no new form or principles for its 
 government, but recites, in the preamble, that it is passed in order 
 that this ordinance may continue to have full effect, and proceeds 
 to make only those rules and regulations which were needful to 
 adapt it to the new Government into whose hands the power had 
 fallen. It appears, therefore, that this Congress regarded the pur- 
 poses to which the land in this territory was to be applied, and the 
 form of government and principles of jurisprudence which were 
 to prevail there, while it remained in the territorial state, as 
 already determined on by the States when they had full power and 
 right to make the decision ; and that the new Government, having 
 received it in this condition, ought to carry substantially into effect 
 the plans and principles which had been previously adopted by 
 the States, and which no doubt the States anticipated when they 
 surrendered their power to the new Government. And if we 
 
Appendix. 561 
 
 regard this clause of the Constitution as pointing to this territory, 
 with a territorial government already established in it, which 
 had been ceded to the State for the purposes hereinbefore men- 
 tioned, every word in it is appropriate and easily understood, 
 and the provisions it contains are in perfect harmony with the 
 objects for which it was ceded, and with the condition of its gov- 
 ernment as a territory at the time. We can, then, easily account 
 for the manner in which the first Congress legislated on the sub- 
 ject, and can also understand why this power over the territory 
 was associated in the same clause with the other property of the 
 United States, and subjected to the like power of making needful 
 rules and regulations. But if the clause is construed in the ex- 
 panded sense contended for, so as to embrace any territory 
 acquired from a foreign nation by the present Government, and to 
 give it in such territory a despotic and unlimited power over per- 
 sons and property, such as the confederated States might exercise 
 in their common property, it would be difficult to account for the 
 phraseology used, when compared with other grants of power, — 
 and also for its association with the other provisions in the same 
 clause. 
 
 The Constitution ha.s always been remarkable for the felicity 
 of its arrangement of different subjects, and the perspicuity and 
 appropriateness of the language it uses. But if this clause is con- 
 strued to extend to territory acquired by the present Government 
 from a foreign nation, outside of the limits of any charter from the 
 British Government to a colony, it would be difficult to say why it 
 was deemed necessary to give the Government power to sell any va- 
 cant lands belonging to the sovereignty which might be found within 
 it ; and if this was necessary, why the grant of this power should 
 precede the power to legislate over it and establish a government 
 there ; and still more difficult to say why it was deemed necessary 
 so specially and particularly to grant the power to make needful 
 rules and regulations in relation to any personal or movable prop- 
 erty it might acquire there. For the words other propeHy, neces- 
 sarily, by every known rule of interpretation, must mean property 
 of a different description from territory or land. And the diffi- 
 culty would perhaps be insurmountable in endeavoring to account 
 for the last member of the sentence, which provides " that nothing 
 in this Constitution shall be so construed as to prejudice any claims 
 36 
 
562 Appendix. 
 
 of the United States or any particular State," or to say how any 
 particular State could have claims in or to a territory ceded by a 
 foreign Government, or to account for associating this provision 
 with the preceding provisions of the clause, with which it would 
 appear to have no connection. 
 
 The words " needful rules and regulations " would seem, also, to 
 have been cautiously used for some definite object. They are not 
 the words usually employed by statesmen, when they mean to give 
 the powers of sovereignty, or to establish a government, or to au- 
 thorize its establishment. Thus, in the law to renew and keep 
 alive the ordinance of 1787, and to re-establish the Government, 
 the title of the law is : " An act to provide for the government of 
 the territory northwest of the river Ohio." And in the Constitu- 
 tion, when granting the power to legislate over the territory that 
 may be selected for the seat of Government independently of a 
 State, it does not say Congress shall have power " to make all 
 needful rules and regulations respecting the territory ; " but it 
 declares that " Congress shall have the power to exercise exclusive 
 legislation in all cases whatsoever over such district (not exceed- 
 ing ten miles square) as may, by cession of particular States and 
 the acceptance of Congress, become the seat of the Government 
 of the United States." 
 
 The words " rules and regulations " are usually employed in the 
 Constitution in speaking of some particular specified power which 
 it means to confer on the Government, and not, as we have seen, 
 when granting general powers of legislation. As, for example, in 
 the particular power to Congress " to make rules for the govern- 
 ment and regulation of the land and naval forces, or the particu- 
 lar and specific power to regulate commerce ; " " to establish an 
 uniform rule of naturalization ; " " to coin money and regulate the 
 value thereof" And to construe the words of which we are speak- 
 ing as a general and unlimited grant of sovereignty over territories 
 which the government might afterwards acquire, is to use them 
 in a sense and for a purpose for which they were not used in any 
 other part of the instrument. But if confined to a particular ter- 
 ritory, in which a Government and laws had already been estab- 
 lished, but which would require some alterations to adapt it to the 
 new Government, the words are peculiarly applicable and appro- 
 priate for that purpose. 
 
Appendix. 663 
 
 The necessity of this special provision in relation to property, and 
 the rights of property held in common by the confederated States, 
 is illustrated by the first clause of the sixth article. This clause 
 provides that " all debts, contracts, and engagements entered into 
 before the adoption of this Constitution, shall be as valid against the 
 United States under this Government as under the Confederation." 
 This provision, like the one under consideration, was indispensable 
 if the new Constitution was ■ adopted. The new Government was 
 not a mere change in a dynasty, or in a form of government, 
 leaving the nation or sovereignty the same, and clothed with all 
 the rights, and bound by all the obligations of the preceding one. 
 But, when the present United States came into existence under the 
 new Government, it was a new political body, a new nation, then 
 for the first time taking its place in the family of nations. It took 
 nothing by succession from the Confederation. It had no right, as 
 its successor, to any property or rights of property which it had 
 acquired, and was not liable for any of its obligations. It was 
 evidently viewed in this light by the framers of the Constitution. 
 And as the several States would cease to exist in their former con- 
 federated character upon the adoption of the Constitution, and 
 could not, in that character, again assemble together, special pro- 
 visions were indispensable to transfer to the new Government the 
 , property and rights which at that time they held in common ; and 
 at the same time to authorize it to lay taxes and appropriate 
 money to pay the common debt which they had contracted ; and 
 this power could only be given to it by special provisions in the 
 Constitution. The clause in relation to the territory and other 
 property of the United States provided for the first, and the clause 
 last quoted provided for the other. They have no connection 
 with the general powers and rights of sovereignty delegated to 
 the new Government, and can neither enlarge nor diminish them. 
 They were inserted to meet a present emergency, and not to regu- 
 late its powers as a Government. 
 
 Indeed, a similar provision was deemed necessary, in relation to 
 treaties made by the Confederation ; and when, in the clause next 
 succeeding the one of which we have last spoken, it is declared 
 that treaties shall be the supreme law of the land, care is taken to 
 include, by express words, the treaties made by the confederated 
 States. The language is : " And all treaties made, or which shall 
 
564 Appendix. 
 
 be made, under the authority of the United States, shall be the 
 supreme law of the land." 
 
 Whether, therefore, we take the particular clause in question by 
 itself, or in connection with the other provisions of the Constitu- 
 tion, we think it clear that it applies only to the particular terri- 
 tory of which we have spoken, and cannot, by any just rule of in- 
 terpretation, be extended to territory which the new Government 
 might afterwards obtain from a foreign nation. Consequently, the 
 power which Congress may have lawfully exercised in this terri- 
 tory, while it remained under a territorial government, and 
 which may have been sanctioned by judicial decision, can furnish 
 no justification and no argument to support a similar exercise of 
 power over territory afterwards acquired by the Federal Govern- 
 ment. We put aside, therefore, any argument, drawn from prece- 
 dents, showing the extent of the power which the general Gov- 
 ernment exercised over slavery in this territory, as altogether in- 
 applicable to the case before us. 
 
 But the case of the American and Ocean Insurance Companies 
 vs. Canter (1 Pet. 511,) has been quoted as establishing a different 
 construction of this clause of the Constitution. There is, however, 
 not the slightest conflict between the opinion now given and the 
 one referred to ; and it is only by taking a single sentence out of 
 the latter, and separating it from the context, that even an appear- 
 ance of conflict can be shown. We need not comment on such a 
 mode of expounding an opinion of the Court. Indeed, it most 
 commonly misrepresents instead of expounding it. And this is 
 fully exemplified in the case referred to, where, if one sentence is 
 taken by itself, the opinion would appear to be in direct conflict 
 with that now given ; but the words which immediately follow that 
 sentence show that the Court did not mean to decide the point, but 
 merely aflirmed the power of Congress to establish a government 
 in the territory ; leaving it an open question, whether that power 
 was derived from this clause in the Constitution, or was to be 
 necessarily inferred from a power to acquire territory by cession 
 from a foreign government. The opinion on this part of the case 
 is short, and we give the whole of it to show how well the selec- 
 tion of a single sentence is calculated to mislead. 
 
 The passage referred to is in page 542, in which the Court, in 
 speaking of the power of Congress to establish a territorial gov- 
 
Appendix. 565 
 
 emment in Florida until it should become a State, uses the fol- 
 lowing language : 
 
 " In the mean time, Florida continues to be a territory of the 
 United States, governed by that clause of the Constitution 
 -which empowers Congress to make all needful rules and regula- 
 tions respecting the territory or other property -of the United 
 States. Perhaps the power of governing a territory belonging to 
 the United States, which has not, by becoming a State, acquired 
 the means of self-government, may result, necessarily, from the fact 
 that it is not within the jurisdiction of any particular State, and 
 is within the power and jurisdiction of the United States. The 
 right to govern may be the inevitable consequence of the right to 
 acquire territory. Whichever may be the source from which the power 
 is derived, the possession of it is unquestionable." 
 
 It is thus clear, from the whole opinion on this point, that the 
 Court did not mean to decide whether the power was derived from 
 the clause in the Constitution, or was the necessary consequence 
 of the right to acquire. They do decide that the power in Con- 
 gress is unquestionable, and in this we entirely concur, and nothing 
 will be found in this opinion to the contrary. The power stands 
 firmly on the latter alternative put by the Court, — that is, as 
 " the inevitable consequence of the right to acquire territory." 
 
 And what still more clearly demonstrates that the Court did not 
 mean to decide the qu^tion, but leave it open for future consid- 
 eration, is the fact that the case was decided in the Circuit Court 
 by Mr. Justice Johnson, and his decision was affirmed by the Su- 
 preme Court. His opinion at the circuit is given in full in a note 
 to the case, and in that opinion he states, in explicit terms, that 
 the clause of the Constitution applies only to the territory then 
 within the limits of the United States, and not to Florida, which 
 had been acquired by cession from Spain. This part of his opinion 
 will be found in the note in page 517 of the report. But he does 
 not dissent from the opinion of the Supreme Court; thereby 
 showing that, in his judgment, as well as that of the Court, the 
 case before them did not call for a decision on that particular 
 point, and the Court abstained from deciding it. And in a part 
 of its opinion subsequent to the passage we have quoted, where the 
 Court speak of the legislative power of Congress in Florida, they 
 still speak with the same reserve. And in page 546, speaking of 
 
666 Appendix. ' 
 
 the power of Congress to authorize the territorial Legislature to 
 establish courts there, the Court say : "They are legislative courts, 
 created in virtue of the general right of sovereignty which exists 
 in the Government, or in virtue of that clause which enables 
 Congress to make all needful rules and regulations respecting the 
 territory belonging to the United States." 
 
 It has been said that the construction given to this clause is 
 new, and now for the first time brought forward. The case of 
 which we are speaking, and which has been so much discussed, 
 shows that the fact is otherwise. It shows that precisely the same 
 question came before Mr. Justice Johnson, at his circuit, thirty 
 years ago ; was fully considered by him, and the same construc- 
 tion given to the clause in the Constitution which is now given by 
 this Court. And that, upon an appeal from his decision, the same 
 question was brought before this Court, but was not decided 
 because a decision upon it was not required by the case before 
 the Court. 
 
 There is another sentence in the opinion which has been com- 
 mented on, which even in a still more striking manner shows how 
 one may mislead or be misled by taking out a single sentence 
 from the opinion of a court, and leaving out of view what pre- 
 cedes and follows. It is in page 546, near the close of the opinion, 
 in which the Court say : " In legislating for them " (the territo- 
 ries of the United States), " Congress exercises the combined 
 powers of the general and of a State Government." And it is 
 said, that as a State may unquestionably prohibit slavery within 
 its territory, this sentence decides in effect that Congress may 
 do the same in a territory of the United States, exercising there 
 the powers of a State, as well as the power of the general Gov- 
 ernment. 
 
 The examination of this passage, in the case referred to, would 
 be more appropriate when we come to consider, in another part of 
 this opinion, what power Congress can constitutionally exercise 
 in a territory over the rights of person or rights of property of a 
 citizen. But, as it is in the same case with the passage we have 
 before commented on, we dispose of it now, as it will save the 
 Court from the necessity of referring again to the case. And it 
 will be seen, upon reading the page in which this sentence is found, 
 that it has no reference whatever to the power of Congress over 
 
Appendix. 567 
 
 rights of person or rights of property, but relates altogether to the 
 power of establishing judicial tribunals to administer the laws 
 constitutionally passed, and defining the jurisdiction they may 
 exercise. 
 
 The law of Congress establishing a territorial government in 
 Florida, provided that the Legislature of the territory should 
 have legislative powers over " all rightful objects of legislation ; 
 but no law should be valid which was inconsistent with the laws 
 and Constitution of the United States." 
 
 Under the power thus conferred, the Legislature of Florida 
 passed an act erecting a tribunal at Key West to decide cases of 
 salvage. And in the case of which we are speaking, the question 
 arose whether the territorial Legislature could be authorized by 
 Congress to establish such a tribunal with such powers ; and one 
 of the parties, among other objections, insisted that Congress could 
 not, under the Constitution, authorize the Legislature of the terri- 
 tory to establish such a tribunal with such powers, but that it 
 must be established by Congress itself; and that a sale of cargo 
 made under its order, to pay salvors, was void, as made without 
 legal authority, and passed no property to the purchaser. 
 
 It is in disposing of this objection that the sentence relied on 
 occurs, and the Court begin that part of the opinion by stating 
 with great precision the point which they are about to decide. 
 
 They say : " It has been contended that, by the Constitution of 
 the United States, the judicial power of the United States extends 
 to all cases of admiralty and maritime jurisdiction ; and that the 
 whole of the judicial must be vested ' in one Supreme Court, and 
 in such inferior courts as Congress shall from time to time ordain 
 and establish.' Hence it has been argued that Congress cannot 
 vest admiralty jurisdiction in courts created by the territorial 
 Legislature." 
 
 And after thus clearly stating the point before them, and which 
 they were about to decide, they proceed to show that these terri- 
 torial tribunals were not constitutional courts, but merely legisla- 
 tive, and that Congress might, therefore, delegate the power to 
 the territorial government to establish the court in question ; and 
 they conclude that part of the opinion in the following words : 
 " Although admiralty jurisdiction can be exercised in the States 
 in those courts only which are established in pursuance of the 
 
568 Appendix. ' 
 
 third article of the Constitution, the same limitation does not 
 extend to the territories. In legislating for them, Congress ex- 
 ercises the combined powers of the general and State Govern- 
 ments." 
 
 Thus it will be seen by these quotations from the opinion, that 
 the Court, after stating the question it was about to decide in a 
 manner too plain to be misunderstood, proceeded to decide it, and 
 announced as the opinion of the tribunal, that in organizing the 
 judicial department of the government in a territory of the United 
 States, Congress does not act under, and is not restricted by, 
 the third article in the Constitution, and is not bound, in a terri- 
 tory, to ordain and establish courts in which the judges hold their 
 offices during good behavior, but may exercise the discretionary 
 power which a State exercises in establishing its judicial depart- 
 ment, and regulating the jurisdiction of its courts, and may au- 
 thorize the territorial government to establish, or may itself 
 establish, courts in which the judges hold their offices for a term 
 of years only, and may vest in them judicial power upon subjects 
 confided to the judiciary of the United States. And in doing this, 
 Congress undoubtedly exercises the combined power of the general 
 and a State Government. It exercises the discretionary power of 
 a State Government in authorizing the establishment of a court 
 in which the judges hold their appointments for a term of yeai-s 
 only, and not during good behavior ; and it exercises the power 
 of the general Government in investing that court with admiralty 
 jurisdiction, over which the general Government had exclusive 
 jurisdiction in the territory. 
 
 No one, we presume, will question the correctness of that opinion ; 
 nor is there anything in conflict with it in the opinion now given. 
 The point decided in the case cited has no relation to the question 
 now before the Court. That depended on the construction of the 
 third article of the Constitution, in relation to the judiciary of the 
 United States, and the power which Congress might exercise in a 
 territory in organizing the judicial department of the Government. 
 The case before us depends upon other and different provisions 
 of the Constitution altogether separate and apart from the one 
 above mentioned. The question as to what courts Congress may 
 ordain or establish in a territory to administer laws which the 
 Constitution authorizes it to pass, and what laws it is or is not 
 
Appendix. 569 
 
 authorized to pass, are widely different — are regulated by dif- 
 ferent and separate articles of the Constitution, and stand upon 
 different principles. And we are satisfied that no one who reads 
 attentively the page in Peters's Reports, to which we have referred, 
 can suppose that the attention of the Court was drawn for a mo- 
 ment to the question now before this Court, or that it meant in 
 that case to say that Congress had a right to prohibit a citizen of 
 the United States from taking any property which he lawfully 
 held into a territory of the United States. 
 
 This brings us to examine by what provision of the Constitu- 
 tion the present Federal Government, under its delegated and 
 restricted powers, is authorized to acquire territory outside of the 
 original limits of the United States, and what powers it may 
 exercise therein over the person or property of a citizen of the 
 United States, while it remains a territory, and until it shall be 
 admitted as one of the States of the Union. 
 
 There is certainly no power given by the Constitution to the 
 Federal Government to establish or maintain colonies, bordering 
 on the United States or at a distance, to be ruled and governed 
 at its own pleasure ; nor to enlarge its territorial limits in any 
 way, except by the admission of new States. That power is 
 plainly given ; and if a new State is admitted, it needs no further 
 legislation by Congress, because the Constitution itself defines the 
 relative rights and powers and duties of the State, and the citizens 
 of the State and the Federal Government. But no power is given 
 to acquire a territory to be held and govej-ned permanently in 
 that character. 
 
 And, indeed, the power exercised by Congress to acquire terri- 
 tory and establish a government there, according to its own un- 
 limited discretion, was viewed with great jealousy by the leading 
 statesmen of the day. And in The Federalist, (No. 38,) written by 
 Mr. Madison, he speaks of the acquisition of the northwestern 
 territory by the confederated States, by the cession from Virginia, 
 and the establishment of a government there, as an exercise of 
 power not warranted by the Articles of Confederation, and danger- 
 ous to the liberties of the people. And he urges the adoption of 
 the Constitution as a security and safeguard against such an exer- 
 cise of power. 
 
 We do not mean, however, to question the power of Congress in 
 
570 Appendix. 
 
 this respect. The power to expand the territory of the United 
 States by the admission of new States is plainly given ; and in the 
 construction of this power by all the departments of the Govern- 
 ment, it has been held to authorize the acquisition of territory not 
 fit for admission at the time, but to be admitted as soon as its 
 population and situation would entitle it to admission. It is 
 acquired to become a State, and not to be held as a colony, and 
 governed by Congress with absolute authority ; and as the pro- 
 priety of admitting a new State is committed to the sound discre- 
 tion of Congress, the power to acquire territory for that purpose, 
 to be held by the United States until it is in a suitable condition 
 to become a State upon an equal footing with the other States, 
 must rest upon the same discretion. It is a question for the politi- 
 cal department of the Government, and not the judicial ; and 
 whatever the political department of the Government shall recog- 
 nize as within the limits of the United States, the judicial depart- 
 ment is also bound to recognize, and to administer in it the laws 
 of the United States, so far as they apply, and to maintain in the 
 territory the authority and rights of the Government, and also 
 the personal rights and rights of projierty of individual citizens, 
 as secured by the Constitution. All we mean to say on this point 
 is, that, as there is no express regulation in the Constitution defin- 
 ing the power which the general Government may exercise over 
 the person or property of a citizen in a territory thus acquired, the 
 Court must necessarily look to the provisions and principles of the 
 Constitution, and its distribution of powers, for the rules and prin- 
 ciples by which its decision must be governed. 
 
 Taking this rule to guide us, it may be safely assumed that citi- 
 zens of tlie United States who migrated to a territory belonging 
 to the people of tlie United States, cannot be ruled as mere colo- 
 nists, dependent upon the will of the general Government, and to 
 be governed by any laws it may think proper to impose. The 
 principle upon which our Governments rest, and upon which alone 
 they continue to exist, is the union of States, sovereign and inde- 
 pendent within their own limits in their internal and domestic 
 concerns, and bound together as one people by a general Govern- 
 ment, possessing certain enumerated and restricted powers, dele- 
 gated to it by the people of the several States, and exercising 
 isupreme authority within the scope of the powers granted to it, 
 
Appendix. 571 
 
 throughout the dominion of the United States. A power, there- 
 fore, in the general Government to obtain and hold colonies, and 
 dependent territories, over which they might legislate without 
 restriction, would be inconsistent with its own existence in its 
 present form. Whatever it acquires, it acquires for the benefit of 
 the people of the several States who created it. It is their trustee 
 acting for them, and charged with the duty of promoting the in- 
 terests of the whole people of the Union in the exercise of the 
 powers specifically granted. 
 
 At the time when the territory in question was obtained by ces- 
 sion from France, it contained no population fit to be associated 
 together and admitted as a State ; and it therefore was absolutely 
 necessary to hold possession of it, as a territory belonging to the 
 United States, until it was settled and inhabited by a civilized 
 community capable of self-government, and in a condition to be 
 admitted on equal terms with the other States as a member of the 
 Union. But, as we have before said, it was acquired by the gen- 
 eral Government, as the reipresentative and trustee of the people 
 of the United States, and it must therefore be held in that charac- 
 ter for their common and equal benefit ; for it was the people of 
 the several States, acting through their agent and representative, 
 the Federal Government, who in fact acquired the territory in 
 question, and the Government holds it for their common use until 
 it , shall be associated with the other States as a member of the 
 Union. 
 
 But until that time arrives, it is undoubtedly necessary that 
 some government should be established, in order to organize 
 society, and to protect the inhabitants in their persons and prop- 
 erty ; and as the people of the United States could act in this mat- 
 ter only through the government which represented them, and 
 through which they spoke and acted when the territory was ob- 
 tained, it was not only within the scope of its powers, but it was its 
 duty to pass such laws and establish such a government as would 
 enable those by whose authority they acted to reap the advantages 
 anticipated from its acquisition, and to gather there a population 
 which would enable it to assume the position to which it was destined 
 among the States of the Union. The power to acquire necessarily 
 carries with it the power to preserve and apply to the purposes 
 for which it was acquired. The form of government to be estab- 
 
572 Appendix. 
 
 lished necessarily rested in the discretion of Congress. It was 
 their duty to establish the one that would be best suited for the 
 protection and security of the citizens of the United States, and 
 other inhabitants who might be authorized to take up their abode 
 there, and that must always depend upon the existing condition 
 of the territory, as to the number and character of its inhabitants, 
 and their situation in the territory. In some cases a government 
 consisting of persons appointed by the Federal Government, would 
 best subserve the interests of the territory, when the inhabitants 
 were few and scattered, and new to one another. In other in- 
 stances, it would be more advisable to commit the powers of self- 
 government to the people who had settled in the territory, as being 
 the most competent to determine what was best for their own in- 
 terests. But some form of civil authority would be absolutely 
 necessary to organize and preserve civilized society, and prepare it 
 to become a State ; and what is the best form must always depend 
 on the condition of the territory at the time, and the choice of the 
 mode must depend upon the exercise of a discretionary power by 
 Congress, acting within the scope of its constitutional authority, 
 and not infringing upon the rights of person or rights of property 
 of the citizen who might go there to reside, or for any other lawful 
 purpose. It was acquired by the exercise of this discretion, and it 
 must be held and governed in like manner, until it is fitted to be 
 a State. 
 
 But the power of Congress over the person or property of a citi- 
 zen can never be a mere discretionary power under our Constitu- 
 tion and form of government. The powers of the Government 
 and the rights and privileges of the citizen are regulated and 
 plainly defined by the Constitution itself And when the territory 
 becomes a part of the United States, the Federal Government 
 enters into possession in the character impressed upon it by those 
 who created it. It enters upon it with its powers over the citizen 
 strictly defined and limited by the Constitution, from which it de- 
 rives its own existence, and by virtue of which alone it continues 
 to exist and act as a government and sovereignty. It has no 
 power of any kind beyond it; and it cannot, when it enters a 
 territory of the United States, put off its character, and assume 
 discretionary or despotic powers which the Constitution has denied 
 to it. It cannot create for itself a new character separated from 
 
Appendix. 573 
 
 the citizens of the United States, and the duties it owes them 
 under the provisions of the Constitution. The territory being a 
 part of the United States, tlie Government and the citizen both 
 enter it under the authority of the Constitution, witli their respec- 
 tive rights defined and marked out ; and the Federal Government 
 can exercise no power over his person or property beyond what 
 that instrument confers, nor lawfully deny any right which it has 
 reserved. 
 
 A reference to a few of the provisions of the Constitution will 
 illustrate this proposition. 
 
 For example, no one, we presume, will contend that Congress 
 can make any law in a territory respecting the establishment of 
 religion or the free exercise thereof, or abridging the freedom of 
 speech or of the press, or the right of the people of the territory 
 peaceably to assemble and to petition the Government for the 
 redress of grievances. 
 
 Nor can Congress deny to the people the right to keep and bear 
 arms, nor the right to trial by jury, nor compel any one to be a 
 witness against himself in a criminal proceeding. 
 
 These powers, and others, in relation to rights of person, which 
 if not necessary here to enumerate, are, in express and positive 
 terms, denied to the general Government ; and the rights of pri- 
 vate property have been guarded with equal care. Thus the rights 
 of property are united with the rights of person, and placed on the 
 same ground by the fifth amendment to the Constitution, which 
 provides that no person shall be deprived of life, liberty, and prop- 
 erty, without due process of law. And an act of Congress 
 which deprives a citizen of the United States of his liberty or 
 property, merely because he came himself or brought his property 
 into a particular territory of the United States, and who had 
 committed no oflTence against the laws, could hardly be dignified 
 with the name of due process of law. 
 
 So, too, it will hardly be contended that Congress could by law 
 quarter a soldier in a house in a territory without the consent of 
 the owner, in time of peace ; nor in time of war, but in a manner 
 prescribed by law. Nor could they by law forfeit the property of 
 a citizen in a territory, who was convicted of treason, for a longer 
 period than the life of the person convicted ; nor take private 
 property for public use without just compensation. 
 
574 Appendix. 
 
 The powers over person and property of which we speak are not 
 only not granted to Congress, but are in express terms denied, and 
 they are forbidden to exercise them. And this prohibition is not 
 confined to the States, but the words are general, and extend to 
 the whole territory over which the Constitution gives it power to 
 legislate, including those portions of it remaining under territorial 
 government, as well as that covered by States. It is a total ab- 
 sence of power everywhere within the dominion of the United 
 States, and places the citizens of a territory, so far as these rights 
 are concerned, on the same footing with citizens of the States, and 
 guards them as firmly and plainly against any inroads which the 
 general Government might attempt, under the plea of implied or 
 incidental powers. And if Congress itself cannot do this, — if it 
 is beyond the powers conferred on the Federal Government, — it 
 will be admitted, we presume, that it could not authorize a terri- 
 torial government to exercise them. It could confer no power on 
 any local government, established by its authority, to violate the 
 provisions of the Constitution. 
 
 It seems, however, to be supposed, that there is a difference be- 
 tween property in a slave and other property, and that difierent 
 rules may be apjilied to it in expounding the Constitution of the 
 United States. And the laws and usages of nations, and the 
 writings of eminent jurists upon the relation of master and slave 
 and their mutual rights and duties, and the powers which Govern- 
 ments may exercise over it, have been dwelt upon in the argument. 
 
 But in considering the question before us, it must be borne in 
 mind that there is no law of nations standing between the people 
 of the United States and their Government, and interfering with 
 their relation to each other. The powers of the Government, and 
 the rights of the citizen under it, are positive and practical regu- 
 lations plainly written down. The people of the United States 
 have delegated to it certain enumerated powers, and forbidden it 
 to exercise others. It has no power over the person or property 
 of a citizen but what the citizens of the tjnited States have granted. 
 And no laws or usages of other nations, or reasoning of statesmen 
 or jurists upon the relations of master and slave, can enlarge the 
 powers of the Government, or take from the citizens the rights 
 they have reserved. And if the Constitution recognizes the right 
 of property of the master in a slave, and makes no distinction 
 
Appendix. 575 
 
 between that description of property and other property owned by a 
 citizen, no tribunal, acting under the authority of the United States, 
 whether it be legislative, executive, or judicial, has a right to draw 
 such a distinction, or deny to it the benefit of the provisions and 
 guarantees which have been provided for the protection of private 
 property against the encroachments of the Government. 
 
 Now, as we have already said in an earlier part of this opinion, 
 upon a different point, the right of property in a slave is distinctly 
 and expressly affirmed in the Constitution. The right to traffic in 
 it, like an ordinary article of merchandise and property, was guar- 
 anteed to the citizens of the United States, in every State that might 
 desire it, for twenty years. And the Government in express terms 
 is pledged to protect it in all future time, if the slave escapes from 
 his owner. This is done in plain words — too plain to be misun- 
 derstood. And no word can be found in the Constitution which 
 gives Congress a greater power over slave property, or which en- 
 titles property of that kind to less protection than property of 
 any other description. The only power conferred is the power 
 coupled with the duty of guarding and protecting the owner in 
 his rights. 
 
 Upon these considerations, it is the opinion of the Court that 
 the act of Congress which prohibited a citizen from holding and 
 owning property of this kind in the territory of the United States 
 north of the line therein mentioned, is not warranted by the Con- 
 stitution, and is therefore void ; and that neither Dred Scott him- 
 self, nor any of his family, were made free by being carried into 
 this territory ; even if they had been carried there by the owner, 
 with the intention of becoming a permanent resident. 
 
 We have so far examined the case, as it stands under the Con- 
 stitution of the United States, and the powers thereby delegated 
 to the Federal Government. 
 
 But there is another point in the case which depends on State 
 power and State law. And it is contended, on the part of the 
 plaintiff, that he is made free by being taken to Rock Island, in 
 the State of Illinois, independently of his residence in the territory 
 of the United States ; and being so made free, he was not again 
 reduced to a state of slavery by being brought back to Missouri. 
 
 Our notice of this part of the case will be very brief; for the 
 principle on which it depends was decided in this Court, upon 
 
576 Appendix. 
 
 much consideration, in the case of Strader et al. vs. Graham, re- 
 ported in 10th Howard, 82. In that case, the slaves had been 
 taken from Kentucky to Ohio, with the consent of the owner, and 
 afterwards brought back to Kentucky. And this Court held that 
 their status or condition, as free or slave, depended upon the laws 
 of Kentucky, when they were brought back into that State, and 
 not of Ohio ; and that this Court had no jurisdiction to revise the 
 judgment of a State court upon its own laws. This was the point 
 directly before the Court, and the decision that this Court had not 
 jurisdiction turned upon it, as will be seen by the report of the case. 
 
 So in this case. As Scott was a slave when taken into the State 
 of Illinois by his owner, and was there held as such, and brought 
 back in that character, his status, as free or slave, depended on the 
 laws of Missouri, and not of Illinois. 
 
 It has, however, been urged in the argument, that by the laws 
 of Missouri he was free on his return, and that this case, therefore, 
 cannot be governed by the case of Strader et al. vs. Graham, where 
 it appeared, by the laws of Kentucky, that the plamtiffs continued 
 to be slaves on their return from Ohio. But whatever doubts or 
 opinions may, at one time, have been entertained on this subject, 
 we are satisfied, upon a careful examination of all the cases de- 
 cided in the State courts of Missouri referred to, that it is now 
 firmly settled by the decisions of the highest court in the State, 
 that Scott and his family upon their return were not free, but were, 
 by the laws of Missouri, the property of the defendant ; and that 
 the Circuit Court of the United States had no jurisdiction, when, 
 by the laws of the State, the plaintiff was a slave, and not a citizen. 
 
 Moreover, the plaintiff, it appears, brought a similar action 
 against the defendant in the State court of Missouri, claiming the 
 freedom of himself and his family upon the same grounds and the 
 same evidence upon which he relies in the case before the Court. 
 The case was carried before the Supreme Court of the State ; was 
 fully argued there ; and that court decided that neither the plain- 
 tiff nor his family were entitled to freedom, and were still the 
 slaves of the defendant ; and reversed the judgment of the inferior 
 State court, which had given a different decision. If the plaintiff 
 supposed that this judgment of the Supreme Court of the State 
 was erroneous, and that this Court had jurisdiction to revise and 
 reverse it, the only mode by which he could legally bring it before 
 
Appendix. 577 
 
 this Court was by a writ of error directed to the Supreme Court of 
 the State, requiring it to transmit the record to this Court. If this 
 had been done, it is too plain for argument that the writ must 
 have been dismissed for want of jurisdiction in this Court. The 
 case of Strader and Others vs. Graham is directly in point ; and, 
 indeed, independent of any decision, the language of the 25th sec- 
 tion of the Act of 1789 is. too clear and precise to admit of con- 
 troversy. 
 
 But the plaintiif did not pursue the mode prescribed by law for 
 bringing the judgment of a State court before this Court for revi- 
 sion, but suffered the case to be remanded to the inferior State 
 court ; where it is still continued, and is, by agreement of parties, 
 to await the judgment of this Court on the point. All of this ap- 
 pears on the record before us, and by the printed report of the case. 
 
 And while the case is yet open and pending in the inferior State 
 court, the plaintiff goes into the Circuit Court of the United States, 
 upon the same case and the same evidence, and against the same 
 party, and proceeds to judgment, and then brings here the same 
 case from the Circuit Court, which the law would not have per- 
 mitted him to bring directly from the State court. And if this 
 Court takes jurisdiction in this form, the result, so far as the rights 
 of the respective parties are concerned, is in every respect substan- 
 tially the same as if it had, in open violation of law, entertained 
 jurisdiction over the judgment of the State court upon a writ of 
 error, and revised and reversed its judgment upon the ground that 
 its opinion upon the question of law was erroneous. It would ill 
 become this Court to sanction such an attempt to evade the law, or 
 to exercise an appellate power in this circuitous way, which it is 
 forbidden to exercise in the direct and regular and invariable 
 forms of judicial proceedings. 
 
 Upon the whole, therefore, it is the judgment of this Court, that 
 it appears by the record before us that the plaintiff in error is not 
 a citizen of Missouri, in the sense in which that word is used in 
 the Constitution ; and that the Circuit Court of the United States, 
 for that reason, had no jurisdiction in the case, and could give no 
 judgment in it. Its judgment for the defendant must, conse- 
 quently, be reversed, and a mandate issued, directing the suit to 
 be dismissed for want of jurisdiction. 
 37 
 
678 Appendix. 
 
 Supplement to the Dred Scott Opinion. 
 
 Washington, D. C, September, 1858. 
 The decision in the case of Dred Scott is among the most im- 
 portant in the judicial history of the Supreme Court. And as the 
 subject is still fresh in my mind, I have prepared this statement in 
 order to prove the truth of the historical fact stated in the opinion 
 in relation to England, and the principle decided by the Court. If 
 the questions come before the Court again in my lifetime, it wiU 
 save the trouble of again investigating aud annexing the proofs. 
 
 I have learned from publications in the newspapers that, since 
 the decision of the Supreme Court in the case of Dred Scott, the 
 Circuit Court of the United States for the District of Indiana 
 have decided that a negro of the African race born in the United 
 States, whose ancestors had not been brought here as slaves, is a 
 citizen of the United States within the meaning of the Constitu- 
 tion, and entitled as such to sue in its courts. The opinion has 
 not, I believe, been published ; and I do not therefore know upon 
 what ground the Circuit Court distinguished the case before it 
 from the one decided by the Supreme Court. 
 
 It is true, that in the case of Dred Scott the decision is in ex- 
 press terms confined to the case of a person of the African race 
 whose ancestors had been brought to this country as slaves. It 
 was admitted by the pleadings that this was the case in relation to 
 Dred Scott. And the Court deemed it to be its duty to confine the 
 decision to the case before it, and says so in the opinion delivered. 
 
 But there is no difference in principle between the case in the 
 Supreme Court and the case at the Circuit. The Supreme Court 
 did not decide the case upon the ground that the slavery of the 
 ancestor afiixed a mark of inferiority upon the issue which de- 
 graded them below the rank of citizens. It stated the enslaved 
 condition of the whole negro race at the time the Constitution was 
 formed, as a well-known historical fact, in order to show the mean- 
 ing of the words used in that instrument. The argument in the 
 opinion rests, not upon the actual condition of the ancestors of the 
 plaintiff as to freedom or slavery, but is placed altogether upon 
 the condition of the race to which he belonged, and upon the opin- 
 ions then entertained by the white race universally, in the civilized 
 portions of Europe and in this country, in relation to the powers 
 
Appendix. 579 
 
 and rights -whicli they might justly and morally exercise over the 
 African or negro race. 
 
 The part of the opinion to which I allude is in 19th How., 457, 
 in the following words : 
 
 " They (the negroes) had for more than a century before been 
 regarded as beings of an inferior order, and altogether unfit to 
 associate with the white race either in social or political relations, 
 and so far inferior that they had no rights which the white man 
 was bound to respect, and that the negro might justly and lawfully 
 be reduced to slavery for his benefit. He was bought and sold and 
 treated as an ordinary article of merchandise and traffic whenever 
 a profit could be made by it." 
 
 And as the Constitution of the United States was framed and 
 adopted in that state of public opinion and of public law, the 
 Court held that it must be construed with reference to the descrip- 
 tion of persons by whom and for whom it was made, and with 
 reference also to the principles and opinions upon which they at 
 that time habitually acted in all the relations and duties of life, 
 public and private ; and consequently, that the provisions contained 
 in it for the security and protection of individual liberty, and con- 
 ferring special rights and privileges in certain cases upon citizens 
 of different States, could not fairly be construed to embrace a de- 
 scription or class of persons whom they regarded as inferior and 
 subordinate to the white race, and in the order of nature made 
 subject to their dominion and will, and whom they were accus- 
 tomed to buy and sell like any other property. 
 
 It will be seen by this summary statement of the opinion on 
 this point that it authorizes no distinction between persons of the 
 negro race, whether their ancestors were held in slavery or not. 
 The historical fact as stated by the Court, and upon which the de- 
 cision rests, applies equally to the whole race. 
 
 When the opinion of the Court was prepared, it was supposed 
 that the doctrine and public opinion in England at the time 
 spoken of were so well known to every one conversant with Eng- 
 lish history, that no one would question the statement of the Court. 
 For that reason it was not thought necessary to refer to public 
 documents and official acts of the Government in order to prove 
 it. But, as it was suggested that a change had taken place in 
 some of the colonies before the Revolution, and that the barriers 
 which had so long divided the black race from the white had in 
 
580 Appendix. 
 
 one or more of them been broken down, the Court felt it to be its 
 duty to show by public and official documents what was in fact 
 the established doctrine and opinion in every one of the thirteen 
 colonies which united in the Declaration of Independence, and to 
 prove that they remained the same with the doctrines and opinions 
 originally imbibed from the mother country ; upon that point I do 
 not desire to add to the proofs set forth in the opinion. But the 
 historical fact as relates to England itself has been denied, and 
 that too by persons whose pursuits and position in society are cal- 
 culated to give weight to their assertions. It is therefore due to 
 truth and to the Court, to show by indisputable testimony that the 
 statement made by the Court is literally correct to its full extent. 
 And I now proceed to do so by authentic public documents begin- 
 ning aa far back as 1689, and coming down to the year when the 
 Constitution of the United States was formed. 
 
 I begin with the period above mentioned because the English 
 colonies on this continent were then rapidly filling up, and the emi- 
 grants of course brought with them the English opinions of the 
 time. And I select it also because it was a period when the Eng- 
 lish mind was greatly excited by encroachments upon their own 
 individual liberty, and were placing safeguards about it in order 
 more eflectually to protect and preserve it for the people of Eng- 
 land, and when the measures of the Government were controlled 
 by the popular opinion. There was at that time, it appears, a 
 large demand for negro slaves in the American dominions of the 
 King of Spain. And contracts were made by the Spanish Gov- 
 ernment with individuals, and the Guinea Company in France, 
 authorizing the introduction and sale of negroes in these American 
 possessions, and specifying the terms and conditions uj)on which 
 the permission was granted. A contract of this description was 
 called " el assiento de negres," and was generally and familiarly 
 known by that name. All of this will appear from the opuiions 
 of English jurists, and English treaties with Spain, to which I 
 shall presently refer. The same documents will also show that the 
 English Royal African Company desired to share in this profitable 
 trade, and addressed a memorial to their own Government upon 
 the subject in 1688. This was the year after "William and Mary 
 ascended the English throne, and negotiations were accordingly 
 opened with the Spanish Government to effect this object. But it 
 appears that Spain required that the right which the English Afri- 
 
Appendix. 581 
 
 can Company sought to obtain, should, if granted, be reciprocal ; 
 and that Spanish ships should have the same right to import 
 negroes into British colonies. And the British ministry, it seems, 
 were willing to treat on this basis, if they had the power to do so 
 under the existing laws of England. But the Navigation Act of 
 Charles II. was then in force, and that statute provided that " no 
 goods or commodities" whatever should be imported into or ex- 
 ported from any plantation except in British vessels. And if 
 negroes were by the laws of England " goods or commodities," the 
 British ministry could not by treaty grant the reciprocal privilege 
 required by Spain. For they had no power to dispense with a 
 statute, nor to enter into any treaty stipulation, inconsistent with 
 its provisions. 
 
 The question upon the construction of the statute was therefore 
 referred to Treby the Attorney and Somers the Solicitor-General, 
 the then law officers of the Crown ; and for greater security, accord- 
 ing to the practice of the day, the opinions of all the Judges of the 
 higher courts were called for by an order of the King and Queen 
 in council. These opinions will be found at length in Chalmer's 
 Opinions of Eminent Lawyers, 2d vol., 263, and the next succeed- 
 ing pages. The opinion of the Judges is also given in full in 1st 
 Burge's Com. on Colonial and Foreign Laws, 7.36. 
 
 It is proper to say that neither the memorial of the African 
 Company, nor the correspondence between the two Governments, 
 nor the order of the King and Queen in council, are within my 
 reach. But the facts above stated in relation to them are evident 
 from the language of the opinions. There is no date to the opinion 
 of the Attorney and Solicitor-General as published in Chalmers. 
 But it was obviously given at the same time with that of the Judges, 
 and their opinion, it appears, was given in 1689. Indeed, the 
 opinion of the law officers must have been given between 1688 and 
 1692. And in 1692 Treby was appointed Chief Justice of the 
 Court of Common Pleas, and Somers succeeded him as Attorney- 
 General ; so that Treby was not Attorney-General nor Somers So- 
 licitor-General after 1692. 
 
 I transcribe these opinions at large as they appear in Chalmers, be- 
 ginning with that of the Attorney and Solicitor-General, 2d vol., 264. 
 
 "The opinion of the Attorney and Solicitor- General Treby and 
 Somers on the Spanish trade to the West Indies. 
 
582 Appendix. 
 
 " Most of the privileges and permissions proposed by the Spanish 
 Commissioner cannot be granted without dispensing with the Act 
 of Navigation, 12 Car. 2, ch. 18, wherein, besides the matters of 
 law, there is a great consideration of policy : 
 
 " 1st. The Act requires that no goods or commodities whatsoever 
 shall be imported to or exported from any plantation but in Eng- 
 lish vessels. But this must have a reasonable construction, and 
 must be understood of such goods and commodities as are to be 
 traded with, and not of provisions for present sustenance, or tackle 
 for refitting a ship, or such like necessaries for incidental occa- 
 sions. 
 
 " 2d. To disburden a ship for careening may be lawfiil, so it be 
 bona fide; but it is dangerous to make such an article, lest, under 
 the umbrage of that, a secret trade be covered and carried on con- 
 trary to the Act. 
 
 " 3d. Negroes are merchandise, and can no more be exported 
 by the Act than any other goods. Bullion is allowed by the Act 
 to be imported. 
 
 " 4th. The Act makes a forfeiture of the ship as well as of the 
 goods, and does not distinguish whether the goods belonged to the 
 owners or merchants, or to the officers or seamen ; and it is difficult 
 to render any such distinction practicable. 
 
 " 5th. The laws and customs of the place must be observed; but 
 in the proceedings there, due regard will be had to the King of 
 Spain's orders and his subjects' contracts. 
 
 " 6th. The private exercise of religion will not be gainsaid. 
 
 Geo. Teebt, 
 
 J. SOMEES." 
 
 The opinion of the Judges is as follows, 2 Chal. 263 : 
 " The report of the whole Judges upon the memorial of the 
 African Company touching the assiento in 1689. 
 
 " In pursuance of his Majesty's order in council, hereunto an- 
 nexed, we do humbly certify our opinions to be ' that negroes are 
 merchandise ;' that it is against the statute for navigation made for 
 the general good and preservation of the shipping and trade of 
 this kingdom, to give liberty to any alien, not made denizen, to 
 trade in Jamaica or other of his Majesty's plantations, or for any 
 shipping belonging to aliens, to trade there, or export thence 
 
Appendix. 583 
 
 negroes, provisions for shipping, or aliens trading there ; that for 
 ships that shall happen by tempest, or in case of peril and distress, 
 to come into the plantations for preservation, and to amend, or 
 take in necessary provisions, or repair there in such case, it is not 
 against the Act of Navigation, or any other law." 
 
 J. Holt, R. Lechmekb, 
 
 H. PoLLEXFEN, Thomas Eokeby, 
 
 Ed. Nevill, Gyles Eyke, 
 
 J. Powell, Peyton Venteio, 
 
 H. Geegoey, John Tueton. 
 
 These opinions show too plainly to be mistaken the condition 
 of the African race in 1689, according to the English doctrines 
 and usages of that day. They were regarded and dealt with as 
 " goods and commodities," and are classed in these opinions with 
 ordinary articles of commerce and property, in which the owner 
 has an absolute and unqualified right, and may dispose of as he 
 pleases. And it will be observed that the opinions are not con- 
 fined to " slaves or negro slaves," but use general words which em- 
 brace the whole negro race, without qualification or limitation. 
 They say, " negroes are merchandise." 
 
 The Solicitor-General who gave this opinion, it will be seen, 
 was Somers, afterwards. Lord-Chancellor of England, and one of 
 the leading statesmen of the time. And at the head of the Judges 
 stands the name of Lord Holt. I need hardly say of names so 
 familiar to every reader of English history, that no two men have 
 been more distinguished in the annals of English jurisprudence ; 
 and that even at this day they are regarded in England as emi- 
 nently distinguished for their love of liberty, and for their bold- 
 ness in asserting and defending it. The proofs I am about to ad- 
 duce will prove most conclusively, that the opinions they gave in 
 1689 were entertained and acted on by the Government and people 
 of England until and after this country declared its independence, 
 and formed and adopted its Constitution. 
 
 The proposal for this assiento failed on account of obstacles 
 stated in these opinions. But the desire of the Government and 
 of the African Company to share in this profitable trade was 
 unabated. 
 
 And in the reign of Queen Anne, when the victories of the 
 
584 Appendix. . 
 
 Duke of Marlborough enabled the English Government to take 
 a higher stand in its negotiations with Spain, it demanded and 
 secured not only a share of this trade, but the exclusive right to 
 it, thereby shutting out all competition from other nations or in- 
 dividuals, and not permitting even the subjects of the King of 
 Spain to trade in this merchandise with his own colonies. 
 
 This treaty was made at Utrecht in 1713. The treaties of peace 
 made at Utrecht at that time closed a long and desolating war, in 
 which all the leading nations of Europe had been involved. But 
 amid the great European interests which were then negotiated and 
 adjusted, the English Government did not lose sight of the profits 
 that might be derived from trading in negroes ; and by the 12th 
 Article of the treaty of peace between Great Britain and the King 
 of Spain, the king granted to her Britannic Majesty, and to the 
 company of her subjects, appointed for that purpose, as well as 
 the subjects of Spain, as all others being excluded, the contract 
 for introducing negroes into several ports of the dominions of his 
 Catholic Majesty in America, commonly called " el pacto de el 
 asdenio de negres" for the space of thirty years successively, be- 
 ginning from the 1st day of May, 1713. 
 
 After making this grant in the words above stated, the article 
 proceeds to make some general provisions to guard the privileges 
 of the company, and also to prevent them from abusing them to 
 the injury of Spain. And in order to carry out the intent and 
 meaning of this article, a contract or assiento, dated on the 26th 
 of March, 1713, (referred to in some of the subsequent treaties as 
 dated on the 26th of May, 1713,) was entered into between the 
 King of Spain and the English African Company. 
 
 It is necessary to refer particularly to a few of the articles, and 
 insert them in full, in order to show how completely and entirely 
 the assiento carried out practically the doctrine that "negroes are 
 merchandise," as announced by the law authorities of England in 
 1689. The assiento is in the 1st volume, page 83, of the collection 
 of treaties between Great Britain and other powers, published in 
 London in 1772, and the 12th Article of the treaty of peace, to 
 which the assiento refers, in 175 of the same volume. 
 
 The assiento begins with a preamble which recites that the con- 
 tract with the Guinea Company of France had determined, and 
 that the Queen of Great Britain was desirous of coming into the 
 
Appendix. 585 
 
 commerce, and in her name the English Company, as stipulated in 
 the preliminaries of the treaty of peace ; and recites also that this 
 assiento was to continue for the space of thirty years ; and after 
 stating the negotiations which had taken place on the subject, it 
 sets forth in forty-two separate articles the terms and conditions 
 which the parties had finally agreed to. 
 
 The First Article is in the following words : 
 
 " 1. First, then, to procure by this means, a mutual and recipro- 
 cal advantage to the sovereigns and subjects of both crowns, her 
 British Majesty does offer and undertake for the persons whom she 
 shall name and appoint, that they shall oblige and charge them- 
 selves with the bringing into the West Indies of America, belong- 
 ing to his Catholic Majesty, in the space of the said thirty years, to 
 commence on the first day of May, one thousand seven hundred 
 and thirteen, and to determine on the like day, which shall be in 
 the year one thousand seven hundred and forty-three, viz., one 
 hundred and forty-four thousand negroes, Piezas de India, of both 
 sexes and of all ages, at the rate of four thousand and eight hun- 
 dred negroes, Piezas de India, in each of the said thirty years, with 
 this condition, that the persons who shall go to the West Indies to 
 take care of the concerns of the assiento shall avoid giving any 
 offence ; for in such case they shall be jirosecuted and punished in 
 the same manner as they would have been in Spain, if the like 
 misdemeanors had been committed there." 
 
 The 19th section provides the assientists, their factors and agents, 
 should have power to navigate and import their negro slaves, 
 according to that contract, to all the northern ports of his Catholic 
 Majesty's West Indies, including the river Platte, with prohibition 
 to all others, whether subjects of the crown or strangers, to carry 
 on or introduce thither any negroes under the penalties established 
 by the laws that relate to this contract of trade. 
 
 The 27th Article declares, that if any of the ships of the assiento 
 should be fitted out as ships of war, and should take any prizes 
 from the enemies of either crown, or from pirates, they may bring 
 them into any port belonging to his Catholic Majesty, where they 
 are to be admitted, and the prizes being declared good and lawful, 
 the captors shall not be obliged to pay greater duties upon the 
 entry of their prizes than what are established and payable by the 
 natural born subjects of his Majesty; and it is declared that if there 
 
586 Appendix. 
 
 should be any negroes on board such prizes they may sell them in 
 part of the number they have engaged to furnish. 
 
 The 28th Article provides, that whereas in establishing and ad- 
 justing this asuiento a particular regard is had to the advantage 
 that may thence accrue to their British and Catholic Majesties and 
 to their revenues, it is agreed and stipulated that both their Majes- 
 ties shall be concerned for one-half of this trade, each of them a 
 quarter part, which is to belong to them pursuant to this agreement. 
 
 And by the 29th Article, the assientists are to give an account 
 of their profits at the end of the first four years, upon oath with 
 proper vouchers, which accounts are to be first examined and set- 
 tled by her Britannic Majesty's ministers employed in that service 
 in regard to the share she is to have, and then to be examined in 
 the like manner and for the like purpose at the Spanish court. 
 
 Here, then, is a treaty between two of the leading nations of 
 Europe, in which the one coolly, and as an ordinary matter of busi- 
 ness and trade, engages to furnish the other with one hundred and 
 forty-four thousand negroes to be held by them as slaves ; no men- 
 tion is made of any right in the negro, either before or after his 
 sale as a slave, no stipulation as to the manner in which he is to 
 be obtained and transported to the Spanish possessions, nor for his 
 treatment after he is brought there. He and his posterity were to 
 be the property of the purchaser, and at his absolute control and 
 disposal like any other jjroperty. And the sovereigns themselves 
 do not deem it derogatory to their dignity to become partners in 
 this gigantic traffic, and actually by this assiento enter into part- 
 nership with a company of private individuals, each of the crowned 
 heads to have one-fourth share of the profits. And their ministers 
 are to supervise and settle the accounts of this trade in all its de- 
 tails, in order to secure to them resjsectively their portion of the 
 gains. And this treaty is made publicly in the face of the civil- 
 ized world, in an enlightened period of the public mind, and when 
 a free press was already firmly established in England, and yet it 
 brought no reproach upon the parties, nor did it lessen the affec- 
 tion, respect, and reverence of their own subjects. The reason of 
 all this is plain Negroes were then regarded as an inferior order 
 of beings unfit for any association with the whites, and having no 
 rights which the white man was bound to respect. They were mer- 
 chandise in which it was supposed to be as just, and lawful, and 
 morally right to trade, as in any other goods and commodities. 
 
Appendix. 587 
 
 The 27th Article of the Mmento above referred to marks the 
 distinction then made between the two races in the most emphatic 
 manner. The assientists, by this article, are authorized to fit nut 
 ships of war, and take prizes, pirates, or the ships of the enemy 
 of either of the contracting nations. And there is an express 
 stipulation that any negroes found on board the prize may be sold 
 as slaves in part fulfilment of their contract. Thp whites on 
 board the prixes taken from an enemy, who was at war with Eng- 
 land and Spain, would, of course, be prisoners of war. But 
 negroes, no matter where born, whether in Africa, or in the 
 colonies of France, or Portugal, or the States General, no matter 
 whether they or their ancestors had been slaves or not, were yet 
 to be sold like the other goods found on board. They might have 
 shipped voluntarily as a part of the crew of the captured ship. 
 But they were by this treaty not to be recognized as such. They 
 were cargo, and to be dealt with accordingly. 
 
 I have said that the interest which the English Government 
 and English people took in this trade in 1713, is manifested by 
 its insertion as one of the articles in the treaty of Utreclit, when 
 questions of such magnitude were to be adjusted, and in which 
 almost every part of the civilized world had a deep stake. The 
 same opinions evidently continued, and were constantly acted 
 upon, until the thirty years were out. And indeed this monopoly 
 appears to have been watched over, and guarded with peculiar 
 care, by a succession of treaties in the same and subsequent reigns ; 
 and great care is taken in them all to prevent any possible impli- 
 cation that this exclusive right was impaired either in duration 
 or the number of negroes which the Company were entitled to 
 introduce under the asdento. 
 
 Thus, for example, in 1716, near the close of the reign of Queen 
 Anne, some inconvenience was alleged by the English Company 
 to have arisen from certain regulations of the trade contained in 
 the original contract. These regulations were modified by treaty 
 in that year, and in a manner greatly to the advantage of the 
 Company, and the last clause takes care to provide that the 
 original treaty of asdento shall remain in force, with the excep- 
 tion only of these new modifications {see volume of treaties before 
 referred to, page 286). Again, in the treaty of peace made at 
 Madrid in 1721 {same volume, page 366), it was stipulated that 
 
588 Appendix. 
 
 the asdento, with the modifications made in 1716, should remain 
 in full force, and that the ships employed for the traffic of negroes 
 by the Royal Company of Great Britain, established at London, 
 may be admitted without hindrance to trade, freely and in the 
 same manner as they did before the last rupture between the two 
 crowns. This last-mentioned treaty, it will be observed, was in the 
 reign of Geprge I. 
 
 Again, in the reign of George II., in the treaty of peace, union, 
 and friendship, and mutual defence between Great Britain, France, 
 and Spain, concluded at Seville in 1729, it was deemed advisable, 
 for greater exactness (as it is said in the treaty), to introduce in a 
 separate article a provision declaring that this assiento, as modi- 
 fied in 1716, "should remain in force, virtue, and full vigor," (see 
 2d volume of the same collection of treaties, page 11.) 
 
 The thirty years for which the asdento was granted expired in 
 1743. But the traffic had been interrupted for four years before 
 its expiration by the war between England and Spain. And when 
 peace was restored by the treaty of Aix-la- Chapelle in 1748, the 
 profits which the African Company and the King of England 
 himself, as one of the partners, might have made in this trade 
 during these four years, were, it seems, too important to be for- 
 gotten, and the 16th Article of the treaty of peace of 1748 is in 
 the following words : 
 
 " The treaty of assiento for the trade of negroes, signed at Mad- 
 rid on the 26th of March, 1713, and the article of the annual ship 
 making part of the said treaty, are particularly confirmed by the 
 present treaty for the four years during which the enjoyment 
 thereof has been interrupted since the commencement of the pre- 
 sent war, and shall be executed on the same footing, and under 
 the same conditions, as they have or ought to have been executed 
 before the said war." (See 2d volume same collection of treaties, 
 page 82.) 
 
 It seems, however, that there was an understanding at the time 
 of the treaty of A ix - La - Chapelle, between the ambassadors of 
 Great Britain and Spain, that an equivalent in money should be 
 paid to Spain for the loss of these four years, the amount to be 
 ascertained by ministers named on each side for that purpose. 
 This was accordingly done by a treaty signed at Madrid, October 
 5th, 1750. By the 1st, 2d, and 3d Articles of this treaty, his Bri- 
 
Appendix, 689 
 
 taunic Majesty yielded his right to the enjoyment of the asdento for 
 these four years. In consideration whereof, the King of Spain 
 agreed to pay, either at Madrid or London, to the Eoyal Assiento 
 Company one hundred thousand pounds sterling within three 
 months from the signing of that treaty ; his Britannic Majesty 
 yielding also to the King of Spain all that might be due to the 
 said Company for the balance of accounts arising in any manner 
 from the asdento, and the King of Spain in like manner all his 
 pretensions and demands in consequence of the asdento and annual 
 ship. 
 
 Thus ended the asdento, a contract in which three of the sove- 
 reigns of England — Queen Anne, George I., and George II. — in 
 an enlightened period of English history, were partners, and 
 reaped a large share of its profits. 
 
 It is impossible to read these treaties, and not feel convinced that 
 down to 1750 at least, the English Government and people ac- 
 knowledged no rights in the negro race which they were bound to 
 respect. Such most obviously must have been the opinion of 
 Queen Anne, George I., and George II. For each of them knew 
 how these one hundred and forty-four thousand negroes, consisting 
 of men, women, and children, were to be obtained on the coast of 
 Africa, .and transisorted to the Spanish colonies, and there sold as 
 ordinary merchandise in the market. They were sovereigns of a 
 rich and powerful nation ; they were provided for munificently 
 from the public treasury ; they were elevated far above the pur- 
 suits of commerce, and far above the temptations of want or the 
 ambition to be individually rich ; yet they were, each of them, 
 eager (as is proved by the treaties I have quoted) to descend from 
 their royal state to the level of an ordinary individual trader, and 
 to become partners in a slave-trading company and share in its 
 profits. 
 
 It is, however, but just to these monarchs to say, that they un- 
 doubtedly acted upon the established doctrines of the age in 
 which they lived. For nobody reproached them for it. It did 
 not lessen in any degree the respect and reverence of their sub- 
 jects. The whole people of England concurred in opinion with 
 them, and Queen Anne, who organized this Company, and was 
 one of the original partners, is still called the good Queen Anne. 
 
 The monopoly of the traffic to the Spanish colonies having 
 
590 Appendix. 
 
 ended, the mercantile community of England insisted upon its 
 right to share in the trade to the British colonies and plantations. 
 And their claims were pressed with so much force, that by the 
 Stat, of 23 Geo. II., ch. 31, (1749,) the trade in negroes was opened 
 to every British subject that might choose to engage in it. The 
 language and provisions of this statute sufficiently indicate the 
 doctrine and opinion of the time, if there was even no other 
 proof It contains thirty-nine sections, makes provisions for a new 
 Company to be formed, and designates the description of persons 
 Avho would have the right to be admitted as members, and ia 
 what manner. The preamble recites that, " whereas the trade to 
 and from Africa is very advantageous to Great Britain, and neces- 
 sary for the supplying of the plantations with a sufficient number 
 of negroes at reasonable rates, and for that purpose the said trade 
 ought to be free and open to all his Majesty's subjects." The first 
 section proceeds to declare it open. 
 
 The 3d section authorizes the Company which the 2d section 
 creates, to erect and keep forts, settlements, and factories on the 
 coast, and vests in them all the forts, castles, and military stores, 
 canoe-men, and castle slaves of the former African Company, "to 
 the intent and purpose (as it says) that the said forts, settlements, and 
 premises shall he employed at all times hereafter only for the protection, 
 encouragement, and defence of the said trade." 
 
 And the 29th Section enacts that no commander or master of 
 any ship trading to Africa shall, by force or violence or by any 
 other indirect practice whatever, take on board or carry away from 
 the coast of Africa any negro or native of the said country, or 
 commit or suffer to be committed any violence to the natives to the 
 prejudice of the said trade ; and the section then proceeds to inflict 
 a penalty of one hundred pounds for every such offisnce, one-half 
 to the support of the forts, and the other to the informer. 
 
 An act of violence or fraud by means of which a native was 
 carried into slavery, it thus appears, was not regarded as an offence 
 unless it was an injury to the slave-trade. The negro carried 
 away was not to be restored to his country or his freedom, but to 
 remain a slave. The fine was for the injury done to the trade; and 
 it would seem that these law makers supposed that no wrong was 
 done to the African of which he had a right to complam or to 
 ask redress. 
 
Appendix. 591 
 
 With this statute in force, opening the trade to the activity and 
 enterprise of individual cupidity, the importations into the British 
 plantations and colonies soon became exceedingly heavy. And 
 the supply so far exceeded the demand, that the colonies in which 
 slave labor was deemed most profitable, and in which they were 
 held in the greatest numbers, began to feel this great influx of 
 untutored savages a serious inconvenience. They were unaccus- 
 tomed to labor of any kind, and ignorant and inexperienced in 
 the cultivation of the land, and their association by no means 
 likely to improve the intelligence or moral habits of the slaves 
 they already possessed. Influenced by these considerations, the 
 Colony of South Carolina in 1760 passed an Act prohibiting the 
 further importation. But the English Government disallowed the 
 Act, reprimanded the Governor of the Colony for assenting to it, 
 and sent a circular order to the Governors of all the colonies on 
 this continent and in the West India Islands, forbidding them 
 to give their assent to any similar act of a colonial assembly. 
 (1 Colquhoun on Roman and Civil Law, 423. 1 Burges's Commen- 
 taries on Colonial and Foreign Laws, 736, 737, and in the follow- 
 ing pages, and in the notes.) 
 
 Notwithstanding this rebuke, the evil of this over-importation 
 was felt so sensibly in the colonies where the negroes were most 
 numerous, that five years afterwards (1765) a bill was brought 
 into the provincial Assembly of Jamaica to restrain it. But 
 before it was passed, the Governor informed the Assembly that, 
 consistently with his instructions, he could not give his assent to 
 the bill, and it was thereupon dropped. This it will be remem- 
 bered was in the reign of George III. 
 
 The colonists, however, were unwilling to rest under this in- 
 creasing grievance without making another effort to prevent it, 
 and endeavored to accomplish the object by increasing the duty 
 on negroes. Two acts increasing the duty were accordingly 
 passed by the Colonial Assembly of Jamaica. 
 
 But the merchants of Bristol and Liverpool petitioned against 
 their allowance. The board of trade made a report against them. 
 The Agent of Jamaica was heard against that report, but, upon 
 the recommendation of the Privy Council, the acts were disallowed, 
 and the disallowance was accompanied by an instruction to the 
 Governor, dated the 28th of February, 1775, by which he was pro- 
 
592 Appendix. 
 
 hibited, " upon pain of being removed from his government," from 
 giving his assent to any act by which the duties on the importa- 
 tion of slaves should be augmented, upon the ground, as the in- 
 struction states, "that such duties were to the injury and oppres- 
 sion of the merchants of this Kingdom, and the obstruction of its 
 commerce." 
 
 The documents and public acts in relation to these colonial 
 laws will be found stated or referred to iu 1st Burges's Commen- 
 taries on Colonial and Foreign Laws, pages 736, 737, and 738, 
 printed at London in 1838 ; and in 1st Colquhoun on Roman and 
 Civil Law, pages 422, 423, and 424, printed at London in 1849. 
 
 These proceedings were upon the eve of our Declaration of 
 Independence, and nearly contemporaneous with it, and four years 
 after the decision of Lord Mansfield in Somerset's case, of which 
 I shall hereafter speak more particularly. They were followed 
 by the statute of 27 George III., ch. 27, (passed in 1787,) grant- 
 ing certain privileges of trade to certain ports in the British West 
 Indies. This statute, like all of the other documents I have 
 hereinbefore referred to, still treats negroes as ordinary articles 
 of property and commerce. The language of the 4th section con- 
 veys this idea in language not to be mistaken. It is in the follow- 
 ing words : 
 
 " 4. And it is hereby further enacted by the authority aforesaid, 
 that it shall and may be lawful, from and after the 1st day of 
 September, to export from any of the said ports to any of the 
 colonies or plantations in America belonging to or under the 
 dominion of any foreign European sovereign or State, in any 
 sloop, schooner, or other vessel whatever owned and navigated 
 by the subjects of any foreign European sovereign or State, not 
 having more than one deck and not exceeding the burthen of 
 seventy tons, rum of the produce of any British island, and also 
 negroes which shall have been brought into said islands, respec- 
 tively, in British built ships owned, and registered, and navigated 
 according to law, and all manner of goods, wares, and merchan- 
 dise which shall have been legally imported into the said islands, 
 respectively, except masts, yards, or bowsprits, pitch, tar, turpen- 
 tine, and tobacco, and except also such iron as shall have been 
 brought from the British colonies or plantations in America, any 
 law, custom, or usage to the contrary, notwithstanding." 
 
Appendix. 593 
 
 It will be observed that negroes are in this section associated in 
 general and unqualified terms with rum and other articles of com- 
 merce in which the owner has the absolute property. And the 
 statute includes in its provisions all negroes brought into the 
 islands in British vessels, without any inquiry or qualification as 
 to their previous condition. If they were negroes, and brought in 
 by a British vessel, the British law regarded them as absolute 
 property, to be traded in like any other merchandise. 
 
 This statute brings me down to the period when the Consti- 
 tution was formed. For it happens that this last-mentioned statute 
 was passed in the same year (1787) in which the Constitution of 
 the United States was framed by the Convention, and promulgated 
 for the consideration of the people. 
 
 It would be foreign therefore to the question I am now consider- 
 ing, to proceed further with English legislation and doctrines upon 
 this subject, for the purpose of showing when the change of public 
 opinion took place which finally resulted in the emancipation of 
 the whole African race under British dominion ; my only object 
 in this historical review is to show the point of view in which the 
 African race was regarded in England at the time when the decla- 
 ration of rights was framed, and the Constitution of the United 
 States was adopted. 
 
 The public documents to which I have referred show one fixed, 
 unvarying opinion from 1689 to 1787, and that, according to that 
 opinion, the relation between the white man and the negro was in 
 the order of nature that of master and slave, and that the white 
 man exercised nothing more than his just rights when he made 
 the negro his property. There is not a word in these documents 
 that indicates any doubt upon the subject. Every word and pro- 
 vision in every one of them shows that they were never thought 
 of or spoken of but as articles of commerce, of the growth and 
 production of Africa, to be traded in and appropriated to the use 
 of the white man, like any other property. 
 
 These opinions were carried out to their full extent by the English 
 Company, in which the monarchs were partners, as well as the 
 English traders who succeeded them. The negroes were seized in 
 their native country by the agents of the traders or the native chiefs 
 employed for the purpose, brought to the coast, stowed away and 
 packed together on board the ships like bales of merchandise, and 
 
594 . Appendix. 
 
 without the slightest regard to their sufTerings or to age or sex or 
 the common decencies of human life. The documents and reports 
 laid before the British Parliament during the discussions upon the 
 abolition of the slave-trade prove past doubt that this was the 
 ordinary course of traffic. These discussions are of such recent 
 date that it is unnecessary to refer particularly to the documents 
 then produced and laid before the English Parliament. I allude 
 to them and rely upon them to show that the doctrines and 
 opinions so plainly indicated in the official acts of the Government 
 were not merely speculative theories or political principles upon 
 which there might be different opinions at the time, but had been 
 adopted by the people of England as a part of their code of morals, 
 and acted upon for a century as undoubted truths. What right 
 in the negro was respected by the white man, who thus dealt with 
 him without scruple from generation to generation? 
 
 Nor indeed were these opinions confined to England. They 
 prevailed to the same extent and were acted upon in like manner 
 in Spain, in France, in Holland, in Denmark, and in Sweden, in 
 proportion to their commercial enterprise and power. It was the 
 unwavering opinion of the civilized world during the period of 
 which I am speaking. 
 
 Two English cases have been mentioned which are supposed 
 to indicate a different doctrine in England. But they have no 
 relation to the point in question. 
 
 The first is the case of Smith vs. Brown, 2 Salk. 667, in which 
 Lord Holt is reported to have said that " as soon as a negro comes 
 into England he becomes free." But this expression is in no 
 degree in conflict with the opinion he gave in 1689, in conjunc- 
 tion with the other Judges. He obviously could not have intended 
 to recall it, for he does not even allude to it, as he would have 
 done, if he had supposed it had any bearing upon the question 
 then before him. And the evident result of these two opinions 
 taken together is, that although negroes were merchandise, it was 
 not lawful to import it into England, and if brought there the 
 right of the owner was forfeited. But it was not forfeited upon 
 the ground that the negroes were not property, or had any claim 
 to freedom in their own right, but because it was unlawful to im- 
 port such property into England. The opinion does not assign to 
 the negro any higher position in his relation to the white man 
 
Appendix. 695 
 
 than he assigned to him in 1689; and when the expressions of 
 Lord Holt in Smith vs. Brown are quoted, without calling atten- 
 tion at the same time to his former opinion, the quotation is calcu- 
 lated, and perhaps intended, to mislead and deceive, and to impute 
 to Lord Holt opinions which he evidently never entertained. 
 
 The point upon which Lord Holt expressed this opinion was 
 not in truth before the Court. The action under trial was trover 
 for a negro, and the declaration did not allege that he was the 
 property of the plaintiff; and it is well settled that an action 
 of trover cannot be maintained unless the plaintiff shows that 
 he has a right of property, general or special, in the thing sued 
 for ; and as the declaration did not aver property in the plaintiff, 
 it is clear that the action could not be maintained, even if the 
 full right of property in point of fact still remained in him. The 
 opinion relied on therefore was merely a dictum thrown out in 
 deciding the case, nor was it afterwards followed or regarded as 
 the law by the English courts, even limited as it was to the con- 
 dition of the negro, when he was brought into England. For in 
 Jelly vs. Cline, 1 Lord Raymond, 147, it was decided that trover 
 would lie for a negro, and the same doctrine was maintained in 
 Pearne vs. Lisle, 1 Amb., 75, which was decided in 1749. The 
 language of Lord Hardwicke in the last-mentioned case is so clear 
 and explicit upon this subject that I give the decision in his own 
 words. He says, " 1st. As to the nature of the demand. It is for 
 the use of negroes. A man may hire the servant of another, 
 whether he be a slave or not, and will be bound to satisfy the 
 master for the use of him. I have no doubt but trover will lie 
 for a negro slave; it is as much property as anything. The case 
 in Salk. 666 was determined on the want of proper description. 
 It was trover j^ro uno Ethiope vocat negro, without saying slave ; 
 and the being negro did not necessarily imply slave. The reason 
 said at the Bar to have been given by Lord Chief-Justice Holt in 
 that case, as the cause of his doubt, viz., that the moment a slave 
 sets foot in England he becomes free, has no weight in it, nor can 
 any reason be found why they should not be equally so when they 
 set foot in Jamaica or any other English plantation. All our 
 colonies are subject to the laws of England, although, as to some 
 purposes, they have laws of their own." 
 
 And acting under these decisions and this high authority the 
 
596 Appendix. 
 
 English colonists were accustomed to bring their negroes with 
 them, when they came to England, and to sell them there as slaves 
 when they did not desire to take or send them back. And as per- 
 sonal intercourse between the mother country and the colonies 
 increased, the introduction and sale of negroes became more fre- 
 quent, and in 1774, when the case of Somerset was decided by Lord 
 Mansfield, there were about fourteen thousand negro slaves held 
 in London. The fact that they were sold as above stated, and the 
 number held in London at the time above mentioned will be found 
 stated in the pages 1 Colquhoun, and Ist Burges, to which I have 
 referred in other parts of this opinion. 
 
 Negroes were therefore not only merchandise according to the 
 laws and the decisions of the English courts, but merchandise in 
 which it was lawful to trade in England as well as in the colonies, 
 until the decision of Lord Mansfield in the case of Somerset. It 
 was otherwise in the other European nations who held colonies 
 and engaged in the slave-trade. Serfdom had been finally abol- 
 ished in most if not all of them. And as all of them had abun- 
 dance of labor for the wants of agriculture and the mechanic arts 
 as known and practised at the time, it was not deemed advisable 
 to reinstate domestic slavery, nor to introduce among them a body 
 of ignorant and uncivilized Africans uusuited to the climate, and 
 altogether unacquainted with and unfit for the labors of the farm 
 or the workshop. The French edict which authorized the trafiic 
 in negroes spoke of the colonies only. And the French courts 
 held that it did not authorize their introduction into France itself, 
 and that a negro brought there became thereby emancipated and 
 free. This rule of the French law, as decided by its courts, was 
 afterwards qualified in some degree by a subsequent edict, which 
 allowed them to be brought from their own colonies for temporary 
 purposes under certain regulations, but which at the same time 
 provided that if these regulations were not complied with his 
 owner forfeited his right of property, and the negro became free. 
 1 Burges, 740, &c., &c. 
 
 This was the state of the law upon this subject in the civilized 
 nations of Europe when the case of Somerset came before the 
 Court. In England, according to the decisions above referred to, 
 the right of property remained in the master even in England 
 itself as well as in its colonies, and was acknowledged and enforced 
 
Appendix. 597 
 
 there by its courts. In France, and the other continental nations 
 which had engaged in the traiBc, the owner forfeited his right, if 
 the negro was brought into the European dominions of the State 
 or Kingdom ; and the question presented in Somerset's case was 
 whether the Court of King's Bench would adhere to the previous 
 decisions of its own courts, or adopt the principles of the Civil Law 
 Courts on the continent. In its social condition, England had the 
 same inducements with the other nations to prevent the introduc- 
 tion of uncivilized savages as laborers in England itself For 
 villenage had very nearly worn out, and the nation had already 
 sufficient labor, and a population sufficiently dense, for the wants 
 and customs of the age. It was under these circumstances that 
 Lord Mansfield overruled the decisions and opinions of the high 
 judicial authorities which had preceded him, and followed the de- 
 cisions of the continental Cival Law Courts in order to conform the 
 law 10 what he obviously deemed the established policy of Eng- 
 land ; and the introduction of negro slavery would have been alto- 
 gether repugnant to the policy which was gradually but steadily 
 putting an end to the slavery of villenage. But Lord Mansfield 
 did not in that opinion deny, and indeed, could not deny, that by 
 the laws of England negroes were merchandise. For the statute of 
 Geo. II., putting an end to the monopoly of the Royal African 
 Company, and opening the traffic to the traders of England gene- 
 rally, was then in full force. He could in this case overrule former 
 judicial decisions, as he often did, where he thought they had mis- 
 taken the principle of law upon which the case turned, or were incon- 
 sistent with the existing state of things and established national 
 policy. But he could not repeal or dispense with the provisions 
 of a statute, and certainly never intended to do so. And what he 
 says of breathing the air of England, so far as the rights of the 
 negro race are concerned, he might have said with as much truth 
 of the air of France or Spain, or of any other European State en- 
 gaged in the slave-trade. For, as I have already said, all of them 
 as a matter of policy excluded African slavery from their European 
 dominions, not because they supposed the trade to be unjust or im- 
 moral, or that the negroes had any right to complain of it, but 
 because they supposed the introduction of such a race of slaves 
 would be injurious to their own interests. Thedecision of Lord Mans- 
 field goes no further, and, like the dictum of Lord Holt, is confined 
 
698 Appendix. 
 
 to the negro when brought into England, adopts principles pre- 
 viously decided by the French courts, and does not go beyond 
 them. 
 
 It is evident that this opinion was so understood at the time it 
 was given. For the strong rebuke to the Governor of Jamaica 
 in 1775, and the statute of Geo. III., passed in 1787, (herein- 
 before referred to,) affirm the rights of the white man over the 
 negro as clearly and broadly as they were affirmed in the opinions 
 of the Judges and law officers of the Crown in 1689, or as they 
 were affirmed in the assiento del negrei in 1713, which practically 
 carried these principles into full operation. 
 
 It is also worthy of remark, that the opinions of Lord Holt and 
 Lord Mansfield, even narrowed down to the condition of the negro 
 in England, were each of them overruled and denied to be law by 
 Judges who were at least equally eminent with the jurists by whom 
 they were given. I have already quoted the opinion of Lord 
 Hardwicke upon the dictum imputed to Lord Holt. And in the 
 case of the slave Grace, 2 Hag., Admr. Rep., 94, Lord Stowell in 
 emphatic terms denies the doctrine of Lord Mansfield in the ease 
 of Somerset, and maintains that a negro brought into England 
 was not thereby emancipated, nor the right of property in the 
 owner thereby forfeited ; and that although the right of the master 
 could not be enforced against the negro in England, because there 
 was no law uathorizing process there for that purpose, yet the 
 right of property was not forfeited, but remained in the master, 
 and might be enforced if the negro returned to the colonies, or to 
 any country where the law of the place provided a remedy. It is 
 not, however, material to the point in question, in the case of Dred 
 Scott, which of these opinions was right. They turn entirely upon 
 the local policy and institutions in England itself, and have no 
 connection whatever with the relative position of the African and 
 white races, nor with the unlimited power of appropriation which 
 the latter claimed the right to exercise over the former whenever 
 it suited their interest, as appears in the statutes and treaties of 
 England. 
 
 The cases above mentioned are the only English cases which 
 can be supposed to have any bearing upon the question I am con- 
 sidering. I am not aware of any other worth notice. And it 
 appears to me that the unbroken chain of testimony which I have 
 adduced from 1689 down to 1787 proves, past doubt, that the public 
 
Appendix. 599 
 
 opinion in England wten our Constitution was formed is correctly 
 stated in the case of Dred Scott, and that no one cajDable of com- 
 prehending the force of testimony, and whose mind is in a condi- 
 tion to give it its just weight, will question the statement. 
 
 There have undoubtedly in all ages of the world been persons, 
 even among the educated and intelligent, who were capable of 
 shutting their eyes against the plainest proofs, if they were unwill- 
 ing to believe the fact they established. Such persons may exist 
 at the present day, and with them it would be useless to reason or 
 produce testimony. I have collected and arranged these proofs 
 for the consideration of those who are in search of truth, and are 
 willing to admit and acknowledge it when found, although it may 
 come in conflict with previous cherished opinions or prejudices. I 
 leave these proofs to their judgment without further comment. 
 
 I do not think it necessary to go again into an examination of 
 documentary evidence to show that the doctrines and fixed opin- 
 ions in this country at the time of which I am speaking corre- 
 sponded with those of England. The proofs set forth in the Dred 
 Scott case are abundantly sufficient for that purpose. But if there 
 were no pi'oofs upon the subject, no intelligent muid could for a 
 moment persuade itself that the colonial opinions were more favor- 
 able to the rights of the African race than those of the mother 
 country. The colonists brought with them the laws of England, 
 and the rights, duties, and privileges of Englishmen, as far as they 
 were applicable in their new homes ; and they naturally also and 
 certainly brought with them English opinions upon political and 
 personal rights, English morals and English prejudices. And with 
 them the inferior and subject condition of the African race must 
 have been more deeply and firmly rooted (if that were possible) 
 than even among the English people. For with the colonists this 
 inferiority and degradation was not merely an admitted axiom 
 upon which it was morally lawful to act, and upon which they 
 acted without reproach in distant countries, but it was habitually 
 and daily acted upon by themselves in their domestic and social 
 relations or under their own eyes. For negroes were bought and 
 sold by them like any other stock on their plantations. They saw 
 them brought into their ports by the ships of the mother country 
 in cargoes, in their native, ignorant, degraded, and savage state, 
 packed like bales of merchandise, and sold in the market like bales 
 
600 Appendix. 
 
 of woollen goods or puncheons of rum. And can any one seriously 
 believe that the men who framed the Declaration of Independence, 
 and who had grown up amid these scenes, and who were them- 
 selves holding and dealing with the negro merely as property, 
 could have intended to embrace these unfortunate beings among 
 the men whom they pronounced to be their equals, or to say in 
 that instrument that those whom they held as slaves had an in- 
 alienable right to freedom. If such had been the construction of 
 the Declaration of Independence at the time of its adoption, it 
 would have emancipated the slaves in every colony as soon as this 
 Declaration was adopted and sanctioned by the people of the 
 colony. Yet no one supposed that it unpaired any right of prop- 
 erty in the colonies, or cast any reproach upon those who were 
 actively engaged in the African slave-trade. 
 
 The American Revolution was not the offspring of fanaticism, 
 nor was it produced by the wild theories of political dreamers. It 
 was not designed to subvert the established order of society and 
 social relations, nor to sweep away traditional usages and estab- 
 lished opinions. On the contrary, it was undertaken to maintain 
 ancient and established rights which had been invaded by the 
 British Government. The colonists claimed the rights of English- 
 men, as secured by magna charta and the principles upon which 
 the British Government was founded. They did nothing more. 
 And when this claim was disregarded, they remonstrated, and 
 calmly, but at the same time earnestly and firmly, argued the 
 questions, and did not resort to the Declaration of Independence 
 until they lost all hope of redress by any other means. The Dec- 
 laration of Independence was intended. to preserve their ancient 
 and established rights and privileges, and not to upturn their own 
 social institutions and domestic relations. It was in fact intended 
 as a conservative measure, and not as revolutionary, nor was it 
 adopted in passion, but carefully, calmly, and deliberately consid- 
 ered. And they certainly did not mean by a few brief words in 
 the preamble to the instrument to annihilate in a moment long estab- 
 lished social relations, to admit their slave population to be their 
 equals, and the African race, whom they were daily transporting 
 from their native country and selling as slaves in the open market, 
 to have an " inalienable right to liberty," and equal in the order 
 of nature to themselves. Every honest mind of every country. 
 
Appendix. 601 
 
 acquainted with the history of the American Eevolution and the 
 character of the men who signed the Declaration of Independence, 
 will at once reject indignantly such an imputation upon such men. 
 And the history of the times, taken in connection with the lan- 
 guage of the instrument, makes it obvious that rights in the African 
 race were not in their minds nor thought of at the time ; nor were 
 the negroes supposed to have the slightest interest in the contro- 
 versy when the colonists proclaimed their undoubted rights, and 
 enumerated the wrongs they had received from England, nor in- 
 deed could it well have been otherwise in the ordinary operations 
 of the human mind. For almost every man who signed the Dec- 
 laration of Independence was born, educated, and had grown into 
 manhood in the reign of George II., and had naturally imbibed 
 the opinions of that age in regard to the negro race. They had 
 seen the monarch whom they were taught to love, honor, and 
 reverence for his virtues, openly engaged in the trafficking in ne- 
 groes as if they were ordinary merchandise ; and that, too, in its 
 worst and most revolting form, that is, seizing them in their own 
 country, and selling them to whoever would buy. With such ex- 
 amples and teachings of the mother country and their king, the 
 opinions of the colonies of England can hardly, I supjDose, be 
 doubted. 
 
 Indeed, so deep was this impression made on the white race in 
 this country, that it appears to be indelible. For, amid all the 
 changes in public opinion and legislation which have since taken 
 place, the line of division between the two races, marking the su- 
 periority of the one and the inferiority of the other, is as plain 
 now as it was in the days of the assiento. There is not a State in 
 the Union where this distinction is not recognized by public opin- 
 ion, and daily acted upon. There is not, one in which the inter- 
 marriage of a white person with a negro is not still deemed unnat- 
 ural ; not one in which it does not degrade the white man or 
 woman who forms the connection, and exclude them from the 
 social position to which they were before entitled. The few 
 persons who, in certain localities, have endeavored to obliterate 
 the line of division, and to amalgamate the races, are hardly suffi- 
 cient in number or in weight of character to be noticed as an 
 exception to the overwhelming current of public opinion and feel- 
 ing upon this subject. 
 
602 Appendix. 
 
 And such being the public opiuion and laws which universally- 
 prevailed in the Colonies when the Declaration of Independence 
 was framed, and when the Constitution was adopted, it would be 
 a palpable perversion of this meaning to expound these instru- 
 ments as if made at the present day, and under existing circum- 
 stances and laws. 
 
 The Navigation Act of Charles II., of which I have before 
 spoken, shows the absurdity and injustice of interpreting an 
 ancieut instrument without regard to the times and circumstances 
 under which it was made. All the law authorities of that period 
 held that negroes were merchandise, and could not, for that reason, 
 be brought into a British colouy except in British vessels. IJut 
 who supposes that a statute passed at the present day, in the very 
 same words by the English Parliament, would embrace negroes, 
 or that they would be included by the words " goods or com- 
 modities." It is true that negroes are not now merchandise by 
 the English law, subsequent statutes having changed the law in 
 that respect have repealed it. But that does not alter the mean- 
 ing of the statute, or make the opinions given at the time errone- 
 ous. Its true construction then is its true construction now ; what 
 it meant then it means now ; and it is not in force merely because 
 subsequent legislation has repealed it and changed the law. But 
 there is no alteration or change in the Constitution of the United 
 States in relation to the African race since it was adopted. It is 
 still in full force according to its original meaning. 
 
 There are some judicial decisions in the American courts which 
 were casually omitted, and which it is proper here to notice, as 
 my attention has again been called to the subject. The case of 
 Hobbs and Others vs. Fogg, decided in the Supreme Court of 
 Pennsylvania, and reported in 6 Watts, 553, is particularly worthy 
 of attention, from the just weight and authority of the Court by 
 which the opinion was given. This case was decided twenty years 
 ago, and so far as the condition of the .African race in this coun- 
 try is concerned, and the rule of interpretation which must be 
 applied to public instruments, it maintains precisely the same 
 principles which this Court affirmed in the case of Dred Scott. 
 
 The case before the State court was this : the Constitution of 
 Pennsylvania provided, " that in elections by the citizens, every 
 freeman of the age of twenty-one years, having resided in the 
 
Appendix. 603 
 
 State two years before the election, and having within that time 
 paid a State or County tax," should enjoy the rights of an elector. 
 The question before the Court was whether a free colored man was 
 a " freeman " in the sense in which that word was used in the 
 Constitution. The Court held that he was not. The i^oiut is 
 fully and ably argued by the Court, and was evidently carefully 
 considered. I quote a single passage in which the Court states 
 the result of its reasoning. " But (says the Court), in addition to 
 interpretation from usage, this antecedent legislation furnishes 
 other proofs that no colored race was party to our social compact. 
 As was justly remarked by President Fox, in the matter of the 
 late contested election, our ancestors settled the province as a com- 
 munity of white men, and the blacks were introduced into it as a 
 race of slaves; whence an unconquerable prejudice of caste which 
 has come down to our day, insomuch that a suspicion of taint still 
 has the imjust effect of sinking the subject of it below the com- 
 mon level. Consistently with this prejudice, is it to be credited 
 that parity of rank would be allowed to such a race ? " 
 
 It will be observed that the Constitution of Pennsylvania, which 
 the Court was expounding, was adopted in 1790, and that the 
 Constitution of the United States had been previously framed and 
 adopted, and was at that time in actvial operation. The decision 
 of the Court, defining the meaning of the word "freeman " in the 
 State Constitution, was made in 1837, long after the disturbing 
 question of slavery had been raised upon the admission of the 
 State of Missouri, and when the public opinion of the civilized 
 world had undergone a change as to the justice and morality of 
 the African slave-trade, and when that traffic had been made 
 piracy by act of Congress. It must also be remembered that Penn- 
 sylvania, when the colony was first planted, objected to the intro- 
 duction of negro slavery, and w-as the first State in the Union 
 which passed a law to put an end to it within its limits, and none 
 of her citizens or ships before the Revolution, as far as I can 
 ascertain, ever engaged in the traffic. 
 
 Another case was referred to and not noticed in the opinion of 
 the Court, but which appears to have been much relied on in the 
 dissenting opinions. I allude to the case of the State ns. Manuel, 
 decided in the Supreme Court of North Carolina, and reported in 
 Dev. and Bat. Eep. 20, in which the Court held that every 
 
604 Appendix. 
 
 person boru in North Carolina, who would before the Revolution 
 have been a British subject, was after the Revolution a citizen of 
 the State, and consequently that free negroes born in the State 
 were by birthright citizens of the State ; and this doctrine was reaf- 
 firmed in the case of the State vs. Newcomb, 5 Dev. and Bat., 253. 
 
 It is proper, from the high character of the State court by which 
 these decisions were given, and the importance attached to them 
 in the dissenting opinions in this Court, to examine the principles 
 upon which they were determined. 
 
 In the case of the State vs. Manuel, in which the question first 
 came before the State court, the opinion was delivered by the late 
 Judge Gaston. But with every respect for that learned jurist, I 
 must say that the principle he assumes, and upon which his whole 
 reasoning is founded, is evidently erroneous. 
 
 In speaking of allegiance arising from birth according to the 
 principles of the English law, he defines British subjects to be all 
 free persons born within the dominions of the King of Great 
 Britain. This certainly is not the definition of Coke and Black- 
 stone. They say " natural allegiance is such as is due from all 
 men born within the King's dominions immediately upon their 
 birth." See 7 Rep., and 1 Black. Com., 369. They do not limit 
 this natural allegiance to free persons only, nor do I know upon 
 what authority it is so limited by the learned Judge. All persons, say 
 the high English authorities to which I have referred, born within 
 the King's dominions owe this allegiance on their birth, and con- 
 sequently are British subjects. Negro slaves, therefore, born within 
 the British colonies were British subjects, and owed allegiance to 
 the British Crown. They were his subjects, and if they levied war 
 against him, or murdered him, they would be guilty of treason. 
 They were persons as well as property, and are so regarded in every 
 nation or State in which slavery exists. Yet it is upon this mis- 
 taken definition of natural allegiance, and of a British subject, 
 that the State court rests altogether its decision. Upon the true 
 definition as given by Coke and Blackstone, the argument of the 
 Court would not stand a moment's examination. For if it be true, 
 that all persons born within the dominions of the King, and who 
 were on that ground his subjects, became citizens of the State upon 
 the change of sovereignty, then the negro slaves who had been so 
 born, and who were his subjects, became citizens of the State, and 
 
Appendix. 605 
 
 consequently, like other citizens, were entitled to equal rights, and 
 placed upon the same level with their masters. Undoubtedly 
 they became subjects to the new sovereignty, as they had before 
 been subjects to the Crown, and owed it allegiance. But whether, 
 under the new government, they were elevated above the rank of 
 subjects, and became citizens and members of the new community, 
 is a very different question. Certainly the State court did not 
 mean to say. that the Revolution produced this effect. Yet it would 
 be the necessary and inevitable result, if, according to the argu- 
 ment of the Court, every one who was a native-born subject of the 
 British Crown in one of the colonies became a citizen of the State 
 when the colony became sovereign and independent. 
 
 But even if the definition of natural allegiance as adopted by 
 the State court were the true one, yet the argument founded upon 
 it cannot be maintained. For sovereignty in England and sover- 
 eignty in a State stand upon principles which are essentially and 
 radically different. 
 
 In England, the sovereignty resides exclusively in the person or 
 individual who is king. All Englishmen are his subjects. And 
 the highest peer in the realm, whatever may be his rights and 
 privileges as a subject, has no share in the sovereignty. Their sta- 
 tutes profess to be passed by the King, by and with the advice and 
 consent of the Parliament, treating the Parliament as advisers and 
 not as the makers of the law. The monarch always speaks of the 
 people as " my people," that is, as persons subject to his dominion, 
 and not sharing in his sovereignty. All offences are charged in 
 indictments to be committed " against his peace and dignity," and 
 the crime of treason can be committed against the King only, and 
 not against the Parliament or people of England. 
 
 But, according to our institutions, the sovereignty does not reside 
 in any one individual, but in the whole people, who form the politi- 
 cal body called the State. Every one who is a member of this 
 social compact is a citizen, and a component part of the sover- 
 eignty. Persons who are not citizens, not members of the sover- 
 eignty, may yet owe it allegiance, may be subject to it ; and cer- 
 tainly every one, whether free or slave, who was the subject of 
 Great Britain before the Eevolution, and was within the territorial 
 limits of the new government, became subject to the State when 
 the new government was formed. But it does not by any means 
 
606 Appendix. 
 
 follow that every one of these subjects was elevated to the rank 
 of citizen, and permitted to share in the sovereignty. 
 
 Those who displaced the sovereignty of the English monarch, 
 and associated themselves in a new political body, retaining the 
 sovereignty in their own hands, had the power and the right to de- 
 termine who should, and who should not, be admitted as members 
 of this association, and share equally with themselves the sover- 
 eignty they had established and retained in their own hands. They 
 might, if they had chosen to do so, admit as members, or, in other 
 words, as citizens, persons who never had been British subjects, 
 and who could not become so by the laws of England, or they might 
 reject and exclude those who had been British subjects, or would be- 
 come such if the old government continued. And the simple ques- 
 tion to be decided is, who formed this association, and what have 
 they done ? Did they admit the negro race as members of the po- 
 litical body, and allow them, when they became free, to share equally 
 with the white race in the sovereignty reserved to the citizens of 
 the Republic, and in the rights and privileges reserved to them 
 individually? The condition of subject and sovereign, therefore, 
 as it existed under the English Government, has no analogy to the 
 present question, and any argument founded upon any such sup- 
 posed analogy must necessarily lead to erroneous conclusions ; no 
 such question as that decided in the case of Dred Scott could 
 have arisen in England or under English law. It is purely an 
 American question, and depends entirely upon our own institu- 
 tions, and upon the construction and meaning of the constitutions 
 we have established. And in that point of view the subject was 
 fully considered and discussed in the opinion delivered by this 
 Court. The argument of the State court would be correct if the 
 Revolution had been a mere change of dynasty, still leaving the 
 sovereignty of the State in a single individual. But it is alto- 
 gether untenable, when applied to the American constitutions, and 
 to citizenship under them. 
 
 The case of Williams vs. Ash, reported in 1 How. 1, was men- 
 tioned in the argument, but it was not suggested that it had any 
 bearing upon the case, and was not, therefore, noticed in the opin- 
 ion. The case was this : A suit for freedom was brought by Ash, 
 who was a negro, against Williams, who claimed him as his slave. 
 The suit was in the Circuit Court of the United States for the Dis- 
 
Appendix. 607 
 
 trict of Columbia. Ash claimed liis freedom under the will of his 
 former owner. The Circuit Court decided that he was entitled to 
 his freedom under the will, and the Supreme Court affirmed the 
 decision. 
 
 Undoubtedly, by affirming that judgment, the Supreme Court 
 decided that the Circuit Court of the District of Columbia had 
 jurisdiction in a suit brought in that Court by one of the African 
 race to assert his title to freedom, nor has any one ever questioned 
 the correctness of that decision. I mention the case now only for 
 the purpose of stating that it was a suit in the Circuit Court of the 
 United States in the District of Columbia, and not in a Circuit 
 Court of the United States sitting in a State. The statement of 
 this fact is in itself a sufficient answer to the inferences attempted 
 to be drawn from it, as if it were inconsistent with the recent de- 
 cision. No one, who has read the Constitution, supposes that the 
 jurisdiction of a Circuit Court of the United States sitting in a 
 territory is limited to the same persons or description of persons as 
 a Circuit Court of the United States sitting in a State. Indeed, if 
 the courts of a territory were so limited by the Constitution, citi- 
 zens of a territory could not sue one another anywhere in a court 
 of the United States, and would be without remedy against each 
 other upon matters of contract, or for injuries to person or prop- 
 erty. But it is useless to pursue the argument upon a question 
 upon which no one can doubt who reads the Constitution. The 
 case has no application whatever to the jioints decided in the case 
 of Dred Scott. 
 
 I have seen and heard of various comments and reviews of the 
 opinion, published since its delivery, adverse to the decision of the 
 Court. But I have seen none that I think it worth while to reply 
 to, for they are founded upon misrepresentations and perversions 
 of the points decided by the Court. It would be a waste of time 
 to expose these perversions and misrepresentations. For if they 
 were exposed, they would nevertheless be repeated, and new ones 
 invented to support them. They are for the most part carefully 
 and elaborately put together in a volume published at Boston soon 
 after the opinion appeared in the report, and which from the be- 
 ginning to the end is a disingenuous perversion and misrepresen- 
 tation of what passed in conference, and also of what the Court has 
 decided. They cannot mislead the judgment of any one who is 
 
608 Appendix. 
 
 in search of truth, and will read the opinion ; and I have no desire 
 to waste time and throw away arguments upon those who evi- 
 dently act upon the principle that the end will justify the means. 
 
 Supreme Court of the United States, December Term, 1858. 
 21 Howard R., 506. 
 
 Stephen V. R. Ableman, Plaintiff in Error, vs. Sherman M. Booth ; 
 
 and the United States, Plaintiff in Error, vs. Sherman M. Booth 
 
 Mr. Chief-Justice Taney delivered the opinion of the Court. 
 
 The plaintiff in error in the first of these cases is the Marshal 
 of the United States for the District of Wisconsin, and the two 
 cases have arisen out of the same transaction, and depend, to some 
 extent, upon the same principles. On that account, they have 
 been argued and considered together ; and the following are the 
 facts as they appear in the transcripts before us : 
 
 Sherman M. Booth was charged before Winfield Smith, a com- 
 missioner duly appointed by the District Court of the United States 
 for the District of Wisconsin, with having, on the 11th day of 
 March, 1854, aided and abetted, at Milwaukee, in the said district, 
 the escape of a fugitive slave from the deputy marshal, who had 
 him in custody under a warrant issued by the District Judge of 
 the United States for that district, under the Act of Congress of 
 September 18, 1850. 
 
 Upon the examination before the commissioner, he was satisfied 
 that an offence had been committed as charged, and that there 
 was probable cause to believe that Booth had been guilty of it ; 
 and thereupon held him to bail to appear and answer before the 
 District Court of the United States for the District of Wisconsin, 
 on the first Monday in July then next ensuing. But on the 26th 
 of May his bail, or surety in the recognizance, delivered him to the 
 marshal, in the presence of the commissioner, and requested the 
 commissioner to recommit Booth to the custody of the marshal ; 
 and he haviflg failed to recognize again for his appearance before 
 the District Court, the commissioner committed him to the custody 
 of the marshal, to be delivered to the keeper of the jail until he 
 should be discharged by due course of law. 
 
Appendix. 609 
 
 Booth made application ou the next day, the 27th of May, to 
 A. D. Smith, one of the Justices of the Supreme Court of the State 
 of Wisconsin, for a writ of habeas corpus, stating that he was 
 restrained of his liberty by Stephen V. R. Ableman, Marshal of 
 the United States for that district, under the warrant of commit- 
 ment hereinbefore mentioned ; and alleging that his imprisonment 
 was illegal, because the Act of Congress of September 18, 1850, 
 was unconstitutional and void ; and also that the warrant was de- 
 fective, and did not describe the offence created by that act, even 
 if the act were valid. 
 
 Upon this application, the Justice, on the same day, issued the 
 writ of habeas corpus, directed to the marshal, requiring him forth- 
 with to have the body of Booth before him, (the said Justice,) 
 together with the time and cause of his imprisonment. The mar- 
 shal thereupon, on the day above mentioned, produced Booth, and 
 made his return, stating that he was received into his custody as 
 marshal on the day before, and held in custody by virtue of the 
 warrant of the commissioner above mentioned, a copy of which he 
 annexed and returned with the writ. 
 
 To this return Booth demurred, as not sufficient in law to justify 
 his detention. And upon the hearing the Justice decided that his 
 detention was illegal, and ordered the marshal to discharge him 
 and set him at liberty, which was accordingly done. 
 
 Afterwards, on the 9th of June, in the same year, the marshal 
 applied to the Supreme Court of the State for a certiorari, setting 
 forth in his application the proceedings hereinbefore mentioned, 
 and charging that the release of Booth by the Justice was errone- 
 ous and unlawful, and praying that his proceedings might be 
 brought before the Supreme Court of the State for revision. 
 
 The certiorari was allowed on the same day ; and the writ was 
 accordingly issued on the 12th of the same month, and returnable 
 on the third Tuesday of the month ; and on the 20th the return 
 was made by the Justice, stating the proceedings, as hereinbefore 
 mentioned. 
 
 The case was argued before the Supreme Court of the State ; and 
 on the 19th of July it pronounced its judgment, affirming the de- 
 cision of the Associate Justice discharging Booth from imprison- 
 ment, with costs against Ableman, the marshal. 
 
 Afterwards, on the 26th of October, the marshal sued out a writ 
 39 
 
610 Appendix. 
 
 of error, returnable to this Court on the first Monday of Decem- 
 ber, 1854, in order to bring the judgment here for revision; and 
 the defendant in error was regularly cited to appear on that day ; 
 and the record and proceedings were certified to this Court by the 
 clerk of the State court in the usual form, in obedience to the 
 ■writ of error. And on the 4th of December, Booth, the defendant 
 in error, filed a memorandum in writing in this Court, stating that 
 he had been cited to appear here in this case, and that he submit- 
 ted it to the judgment of this Court on the reasoning in the argu- 
 ment and opinions in the printed pamphlets therewith sent. 
 
 After the judgment was entered in the Supreme Court of Wis- 
 consin, and before the writ of error was sued out, the State court 
 entered on its record, that, in the final judgment it had rendered, 
 the validity of the Act of Congress of September 18, 1850, and of 
 February 12, 1793, and the authority of the marshal to hold the 
 defendant in his custody, under the process mentioned in his return 
 to the writ of habeas corpus, were respectively drawn in question, 
 and the decision of the Court in the final judgment was against 
 their validity, respectively. 
 
 This certificate was not necessary to give this Court jurisdiction, 
 because the proceedings upon their face show that these questions 
 arose, and how they were decided ; but it shows that at that time 
 the Supreme Court of Wisconsin did not question their obligation 
 to obey the writ of error, nor the authority of this Court to re-ex- 
 amine their judgment in the cases specified. And the certificate 
 is given for the purpose of placing distinctly on the record the 
 points that were raised and decided in that Court, in order that this 
 Court might have no difiiculty in exercising its appellate power, 
 and pronouncing its judgment upon all of them. 
 
 We come now to the second case. At the January term of the 
 District Court of the United States for the District of Wisconsin, 
 after Booth had been set at liberty, and after the transcript of the 
 proceedings in the case above mentioned had been returned to and 
 filed in this Court, the grand jury found a bill of indictment 
 against Booth for the offence with which he was charged before 
 the commissioner, and from which the State court had discharged 
 him. The indictment was found on the 4th January, 1855. On 
 the 9th a motion was made, by counsel on behalf of the accused, 
 to quash the indictment ; which was overruled by the Court ; and 
 
Appendix. 611 
 
 he thereupon pleaded not guilty, upon which issue was joined. On 
 the 10th a jury was called and appeared in court, when he chal- 
 lenged the array ; but the challenge was overruled and the jury 
 empanelled. The trial, it appears, continued from day to day, 
 until the 13th, when the jury found him guilty in the manner and 
 form in which he stood indicted in the fourth and fifth counts. On 
 the 16th he moved for a new trial and in arrest of judgment ; 
 which motions were argued on the 20th, and on the 23d the Court 
 overruled the motions, and sentenced the prisoner to be imprisoned 
 for one month, and to pay a fine of $1000 and the costs of prose- 
 cution, and that he remain in custody until the sentence was 
 complied with. 
 
 We have stated more particularly these proceedings, from a 
 sense of justice to the District Court, as they show that every op- 
 portunity of making his defence was afi'orded him, and that his 
 case was fully heard and considered. 
 
 On the 26th of January, three days after the sentence was passed, 
 the prisoner, by his counsel, filed his petition in the Supreme Court 
 of the State, and with his petition filed a copy of the proceedings 
 in the District Court, and also affidavits from the foreman and one 
 other member of the jury who tried him, stating that their verdict 
 was, guilty on the fourth and fifth counts, and not guilty on the 
 other three ; and stated in his petition that his imprisonment was 
 illegal, because the fugitive slave law was unconstitutional ; that 
 the District Court had no jurisdiction to try or punish him for the 
 matter charged against him, and that the proceedings and sentence 
 of that Court were absolute nullities in law. Various other objec- 
 tions to the proceedings are alleged, which are unimportant in the 
 questions now before the Court, and need not, therefore, be par- 
 ticularly stated. On the next day, the 27th, the Court directed 
 two writs of habeas corpus to be issued — one to the marshal, and 
 one to the sherifi" of Milwaukee, to whose actual keeping the pris- 
 oner was committed by the marshal, by order of the District Court. 
 The habeas cm-pus directed each of them to produce the body of 
 the prisoner, and make known the cause of his imprisonment, 
 immediately after the receipt of the writ. 
 
 On the 30th January the marshal made his return, not acknowl- 
 edging the jurisdiction, but stating the sentence of the District 
 Court as his authority ; that the prisoner was delivered to arid 
 
612 Appendix. 
 
 was then in the actual keeping of the sheriff of Milwaukee Comity, 
 by order of the Court, and he therefore had no control of the body 
 of the prisoner ; and if the sheriff had not received him, he should 
 have so reported to the District Court, and should have conveyed 
 him to some other place or prison, as the Court should command. 
 
 On the same day the sheriff produced the body of Booth before 
 the State court, and returned that he had been committed to his 
 custody by the marshal, by virtue of a transcript, a true copy of 
 which was annexed to his return, and which was the only process 
 or authority by which he detained him. 
 
 This transcript was a full copy of the proceedings and sentence 
 Ln the District Court of the United States, as hereinbefore stated. 
 To this return the accused, by his counsel, filed a general demurrer. 
 
 The Court ordered the hearing to be postponed until the 2d of 
 February, and notice to be given to the District Attorney of the 
 United States. It was accordingly heard on that day, and on the 
 next, (February 3d,) the Court decided that the imprisonment was 
 illegal, and ordered and adjudged that Booth be, and he was by 
 that judgment, forever discharged from that imprisonment and 
 restraint ; and he was accordingly set at liberty. 
 
 On the 21st of April next following, the Attorney-General of the 
 United States presented a petition to the Chief Justice of the Su- 
 preme Court, stating briefly the facts in the case, and at the same 
 time presenting an exemplification of the proceedings hereinbefore 
 stated, duly certified by the clerk of the State court, and averring 
 in his petition that the State court had no jurisdiction in the case, 
 and praying that a writ of error might issue to bring its judgment 
 before this Court to correct the error. The writ of error was 
 allowed and issued, and, according to the rules and practice of the 
 Court, was returnable on the first Monday of December, 1855, and 
 a citation for the defendant in error to appear on that day was 
 issued by the Chief Justice at the same time. 
 
 No return having been made to this writ, the Attorney-General, 
 on the 1st of February, 1856, filed affidavits, showing that the writ 
 of error had been duly served on the clerk of the Supreme Court 
 of Wisconsin, at his office, on the 30th of May, 1855, and the cita- 
 tion served on the defendant in error on the 28th of June, in the 
 same year. And also the affidavit of the district attorney of the 
 United States for the District of Wisconsin, setting forth that when 
 
Appendix. 613 
 
 he served the writ of error upon the clerk, as above mentioned, he 
 was informed by the clerk, and has also been informed by one of 
 the Justices of the Supreme Court which released Booth, " that the 
 Court had directed the clerk to make no return to the vyrit of error, and 
 io enter no order upon the journals or records of the Court concerning 
 the same." And, upon these proofs, the Attorney-General moved 
 the Court for an order upon the clerk to make return to the writ 
 of error, on or before the first day of the next ensuing term of this 
 Court. The rule was accordingly laid, and on the 22d of July, 
 1856, the Attorney-General filed with the clerk of this Court the 
 aflidavit of the marshal of the District of Wisconsin, that he had 
 served the rule on the clerk on the 7th of the month above men- 
 tioned ; and no return having been made, the Attorney-General, 
 on the 27th of February, 1867, moved for leave to file the certified 
 copy of the record of the Supreme Court of Wisconsin, which he 
 had produced with his application for the writ of error, and to 
 docket the case in this Court, in conformity with a motion to that 
 effect made at the last term. And the Court thereupon, on the 6th 
 of March, 1857, ordered the copy of the record filed by the Attor- 
 ney-General to be received and entered on the docket of this Court, 
 to have the same effect and legal operation as if returned by the 
 clerk with the writ of error, and that the case stand for argument 
 at the next ensuing term, without further notice to either party. 
 
 The case was accordingly docketed, but was not reached for 
 argument in the regular order and practice of the Court until the 
 present term. 
 
 This detailed statement of the proceedings in the difierent courts 
 has appeared to be necessary in order to'form a just estimate of 
 the action of the different tribunals in which it has been heard, 
 and to account for the delay in the final decision of a case which, 
 from its character, would seem to have demanded prompt action. 
 The first case, indeed, was reached for trial two terms ago. But as 
 the two cases are different portions of the same prosecution for 
 the same oflience, they unavoidably, to some extent, involve the 
 same principles of law, and it would hardly have been proper to 
 hear and decide the first before the other was ready for hearing 
 and decision. They have accordingly been argued together, by the 
 Attorney-General of the United States, at the present term. No 
 counsel has in either case appeared for the defendant in error. But 
 
614 Appendix. 
 
 we have the pamphlet arguments filed and referred to hy Booth in 
 the first case, as hereinbefore mentioned ; also the opinions and 
 arguments of the Supreme Court of Wisconsin, and of the Judges 
 who compose it, in full, and are enabled, therefore, to see the 
 grounds on which they rely to support their decisions. 
 
 It will be seen, from the foregoing statement of facts, that a 
 Judge of the Supreme Court of the State of Wisconsin, in the first 
 of these cases, claimed and exercised the right to supervise and 
 annul the proceedings of a commissioner of the United States, 
 and to discharge a prisoner who had been committed by the com- 
 missioner for an offence against the laws of this Government, and 
 that this exercise of power by the Judge was afterwards sanctioned 
 and affirmed by the Supreme Court of the State. 
 
 In the second case, the State court has gone a step further, and 
 claimed and exercised jurisdiction over the proceedings and judg- 
 ment of a District Court of the United States ; and upon a sum- 
 mary and collateral proceeding, by habeas corpim, has set aside and 
 annulled its judgment, and discharged a prisoner who had been 
 tried and found guilty of an offence against the laws of the United 
 States, and sentenced to imprisonment by the District Court. 
 
 And it further appears, that the State court have not only 
 claimed and exercised this jurisdiction, but have also determined 
 that their decision is final and conclusive upon all the courts of the 
 United States, and ordered their clerk to disregard and refuse 
 obedience to the writ of error issued by this Court, pursuant to the 
 Act of Congress of 1789, to bring here for examination and revision 
 the judgment of the State court. 
 
 These propositions are new in the jurisprudence of the United 
 States, as well as of the States ; and the supremacy of the State 
 courts over the courts of the United States, in cases arising under 
 the Constitution and laws of the United States, is now for the first 
 time asserted and acted upon in the Supreme Court of a State. 
 
 The supremacy is not, indeed, set forth distinctly and broadly, 
 in so many words, in the printed opinions of the Judges. It is in- 
 termixed with elaborate discussions of different provisions in the 
 fugitive slave law, and of the privileges and power of the writ of 
 habeas corpus. But the paramount power of the State court lies 
 at the foundation of these decisions ; for their commentaries upon 
 the provisions of that law, and upon the privileges and power of 
 
Appendix. 615 
 
 the writ of habeas corpus, were out of place, and their judicial 
 action upon them without authority of law, unless they had the 
 power to revise and control the proceedings in the criminal case 
 of which they were speaking ; and their judgments> releasing the 
 prisoner, and disregarding the writ of error from this Court, can 
 rest upon no other foundation. 
 
 If the judicial power exercised in this instance has heen reserved 
 to the States, no offence against the laws of the United States can 
 be punished by their own courts, without the permission and ac- 
 cording to the judgment of the courts of the State in which the 
 party happens to be imprisoned ; for, if the Supreme Court of Wis- 
 consin possessed the power it has exercised in relation to offences 
 against the act of Congress in question, it necessarily follows that 
 they must have the same judicial authority in relation to any 
 other law of the United States ; and, consequently, their super- 
 vising and controlling power would embrace the whole criminal 
 code of the United States, and extend to offences against our rev- 
 enue laws, or any other law intended to guard the different depart- 
 ments of the general Government from fraud or violence. And it 
 would embrace all crimes from the highest to the lowest ; includ- 
 ing felonies, which are punished with death, as well as misdemean- 
 ors, which are punished by imprisonment. And, moreover, if the 
 power is possessed by the Supreme Court of the State of Wiscon- 
 sin, it must belong equally to every other State in the Union, 
 when the prisoner is within its territorial limits ; and it is very 
 certain that the State courts would not always agree in opinion ; 
 and it would often happen that an act, which was admitted to be 
 an offence, and justly punished, in one State, would be regarded 
 as innocent, and, indeed, as praiseworthy in another. 
 
 It would seem to be hardly necessary to do more than state the 
 result to which these decisions of the State courts must inevitably 
 lead. It is, of itself, a sufficient and conclusive answer ; for no 
 one will suppose that a Government which has now lasted nearly 
 seventy years, enforcing its laws by its own tribunals, and preserv- 
 ing the union of the States, could have lasted a single year, or ful- 
 filled the high trusts committed to it, if offences against its laws 
 could not have been punished without the consent of the State in 
 which the culprit was found. 
 
 The Judges of the Supreme Court of Wisconsin do not distinctly 
 
616 Appendix. 
 
 state from what source they suppose they have derived this judi- 
 cial power. There can be no such thing as judicial authority, un- 
 less it is conferred by a government or sovereignty ; and if the 
 judges and courts of Wisconsin possess the jurisdiction they claim, 
 they must derive it either from the United States or the State. It 
 certainly has not been conferred on them by the United States ; 
 and it is equally clear it was not in the power of the State to con- 
 fer it, even if it had attempted to do so ; for no State can author- 
 ize one of its judges or courts to exercise judicial power, by habeas 
 corpus or otherwise, within the jurisdiction of another and inde- 
 pendent government. And although the State of Wisconsin is 
 sovereign within its territorial limits to a certain extent, yet that 
 sovereignty is limited and restricted by the Constitution of the 
 United States. And the powers of the general Government, and 
 of the State, although both exist and are exercised within the 
 same territorial limits, are yet separate and distinct sovereignties, 
 acting separately and independently of each other, within their 
 respective spheres. And the sphere of action appropriated to the 
 United States is as far beyond the reach of the judicial process 
 issued by a State judge or a State court, as if the line of division 
 was traced by landmarks and monuments visible to the eye. And 
 the State of Wisconsin had no more power to authorize these pro- 
 ceedings of its judges and courts, than it would have had if the 
 prisoner had been coniined in Michigan, or in any other State of 
 the Union, for an offence against the laws of the State in which he 
 was imprisoned. 
 
 It is, however, due to the State to say, that we do not find this 
 claim of paramount jurisdiction in the State courts over the 
 courts of the United States asserted or countenanced by the 
 Constitution or laws of the State. We find it only in the decisions 
 of the Judges of the Supreme Court. Indeed, at the very time 
 these decisions were made, there was a statute of the State which 
 declares that a person brought up on a habeas corpus shall be 
 remanded, if it appears that he is confined : 
 
 " 1st. By virtue of process, by any court or judge of the United 
 States, in a case where such court or judge has exclusive jurisdic- 
 tion ; or, 
 
 " 2d. By virtue of the final judgment or decree of any compe- 
 tent court of civil or criminal jurisdiction." (Revised Statutes of 
 the State of Wisconsin, 1849, ch. 124, page 629.) 
 
Appendix. 617 
 
 Even, therefore, if these cases depended upon the laws of Wis- 
 consin, it would be difficult to find in these provisions such a grant 
 of judicial power as the Supreme Court claims to have derived 
 from the State. 
 
 But, as we have already said, questions of this kind must always 
 depend upon the Constitution and laws of the United States, and 
 not of a State. The Constitution was not formed merely to guard 
 the States against danger from foreign nations, but mainly to 
 secure union and harmony at home ; for if this object could be 
 attained, there would be but little danger from abroad ; and to 
 accomplish this purpose, it was felt by the statesmen who framed 
 the Constitution, and by the people who adopted it, that it was 
 necessary that many of the rights of sovereignty which the States 
 then possessed should be ceded to the general Government ; and 
 that in the sphere of action assigned to it, it should be supreme, 
 and strong enough to execute its own laws by its own tribunals, 
 without interruption from a State or from State authorities. And 
 it was evident that anything short of this would be inadequate to 
 the main objects for which the Government was established ; and 
 that local interests, local passions or prejudices, incited and fos- 
 tered by individuals for sinister purposes, would lead to acts of 
 aggression and injustice by one State upon the rights of another, 
 which would ultimately terminate in violence and force, unless 
 there was a common arbiter between them, armed with power 
 enough to protect and guard the rights of all, by appropriate laws, 
 to be carried into execution peacefully by its judicial tribunals. 
 
 The language of the Constitution, by which this power is granted, 
 is too plain to admit of doubt or to need comment. It declares 
 that " this Constitution, and the laws of the United States which 
 shall be passed in pursuance thereof, and all treaties made, or 
 which shall be made, under the authority of the United States, 
 shall be the supreme law of the land, and the Judges in every 
 State shall be bound thereby, anything in the Constitution or laws 
 of any State to the contrary notwithstanding." 
 
 But the supremacy thus conferred on this Government could 
 not peacefully be maintained, unless it was clothed with judicial 
 power, equally paramount in authority to carry it into execution ; 
 for if left to the courts of justice of the several States, conflicting 
 decisions would unavoidably take place, and the local tribunals 
 
618 Appendix. 
 
 could hardly be expected to be always free from the local influences 
 of which we have spoken. And the Constitution and laws and 
 treaties of the United States, and the powers granted to the Fed- 
 eral Government, would soon receive different interpretations in dif- 
 ferent States, and the Government of the United States would soon 
 become one thing in one State and another thing in another. It 
 was essential, therefore, to its very existence as a Government, that 
 it should have the power of establishing courts of justice, alto- 
 gether independent of State power, to carry into effect its own 
 laws ; and that a tribunal should be established in which all cases 
 which might arise under the Constitution and laws and treaties of 
 the United States, whether in a State court or a court of the United 
 States, should be finally and conclusively decided. Without such a 
 tribunal, it is obvious that there would be no uniformity of judicial 
 decision ; and that the supremacy, (which is but another name for in- 
 dependence,) so carefully provided in the clause of the Constitution 
 above referred to, could not possibly be maintained peacefully, 
 unless it was associated with this paramount judicial authority. 
 
 Accordingly, it was conferred on the general Government, in 
 clear, precise, and comprehensive terms. It is declared that its 
 judicial power shall (among other subjects enumerated) extend to 
 all cases in law and in equity arising under the Constitution and 
 laws of the United States, and that in such cases, as well as the 
 others there enumerated, this Court shall have appellate jurisdic- 
 tion both as to law and fact, with such exceptions and under such 
 regulations as Congress shall make. The appellate power, it will 
 be observed, is conferred on this Court in all cases or suits in which 
 such a question shall arise. It is not confined to suits in the infe- 
 rior courts of the United States, but extends to all cases where 
 such a question arises, whether it be in a judicial tribunal of a 
 State or of the United States. And it is manifest that this ulti- 
 mate appellate power in a tribunal created by the Constitution 
 itself was deemed' essential to secure the independence and suprem- 
 acy of the general Government in the sphere of action assigned 
 to it ; to make the Constitution and laws of the United States uni- 
 form, and the same in every State ; and to guard against evils 
 which would inevitably arise from conflicting opinions between the 
 courts of a State and the United States, if there was no common 
 arbiter authorized to decide between them. 
 
Appendix. 619 
 
 The importance which the framers of the Constitution attached 
 to such a tribunal, for the purpose of preserving internal tran- 
 quillity, is strikingly manifested by the clause which gives this 
 Court jurisdiction over the sovereign States which compose this 
 Union, when a controversy arises between them. Instead of reserv- 
 ing the right to seek redress for injustice from another State by 
 their sovereign powers, they have bound themselves to submit to 
 the decision of this Court, and to abide by its judgment. And it 
 is not out of place to say here, that experience has demonstrated 
 that this power was not unwisely surrendered by the States ; for in 
 the time that has already elapsed since this Government came 
 into existence, several irritating and angry controversies have taken 
 place between adjoining States, in relation to their respective boun- 
 daries, and which have sometimes threatened to end in force and 
 violence, but for the power vested in this Court to hear them and 
 decide between them. 
 
 The same purposes are clearly indicated by the different language 
 employed when conferring supremacy upon the laws of the United 
 States, and jurisdiction upon its courts. In the first case, it pro- 
 vides that " this Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, shall be the supreme 
 law of the land, and obligatory upon the judges in every State." 
 The words in italics show the precision and foresight which mark 
 every clause in the instrument. The sovereignty to be created was 
 to be limited in its powers of legislatiorn ; and if it passed a law not 
 authorized by its enumerated powers, it was not to be regarded as 
 the supreme law of the land, nor were the State judges bouud to 
 carry it into execution. And as the courts of a State, and the 
 courts of the United States, might, and indeed certainly would, 
 often difler as to the extent of the powers conferred by the general 
 Government, it was manifest that serious controversies would arise 
 between the authorities of the United States and of the States, 
 which must be settled by force of arms, unless some tribunal was 
 created to decide between them finally and without appeal. 
 
 The Constitution has accordingly provided, as far as human 
 foresight "could provide, against this danger. And in conferring 
 judicial power upon the Federal Government, it declares that the 
 jurisdiction of its courts shall extend to all cases arising under 
 "this Constitution" and the laws of the United States — lea viag 
 
620 Appendix. 
 
 out the words of restriction contained in the grant of legislative 
 power -which we have above noticed. The judicial power covers 
 every legislative act of Congress, whether it be made within the 
 limits of its delegated powers, or be an assumption of power beyond 
 the grants in the Constitution. 
 
 This judicial power was justly regarded as indispensable, not 
 merely to maintain the supremacy of the laws of the United 
 States, but also to guard the States from any encroachment upon 
 their reserved rights by the general Government. And as the 
 Constitution is the fundamental and supreme law, if it appears 
 that an act of Congress is not pursuant to, and within the limits 
 of, the power assigned to the Federal Government, it is the duty 
 of the courts of the United States to declare it unconstitutional 
 and void. The grant of judicial power is not confined to the 
 administration of laws passed in pursuance to the provisions of 
 the Constitution, nor confined to the interpretation of such laws ; 
 but, by the very terms of the grant, the Constitution is under 
 their view, when any act of Congress is brought before them, and 
 it is their duty to declare the law void, and refuse to execute it, 
 if it is not pursuant to the legislative powers conferred upon Con- 
 gress. And as the final appellate power in all such questions is 
 given to this Court, controversies as to the respective powers of 
 the United States and the States, instead of being determined by 
 military and physical force, are heard, investigated, and finally 
 settled, with the calmness and deliberation of judicial inquiry. 
 And no one can fail to see, that if such an arbiter had not been 
 provided, in our complicated system of government, internal tran- 
 quillity could not have been preserved ; and if such controversies 
 were left to arbitrament of physical force, our governments. State 
 and National, would soon cease to be governments of laws, and 
 revolutions by force of arms would take the place of courts of 
 justice and judicial decisions. 
 
 In organizing such a tribunal, it is evident that every precaution 
 was taken, which human wisdom could devise, to fit it for the 
 high duty with which it was intrusted. It was not left to Con- 
 gress to create it by law ; for the States could hardly be expected 
 to confide in the impartiality of a tribunal created exclusively 
 by the general Government, without any participation on their 
 part. And as the performance of its duty would sometimes come 
 
Appendix. 621 
 
 in conflict with individual ambition or interests, and powerful 
 political combinations, an act of Congress establishing such a 
 tribunal might be repealed, in order to establish another more 
 subservient to the predominant political influences or excited pas- 
 sions of the day. This tribunal, therefore, was erected, and the 
 powers of which we have spoken conferred upon it, not by the 
 Federal Government, but by the people of the States, who formed 
 and adopted that Government, and conferred upon it all the 
 powers, legislative, executive, and judicial, which it now possesses. 
 And in order to secure its independence, and enable it faithfully 
 and firmly to perform its duty, it engrafted it upon the Constitu- 
 tion itself, and declared that this Court should have appellate 
 power in all cases arising under the Constitution and laws of the 
 United States. So long, therefore, as this Constitution shall 
 endure, this tribunal must exist with it ; deciding, in the peaceful 
 forms of judicial proceeding, the angry and irritating controversies 
 between sovereignties, which, in other countries, have been de- 
 termined by the arbitrament of force. 
 
 These principles of constitutional law are confirmed and illus- 
 trated by the clause which confers legislative power upon Con- 
 gress. That power is specifically given in Article I., Section 8, 
 paragraph 18, in the following words : 
 
 " To make all laws which shall be necessary and proper to 
 carry into 'execution the foregoing powers, and all other powers 
 vested by this Constitution in the Government of the United 
 States, or in any department or ofiicer thereof" 
 
 Under this clause of the Constitution, it became the duty of 
 Congress to pass such laws as were necessary and proper to carry 
 into execution the powers vested in the judicial department. And 
 in the performance of this duty, the first Congress, at its first ses- 
 sion, passed the Act of 1789, ch. 20, entitled "An act to establish 
 the judicial courts of the United States." It will be remembered 
 that many of the members of the Convention were also members 
 of this Congress, and it cannot be supposed that they did not un- 
 derstand the meaning and intention of the great instrument which 
 they had so anxiously and deliberately considered, clause by 
 clause, and assisted to frame. And the law they passed to carry 
 into execution the powers vested in the judicial department of the 
 Government proves, past doubt, that their interpretation of the 
 
622 Appendix. 
 
 appellate powers conferred on this Court was the same with that 
 which we have now given ; for by the 25th section of the Act of 
 1789, Congress authorized writs of error to be issued from this 
 Court to a State court, whenever a right had been claimed under 
 the Constitution or laws of the United States, and the decision of 
 the State court was against it. And to make this appellate power 
 effectual, and altogether independent of the action of State tri- 
 bunals, this act further provides, that upon writs of error to a 
 State court, instead of remanding the cause for a final decision in 
 the State court, this Court may at their discretion, if the cause 
 shall have been once remanded before, proceed to a final decision 
 of the same, and award execution. 
 
 These provisions in the Act of 1789 tell us, in language not to 
 be mistaken, the great importance which the patriots and states- 
 men of the first Congress attached to this appellate power, and 
 the foresight and care with which they guarded its free and inde- 
 pendent exercise against interference or obstruction by States or 
 State tribunals. 
 
 In the case before the Supreme Court of Wisconsin, a right was 
 claimed under the Constitution and laws of the United States, and 
 the decision was against the right claimed ; and it refuses obedi- 
 ence to the writ of error, and regards its own judgment as final. 
 It has not only reversed and annulled the judgment of the Dis- 
 trict Court of the United States, but it has reversed and annulled 
 the provisions of the Constitution itself, and the Act of Congress 
 of 1789, and made the superior and appellate tribunal the inferior 
 and subordinate one. 
 
 We do not question the authority of a State court, or Judge 
 who is authorized by the laws of the State to issue the writ of 
 habeas corpus, to issue it in any case where the party is imprisoned 
 within its territorial limits, provided it does not appear, when the 
 application is made, that the person imprisoned is in custody 
 under the authority of the United States. The Court or Judge 
 has a right to inquire, in this mode of proceeding, for what cause, 
 and by what authority, the prisoner is confined within the terri- 
 torial limits of the state sovereignty. And it is the duty of the 
 marshal, or other person having the custody of the prisoner, to 
 make known to the Judge or Court, by a proper return, the 
 authority by which he holds him in custody. This right to 
 
Appendix. 623 
 
 inquire by process of habeas corpus, and the duty of the officer to 
 make a return, grows, necessarily, out of the complex character 
 of our Government, and the existence of two distinct and separate 
 sovereignties within the same territorial space, each of them re- 
 stricted in its powers, and each within its sphere of action, pre- 
 scribed by the Constitution of the United States, independent of 
 the other. But, after the return is made, and the State judge or 
 court judicially apprized that the party is in custody under the 
 authority of the United States, they can proceed no further. 
 They then know that the prisoner is within the dominion and 
 jurisdiction of another Government, and that neither the writ of 
 habeas corpus, nor any other process issued under State authority, 
 can pass over the line of division between the two sovereignties. 
 He is then within the dominion and exclusive jurisdiction of the 
 United States. If he has committed an offence against their laws, 
 their tribunals alone can punish him. If he is wrongfully im- 
 prisoned, their judicial tribunals can release him, and afford him 
 redress. And, although, as we have said, it is the duty of the 
 marshal, or other person holding him, to make known, by a proper 
 return, the authority under which he detains him, it is at the same 
 time imperatively his duty to obey the process of the United States, 
 to hold the prisoner in custody under it, and to refuse obedience 
 to the mandate or process of any other Government. And, con- 
 sequently, it is his duty not to take the prisoner, nor suffer him to 
 be taken, before a State judge or court upon a habeas corpus 
 issued under State authority. No State judge or court, after they 
 are judicially informed that the -party is imprisoned under the 
 authority of the United States, has any right to interfere with him, 
 or to require him to be brought before them. And if the authority 
 of a State, in the form of judicial process or otherwise, should 
 attempt to control the marshal or other authorized officer or agent 
 of the United States, in any respect, in the custody of his prisoner, 
 it would be his duty to resist it, and to call to his aid any force 
 that might be necessary to maintain the authority of law against 
 illegal interference. No judicial process, whatever form it may 
 assume, can have any lawful authority outside of the limits of the 
 jurisdiction of the Court or Judge by whom it is issued ; and an 
 attempt to enforce beyond these boundaries is nothing less than 
 lawless violence. 
 
624 Appendix. 
 
 Nor is there anything in this supremacy of the general Govern- 
 ment, or the jurisdiction of its judicial tribunals, to awaken the 
 jealousy, or offend the natural and just pride of State sovereignty. 
 Neither this Government, nor the powers of which we were speak- 
 ing, were forced upon the States. The Constitution of the United 
 States, with all the powers conferred by it upon the general Gov- 
 ernment, and surrendered by the States, was the voluntary act of 
 the people of the several States, deliberately done, for their own 
 protection and safety against injustice from one another. And 
 their anxiety to preserve it in full force, in all its powers, and to 
 guard against resistance to or evasion of its authority, on the part 
 of a State, is proved by the clause which requires that the mem- 
 bers of the State Legislatures, and all executive and judicial 
 officers of the several States, (as well as those of the general Gov- 
 ernment,) shall be bound, by oath or affirmation, to support this 
 Constitution. This is the last and closing clause of the Constitu- 
 tion, and inserted, when the whole frame of Government, with the 
 jjowers hereinbefore specified, had been adopted by the Conven- 
 tion ; and it was in that form, and with these powers, that the 
 Constitution was submitted to the people of the several States for 
 their consideration and decision. 
 
 Now, it certainly can be no humiliation to the citizen of a re- 
 public to yield a ready obedience to the laws as administered by 
 the constituted authorities. On the contrary, it is among his first 
 and highest duties as a citizen, because free government cannot 
 exist without it. Nor can it be inconsistent with the dignity of a 
 sovereign State to observe faitlifully, and in the spirit of sincerity 
 and truth, the compact into which it voluntarily entered when it 
 became a State of this Union. On the contrary, the highest honor 
 of sovereignty is untarnished faith. And certainly no faith could 
 be more deliberately and'solemnly pledged than that which every 
 State has plighted to the other States to support the Constitution 
 as it is, iu all its provisions, until they shall be altered in the man- 
 ner which the Constitution itself prescribes. In the emphatic lan- 
 guage of the pledge required, it is to supiwrt this Constit-ution. 
 And no power is more clearly conferred by the Constitution and 
 laws of the United States, than the power of this Court to decide, 
 ultimately and finally, all cases arising under such Constitution 
 and laws ; and for that purpose to bring here for revision, by writ 
 
Appendix. 625 
 
 of error, the judgment of a State court, where such questions 
 have arisen, and the right claimed under them denied by the 
 highest judicial tribunal in the State. 
 
 We are sensible that we have extended the examination of these 
 decisions beyond the limits required by any intrinsic difficulty in 
 the question. But the decisions in question were made by the 
 supreme judicial tribunal of the State ; and when a court so ele- 
 vated in its position has pronounced a judgment which, if it 
 could be maintained, would subvert the very foundations of this 
 Government, it seemed to be the duty of this Court, when exer- 
 cising its appellate power, to show plainly the grave errors into 
 which the State court has fallen, and the consequences to which 
 they would inevitably lead. 
 
 But it can hardly be necessary to point out the errors which 
 followed their mistaken view of the jurisdiction they might law- 
 fully exercise ; because, if there was any defect of power in the 
 commissioner, or in his mode of proceeding, it was for the tribunals 
 of the United States to revise and correct it, and not for a State 
 court. And as regards the decision of the District Court, it had 
 exclusive and final jurisdiction by the laws of the United States ; 
 and neither the regularity of its proceedings nor the validity of 
 its sentence could be called in question in any other court, either 
 of a State or the United States, by habeas corpus, or any other 
 process. 
 
 But although we think it unnecessary to discuss these questions, 
 yet, as they have been decided by the State court, and are before 
 us on the record, and we are not willing to be misunderstood, it is 
 proper to say that, in the judgment of this Court, the Act of-Con- 
 gress commonly called the fugitive slave law is, in all its provisions, 
 fully authorized by the Constitution of the United States ; that the 
 commissioner had lawful authority to issue the warrant and commit 
 the party, and that his proceedings were regular and conformable 
 to law. We have already stated the opinion and judgment of the 
 Court as to the exclusive jurisdiction of the District Court, and 
 the appellate powers which this Court is authorized and required 
 to exercise. And if any argument was needed to show the wisdom 
 and necessity of this appellate power, the cases before us suffi- 
 ciently prove it, and at the same time emphatically call for its 
 exercise. 
 40 
 
626 Appendix. 
 
 The judgment of the Supreme Court of Wisconsin must there- 
 fore be reversed in each of the cases now before the Court. 
 
 Supreme Court of the United States, December Term, 1860. 
 Howard's Reports, Vol. 24, p. 66. 
 
 Ex parte. In the Matter of the Commonwealth of Kentucky, one 
 
 of the United States of America, by Beriah Magoffin, Governor, 
 
 and the Executive Authority thereof. Petitioner, vs. William 
 
 Dennison, Governor and Executive Authority of the State of 
 
 Ohio. 
 
 A motion was made in behalf of the State of Kentucky, against 
 the Governor of Ohio, to show cause why a mandamus should not 
 be issued by the Supreme Court of the United States, commanding 
 him to cause Willis Lago, a fugitive from justice, to be delivered 
 up, to be removed to the State of Kentucky, having jurisdiction 
 of the crime with which he was charged. The facts on which this 
 motion was made are as follows : 
 
 The grand jury of Woodford County, in the State of Kentucky, 
 indicted Willis Lago, a free man of color, for seducing and enticing 
 a slave to leave her owner and possessor, and aiding and assisting 
 said slave in an attempt to make her escape from her owner and 
 possessor. 
 
 A copy of this indictment, properly authenticated, was pre- 
 sented by an authorized agent of the Governor of Kentucky to 
 the Governor of Ohio, and the arrest and delivery of the fugitive 
 demanded. 
 
 The Governor of Ohio refused to comply with the demand. 
 
 Mr. Chief-Justice Taney delivered the opinion of the Court. 
 
 The Court is sensible of the importance of this case, and of the 
 great interest and gravity of the questions involved in it, and 
 which have been raised and fully argued at the bar. 
 
 Some of them, however, are not now for the first time brought 
 to the attention of this Court ; and the objections made to the juris- 
 diction, and the form and nature of the process to be issued, and 
 upon whom it is to be served, have all been heretofore considered 
 
Appendix. 627 
 
 and decided, and cannot now be regarded as open to further 
 dispute. 
 
 As early as 1792, in the case of Georgia vs. Brailsford, the Court 
 exercised the original jurisdiction conferred by the Constitution, 
 without any further legislation by Congress, to regulate it, than 
 the Act of 1789. And no question was then made, nor any doubt 
 then expressed, as to the authority of the Court. The same power 
 was again exercised without objection in the case of Oswold vs. 
 the State of Georgia, in which the Court regulated the form and 
 nature of the process against the State, and directed it to be served 
 on the Governor and Attorney-General. But in the case of Chis- 
 holm's Executors vs. the State of Georgia, at February Term, 1793, 
 reported in 2 DalL, 419, the authority of the Court in this respect 
 was questioned, and brought to its attention in the argument of 
 counsel ; and the report shows how carefully and thoroughly the 
 subject was considered. Each of the Judges delivered a separate 
 opinion, in which these questions, as to the jurisdiction of the 
 Court, and the mode of exercising it, are elaborately examined. 
 
 Mr. Chief-Justice Jay, Mr. Justice Gushing, Mr. Justice Wilson, 
 and Mr. Justice Blair, decided in favor of the jurisdiction, and 
 held that process served on the Governor and Attorney-General 
 was sufficient. Mr. Justice Iredell differed, and thought that 
 further legislation by Congress was necessary to give the jurisdic- 
 tion, and regulate the manner in which it should be exercised. 
 But the opinion of the majority of the Court upon these points 
 has always been since followed. And in the case of New Jersey 
 vs. New York, in 1831, 5 Pet., 284, Chief-Justice Marshall, in de- 
 livering the opinion of the Court, refers to the case of Chisholm vs. 
 the State of Georgia, and to the opinions then delivered, and the 
 judgtnent pronounced, in terms of high respect; and after enumer- 
 ating the various cases in which that decision had been acted on, 
 reaffirms it in the following words : 
 
 " It has been settled by our predecessors, on great deliberation, 
 that this Court may exercise its original jurisdiction in suits against 
 a State, under the authority conferred by the Constitution and 
 existing acts of Congress. The rule respecting the process, the 
 persons on whom it is to be served, and the time of service are 
 fixed. The course of the Court, on the failure of the State to ap- 
 pear after due service of process, has been also prescribed." 
 
628 Appendix. 
 
 And in the same case, page 289, lie states in full the process 
 which had been established by the Court as a rule of practice in 
 the case of Grayson vs. the State of Virginia, 3 Dall., 320, and 
 ever since followed. This rule directs, "that when process at 
 common law, or in equity, shall issue against a State, the same 
 shall be served upon the Governor or chief executive magistrate 
 and the Attorney-General of such State." 
 
 It is equally well settled, that a mandamus in modern practice 
 is nothing more than an action at law between the parties, and is 
 not now regarded as a prerogative writ. It undoubtedly came iuto 
 use by virtue of the prerogative power of the English Crown, and 
 was subject to regulations and rules which have long since been 
 disused. But the right to the writ, and the power to issue it, has 
 ceased to depend upon any prerogative power, and it is now re- 
 garded as an ordinary process in cases to which it is applicable. 
 It was so held by this Court in the cases of Kendall vs. United 
 States, 12 Pet., 615; Kendall vs. Stokes and Others, 3 How., 100. 
 
 So, also, as to the process in the name of the Governor, in his 
 o£5cial capacity, in behalf of the State. 
 
 In the case of Madraso vs. the Governor of Georgia, 1 Pet., 110, 
 it was decided, that in a case where the chief magistrate of a 
 State is sued, not by his name as an individual, but by his style 
 of office, and the claim made upon him is entirely in his official 
 character, the State itself maybe considered a party on the record. 
 This was a case where the State was the defendant ; the practice, 
 where it is plaintiff, has been frequently adopted of suing in the 
 name of the Governor, in behalf of the State, and was indeed the 
 form originally used, and always recognized as the suit of the 
 State. 
 
 Thus, in the first case to be found in our reports, in which a 
 suit was brought by a State, it was entitled, and set forth in the 
 bill, as the suit of " the State of Georgia, by Edward Tellfair, 
 Governor of the said State, complainant, against Samuel Brails- 
 ford and Others;" and the second case, which was as early as 1793, 
 was entitled, and set forth in the pleadings, as the suit of " His 
 Excellency, Edward Tellfair, Esquire, Governor and Commander- 
 in-chief in and over the State of Georgia, in behalf of the said 
 State, complainant, against Samuel Brailsford and Others, de- 
 fendants." 
 
Appendix. 629 
 
 The cases referred to leave no question open to controversy, as 
 to the jurisdiction of the Court. They show that it has been the 
 established doctrine upon this subject ever since the Act of 1789, 
 that in all cases where original jurisdiction is given by the Con- 
 stitution, this Court has authority to exercise it without any 
 further act of Congress to regulate its process, or confer jurisdic- 
 tion, and that the Court may regulate and mould the process it 
 uses, in such manner as in its judgment will best promote the pur- 
 poses of justice. And that it has also been settled, that where the 
 State is a party, plaintiff or defendant, the Governor represents 
 the State, and the suit may be, in form, a suit by him as Governor 
 in behalf of the State, where the State is plaintiff, and he must 
 be summoned or notified as the officer representing the State, 
 where the State is defendant. And further, that the writ of man- 
 damus does not issue from or by any prerogative power, and is 
 nothing more than the ordinary process of a court of justice, to 
 which every one is entitled, where it is the appropriate process for 
 asserting the right he claims. 
 
 We may therefore dismiss the question of jurisdiction without 
 further comment, as it is very clear, that if the right claimed by 
 Kentucky can be enforced by judicial process, the proceeding by 
 mandamus is the only mode in which the object can be accom- 
 plished. 
 
 This brings us to the exa,mination of the provision of the Con- 
 stitution which has given rise to this controversy. It is in the fol- 
 lowing words : 
 
 " A person charged in any State with treason, felony, or other 
 crime, who shall flee from justice, and be found in another State, 
 shall, on demand of the executive authority of the State from 
 which he fled, be delivered up, to be removed to the State having 
 jurisdiction of the crime." 
 
 Looking to the language of the clause, it is difficult to compre- 
 hend how any doubt could have arisen as to its meaning and con- 
 struction. The words, " treason, felony, or other crime," in their 
 plain and obvious import, as well as in their legal and technical 
 sense, embrace every act forbidden and made punishable by a law 
 of the State. The word " crime " of itself includes every offence, 
 from the highest to the lowest, in the grade of offences, and in- 
 cludes what are called " misdemeanors," as well as treason and 
 felony. 4 Bl. Com., 5, 6, and note 3, WendaU's edition. 
 
630 Appendix. 
 
 But as the word crime would have included treason and felony, 
 without specially mentioning those offences, it seems to be sup- 
 posed that the natural and legal import of the word, by associat- 
 ing it with those offences, must be restricted and confined to 
 offences already known to the common law, and to the usage of 
 nations, and regarded as offences in every civilized community, 
 and that they do not extend to acts made offences by local statutes 
 growing out of local circumstances, nor to offences against ordi- 
 nary police regulations. This is one of the grounds upon which 
 the Governor of Ohio refused to deliver Lago, under the advice 
 of the Attorney-General of that State. 
 
 But this inference is founded upon an obvious mistake as to the 
 purposes for which the words " treason and felony " were intro- 
 duced. They were introduced for the purpose of guarding against 
 any restriction of the word " crime," and to prevent this provision 
 from being construed by the rules and usages of independent na- 
 tions in compacts for delivering up fugitives from justice. Ac- 
 cording to these usages, even where they admitted the obligation 
 to deliver the fugitive, persons who fled on account of political 
 offences were almost always excepted, and the nation upon which 
 the demand is made also uniformly claims and exercises a discre- 
 tion in weighing the evidence of the crime, and the character of 
 the offence. The policy of different nations, in this respect, with 
 the opinions of eminent writers upon public law, are collected in 
 Wheaton on the Law of Nations, 171 ; Foelix, 312 ; and Martin, 
 Verge's edition, 182. And the English Government, from which 
 we have borrowed our general system of law and jurisprudence, 
 has always refused to deliver up political offenders who had sought 
 an asylum within its dommions. And as the States of this Union, 
 although united as one nation for certain specified purposes, are 
 yet, so far as concerns their internal government, separate sover- 
 eignties, independent of each other, it was obviously deemed neces- 
 sary to show, by the terms used, that this compact was not to be 
 regarded or construed as an ordinary treaty for extradition be- 
 tween nations altogether independent of each other, but was in- 
 tended to embrace political ofiences against the sovereignty of the 
 State, as well as all other crimes. And as treason was also a 
 "felony," (4 Bl. Com., 94,) it was necessary to insert those words, 
 to show, in language that could not be mistaken, that political 
 
Appendix. 631 
 
 offenders were included in it. For this was not a compact of peace 
 and comity between separate nations who had no claim on each 
 other for mutual support, but a compact binding them to give aid 
 and assistance to each other in executing their laws, and to sup- 
 port each other in preserving order and law within its confines, 
 whenever such aid was needed and required ; for it is manifest 
 that the statesmen who framed the Constitution were fully sensible, 
 that from the complex character of the Government, it must fail 
 unless the States mutually sujjported each other and the general 
 Government ; and that nothing would be more likely to disturb 
 its peace, and end in discord, than permitting an offender against 
 the laws of a State, by passing over a mathematical line which 
 divides it from another, to defy its process, and stand ready, under 
 the protection of the State, to repeat the offence as soon as another 
 opportunity offered. 
 
 Indeed, the necessity of this policy of mutual support, in bring- 
 ing offenders to justice, without any exception as to the character 
 and nature of the crime, seems to have been first recognized and 
 acted on by the American colonies ; for we find, by Winthrop's 
 History of Massachusetts, vol. 2, pages 121 and 126, that as early 
 as 1643, by "Articles of Confederation between the plantations 
 under the Government of Massachusetts, the plantation under the 
 Government of New Plymouth, the plantations under the Gov- 
 ernment of Connecticut, and the Government of New Haven, with 
 the plantations in combination therewith," these plantations pledged 
 themselves to each other, that, upon the escape of any prisoner or 
 fugitive for any criminal cause, whether by breaking prison, or 
 getting from the officer, or otherwise escaping, upon the certificate 
 of two magistrates of the jurisdiction out of which the escape was 
 made that he was a prisoner or such an offender at the time of 
 the escape, the magistrate, or some of them, of the jurisdiction 
 where, for the present, the said prisoner or fugitive abideth, shall 
 forthwith grant such a warrant as the case will bear, for the ap- 
 prehending of any such person, and the delivery of him into the 
 hands of the officer or other person who pursueth him ; and if there 
 be help required for the safe returning of any such offender, then 
 it shall be granted unto him that craves the same, he paying the 
 charges thereof" It will be seen that this agreement gave no dis- 
 cretion to the magistrate of the Government where the offender 
 
632 Appendix. 
 
 was found ; but he was bound to arrest and deliver, upon the pro- 
 duction of the certificate under which he was demanded. 
 
 When the thirteen colonies formed a Confederation for mutual 
 support, a similar provision was introduced, most probably sug- 
 gested by the advantages which the plantations had derived from 
 their compact with one another. But, as these colonies had then, 
 by the Declaration of Independence, become separate and inde- 
 pendent sovereignties, against which treason might be committed, 
 their compact is carefully worded, so as to Luclude treason and 
 felony — that is, political offences — as well as crimes of an inferior 
 grade. It is iu the following words : 
 
 "If any person, guilty 'of or charged with treason, felony, or 
 other high misdemeanor, in any State, shall flee from justice, and 
 be found in any other of the United States, he shall, upon demand 
 of the Governor or executive power of the State from which he 
 fled, be delivered up and removed to the State having jurisdiction 
 of his offence." 
 
 And when these colonies were about to form a still closer union 
 by the present Constitution, but yet preserving their sovereignty, 
 they had learned from experience the necessity of this provision 
 for the internal safety of each of them, and to promote concord 
 and harmony among all their members ; and it is introduced in 
 the Constitution substantially in the same words, but substituting 
 the word " crime " for the words " high misdemeanor," and thereby 
 showing the deliberate purpose to include every offence known to 
 the law of the State from which the party charged had fled. 
 
 The argument on behalf of the Governor of Ohio, which in- 
 sists upon excluding from this clause new offences created by a 
 statute of the State, and growing out of its local institutions, and 
 which are not admitted to be offences in the State where the fugi- 
 tive is found, nor so regarded by the general usage of civilized 
 nations, would render the clause useless for any practical purpose. 
 For where can the line of division be drawn with anything like 
 certainty 1 Who is to mark it ? The Governor of the demanding 
 State would probably draw one line, and the Governor of the other 
 State another. And, if they differed, who is to decide between 
 them? Under such a vague and indefinite construction, the 
 article would not be a bond of peace and union, but a constant 
 source of controversy and irritating discussion. It would have 
 
Appendix. 633 
 
 been far better to omit it altogether, and to have left it to the 
 comity of the States, and their own sense of their respective in- 
 terests, than to have inserted it as conferring a right, and yet de- 
 fining that right so loosely as to make it a never-failing subject of 
 dispute and ill-will. 
 
 The clause in question, like the clause in the Confederation, 
 authorizes the demand to be made by the executive authority of 
 the State where the crime was committed, but does not in so many 
 words specify the officer of the State upon whom the demand is to 
 be made, and whose duty it is to have the fugitive delivered and 
 removed to the State having jurisdiction of the crime. But, under 
 the Confederation, it is plain that the demand was to be made on 
 the Governor or executive authority of the State, and could be 
 made on no other department or officer ; for the Confederation 
 was only a league of separate sovereignties, in which each State, 
 within its own limits, held and exercised all the powers of 
 sovereignty ; and the Confederation had no officer, either execu- 
 tive, judicial, or ministerial, through whom it could exercise an 
 authority within the limits of a State. In the present Constitu- 
 tion, however, these powers, to a limited extent, have been con- 
 ferred on the general Government within the territories of the 
 several States. But the part of the clause in relation to the mode 
 of demanding and surrendering the fugitive is (with the excep- 
 tion of an unimportant word or two) a literal copy of the article 
 of the Confederation ; and it is plain that the mode of the demand, 
 and the official authority by and to whom it was addressed, under 
 the Confederation, must have been in the minds of the members 
 of the Convention when this article was introduced, and that, in 
 adopting the same words, they manifestly intended to sanction the 
 mode of proceeding practised under the Confederation — that is, 
 of demanding the fugitive from the executive authority, and 
 making it his duty to cause him to be delivered up. 
 
 Looking, therefore, to the words of the Constitution — to the 
 obvious policy and necessity of this provision to preserve harmony 
 between States, and order and law within their respective borders, 
 and to its early adoption by the colonies, and then by the Con- 
 federated States, whose mutual interest it was to give each other 
 aid and support whenever it was needed — the conclusion is irre- 
 sistible, that this compact engrafted in the Constitution included, 
 
634 Appendix. 
 
 and was intended to include, every offence made punishable by 
 the law of the State in which it was committed, and that it gives 
 the right to the executive authority of the State to demand the 
 fugitive from the executive authority of the State in which he is 
 found ; that the right given to " demand " implies that it is an 
 absolute right; and it follows that there must be a correlative 
 obligation to deliver, without any reference to the character of the 
 crime charged, or to the policy or laws of the State to which the 
 fugitive has fled. 
 
 This is evidently the construction put upon this article in the 
 Act of Congress of 1793, under which the proceedings now before 
 us are instituted. It is therefore the construction put upon it 
 almost contemporaneously with the commencement of the Govern- 
 ment itself, and when Washington was still at its head, and many 
 of those who had assisted in framing it were members of the Con- 
 gress which enacted the law. 
 
 The Constitution having established the right on one part, and 
 the obligation on the other, it became necessary to provide by law 
 the mode of carrying it into execution. The Governor of the 
 State could not, upon a charge made before him, demand the fugi- 
 tive ; for, according to the principles upon which all of our insti- 
 tutions are founded, the Executive Department can act only in 
 subordination to the Judicial Department, where rights of person 
 or property are concerned, and its duty in those cases consists only 
 in aiding to support the judicial process, and enforcing its au- 
 thority, when its interposition for that purpose becomes necessary, 
 and is called for by the Judicial Department. The executive 
 authority of the State, therefore, was not authorized by this 
 article to make the demand, unless the party was charged in the 
 regular course of judicial proceedings. And it was equally neces- 
 sary that the executive authority of the State upon which the de- 
 mand was made, when called on to render his aid, should be satis- 
 fied by competent proof that the party was so charged. This 
 proceeding, when duly authenticated, is his authority for arresting 
 the offender. 
 
 This duty of providing by law the regulations necessary to 
 carry this compact into execution, from the nature of the duty 
 and the object in view, was manifestly devolved upon Congress; 
 for if it was left to the States, each State might require different 
 
Appendix. 635 
 
 proof to authenticate the judicial proceeding upon which the de- 
 mand was founded ; and as the duty of the Governor of the State 
 where tlie fugitive was found is in sueli cases merely ministerial, 
 without the right to exercise either executive or judicial discretion, 
 he could not lawfully issue a warrant to arrest an individual with- 
 out a law of the State or of Congress to authorize it. These diffi- 
 culties presented themselves as early as 1791, in a demand made 
 by the Governor of Pennsylvania upon the Governor of Virginia, 
 and hoth of them admitted the propriety of bringing the subject 
 before tlie President, who immediately submitted the matter to 
 the consideration of Congress. And this led to the Act of 1793, 
 of which we are now speaking. All difficulty as to the mode of 
 authenticating the judicial proceeding was removed by the article 
 in the Constitution which declares " that full faith and credit 
 shall be given in each State to the public acts, records, and judicial 
 proceedings of every other State ; and the Congress may by gen- 
 eral laws prescribe the manner in which acts, records, and proceed- 
 ings shall be proved, and the effect thereof." And without doubt 
 the provision of which we are now speaking — that is, for the 
 delivery of a fugitive, which requires official communications be- 
 tween States, and the authentication of official documents — was 
 in the minds of the framers of the Constitution, and had its in- 
 fluence in inducing them to give this power to Congress. And 
 acting upon this authority, and the clause of the Constitution, 
 which is the subject of the present controversy. Congress passed 
 the Act of 1793, February 12th, which, as far as relates to this 
 subject, is in the following words : 
 
 " Section 1. That whenever the executive authority of any State 
 in the Union, or of either of the Territories northwest or south of 
 the river Ohio, shall demand any person as a fugitive from justice 
 of the executive authority of any such State or Territory to which 
 such person shall have fled, and shall, moreover, produce the copy 
 of an indictment found, or an affidavit made before a magistrate 
 of any State or Territory as aforesaid, charging the person so de- 
 manded with having committed treason, felony, or other crime, 
 certified as authentic by the Governor or chief magistrate of the 
 State or Territory from whence the person so charged fled, it shall 
 be the duty of the executive authority of the State or Territory 
 to which such person shall have fled to cause him or her to be 
 
636 Appendix. 
 
 arrested and secured, and notice of the arrest to be given to the 
 executive authority making such demand, or to the agent of such 
 authority appointed to receive the fugitive, and to cause the fugi- 
 tive to be delivered to such agent when he shall appear ; but if no 
 such agent shall appear within six months from the time of the 
 arrest, the prisoner may be discharged. And all costs or expenses 
 incurred in the apprehending, securing, and transmitting such 
 fugitive to the State or Territory making such demand shall be 
 paid by such State or Territory. 
 
 " Section 2. And be it further enacted, That any agent, ap- 
 pointed as aforesaid, who shall receive the fugitive into his custody, 
 shall be empowered to transport him or her to the State or Terri- 
 tory from which" he or she shall have fled ; and if any person or 
 persons shall by force set at liberty or rescue the fugitive from 
 such agent while transporting as aforesaid, the person or persons 
 so offending shall, on conviction, be fined not exceeding five hun- 
 dred dollars, and be imprisoned not exceeding one year." 
 
 It will be observed, that the judicial acts which are necessary 
 to authorize the demand are plainly specified in the act of Con- 
 gress ; and the certificate of the executive authority is made con- 
 clusive as to their verity when presented to the executive of the 
 State where the fugitive is found. He has no right to look be- 
 hind them, or to question them, or to look into the character of 
 the crime specified in this judicial proceeding. The duty which 
 he is to perform is, as we have already said, merely ministerial — 
 that is, to cause the party to be arrested, and delivered to the 
 agent or authority of the State where the crime was committed. 
 It is said in the argument, that the executive ofiicer upon whom 
 this demand is made must have a discretionary executive power, 
 because he must inquire and decide who is the person demanded. 
 But this certainly is not a discretionary duty upon which he is to 
 exercise any judgment, but is a mere ministerial duty — that is, 
 to do the act required to be done by him, and such as every 
 marshal and sheriff' must perform when process, either criminal 
 or civil, is placed in his hands to be served on the person named 
 in it. And it never has been supposed that this duty involved 
 any discretionary power, or made him anything more than a mere 
 ministerial ofiicer ; and such is the position and character of the 
 executive of the State under this law, when the demand is made 
 
Appendix. 637 
 
 upon him, and the requisite evidence produced. The Governor 
 has only to issue his warrant to an agent or officer, to arrest the 
 party named in the demand. 
 
 The question whicli remains to be examined is a grave and im- 
 portant one. When the demand was made, the proofs required 
 by the Act of 1793 to support it were exhibited to the Governor 
 of Ohio, duly certified and authenticated ; and the objection made 
 to the validity of the indictment is altogether untenable. Ken- 
 tucky has an undoubted right to regulate the forms of pleading 
 and process in her own Courts, in criminal as well as civil cases, 
 and is not bound to conform to those of any other State. And 
 whether the charge against Lago is legally and sufficiently laid in 
 this indictment, according to the laws of Kentucky, is a judicial 
 question to be decided by the Courts of the State, and not by the 
 executive authority of the State of Ohio. 
 
 The demand being thus made, the act of Congress declares 
 that " it shall be the duty of the executive authority of the State " 
 to cause the fugitive to be arrested and secured, and delivered to 
 the agent of the demanding State. The words, " it shall be the 
 duty," in ordinary legislation, imply the assertion of the power 
 to command and to coerce obedience. But looking to the subject- 
 matter of this law, and the relations which the United States and 
 the several States bear to each other, the Court is of opinion the 
 words, "it shall be the duty," were not used as mandatory and 
 compulsory, but as declaratory of the moral duty which this com- 
 pact created when Congress had provided the mode of carrying 
 it into execution. The act does not provide any means to comjiel 
 the execution of this duty, nor inflict any punishment for neglect 
 or refusal on the part of the executive of the State ; nor is there 
 any clause or provision in the Constitution which arms the Gov- 
 ernment of the United States with this power. Indeed, such a 
 power would place every State under the control and dominion of 
 the general Government, even in the administration of its internal 
 concerns and reserved rights. And we think it clear that the 
 Federal Government, under the Constitution, has no power to im- 
 pose on a State officer, as such, any duty whatever, and compel 
 him to perform it ; for if it possessed this power, it might over- 
 load the officer with duties which would fill up all his time, and 
 disable him from performing his obligations to the State, and 
 
638 Appendix. 
 
 might impose on him duties of a character incompatible with the 
 rank and dignity to which he was elevated by the State. 
 
 It is true that Congress may authorize a particular State oiRcer 
 to perform a particular duty ; but if he declines to do so, it does 
 not follow that he may be coerced, or punished for his refusal. 
 And we are very far from supposing thatj in using this word 
 " duty," the statesmen who framed and passed the law, or the 
 President who approved and signed it, intended to exercise a 
 coercive power over State officers not warranted by the Constitu- 
 tion. But the general Government having in that law fulfilled 
 the duty devolved upon it, by prescribing the proof and mode of 
 authentication upon which the State authorities were bound to de- 
 liver the fugitive, the word '' duty " in the law points to the obli- 
 gation on the State to carry it into execution. 
 
 It is true that in the early days of the Government, Congress 
 relied with confidence upon the co-operation and support of the 
 States, when exercising the legitimate powers of the general Gov- 
 ernment, and were accustomed to receive it upon principles of 
 comity, and from a sense of mutual and common interest, where 
 no such duty was imposed by the Constitution. And laws we-e 
 passed authorizing State courts to entertain jurisdiction in pro- 
 ceedings by the United States to recover penalties and forfeitures 
 incurred by breaches of their revenue laws, and giving to the 
 State courts the same authority with the District Court of the 
 United States to enforce such penalties and forfeitures, and also 
 the power to hear the allegations of parties, and to take proofs, if 
 an application for a remission of the penalty or forfeiture should 
 be made, according to the provisions of the acts of Congress. 
 And these powers were for some years exercised by State tribunals, 
 readily, and without objection, until in some of the States it was 
 declined because it interfered with and retarded the performance 
 of duties which properly belonged to them as State courts ; and 
 in other States doubts appear to have arisen as to the power of 
 the Courts, acting under the authority of the State, to inflict these 
 penalties and forfeitures for offences against the general Govern- 
 ment, unless especially authorized to do so by the State. 
 
 And in these cases the co-operation of the States was a matter 
 of comity, which the several sovereignties extended to one another 
 for their mutual benefit. It was not regarded by either party as 
 
Appendix. 639 
 
 an obligation imposed by the Constitution. And the acts of Con- 
 gress conferring the jurisdiction merely give the power to the State 
 tribunals, but do not purport to regard it as a duty, and they leave 
 it to the States to exercise it or not, as might best comport with 
 their own sense of justice and their own interest and convenience. 
 
 But the language of the Act of 1793 is very different. It does 
 not purport to give authority to the State executive to arrest and 
 deliver the fugitive, but requires it to be done ; and the language 
 of the law implies an absolute obligation which the State authority 
 is bound to perform. And when it speaks of the duty of the 
 Governor, it evidently points to the duty imposed by the Consti- 
 tution in the clause we are now considering. The performance of 
 this duty, however, is left to depend on the fidelity of the State 
 executive to the compact entered into with the other States when 
 it adopted the Constitution of the United States, and became a 
 member of the Union. It was so left by the Constitution, and 
 necessarily so left by the Act of 1793. 
 
 And it would seem that when the Constitution was framed, and 
 when this law was passed, it was confidently believed that a sense 
 ofiustice and of mutual interest would insure a faithful execution 
 of this constitutional provision by the executive of every State, 
 for every State had an equal interest in the execution of a com- 
 pact absolutely essential to their peace and well-being in their 
 internal concerns, as well as members of the Union. Hence, the 
 use of the words ordinarily employed when an undoubted obliga- 
 tion is required to be performed, " it shall be his duty." 
 
 But if the Governor of Ohio refuses to discharge this duty, 
 there is no power delegated to the general Government, either 
 through the judicial department, or any other department, to use 
 any coercive means to compel him. 
 
 And upon this ground the motion for the mandamus must be 
 overruled. 
 
640 Appendix. 
 
 HABEAS COKPUS. 
 
 STATEMENT OF THE CASE. 
 
 On the 26th May, A. D. 1861, the following sworn petition was 
 presented to the Chief Justice of the Supreme Court of the United 
 States on behalf of John Merryman, he being at the time in con- 
 finement in Fort McHenry. 
 
 To the Hon. Rogee B. Taney, 
 
 Chief Justice of the Supreme Court of the United States. 
 
 The petition of John Merryman, of Baltimore County, and State 
 of Maryland, respectfully sliows, that being at home, in his own 
 domicil, he was, about the hour of two o'clock, A. M., on the 25th of 
 May, A. D. 1861, aroused from his bed by an armed force pretend- 
 ing to act under military orders from some person to your petitioner 
 unknown. That he was by said armed force deprived of his lib- 
 erty by being taken into custody, and removed from his said home 
 to Fort McHenry, near to the city of Baltimore, and in the district 
 aforesaid, and where your petitioner now is in close custody. 
 
 That he has been so imprisoned without any process or color of 
 law whatsoever, and that none such is pretended by those who are 
 thus detaining him ; and that no warrant from any court, magis- 
 trate, or other person having legal authority to issue the same, ex- 
 ists to justify such arrest ; but, to the contrary, the same, as above 
 stated, hath been done without color of law, and in violation of 
 the Constitution and laws of the United States, of which he is a 
 citizen. That since his arrest he has been informed that some 
 order purporting to come from one General Keim, of Pennsylva- 
 nia, to the petitioner unknown, directing the arrest of the captain 
 of some company in Baltimore County, of which company the 
 petitioner never was and is not captain, was the pretended ground 
 of his arrest, and is the sole ground, as he believes, on which he is 
 detained. 
 
 That the person now so detaining him at said Fort is Brigadier- 
 General George Cadwalader, the military commander of said post, 
 professing to act in the premises under or by color of the authority 
 of the United States. Your petitioner therefore prays that the 
 writ of habeas corpus may issue, to be directed to tlie said George 
 Cadwalader, commanding him to produce your petitioner before 
 
Appendix. 641 
 
 you, Judge as aforesaid, with the cause, if any, for his arrest and 
 detention, to the end that your petitioner be discharged and 
 restored to liberty, and as in duty, &c. 
 
 JOHN MERRYMAN. 
 Fort McHenry, 25th May, 1861. 
 
 United States of America, District of Maryland, to wit : 
 
 Before the subscriber, a Commissioner appointed by the Circuit 
 Court of the United States, in and for the fourth circuit and dis- 
 trict of Maryland, to take affidavits, &c., personally appeared, the 
 25th day of May, A. D. 1861, Geo. H.Williams, of the city of 
 Baltimore and district aforesaid, and made oath on the Holy 
 Evangely of Almighty God that the matters and facts stated 
 in the foregoing petition are true, to the best of his knowledge, in- 
 formation and belief, and that the said petition was signed in his 
 presence by the petitioner, and would have been sworn to by him, 
 said petitioner, but that he was at the time and still is in close cus- 
 tody, and all access to him denied, except to his counsel and his 
 brother-in-law — this deponent being one of said counsel. 
 
 Sworn to before me, this 25th day of May, A. D. 1861. 
 
 JOHN HANAN, U. S. Commissioner. 
 
 United States of America, District of Maryland, to wit : 
 
 Before the subscriber, a Commissioner appointed by the Circuit 
 Court of the United States, in and for the fourth circuit and dis- 
 trict of Maryland, to take affidavits, &c., personally appeared this 
 26th day of May, 1861, George H. Williams, of the city of Balti- 
 more and district aforesaid, and made oath on the Holy Evan- 
 gely of Almighty God that on the 26th day of May he went to 
 Fort McHenry, in the preceding affidavit mentioned, and obtained 
 an interview with Gen. Geo. Cadwalader, then and there in com- 
 mand, and deponent, one of the counsel of said John Merryman, 
 in the foregoing petition named, and at his request, and declaring 
 himself to be such counsel, requested and demanded that he might 
 be permitted to see the written papers, and to be permitted to 
 make copies thereof, under and by which he, the said General, de- 
 tained the said Merryman in custody, and that to said demand 
 the said Gen. Cadwalader replied that he would neither permit 
 41 
 
642 Appendix. 
 
 the deponent, though officially requesting and demanding, as such 
 counsel, to read the said papers, nor to have or make copies thereof. 
 Sworn to this 26th day of May, A. D. 1861, before me. 
 
 JOHN HANAN, 
 U. S. Commdgdoner for Maryland. 
 
 Upon this petition the Chief Justice passed the following order : 
 In the matter of the petition of John Merryman for a writ of 
 habeas corpus: 
 
 Ordered, this 26th day of May, A. D. 1861, that the writ of 
 habeas corjnts issued in this case, as prayed, and that the same be 
 directed to General George Cadwalader, and be issued in the usual 
 form, by Thomas Spicer, clerk of the Circuit Court of the United 
 States in and for the District of Maryland, and that the said writ 
 of habeas corpus be returnable at eleven o'clock, on Monday, the 
 27th of May, 1861, at the Circuit Court room, in the Masonic 
 Hall, in the city of Baltimore, before me, Chief Justice of the Su- 
 preme Court of the United States. 
 
 R. B. TANEY. 
 
 In obedience to this order, Mr. Spicer issued the following writ : 
 District of Maryland, to wit: the United States of America : 
 To General George Cadwalader, Greeting : 
 
 You are hereby commanded to be and appear before the Hon- 
 orable Roger B. Taney, Chief Justice of the Supreme Court of 
 the United States, at the United States Court room, in the Masonic 
 Hall, in the city of Baltimore, on Monday, the 27th day of May, 
 1861, at eleven o'clock in the morning, and that you have with 
 you the body of John Merryman, of Baltimore County, and now 
 in your custody, and that you certify and make known the day 
 and cause of the caption and detention of the said John Merry- 
 man, and that you then and there do submit it to, and receive 
 whatsoever the said Chief Justice shall determine upon concerning 
 you on this behalf, according to law, and have you then and there 
 this writ. 
 
 Witness, the Honorable R. B. Taney, Chief Justice of our Su- 
 preme Court, &c., &c., &c. 
 
 THOS. SPICER, Clerk 
 
 Issued 26th May, 1861. 
 
Appendix. 643 
 
 The Marshal made his return that he had served the writ on 
 General Cadwalader on the same day on which it issued, and filed 
 that return on the 27th May, 1861, on which day, at eleven o'clock 
 precisely, the Chief Justice took his seat on the bench. In a few 
 minutes Colonel Lee, a military officer, appeared with General 
 Cadwalader's return to the writ, which is as follows : 
 
 Headquarters, Department of Annapolis, 
 
 Fort MaHenry, May 26, 1861. 
 To the Hon. Roger B. Taney, 
 
 Chief Justice of the Supreme Court of the United States, Baltimore, Md. 
 
 Sir — The undersigned, to whom the annexed writ of this date, 
 signed by Thomas Spicer, clerk of the Supreme Court of the 
 United States, is directed, most respectfully states that the arrest 
 of Mr. John Merryman, in the said writ named, was not made 
 with his knowledge or by his order or direction, but was made by 
 Col. Samuel Yohe, acting under the orders of Major-General Wm. 
 H. Keim, both of said officers being in the military service of the 
 United States, but not within the limits of his command. 
 
 The prisoner was brought to this post on the 20th inst. by Ad- 
 jutant James Wittimore and Lieut. Wm. H. Abel, by order of 
 Col. Yohe, and is charged with various acts of treason, and with 
 being publicly associated with and holding a commission as lieuten- 
 ant in a company having in their possession arras belonging to the 
 United States, and avowing his purpose of armed hostility against 
 the Government. He is also informed that it can be clearly estab- 
 lished that the prisoner has made often and unreserved declara- 
 tions of his association with this organized force as being in avowed 
 hostility to the Government, and in readiness to co-operate with 
 those engaged in the present rebellion against the Government of 
 the United States. He has farther to inform you that he is duly 
 authorized by the President of the United States in such cases to 
 suspend the writ of habeas corjnis for public safety. 
 
 This is a high and delicate trust, and it has been enjoined upon 
 him that it should be executed with judgment and discretion, but 
 he is nevertheless also instructed that in times of civil strife, errors, 
 if any, should be on the side of the safety of the country. He 
 most respectfully submits for your consideration that those who 
 should co-operate in the present trying and painful position in 
 
644 Appendix, 
 
 which our country is placed, should not, by any unnecessary want 
 of confidence in each other, increase our embarrassments. 
 
 He therefore respectfully requests that you will postpone further 
 action upon this case until he can receive instructions from the 
 President of the United States, when you shall hear further from 
 him. 
 
 I have the honor to be, with high respect, your obedient servant, 
 
 GEORGE CADWALADER, 
 Brevet Major- General U. S. A. Commanding. 
 
 The Chief Justice then inquired of the officer whether he had 
 ))rought with him the body of John Merryman, and on being an- 
 swered that he had no instructions but to deliver the return, the 
 Chief Justice then said : 
 
 Gen. Cadwalader was commanded to produce the body of Mr. 
 Merryman before me this morning, that the case might be heard, 
 and the petitioner be either remanded to custody or set at liberty 
 if held on insufficient grounds ; but he has acted in disobedience 
 to the writ, and I therefore direct that an attachment be at once 
 issued against him, returnable before me here at twelve o'clock 
 to-morrow. The order was then passed as follows : 
 
 Ordered, That an attachment forthwith issue against Gen- 
 eral George Cadwalader for a contempt in refusing to produce the 
 body of John Merryman according to the command of the writ of 
 habeas corpus returnable and returned before me to-day, and that 
 said attachment be returned before me at twelve o'clock to-mor- 
 row, at the room of the Circuit Court. 
 
 R. B. TANEY. 
 
 Monday, May 27th, 1861. 
 
 The Clerk then issued the writ of attachment as directed. 
 
 At twelve o'clock on the 28th May, 1861, the Chief Justice again 
 took his seat on the bench, and called for the Marshal's return to 
 the writ of attachment. It was as follows : 
 
 I hereby certify to the Honorable Roger B. Taney, Chief Jus- 
 tice of the Supreme Court of the United States, that by virtue of 
 the within writ of attachment to me directed on the 27th day of 
 May, 1861, I proceeded on this 28th day of May, 1861, to Fort 
 McHenry for the purpose of serving the said writ. I sent in my 
 
Appendix. 645 
 
 name at the outer gate ; the messenger returned with the reply 
 " that there was no answer to my card," and therefore could not 
 serve the writ as I was commanded. I was not permitted to enter 
 the gate. So answers 
 
 WASHINGTON BONIFANT, 
 U. S. Marshal for the District of Maryland. 
 
 After it was read, the Chief Justice said that the Marshal had 
 the power to summon the posse eomitatus to aid him in seizing and 
 bringing before the Court the party named in the attachment, 
 who would, when so brought in, be liable to punishment by fine 
 and imprisonment. But where, as in this case, the power refusing 
 obedience was so notoriously superior to any the Marshal could 
 command, he held that officer excused from doing anything more 
 than he had done. The Chief Justice then proceeded as follows : 
 
 " I ordered this attachment yesterday, because, upon the face 
 of the return, the detention of the prisoner was unlawful upon 
 the grounds : 
 
 " First — That the President, under the Constitution of the 
 United States, cannot suspend the privilege of the writ of habeas 
 corpus, nor authorize a military officer to do it. 
 
 " Second — A military officer has no right to arrest and detain 
 a person not subject to the rules and articles of war for an offence 
 against the laws of the United States, except in aid of the judicial 
 authority, and subject to its control ; and if the party is arrested by 
 the military, it is the duty of the officer to deliver him over imme- 
 diately to the civil authority to be dealt with according to law. 
 
 " It is therefore very clear that John Merryman, the petitioner, 
 is entitled to be set at liberty, and discharged immediately from 
 imprisonment. 
 
 " I forbore yesterday to state orally the j)rovisions of the Con- 
 stitution of the United States which make those principles the 
 fundamental law of the Union, because an oral statement might 
 be misunderstood in some portions of it, and I shall therefore put 
 my opinion in writing, and file it in the office of the Clerk of the 
 Circuit Court in the course of this week." 
 
 He concluded by saying that he should cause his opinion, when 
 filed, and all the proceedings to be laid before the President, in 
 order that he might perform his constitutional duty, to enforce the 
 laws by securing obedience to the process of the United States. 
 
646 Appendix. 
 
 ACCORDINGLY ON THE IST JUNE, 1861, THE CHIEF JTTSTICE 
 FILED THE FOLLOWING 
 
 OPINION. 
 
 EX PARTE JOHN MEEEYMAN. 
 
 Before the Chief Justice of the Supreme Court of the United States, 
 at diambers. 
 
 The application in this case for a writ of habeas corpus is made 
 to me under the 14th Section of the Judiciary Act of 1789, which 
 renders effectual for the citizen the constitutional privilege of the 
 writ of habeas corpus. That act gives to the Courts of the United 
 States, as well as to each Justice of the Supreme Court, and to 
 every District Judge, power to grant writs of habeas corpus for the 
 purpose of an inquiry into the cause of commitment. The petition 
 was presented to me at Washington, under the impression that I 
 would order the prisoner to be brought before me there ; but as he 
 was confined in Fort McHenry, at the city of Baltimore, which is 
 in my circuit, I resolved to hear it in the latter city, as obedience 
 to the writ, under such circumstances, would not withdraw General 
 Cadwalader, who had him in charge, from the limits of his mili- 
 tary command. 
 
 The petition presents the following case : The petitioner resides 
 in Maryland, in Baltimore County. While peaceably in his own 
 house, with his family, it was at two o'clock, on the morning of the 
 25th of May, 1861, entered by an armed force, professing to act 
 under military orders. He was then compelled to rise from his 
 bed, taken into custody, and conveyed to Fort McHenry, where 
 he is imprisoned by the commanding officer, without warrant from 
 any lawful authority. 
 
 The Commander of the Fort, General George Cadwalader, by 
 whom he is detained in confinement, in his return to the writ, does 
 not deny any of the facts alleged in the petition. He states that 
 the prisoner was arrested by order of General Keim, of Pennsyl- 
 vania, and conducted as aforesaid to Fort McHenry by his order, 
 and placed in his (General Cadwalader's) custody, to be there de- 
 tained by him as a prisoner. 
 
 A copy of the warrant or order under which the prisoner was 
 arrested was demanded by his counsel, and refused : And it is not 
 
Appendix. 647 
 
 alleged in the return that any specific act, constituting any offence 
 against the laws of the United States, has been charged against 
 him upon oath, but he appears to have been arrested upon general 
 charges of treason and rebellion, without proof, and without giv- 
 ing the names of the witnesses, or S23ecifying the acts which, in the 
 judgment of the military officer, constituted these crimes. Andi 
 having the prisoner thus in custody upon these vague and unsup- 
 ported accusations, he refuses to obey the writ of habeas corpus, 
 upon the ground that he is duly authorized by the President to 
 suspend it. 
 
 The case, then, is simply this : — A military officer, residing in 
 Pennsylvania, issues an order to arrest a citizen of Maryland, upon 
 vague and indefinite charges, without any proof, so far as appears. 
 Under this order, his house is entered in the night, he is seized as 
 a prisoner, and conveyed to Fort McHenry, and there kejst in 
 close confinement. And when a habeas corpus is served on the 
 commanding officer, requiring him to produce the prisoner before 
 a Justice of the Supreme Court, in order that he may examine 
 into the legality of the imprisonment, the answer of the officer is 
 that he is authorized by the President to suspend the writ of habeas 
 corpus at his discretion, and, in the exercise of that discretion, sus- 
 pends it in this case, and on that ground refuses obedience to the 
 writ. 
 
 As the case comes before me, therefore, I understand that the 
 President not only claims the right to suspend the writ of habeas 
 corp^is himself, at his discretion, but to delegate that discretionary 
 power to a military officer, and to leave it to him to determine 
 whether he will or will not obey judicial process that may be 
 served upon him. 
 
 No official notice has been given to the courts of justice, or to 
 the public, by proclamation or otherwise, that the President 
 claimed this power, and had exercised it in the manner stated in 
 the return. And I certainly listened to it with some surprise, for 
 I had supposed it to be one of those points of constitutional law 
 upon which there was no difference of opinion, and that it was 
 admitted on all hands that the privilege of the writ could not be 
 suspended, except by act of Congress. 
 
 When the conspiracy of which Aaron Burr was the head be- 
 came so formidable, and was so extensively ramified as to justify. 
 
648 Appendix. 
 
 in Mr. Jefferson's opinion, the suspension of the writ, he claimed, 
 on his part, no power to suspend it, but communicated his opinion 
 to Congress, with all the proofs in his possession, in order that 
 Congress might exercise its discretion upon the subject, and de- 
 termine whether the public safety required it. And in the debate 
 which took place upon the subject, no one suggested that Mr. 
 Jefferson might exercise the power himself if, in his opinion, the 
 public safety demanded it. 
 
 Having, therefore, regarded the question as too plain and too 
 well settled to be open to dispute, if the commanding officer had 
 stated that upon his own responsibility, and in the exercise of his 
 own discretion, he refused obedience to the writ, I should have 
 contented myself with referring to the clause in the Constitution, 
 and to the construction it received from every jurist and statesman 
 of that day, when the case of Burr was before them. But being 
 thus officially notified that the privilege of the writ has been sus- 
 pended under the orders, and by the authority, of the President, 
 and believing, as I do, that the President has exercised a power 
 which he does not possess under the Constitution, a proper respect 
 for the high office he fills requires me to state plainly and fully 
 the grounds of my opinion, in order to show that I have not 
 ventured to question the legality of his act without a careful and 
 deliberate examination of the whole subject. 
 
 The clause of the Constitution, which authorizes the suspension 
 of the privilege of the writ of habeas corpus, is in the 9th section 
 of the first article. 
 
 This article is devoted to the legislative department of the 
 United States, and has not the slightest reference to the executive 
 department. It begins by providing " that all legislative powers 
 therein granted shall be vested in a Congress of the United States, 
 which shall consist of a Senate and House of Representatives." 
 And after prescribing the manner in which these two branches of 
 the legislative department shall be chosen, it proceeds to enumer- 
 ate specifically the legislative powers which it thereby grants ; 
 and, at the conclusion of this specification, a clause is inserted 
 giving Congress "the power to make all laws which maybe neces- 
 sary and proper for carrying into execution the foregoing powers, 
 and all other powers vested by this Constitution in the Govern- 
 ment of the United States, or in any department or office thereof." 
 
Appendix. 649 
 
 The power of legislation granted by this latter clause is by its 
 words carefully confined to the specific objects before enumerated. 
 But as this limitation was unavoidably somewhat indefinite, it was 
 deemed necessary to guard more effectually certain great cardinal 
 principles essential to the liberty of the citizen, and to the rights 
 and equality of the States, by denying to Congress, in express 
 terms, any power of legislation over them. It was apprehended, 
 it seems, that such legislation might be attempted under the pre- 
 text that it was necessary and proper to carry into execution the 
 powers granted ; and it was determined that there should be no 
 room to doubt, where rights of such vital importance were con- 
 cerned, and accordingly, this clause is immediately followed by an 
 enumeration of certain subjects, to which the powers of legislation 
 shall not extend ; and the great importance which the framers of 
 the Constitution attached to the privilege of the writ of habeas 
 corpus to protect the liberty of the citizen is proved by the fact 
 that its suspension, except in cases of invasion and rebellion, is 
 first in the list of prohibited powers — and even in these cases the 
 power is denied, and its exercise prohibited, unless the public 
 safety shall require it. 
 
 It is true that in the cases mentioned. Congress is of necessity 
 the judge of whether the public safety does or does not require it ; 
 and their judgment is conclusive. But the introduction of these 
 words is a standing admonition to the legislative body of the 
 danger of suspending it, and of the extreme caution they should 
 exercise before they give the Government of the United States 
 such power over the liberty of a citizen. 
 
 It is the second article of the Constitution that provides for the 
 organization of the executive department, and enumerates the 
 powers conferred on it, and prescribes its duties. And if the high 
 power over the liberty of the citizen now claimed was intended to 
 be conferred on the President, it would undoubtedly be found in 
 plain words in this article. But there is not a word in it that can 
 furnish the slightest ground to justify the exercise of the power. 
 
 The article begins by declaring that the executive power shall 
 he vested in a President of the United States of America, to hold 
 his office during the term of four years — and then proceeds to 
 prescribe the mode of election, and to specify in precise and plain 
 words the powers delegated to him, and the duties imposed upon 
 
650 Appendix. 
 
 him. And the short term for which he is elected, and the narrow 
 limits to which his power is confined, show the jealousy and ap- 
 prehensions of future danger which the framers of the Constitu- 
 tion felt in relation to that department of the Government, and 
 how carelully they withheld from it many of the powers belong- 
 ing to the executive branch of the English Government, which 
 were considered as dangerous to the liberty of the subject — and 
 conferred ( and that in clear and specific terms) those powers only 
 which were deemed essential to secure the successful operation of 
 the Government. 
 
 He is elected, as I have already said, for the brief term of four 
 years, and is made personally responsible, by impeachment, for 
 malfeasance in office. He is from necessity and the nature of his 
 duties the commander-in-chief of the army and navy, and of the 
 militia, when called into actual service. But no appropriation for 
 the support of the army can be made by Congress for a longer 
 term than two years, so that it is in the power of the succeeding 
 House of Representatives to withhold the appropriation for its 
 support, and thus disband it, if, in their judgment, the President 
 used or designed to use it for improper purposes. And although 
 the militia, when in actual service, are under his command, yet 
 the appointment of the ofiicers is reserved to the States as a 
 security against the use of the military power for purposes danger- 
 ous to the liberties of the people or the rights of the States. 
 
 So, too, his powers in relation to the civil duties and authority 
 necessarily conferred on him are carefully restricted, as well as 
 those belonging to his military character. He cannot appoint the 
 ordinary ofiicers of Government, nor make a treaty with a foreign 
 nation or Indian tribe, without the advice and consent of the 
 Senate, and cannot appoint even inferior ofiicers, unless he is 
 authorized by an act of Congress to do so. He is not empowered 
 to arrest any one charged with an offence against the United 
 States, and whom he may, from the evidence before him, believe 
 to be guilty ; nor can he authorize any officer, civil or military, to 
 exercise this power, for the 5th article of the Amendments to the 
 Constitution expressly provides that no person " shall be deprived 
 of life, liberty, or property, without due process of law " — that is, 
 judicial process. 
 
 And even if the privilege of the writ of habeas corpus were sus- 
 
Appendix. 651 
 
 pended by act of Congress, and a party not subject to the rules 
 and articles of war was afterwards arrested and iroprisoned by 
 regular judicial process, he could not be detained in prison, or 
 brought to trial before a military tribunal, for the article in the 
 Amendments to the Constitution immediately following the one 
 above referred to — that is, the 6th article— provides that " in all 
 criminal prosecutions the accused shall enjoy the right to a speedy 
 and public trial by an impartial jury of the State and district 
 wherein the crime shall have been committed, which district shall 
 have been previously ascertained by law, and to be informed of 
 the nature and cause of the accusation ; to be confronted with the 
 witnesses against him ; to have compulsory process for obtaining 
 witnesses in his favor, and to have the assistance of counsel for 
 his defence." 
 
 And the only power, therefore, which the President possesses, 
 where the " life, liberty, or property " of a private citizen are con- 
 cerned, is the power and duty prescribed in the third section of 
 the second article, which requires " that he shall take care that the 
 laws shall be faithfully executed." He is not authorized to exe- 
 cute them himself, or through agents or officers, civil or military, 
 appointed by himself, but he is to take care that they be faithfully 
 carried into execution, as they are expounded and adjudged by 
 the co-ordinate branch of the Government to which that duty is 
 assigned by the Constitution. It is thus made his duty to come in 
 aid of the judicial authority, if it shall be resisted by a force too 
 strong to be overcome without the assistance of the Executive 
 arm. But in exercising this power he acts in subordination to 
 judicial authority, assisting it to execute its process and enforce 
 its judgments. 
 
 With such provisions in the Constitution, expressed in language 
 too clear to be misunderstood by any one, I can see no ground 
 whatever for supposing that the President, in any emergency or in 
 any state of things, can authorize the suspension of the privileges 
 of the writ of habeas corpus, or arrest a citizen, except in aid of 
 the judicial power. He certainly does not faithfully execute the 
 laws if he takes upon himself legislative power by suspending the 
 writ of habeas corpus, and the judicial power also, by arresting 
 and imprisoning a person without due process of law. Nor can 
 any argument be drawn from the nature of sovereignty, or the 
 
652 Appendix. 
 
 necessity of government, for self-defence in times of tumult and 
 danger. The Government of the United States is one of delegated 
 and limited powers. It derives its existence and authority alto- 
 gether from the Constitution, and neither of its branches, Executive, 
 Legislative, or Judicial, can exercise any of the powers of govern- 
 ment beyond those specified and granted. For the 10th article of 
 the Amendments to the Constitution in express terms provides that 
 " the powers not delegated to the United States by the Constitu- 
 tion, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people." 
 
 Indeed, the security against imprisonment by executive author- 
 ity, provided for in the fifth article of the Amendments to the 
 Constitution, which I have before quoted, is nothing more than a 
 copy of the like provision in the English Constitution, which had 
 been firmly established before the Declaration of Independence. 
 
 Blackstone, in his Commentaries (1st vol., page 137), states it 
 in the following words : 
 
 " To make imprisonment lawful, it must be either by process of 
 law from the Courts of Judicature or by warrant from some legal 
 officer having authority to commit to prison." And the people of 
 the United Colonies, who had themselves lived under its protection 
 while they were British subjects, were well aware of the necessity 
 of this safeguard for their personal liberty. And no one can be- 
 lieve that in framing a government intended to guard still more 
 efficiently the rights and liberties of the citizen against executive 
 encroachment and oppression, they would have conferred on the 
 President a power which the history of England had proved to be 
 dangerous and oppressive in the hands of the Crown, and which 
 the people of England had compelled it to surrender after a long 
 and obstinate struggle on the part of the English Executive to 
 usurp and retain it. 
 
 The right of the subject to the benefit of the writ of habeas cor- 
 pus, it must be recollected, was one of the great points in contro- 
 versy during the long struggle in England between arbitrary gov- 
 ernment and free institutions, and must therefore have strongly 
 attracted the attention of the statesmen engaged in framing a new 
 and, as they supposed, a freer Government than the one which 
 they had thrown off by the Revolution. For from the earliest his- 
 tory of the common law, if a person were imprisoned, no matter 
 
Appendix. 653 
 
 by what authority, he had a right to the writ of habeas corpus to 
 bring his case before the King's Bench ; and if no specific offence 
 was charged against him in the warrant of commitment, he was 
 entitled to be forthwith discharged ; and if an offence was charged 
 which was bailable in its character, the Court was bound to set 
 him at liberty on bail. And the most exciting contests between the 
 Crown and the people of England from the time of Magna Charta 
 were in relation to the privilege of this writ, and they continued 
 until the passage of the statute of 31st Charles II., commonly 
 known as the great habeas corpus act. 
 
 This statute put an end to the struggle, and finally and firmly 
 secured the liberty of the subject against the usurpation and oppres- 
 sion of the Executive branch of the Government. It nevertheless 
 conferred no new right upon the subject, but only secured a right 
 already existing. For, although the right could not justly be de- 
 nied, there was often no effectual remedy against its violation. 
 Until the statute of 13th William III., the judges held their offices 
 at the pleasure of the King, and the influence which he exercised 
 over timid, time-serving, and partisan judges often induced them, 
 upon some pretext or other, to refuse to discharge the party, 
 although entitled by law to his discharge, or delayed their deci- 
 sions from time to time, so as to prolong the imprisonment of per- 
 sons who were obnoxious to the King for their political opinions, 
 or had incurred his resentment in any other way. 
 
 The great and inestimable value of the habeas corpus act of the 
 31st Charles II. is that it contains provisions which compel courts 
 and judges, and all parties concerned, to perform their duties 
 promptly, in the manner specified in the statute. 
 
 A passage in Blackstone's Commentaries, showing the ancient 
 state of the law on this subject, and the abuses which were prac- 
 tised through the power and influence of the Crown, and a short 
 extract from Hallam's Constitutional History, stating the circum- 
 stances which gave rise to the passage of this statute, explain 
 briefly, but fully, all that is material to this subject. 
 
 Blackstone, in his Commentaries on the Laws of England (3d 
 vol., pages 133, 134j, says: 
 
 "To assert an absolute exemption from imprisonment in all 
 cases is inconsistent with every idea of law and political society, 
 and in the end would destroy all civil liberty by rendering its pro- 
 tection impossible. 
 
654 Appendix. 
 
 " But the glory of the English law consists in clearly defining the 
 times, the causes, and the extent, when, wherefore, and to what 
 d^ree the imprisonment of the subject may be lawful. This it is 
 which induces the absolute necessity of expressing upon every 
 commitment the reason for which it is made, that the Court upon 
 a habeas corpus may examine into its validity, and according to 
 the circumstances of the case may discharge, admit to bail or 
 remand the prisoner. 
 
 "And yet early in the reign of Charles I. the Court of King's 
 Bench, relying on some arbitrary precedents (and those perhaps 
 misunderstood), determined that they would not, upon a habeas 
 corpus, either bail or deliver a prisoner, though committed without 
 any cause assigned, in case he was committed by the special com- 
 mand of the King or by the Lords of the Privy Council. This 
 drew on a Parliamentary inquiry and produced the Petition of 
 Eight — 3 Charles I. — which recites this illegal judgment, and 
 enacts that no freeman hereafter shall be so imprisoned or de- 
 tained. But when in the following year Mr. Selden and others 
 were committed by the Lords of the Council in pursuance of his 
 Majesty's special command, under a general charge of ' notable 
 contempts, and stirring up sedition against the King and the Gov- 
 ernment,' the judges delayed for two terms (including also the 
 long vacation) to deliver an opinion how far such a charge was 
 bailable. And when at length they agreed that it was, they how- 
 ever annexed a condition of finding sureties for their good be- 
 havior, which still protracted their imprisonment, the Chief Jus- 
 tice, Sir Nicholas Hyde, at the same time declaring that ' if they 
 were again remanded for that cause, perhaps the Court would not 
 afterwards grant a habeas corpus, being already made acquainted 
 with the cause of the imprisonment.' But this was heard with 
 indignation and astonishment by every lawyer present, according 
 to Mr. Selden's own account of the matter, whose resentment was 
 not cooled at the distance of four and twenty years." 
 
 It is worthy of remark that the offences charged against the 
 prisoner in this case, and relied on as a justification for his arrest 
 and imprisonment, in their nature and character, and in the loose 
 and vague manner in which they are stated, bear a striking re- 
 semblance to those assigned in the warrant for the arrest of Mr. 
 Selden. And yet, even at that day, the warrant was regarded as 
 
Appendix. 655 
 
 such a flagrant violation of the rights of the subject that the 
 delay of the time-serving judges to set him at liberty upon the 
 habeas corpus issued in his behalf excited the universal indignation 
 of the bar. The extract from Hallam's Constitutional History is 
 equally impressive, and equally in point. (It is in vol. 4, p. 9, 
 and is also cited at length in the note to pp. 136, 137, of the 3d 
 volume of Wendell's edition oi Blackstone.) 
 
 " It is a very common mistake, and not only among foreigners, 
 but many from whom some knowledge of our constitutional laws 
 might be expected, to suppose that this statute of Charles II. 
 enlarged in a great degree our liberties, and forms a sort of epoch 
 in their history. But though a very beneficial enactment, and 
 eminently remedial in many cases of illegal imprisonment, it in- 
 troduced no new principle, nor conferred any right upon the sub- 
 ject. From the earliest records of the English law, no freeman 
 could be detained in prison, except upon a criminal charge or 
 conviction, or for a civil debt. In the former case it was always 
 in his power to demand of the Court of King's Bench a writ of 
 habeas corpus ad subjiciendum, directed to the person detaining 
 him in custody, by which he was enjoined to bring up the body of 
 the prisoner with the warrant of commitment that the Court might 
 judge of its sufficiency and remand the party, admit him to bail, 
 or discharge him, according to the nature of the charge. This 
 writ issued of right, and could not be refused by the Court. It 
 was not to bestow an immunity from arbitrary imprisonment, 
 which is abundantly provided for in Magna Charta, (if, indeed, it 
 is not more ancient,) that the statute of Charles II. was enacted, 
 but to cut off the abuses by which the Government's lust of power, 
 and the servile subtlety of Crown lawyers, had impaired so funda- 
 mental a privilege." 
 
 While the value set upon this writ in England has been so 
 great that the removal of the abuses which embarrassed its enjoy- 
 ment have been looked upon as almost a new grant of liberty to 
 the subject, it is not to be wondered at that the continuance of the 
 writ thus made effective should have been the object of the most 
 jealous care. Accordingly, no power in England, short of that 
 of Parliament, can suspend or authorize the suspension of the 
 writ of habeas corpus. I quote again from Blackstone (1 Comm., 
 136) : " But the hap>piness of our Constitution is that it is not left 
 
656 Appendix. 
 
 to the Executive power to determine when the danger of the State 
 is so great as to render this measure expedient. It is the Parlia- 
 ment only or legislative power that, whenever it sees proper, can 
 authorize the Crown, by suspending the habeas corpus for a short 
 and limited time, to imprison suspected persons without giving any 
 reason for so doing." And if the President of the United States 
 may suspend the writ, then the Constitution of the United States 
 has conferred upon him more regal and absolute power over the 
 liberty of the citizen than the people of England have thought it 
 safe to entrust to the Crown — a power which the Queen of Eng- 
 land cannot exercise at this day, and which could not have been 
 lawfully exercised by the sovereign even in the reign of Charles 
 the First. 
 
 But I am not left to form my judgment upon this great question 
 from analogies between the English Government and our own, or 
 the commentaries of English jurists, or the decisions of English 
 courts, although upon this subject they are entitled to the highest 
 respect, and are justly regarded and received as authoritative by 
 our courts of justice. To guide me to a right conclusion, I have 
 the commentaries on the Constitution of the United States of the 
 late Mr. Justice Story, not only one of the most eminent jurists of 
 the age, but for a long time one of the brightest ornaments of the 
 Supreme Court of the United States, and also the clear and authori- 
 tative decision of that Court itself, given more than half a cen- 
 tury since, and conclusively establishing the principles I have 
 above stated. 
 
 Mr. Justice Story, speaking in his Commentaries of the habeas 
 coiyus clause in the Constitution, says : 
 
 "It is obvious that cases of a peculiar emergency may arise, 
 which may justify, nay, even require, the temporary suspension of 
 any right to the writ. But as it has frequently happened in foreign 
 countries, and even in England, that the writ has, upon various 
 pretexts and occasions, been suspended, whereby persons appre- 
 hended upon suspicion have suffered a long imprisonment, some- 
 times from design, and sometimes because they were forgotten, the 
 right to suspend it is expressly confined to cases of rebellion or 
 invasion, where the public safety may require it. A very just and 
 wholesome restraint, which cuts down at a blow a fruitful means 
 of oppression, capable of being abused in bad times to the worst 
 
Appendix. 657 
 
 of purposes. Hitherto no suspension of the writ has ever been 
 authorized by Congress since the establishment of the Constitu- 
 tion. It would seem, as the power is given to Congress to suspend 
 the writ of habeas corjjus in eases of rebellion or invasion, that the 
 right to judge whether the exigency had arisen must exclusively 
 belong to that body." 3 Story's Comm. on the Constitution, sec- 
 tion 1336. 
 
 And Chief-Justice Marshall, in delivering the opinion of the 
 Supreme Court in the case of ex parte Bollman and Swartwout, 
 uses this decisive language in 4 Cranch, 95 : " It may be worthy 
 of remark that this act (speaking of the one under which I am 
 proceeding) was passed by the first Congress of the United States, 
 sitting under a Constitution which had declared ' that the privilege 
 of the writ of habeas corpus should not be suspended unless when, 
 in cases of rebellion or invasion, the public safety might require 
 it.' Acting under the immediate influence of this injunction, they 
 must have felt, with peculiar force, the obligation of providing 
 efficient means by which this great constitutional privilege should 
 receive life and activity ; for if the means be not in existence, the 
 privilege itself would be lost, although no law for its suspension 
 should be enacted. Under the impression of this obligation they 
 give to all the Courts the power of awarding writs of habeas 
 corpus." 
 
 And again. La page 101 : 
 
 " If at any time the public safety should require the suspension 
 of the powers vested by this act in the Courts of the United States, 
 it is for the Legislature to say so. That question depends on 
 political considerations, on which the Legislature is to decide. 
 Until the Legislative will be expressed, this Court can only see its 
 duty, and must obey the laws." 
 
 I can add nothing to these clear and emphatic words of my great 
 predecessor. 
 
 But the documents before me show that the military authority 
 in this case has gone far beyond the mere suspension of the privi- 
 lege of the writ of habeas em-pus. It has, by force of arms, thrust 
 aside the judicial authorities and officers to whom the Constitution 
 has confided the power and duty of interpreting and administer- 
 ing the laws, and substituted a military government in its place, 
 to be administered and executed by military oflicers. For at the 
 42 
 
658 Appendix. 
 
 time tliese proceediogs were had against John Merryman, the 
 District Judge of Maryland, the Commissioner appointed under 
 the act of Congress, the District Attorney, and the Marshal, all 
 resided in the city of Baltimore, a few miles only from the home 
 of the prisoner. Up to that time there had never been the slight- 
 est resistance or obstruction to the process of any Court or judicial 
 officer of the United States in Maryland, except by the military 
 authority. And if a military officer, or any other person, had 
 reason to believe that the prisoner had committed any ofi'ence 
 against the laws of the United States, it was his duty to give in- 
 formation of the fact, and the evidence to support it, to the Dis- 
 trict Attorney ; and it would then have become the duty of that 
 officer to bring the matter before the District Judge or Commis- 
 sioner, and if there was sufficient legal evidence to justify his 
 arrest, the Judge or Commissioner would have issued his warrant 
 to the Marshal to arrest him ; and upon the hearing of the case 
 would have held him to bail, or committed him for trial, accord- 
 ing to the character of the offence as it appeared in the testimony, 
 or would have discharged him immediately, if there was not suf- 
 ficient evidence to support the accusation. There was no danger 
 of any obstruction or resistance to the action of the civil au- 
 thorities, and therefore no reason whatever for the interposition 
 of the military. 
 
 And yet, under these circumstances, a military officer, stationed 
 in Pennsylvania, without giving any information to the District 
 Attorney, and without any application to the judicial authorities, 
 assumes to himself the judicial power in the District of Maryland ; 
 undertakes to decide what constitutes the crime of treason or rebel- 
 lion ; what evidence (if, indeed, he required any) is sufficient to 
 support the accusation and justify the commitment ; and commits 
 the party, without a hearing even before himself, to close custody 
 in a strongly garrisoned fort, to be there held, it would seem, dur- 
 ing the pleasure of those who committed him. 
 
 The Constitution provides, as I have before said, that " no per- 
 son shall be deprived of life, liberty, or property without due pro- 
 cess of law." It declares that " the right of the people to be 
 secure in their persons, houses, papers, and effects, against unreason- 
 able searches and seizures, shall not be violated, and no warrant 
 shall issue, but upon probable cause, supported by oath or affirma- 
 
Appendix. 659 
 
 tion, and particularly describing the place to be searched, and the 
 persons or things to be seized." It provides that the party accused 
 shall be entitled to a speedy trial in a court of justice. 
 
 And these great and fundamental laws, which Congress itself 
 could not suspend, have been disregarded and suspended, like the 
 writ of habeas corpus, by a military order, supported by force of 
 arms. Such is the case now before me, and I can only say that if 
 the authority which the Constitution has confided to the judiciary 
 department and judicial officers may thus upon any pretext or 
 under any circumstances be usurped by the military power at its 
 discretion, the people of the United States are no longer living 
 under a government of laws, but every citizen holds life, liberty, 
 and property at the will and pleasure of the army officer in whose 
 military district he may happen to be found.* 
 
 In such a case my duty was too plain to be mistaken. I have 
 exercised all the power which the Constitution and laws confer 
 upon me, but that power has been resisted by a force too strong for 
 me to overcome. It is possible that the officer who has incurred 
 this grave responsibility may have misunderstood his instructions, 
 and exceeded the authority intended to be given him. I shall, 
 therefore, order all the proceedings in this case, with my opinion, 
 to be filed and recorded in the Circuit Court of the United States 
 for the District of Maryland, and direct the Clerk to transmit a 
 copy, under seal, to the President of the United States. It will 
 then remain for that high officer, in fulfilment of his constitu- 
 tional obligation, to " take care that the laws be faithfully exe- 
 cuted," to determine what measures he will take to cause the civil 
 process of the United States to be respected and enforced. 
 
 R. B. TANEY, 
 Chief Justice of the Supreme Court of the United States. 
 
 * See letter to Conway Kobinson, p. 460. 
 
 THE END.