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Roger B. Taney

From Wikipedia, the free encyclopedia

Roger Taney
Roger B. Taney - Brady-Handy.jpg
5th Chief Justice of the United States
In office
March 28, 1836 – October 12, 1864
Nominated byAndrew Jackson
Preceded byJohn Marshall
Succeeded bySalmon Chase
12th United States Secretary of the Treasury
In office
September 23, 1833 – June 25, 1834
PresidentAndrew Jackson
Preceded byWilliam Duane
Succeeded byLevi Woodbury
11th United States Attorney General
In office
July 20, 1831 – November 14, 1833
PresidentAndrew Jackson
Preceded byJohn Berrien
Succeeded byBenjamin Butler
United States Secretary of War
In office
June 18, 1831 – August 1, 1831
PresidentAndrew Jackson
Preceded byJohn Eaton
Succeeded byLewis Cass
Attorney General of Maryland
In office
September 1827 – June 18, 1831
GovernorJoseph Kent
Daniel Martin
Thomas Carroll
Daniel Martin
Preceded byThomas Kell
Succeeded byJosiah Bayly
Personal details
Roger Brooke Taney

(1777-03-17)March 17, 1777
Calvert County, Maryland, U.S.
DiedOctober 12, 1864(1864-10-12) (aged 87)
Washington, D.C., U.S.
Political partyFederalist (Before 1828)
Democratic (1828–1864)
Anne Key
(m. 1806; died 1855)
EducationDickinson College (BA)

Roger Brooke Taney (/ˈtɔːni/ TAW-nee; March 17, 1777 – October 12, 1864) was the fifth Chief Justice of the Supreme Court, holding that office from 1836 until his death in 1864. He delivered the majority opinion in Dred Scott v. Sandford (1857), ruling that African Americans could not be considered citizens and that Congress could not prohibit slavery in the territories of the United States. Prior to joining the Supreme Court, Taney served as the United States Attorney General and United States Secretary of the Treasury under President Andrew Jackson.

Taney was born into a wealthy, slave-owning family in Calvert County, Maryland. He won election to the Maryland House of Delegates as a member of the Federalist Party, but later broke with the party over the War of 1812. After switching to the Democratic Party, Taney was elected to the Maryland Senate in 1816. He emerged as one of the most prominent attorneys in the state and was appointed as the Attorney General of Maryland in 1827. Taney supported Andrew Jackson's presidential campaigns in 1824 and 1828, and he became a member of Jackson's Democratic Party. After a cabinet shake-up in 1831, President Jackson appointed Taney as his attorney general. Taney became one of the most important members of Jackson's cabinet and played a major role in the Bank War. Beginning in 1833, Taney served as secretary of the treasury under a recess appointment, but his nomination to that position was rejected by the United States Senate.

In 1835, after Democrats took control of the Senate, Jackson appointed Taney to succeed John Marshall on the Supreme Court as Chief Justice. Taney would preside over a jurisprudential shift toward states' rights, but the Taney Court did not reject federal authority to the degree that many of Taney's critics had feared. By the early 1850s, he was widely respected, and some elected officials looked to the Supreme Court to settle the national debate over slavery. Though he did not own slaves himself, Taney was outraged by Northern attacks on slavery, and he sought to use the Dred Scott decision to permanently remove slavery as a subject of national debate. His broad ruling deeply angered many Northerners and strengthened the anti-slavery Republican Party, and Republican Abraham Lincoln won the 1860 presidential election.

After Lincoln's election, Taney sympathized with the seceding Southern states, but he did not resign from the Supreme Court. He strongly disagreed with President Abraham Lincoln's more broad interpretation of executive power in the American Civil War. In Ex parte Merryman, Taney held that the president could not suspend the writ of habeas corpus. At the time of Taney's death in 1864, he was widely reviled in the North, and he continues to have a controversial historical reputation. The Dred Scott ruling is widely considered to be one of the worst Supreme Court decisions ever made, though some scholars hold other aspects of Taney's tenure in high regard.

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  • ✪ Abraham Lincoln, the U.S. Supreme Court & the Politics of Slavery
  • ✪ Dred Scott & Roger B. Taney
  • ✪ 6th March 1857: The US Supreme Court's ruling in the Dred Scott case
  • ✪ Roger B. Taney Chief Justice of the Supreme Court - The Dred Scott Decision March 6, 1857
  • ✪ The Book Lincoln and Obama Have In Common


>> From the Library of Congress in Washington, DC. >> Good afternoon, and welcome. My name is Mary Lou Reker and on behalf of the Library of Congress's John W. Kluge Center, I want to welcome you to a talk today by Dr. Rachel Shelden entitled, "Abraham Lincoln and the US Supreme Court and the Politics of Slavery". Now, before I get started here, I want to remind you that we are recording this for the library's website, so any questions you may ask at the end constitute your permission to keep that question in the recording. So, just be aware of that. Many of you know that the Kluge Center is located right through those doors, up here on Capitol Hill. And it strives to bring together scholars and researchers to make use of the collections of the Library of Congress and to communicate with policymakers across the city and around the country. And also to foster a collegial atmosphere in which scholarship can generate more scholarship and deeper scholarship. Dr. Rachel Shelden has been an integral member of the community here at the Kluge Center this past year. Her research at the library focuses on the US Supreme Court during the 19th century. Her talk will examine the Supreme Court before the Civil War, and in particular, a conspiracy charge to perpetuate slavery, which was levied by the then senatorial candidate, Abraham Lincoln, against a variety of members of the federal government. Shelden will reexamine Lincoln's conspiracy charge in the context of how the federal political system, and particularly the US Supreme Court, operated in the mid-19th century. Rachel Shelden is an assistant professor in American History at the University of Oklahoma. She is the author of "Washington Brotherhood, Politics, Social Life and the Coming of the Civil War". She is also coeditor of the book, "A Political Nation, New Directions in Mid-Nineteenth Century American Political Theory". She received her PhD from the University of Virginia, and as a Kluge Fellow, researched her future monograph, the third here. "On the Political History of the US Supreme Court from the Mid-1830s through the 1890s". Please help me welcome her, Dr. Rachel Shelden. [ Applause ] >> Thank you so much. And thank you, Mary Lou. Before I talk about Lincoln, which I know you're all here to hear about, I want to thank all of the wonderful folks at the Library of Congress for supporting my project. It has been an absolute privilege to be a Kluge Fellow. And the Kluge Center really is a special place to work. I want to thank all of the staff, and particularly Mary Lou. Jason Steinhauer, Joanne Kitchens, Dan Turello, Robert Gallucci and Travis Hensley, among others. As always, I had a wonderful experience researching in the Manuscript Division, and I want to thank Michelle Crowell, who's here, who helped me out in a number of ways, in addition to the incredibly knowledgeable reference staff for all of their help, and especially their good cheer. While in residence, I had the wonderful opportunity to work with Kluge Center intern, Jack Femol [presumed spelling]. He helped with the database project on the Supreme Court cases and lawyers, which has proved tremendously useful in my research so far. And finally, I want to thank all of the fellows for their many, many pointed insights, their heartfelt support and engaging conversation. So, with that said, I want to tell you a little bit about the larger project that I have been doing here at the Kluge Center. I've been working on a political history of the Supreme Court in the Civil War era, from roughly the 1830s to the 1890s. My project is primarily concerned with the ways in which the Supreme Court was and acted as a political body during this period. And one of the key points that I intend to make is that we should think about the Supreme Court, not as a separate and isolated institution, but rather as an integral and interconnected part of the federal political apparatus in the 19th century. As the evidence here at the library demonstrated in the incredible sources in the Jefferson Building and in the Manuscript Division in numerous letters from Supreme Court Justices and the lawyers who tried cases in front of them, the experience and the context of serving as a Supreme Court Justice was inherently political. In essence, political history is about the Supreme Court, too. Reframing our understanding of the court in this context can tell us much about the way 19th century Supreme Court justices thought about their roles in promoting democracy, union and liberty. But the justices' political behavior also influenced their engagement with some of the most important issues of this period, particularly issues involving slavery and race. There are a number of ways to get at this relationship between politics, the Supreme Court and slavery and race in the mid-19th century, but given that we have just passed Lincoln's birthday late last week, I thought there was no better entry point into the political history of the Supreme Court in the Civil War era. So, I want to start with a famous political accusation that Lincoln made about an equally famous Supreme Court ruling. In June, 1858, Abraham Lincoln delivered an address at Springfield, Illinois, that has come to be known as his "House Divided" speech. This was a speech many of you are undoubtedly familiar with. Lincoln began, "A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free." As Lincoln explained, the United States would have to go one direction or the other. Become an entirely non-slaveholding nation, or an entirely slaveholding nation. The opening section of the speech is the most famous piece, probably the piece you have heard. But the rest of the address is equally noteworthy. Here Lincoln developed and explained his theory that there was a conspiracy among four men to spread slavery throughout the United States. To make this an entirely slaveholding nation by making slavery legal not only in the southern states, but in the north, as well. The men in this conspiracy were Lincoln's chief rival in Illinois, Stephen Douglas, and three other federal leaders, former president Franklin Pierce, President James Buchanan and Chief Justice of the Supreme Court, Roger Taney. According to Lincoln, the conspiracy began in 1854 when Stephen Douglas introduced the Kansas-Nebraska Act into the Senate. Douglas's bill upended a 30-plus year ban on slavery in the US Territory above the 36' 30" Latitude, or what we think of as the line that separates south from north. Instead, the Kansas-Nebraska act implemented the principle of popular sovereignty, or the ability of people in the territory to vote in favor or against slavery in their borders. According to Lincoln, three years later, the Supreme Court finalized and compounded the move toward nationalizing slavery in the case of Dred Scott v. Sanford. On March 6th 1857, Chief Justice, Roger Taney, read the majority opinion in Dred Scott, which denied African Americans the right to be citizens of the United States. And in the most consequential part of this particular ruling for Lincoln's charge, prohibited congress from restricting slavery in the US Territories. Now, in between these two monumental moves, outgoing president, Franklin Pierce, had encouraged acceptance of the Kansas-Nebraska legislation and any potential consequences that came from it. And a mere two days before the court issued its decision in Dred Scott, the incoming president, James Buchanan, pressed his inaugural audience to accept whatever the court might decide. Lincoln finally connected the circle back to Douglas, who was similarly insistent that the court receive its due. In the weeks before Buchanan's inauguration, Douglas had been asked by an Illinois colleague on the floor of the senate if it was constitutional for the people of a territory to ban slavery from their borders. Douglas replied that this was a question for the Supreme Court. So, with so many overlapping connections, Lincoln exclaimed in his "House Divided" speech, "We find it impossible to not believe that Steven and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck." Now, on its face, this charge might seem outlandish. There is no evidence to suggest that these four men met in a room and hashed out a plan for Douglas to introduce the Kansas-Nebraska Act in 1854 and Taney to rule in Dred Scott. And in the formalized debates between Lincoln and Douglas that followed, the debates you're familiar with, I'm sure, the Lincoln-Douglas Debates of 1858, Douglas repeatedly denied having spoken to Chief Justice Taney about the matter. He also pointed out, Douglas, that Buchanan was serving as Minister to London when he introduced the Kansas-Nebraska Act, making any conference among the four men in 1854 before the first of Lincoln's conspiratorial moves, wholly impossible. So, why did Lincoln make this charge? Or perhaps more pointedly, did Lincoln really believe that these men had colluded in a plot to spread slavery throughout the United States? Some Lincoln scholars have argued that Lincoln genuinely believed this. If for no other reason, than his abject distrust of his rival, Stephen Douglas. Other scholars have been less sure, suggesting instead that Lincoln made sort of a fanciful argument for the sake of making Douglas look bad. After all, Lincoln was in a heated campaign against Douglas for election to the US Senate from Illinois, and Lincoln was doing all he could to defeat his rival. In fact, earlier in the year, some republicans from the east had suggested that maybe they were going to support Douglas for his senatorial bid, and this really freaked Lincoln out and made him think, "Oh, I really need to show that the democrats are not in a good way on this issue." The political benefit, therefore, of this conspiracy charge, was substantial. And some evidence sustains this interpretation that Lincoln was simply playing a political game. In the joint debates with Douglas that followed his "House Divided" speech, Lincoln repeated the charge. But he was very careful to acknowledge that he could not prove the conspiracy. That he had only inferred that such collusion had taken place. Regardless of whether Lincoln believed the charge or not, the suggestion of conspiracy among federal politicians made for some great political theater. Much like today, charges of conspiracy in the Civil War era sent a powerful message that energized voters. And this particular conspiracy charge had rhetorical legs, because of the plausibility of the argument. Certainly, southern slaveholders were intent on preserving and promoting slavery in their states and in new federal territory. And anti-slavery men in the north had been thoroughly disgusted by Douglas's role in the Kansas-Nebraska Act. Many saw the introduction of popular sovereignty into the territories as a victory for slaveholders. Certainly, the recent tendency to expand the power of slavery made a slaveholder conspiracy sound more likely. And in fact, several republicans in Washington had already been exploiting this northern fear of a slaveholder conspiracy by the time Lincoln delivered his "House Divided" speech. But Lincoln's description of the conspiracy was perhaps even more effective. Because it had the sound bite specifics that others had lacked. He fleshed out the details by naming the four co-conspirators who were directly responsible for this. Stephen and Franklin and Roger and James. The conspiracy featured democrats from all three branches of the federal government, working in concert over some time, culminating in a case before the Supreme Court. And in many ways, this part of the conspiracy, Taney's role in the Dred Scott case, is the part that looks most ethically questionable to all of us. We're used to the idea that the president and members of congress might work together to promote an agenda or a piece of legislation, though, especially these days, that might rely on a president and congress being of the same party. What was really galling about Lincoln's charge, to us at least, is that at least one member of the Supreme Court was in on it. But Lincoln was no less certain that Roger had played a critical role. And I think this is really important. We could simply assume Lincoln was exaggerating the level of the Supreme Court's rule, as some historians have. But I think that misses what was really going on. For Lincoln, the conspiracy was plausible, not just because of recent pro-slavery moves, but because of who was involved in those moves. And the "who" included Roger Taney. The key here is that Lincoln recognized that the Supreme Court was not simply a legal body deciding cases in the vacuum of the court chamber. Rather, he knew first hand that the court was intimately connected to the other branches of government, both in personnel and in operation. There were no stark lines separating senators from justices or even judge from lawyer. In fact, this is an aspect of Lincoln's life that does not get enough attention. Lincoln is known for his brilliant political mind both in the debates with Douglas and then, of course, in his years as president during our nation's most difficult moment, the Civil War. But Lincoln spent most of his career, before becoming president, as a lawyer. Perhaps we have ignored this, in part, because our perception of lawyers is not always very positive today. And this was actually true in the 19th century, as well. Lincoln acknowledged as much in preparing some notes for a law lecture in 1850. He noted, "There is a vague popular belief that lawyers are necessarily dishonest. The impression is common, almost universal." [Laughter] So, perhaps, given this perception in our rush to celebrate Lincoln's important role in our national story, we sometimes minimize his legal contributions. But Lincoln had intimate knowledge, not only of the law, but also the structures of the Judicial System. Lincoln and his several law partners over the years had a bustling business, trying cases in the Illinois Court System. Historians estimate that Lincoln's law practice was involved in nearly 5,000 cases on the state level. And he was also involved in nearly 350 cases on the federal level, including several that reached the Supreme Court. Although Lincoln only made oral arguments in front of the Supreme Court once during his career, in all likelihood, this was not his only experience with the court's proceedings. Until the 20th century, as you may know, the court's chamber was located in the chamber of the Capitol. And Lincoln had spent enough time in the Capitol building during his single term as a US Congressman, to know that the line between legislative and judicial branches was often blurry. In essence, Lincoln was intimately experienced with the ways in which the federal system operated at each level. Ultimately, from this experience in Washington, and in trying cases in the Illinois state and federal courts, Lincoln understood that the 19th century judiciary often operated in fluid and informal ways. Whether he actually believed his own accusations or not, Lincoln's understanding of the Supreme Court as a political body gave even more plausibility to the idea that a conspiracy had occurred. And Lincoln clearly framed his charge with this understanding in mind. So, in the remainder of my time here, I want to show you just how important this judicial context was by highlighting some of the political and legal relationships of the mid-19th century. Relationships that Lincoln would have been familiar with when making his conspiracy charge. In particular, I want to focus on the two types of relationships that I just mentioned, that would have given Lincoln the special knowledge to see collusion. First, the Washington political community and second the community of lawyers and judges that practiced both in Washington and throughout the federal court system. By the end, perhaps you will be as convinced as Lincoln purported to be that Stephen and Franklin and Roger and James were colluding in the Dred Scott decision. So, I'll start with the Washington political community. A community that very much included the Supreme Court. Today, we often assume a very strict level of separation between the Supreme Court and the Legislative and Executive Branches. But, as Lincoln would have noted, in the 19th century, the boundaries between these bodies were much blurrier. To begin with, there was no stark line separating Supreme Court Justices from members of Congress. The fact that the court chamber was located in the Capitol itself, helped to ensure that congressional and judicial business sometimes overlapped. And overlapped is perhaps the best word. A number of congressmen served as lawyers before the Supreme Court in the era of Dred Scott. In fact, Congressmen were paid so little for their legislative services that it was a happy coincidence if a sitting senator or representative could take care of some profitable legal business in front of the court while in Washington. Lincoln understood this well, having argued his only case in front of the Supreme Court at the close of his term in the House of Representatives in 1849. Occasionally, congressmen argued Supreme Court cases in the midst of pressing congressional business, requiring them to work with the justices to schedule arguments for days when congress was in recess, or to simply miss the legislative meetings entirely. Perhaps the most famous example of this kind of juggling at an important moment was when New York Senator William Henry Seward was arguing a case in front of the court in December, 1860. If you know anything about what was happening in December 1860, this is right in the midst of South Carolina threatening to secede from the union and, as a senator, William Henry Seward was very involved in trying to prevent this from happening. So, he's juggling these things. In the case of Dred Scott, Lincoln was undoubtedly aware that Henry Geyer, a sitting congressman from Missouri, was one of the lawyers from the named parties, John Sanford. Congressmen were not the only ones to blur the lines between government branches. Just as legislative members engaged in judicial business, so too did judiciary members engage in legislative business. There are numerous examples in this period of a justice working on congressional legislation behind the scenes. Often, but not always, this meant helping congressmen to craft laws regarding the federal court system or other legal matters. But sometimes, this was completely separate from legal issues. Supreme Court Justices and Congressmen also interacted in more social ways than they do today. In the 1840s and 1850s, Supreme Court Justices often lived in boarding houses and hotels throughout the area between the White House and the Capitol Building. And while some on the Dred Scott Court like Taney confined themselves to small houses with just a few other justices, others were more inclined to mix with other members of the Washington community, including members of congress. For example, associate justice, John McLean, often rented rooms at Mrs. Carter's Boarding House, where he lived with upwards of ten congressmen. And in the late 1840s when Lincoln served in the House of Representatives, one of McLean's mess mates was Lincoln's good friend, Alexander Stephens. If the Supreme Court Justices did not live with members of the Washington community, they were still sure to interact with them on a wide variety of occasions. This happened most frequently at the dinner table of friends or prominent city residents. On more formal occasions, the justices went to state dinners at the White House or to various celebrations, like the annual Birthnight Ball, which honored George Washington's birthday. But still, other times, their dinners took place in more casual circumstances. Sometimes, such dinners featured both justices and the lawyers who were making oral arguments in court that week. If the social and professional interaction between congressmen and justices does not convince you that the line between the judicial and legislative branches were blurry, perhaps I can state the case more definitively. There is significant evidence that members of the Supreme Court discussed open cases with the senators and representatives who tried cases in front of them. Sometimes, these discussions involved a justice simply filling in a friend that he had lost a case a couple of days before the decision was made, but others featured conversations about a case still under consideration. Lincoln did not have personal experience with this kind of conversation. At least, there's no evidence to suggest that in the records. But he certainly would have been aware of this kind of thing from his time serving in Washington, or heard about it from friends in the House who were regular court attendees. So, this is one kind of relationship. This very fluid relationship between the legislative and judicial branches. The relationships between judges on the Supreme Court and sitting presidents in the 19th century were also far more intimate than we might expect. One reason for this is that justices did not have the same kinds of credentials that they do today. Supreme Court nominees had to be lawyers, but there were very few law schools in the 1850s. Most American Lawyers had received their formal training by serving in an apprentice role from a more experienced lawyer, though you did not have to do this. And Lincoln himself had almost no legal training. He'd not even apprenticed. He'd learned the law primarily from reading Blackstone's Commentaries and by trying cases. Moreover, justices did not typically enter the Supreme Court from a previous position on the Bench. There were no feeder courts from which presidents could find a farm team of suitable judges as the often do today. Of the nine justices who served on the Dred Scott Court, only five had experience as judges before they joined the Supreme Court. And of those five, only two were serving as judges when they were nominated to the court. So, as a result of this relatively informal legal and judicial training, political experience was often the best indicator for who would join the Supreme Court. Nineteenth century presidents typically made Supreme Court nominations based squarely on partisan reasoning, rewarding political friends with a job in the judiciary. Among the seven Dred Scott justices who were not serving as justices when they were nominated to the Supreme Court, two were serving in the Executive Branch, one was a US Congressman, and a fourth held a prominent state position as Lieutenant Governor or Virginia. These men were rewarded for their political commitments, not their judicial service. Roger Taney, himself, had received his nomination for Chief Justice from President Andrew Jackson in 1836 as a result of Taney's support for Jackson's banking policies. Taney was certainly a qualified lawyer, but he was also a strong democrat, and a confident of Andrew Jackson's. In 1846, James K. Polk had actually toyed with the idea of making James Buchanan a Supreme Court nominee while Buchanan was serving as Secretary of State. Buchanan was a strong democrat, but he'd also been giving Polk some headaches in the cabinet, and so he thought, Polk thought, putting Buchanan on the court would make perfect sense. It would give him an ally and it would get him out of the cabinet. Ultimately, Buchanan decided against accepting the nomination, but the possibility was there. And Buchanan's political experience was a positive in Polk's considerations. The Supreme Court might actually have looked slightly different and decided Dred Scott slightly differently, had Millard Fillmore been successful in nominating one of his partisan friends to the court in early 1853. Fillmore was a Whig and he hoped to get his friend and former senate colleague, George Edmund Badger of North Carolina, on the court to replace Associate Justice, John McKinley, who had died the July before. But the democratic congress rejected Badger and the next president, Franklin Pierce, successfully nominated John Archibald Campbell of Alabama. Although Badger was a southerner, following the decision, Badger came out against the court's restriction of congress's right to legislate for the territories in the case of slavery. So, had he been on the court, things might have looked very different. So, although partisanship clearly mattered when making nominations, what's most important here is that confirmation as a Supreme Court Justice did not actually bring an end to the close relationships between president and judge. Taney, for example, was close enough with Jackson to actually provide him with constitutional advice during his presidency. And he even helped the retiring president write his farewell address in 1837. Nor was Taney alone. Fellow associate justices on the Dred Scott Court, Peter Daniel and John Catron, similarly offered political advice to their friends, President Martin Van Buren and President James Polk, respectively. Justices also routinely advised presidents and their cabinets on judicial matters from who should fill court vacancies, to navigating sticky legal problems such as extradition. Lincoln may not have had first-hand knowledge of these conversations, but he would have known plenty of federal politicians who did. The line between the federal, judicial and executive departments was actually so blurry that several judges actively sought their own presidential nomination while sitting on the Supreme Court. The most consistent candidate for president among the Dred Scott court justices was John McLean of Ohio, a frontrunner for nomination in every presidential contest between 1832 and 1860, and, I should add, representing nearly every political party of the antebellum era, including anti-masons, Whigs, Free Soilers, Americans, Republicans and Constitutional Unionists [laughter]. Only nine months before the decision in Dred Scott, McLean had been a favorite to win the nomination at the Republican National Convention in Philadelphia. Lincoln had been among the nominees for vice president at the 1856 convention, and he was therefore intimately familiar with this kind of cross branch behavior. So, I hope I've convinced you the Supreme Court that operated in Lincoln's time was not isolated. The lines between the highest US Court and the other two branches of government were blurry and sometimes fluid. And Lincoln made his conspiracy charge with this context in mind. Now, Lincoln also had additional proof of cross branch interaction in the Dred Scott case. Remember that on March 4, 1857, a mere two days before Taney issued the decision in Dred Scott, James Buchanan had been sworn in as the 15th president of the United States. And he told the inaugural crowd that they ought to accept whatever the Supreme Court decided. On his way up to the podium to deliver this inaugural address, the president elect stopped briefly to have a little conversation with Chief Justice Taney. Republican politicians and newspapers throughout the north commented on this very public discussion between the two men, suggesting that they exchanged words about Dred Scott. Lincoln did not know what was said, and neither do we. But it certainly looked like collusion. And with Lincoln's knowledge of the intimacies between the various branches of government, the events on inauguration day may have looked like a smoking gun. What Lincoln didn't know is that this short conversation between Chief Justice Taney and the president elect was just the tip of the iceberg. In the weeks before Buchanan's inauguration, he had exchanged several letters with one of the associate justices, John Catron of Tennessee. Catron had been keeping Buchanan apprised of the court's deliberations over Dred Scott. But his correspondence went beyond just sharing information. Not all of the justices had yet decided how they were going to rule on the Missouri Compromise issue. That's the issue regarding whether Congress had the right to legislate for the territories regarding slavery. Among the undecideds was Associate Justice, Robert Grier of Pennsylvania, a friend of Buchanan's. Catron wrote to Buchanan and asked him to "drop Grier a line" to suggest he fall in with Taney's majority position. Here, then, is one link in the conspiracy that Lincoln had anticipated, even without direct knowledge of the Buchanan-Catron correspondence. You might say that Taney and Buchanan were in on it together. We don't have any solid evidence that Pierce or Douglas would have discussed the details of Dred Scott with members of the Supreme Court. But their knowledge of the case may have stemmed from another part of the legal community, the relationship between lawyers and judges throughout the federal system. Now, the relationship between these federal judges and the lawyers who tried cases in front of them was understandably intimate. In the 19th century, the Supreme Court Bar was relatively small and justices repeatedly saw the same lawyers in case after case. While there were certainly cases involving first timers before the bar, there were some standard-bearers. Daniel Webster, Richard Cox, George Bibb, John Sergeant, John Crittenden and Henry Stanbery show up repeatedly in the records as having argued cases from a vast number of original jurisdictions. Several lawyers, many of whom were former congressmen, set up law offices in Washington for the simple purpose of attracting Supreme Court cases. And as one Washington resident remarked, a congressman turned lawyer was expected to have some influence with the justices. We've seen this already with some of the congressmen who tried cases in front of the justices. But the men who served as attorneys general in the antebellum years also tended to develop intimate relationships with the Supreme Court members returning to the Supreme Court repeatedly in the years after they left office. In the 1850s, one of the favorites on the Supreme Court was Reverdy Johnson, one of the lawyers for John Sanford. Johnson was an intimate friend of Chief Justice Taney, and had been trying cases in front of the Supreme Court for as long as most of the members had been sitting on the bench. In fact, Johnson was well known in Washington for his influence with the justices, as they spent time together at public and private parties, state dinners and more intimate affairs. While there is no direct evidence that Johnson had ex parte communication with the justices about the Dred Scott Case, his reputation suggested he often knew the court's proclivities in other matters. Lincoln would have understood well that judges sometimes had close relationships with the lawyers who tried cases before them. He had undoubtedly witnessed this while serving as a congressman in Washington. But perhaps more importantly, he had personal experience with a close lawyer-judge relationship on a state and local level. One of Lincoln's best friends in Illinois was David Davis, a state lawyer who rode the circuit with Lincoln throughout the 1840s. But in 1848, Illinois residents elected Davis the judge of the 8th Judicial Circuit of Illinois. And Lincoln soon began trying cases in front of his friend. While there's no smoking gun that Lincoln had ex parte communications with Davis, several anecdotes and letters from the time suggest the two men may have discussed pending legal issues outside the courtroom. And in fact, the line between judge and lawyer blended even further when Davis needed to attend to personal business outside the circuit. And he put Lincoln on the bench temporarily to attend to judicial duties. This was no small matter. Lincoln acted as circuit court judge for Davis in over 300 cases. And Lincoln, as you may know, successfully nominated David Davis to the Supreme Court in 1862. So, they remained friends a long time. While the state court saw a greater rotation of lawyers, the Supreme Court bar was small enough that occasionally a relative of one of the justices would find himself trying a case in front of the bench. For example. Taney's brother-in-law, Francis Scott Key, occasionally made oral arguments in the court in the Dred Scott era. Taney recused himself in at least one of these cases, but the presence of a relative did not necessarily mean a recusal. One of the true oddities of the Dred Scott Case itself, at least to our modern eyes, is that one of Dred Scott's lawyers was George Ticknor Curtis, the brother of one of the associate justices, Benjamin Robbins Curtis. The judge did not recuse himself. And Benjamin Curtis actually received several compliments from his fellow justices for his brother's performance in court. Now, I see now contemporary complaints that Benjamin Curtis heard the case, in spite of his brother's presence. Lincoln did not point it out, perhaps because Curtis was one of the two dissenters in Dred Scott, and therefore had earned republican praise. But it certainly gives fodder to the argument that Supreme Court Justices and the lawyers who try cases in front of them, had more than a simple professional relationship. And finally, the second aspect of the federal court system that I would like to point out as relevant to Lincoln's charges, and this is the federal court system and its structure in this era, particularly the federal circuit courts. The intermediary federal judicial body between the district and Supreme Court. As some of you may know, in the antebellum era, there were no judges whose sole duty was to sit on the circuit court. Rather, the circuit court was composed of two justices who had other positions. A sitting district judge for the area, and a US Supreme Court member who was riding circuit. As a result of this arrangement, the circuit court only met a couple of specified times per year, and in order to have both justices present, they needed to account for the intense travel schedules of the Supreme Court men who were responsible for at least three different circuit courts in addition to handling business in Washington. The staffing of the circuit courts, with one man from the district and one man from the Supreme Court, lent itself to all kinds of manipulation and maneuvering among the justices. For example, a member of the Supreme Court who was riding circuit might purposely split with his fellow judge to make sure the case could be appealed to the highest body. Or, as in the case with Dred Scott, the absence of the Supreme Court Justice form the circuit during that body's deliberations could influence when and how quickly the case could be appealed. Lincoln, as I mentioned previously, would have understood this system well, having tried cases in the 7th Federal Circuit repeatedly for Justice McLean. So, how does this context factor into what actually happened in Dred Scott? Unlike our Buchanan-Catron smoking gun, there's no direct evidence that Douglas or Pierce knew about the court's decision in Dred Scott ahead of time, but if we look a little bit closer at Lincoln's charges, we might be able to see some connections. In his "House Divided" speech, Lincoln specifically made a link between the year that the Kansas-Nebraska Act passed through congress and when the Dred Scott Case first entered the federal court system. Although a version of the case had gone through the Missouri State Court since the late 1840s, the suit that we know as Dred Scott v. Sanford reached the 8th Federal Circuit in Missouri in early 1854. Lincoln emphasized that the 1854 date was not a coincidence, and perhaps he was right. The justice who was supposed to serve on the 8th circuit was John Catron, remember, the man who had written Buchanan for a little help with his colleague, Justice Grier. But Catron was not present for the circuit court session that began the first Monday in April. And although the district judge, Robert Wells, could have postponed the case until October, he decided to go ahead in April. Both Catron and Wells had been serving on the 8th Circuit Court since their appointments in the late 1830s, and they would have known each other intimately. It's possible that the two discussed how to proceed with the case, though there's no direct evidence to support that. Ultimately, I don't actually know why Wells didn't wait for Catron, and given that Wells was more sympathetic to Dred Scott's plea, I'm not sure he was really involved in any collusion with Catron to get the case moving so that it would coincide with the Kansas-Nebraska Act. But you can see how this looked to Lincoln, a man who understood the federal legal system and its penchant for manipulation quite well. And so, here we can tie Douglas to the court, if not Taney specifically, perhaps just Catron. And what about the final piece of the puzzle, Pierce and Taney? Again, no direct evidence that Pierce knew how the court would decide. But if we extend out net a little bit further into Pierce's cabinet, we might have some answers. You might remember that the Supreme Court originally heard the Dred Scott Case in 1856 while Pierce was still in office. One prominent historian has suggested that Taney had been in direct conversation with Pierce's attorney general, Caleb Cushing. And they had talked about the case, and how it ought to be decided. Circumstantial evidence from after the decision may back this up. In November, 1857, after the case was published in Howard's reports, Taney wrote a letter to Cushing thanking him for his support for their decision. Cushing, who was from Massachusetts, was among a handful of northerners who had expressed their approval of the Dred Scott decision. But he may have known ahead of time. And certainly it would not be farfetched to assume he discussed the matter with Pierce. And there you have it. Buchanan and the court, Douglas and the court, and Pierce and the court. You can see why Lincoln might have believed this conspiracy actually happened. Now, I don't want to give you the wrong impression. I'm not actually suggesting here that these men really did conspire to perpetuate slavery. The evidence I sketched here probably wouldn't hold up in court today or in the 19th century. But I hope that I've convinced you that even if the Dred Scott conspiracy may not have happened, it was certainly possible that it could have happened, given the realities of federal, and particularly, judicial politics in the 1850s. of course, there are a number of important implications for how the judicial system operated in the Civil War era that go beyond Lincoln and this conspiracy theory. And I'll just point out a few here. First, we have to stop thinking about the Supreme Court as separate from the rest of the federal government in the 19th century. The judicial, executive and legislative branches operated in cooperative and overlapping ways. Lincoln might have been wrong that each of these conspirators were trying to nationalize slavery, but he wasn't wrong that there was a relatively free flowing conversation happening among members of the three branches about the future of slavery in the nation. Second, the federal judicial system operated in fluid and informal ways. Judges and the lawyers who tried cases in front of them often formed personal rather than strictly business relationships. Moreover, there was little consistency either in how the federal courts operated, or in the personnel present for federal cases at the circuit level. In essence, the formality of the legal system that we expect in the 21st century simply did not apply. Judges shaped the federal court system to suit their needs. Finally, there is a hint of elitism here. Or perhaps more than a hint. Members of the federal government believed that they had answers for what the United States should look like going forward. In Dred Scott alone, these answers included the future of slavery, citizenship, property rights and congressional power, among others. The people who were making these decisions were at the highest levels of government, making policy in private conversations and deals. This was not the popular democracy we think of in the age of Jackson. Public opinion simply did not factor in. And this is the last piece of the puzzle that we haven't really talked about. How was Lincoln's conspiracy charge actually received? The evidence here is mixed. While some partisans encouraged Lincoln to continue making his conspiracy charge throughout his campaign against Douglas in 1858, Lincoln had largely dropped the matter by the third joint debate. Some scholars have taken this as evidence that the voting public in Illinois thought Lincoln was delusional, or at least unconvincing. And perhaps he was. Even if Lincoln had intimate experience with the Supreme Court's political role his audience might not have. The extent to which average Americans understood the federal court system and how it operated is an open question. One that I hope to explore further in my research. Thank you so much. [ Applause ] >> ... a few questions, so [inaudible]. >> Any questions? >> First of all, thank you very much. >> Thank you. >> [Inaudible] Propositions you make about political nature of the interactions between branches, the suggestion is that, that was then, and not now. And I wondered if you would, I mean, if, for example, your model is that that's how it was then... >> Yeah. >> And it is pristine and pure now... >> Oh, no. I wouldn't say that... >> But if it were, then I wonder how the transition took place? And if it's not, how far along on the continuum is it? >> That's a very good question. I'm going to. I'm going to be a little bit hesitant to answer because I'm a historian of the 19th century, and the 19th century is quite different from the 21st century. Certainly, a lot of this stuff was happening well into the 20th century. You still had, for example, Supreme Court Justices running for president in the FDR era. But, there clearly was a change at some point. One reason for this is probably the actual implementation of law school as the sort-of starting ground for all lawyers. Some of it has to do with sort-of our growing concern about the Supreme Court and whether it should be making certain kinds of decisions, activist judging and that kind of stuff. I think there's a lot more political behavior that happens on the Supreme Court today, but that's more as an observer than as a historian. I think there's, there's a problem with thinking about the Supreme Court as separate, in large part, because it was not separate from the beginning. And so, if we have this originalist interpretation of the court as being this body that is completely outside the bounds of the rest of the federal government, we have a misunderstanding of the way the court operated originally. I'm not sure the justices think of it that way today. But certainly the public does, as you suggested. So, I'm sorry to not give you as complete an answer as you'd like, but as a 19th century historian, I think I'd better stick to my century [laughter]. >> It's not unusual to the 19th century mind to give out the slave power. >> Um-hum. >> If I knew that there was a conspiracy implication involving [inaudible] or slavery... >> That's right. >> But the problem with any conspiracy is that think about the execution. And here you have volumes, constantly bringing forth the multi-member bodies. So, assuming [inaudible] conspiracy, was there any other [inaudible] that Chief Justice Taney and others were able to lean on at last four other justices to, in order to get a majority in Dred Scott of 7 to 2, McLean and Curtis dissenting. >> That's correct. >> Assuming evidence of Taney an others leaning on other justices to get them to go along with this conspiracy. >> Certainly that happened in the case of Dred Scott. There was a move to try to get the other justices to get on board with Taney's opinion. And that's pretty common throughout the 19th century, that a Chief Justice, in particular, is going to try to get the other members of the court to be in line with the majority opinion. He wasn't actually as successful with it as he would have liked, because there are also quite a few concurrences in the Dred Scott decision. It's not a matter of just, oh, there's a decision, and there are a couple of dissents. There is not a lot of smoking gun evidence about Taney getting involved with congress and putting pressure on congress. But there were definitely conversations happening. So, it depends what you think of as pressure. There was at least an understanding that this was something that was open for discussion. I actually think Taney mistakenly believed that this would actually quiet all of the furor that was going on in the rest of the country about the slave power conspiracy. He thought, oh, the court's going to rule, and shut it down. And they're not going to talk about it anymore. It did the exact opposite. But, that doesn't mean his intentions weren't in this one particular place. And I think that's just a matter of him thinking that the Supreme Court was as important as he expected it to be in making people listen to what was going on. >> You mentioned Supreme Court Justices running for president? >> Um hum. >> In the FDR era, and that was certainly true of Charles Evans Hughes. >> Um hum. >> But he ran in 1916. >> Yeah. >> Has any justice run subsequent to that? >> Not actively. This is not my specific area of expertise but a lot of historians of the Supreme Court and the 20th century have said Hugo Black was interested in running. It's much more behind the scenes than in the 19th century, where it would have been much more obvious that someone like McLean was running. But, certainly, there were justices who were interested in running for president. And working behind the scenes to try to make it happen. >> You mentioned that Lincoln appointed one Supreme Court Justice in 1862. My question is, how many did he appoint, and can you talk a little bit about what the confirmation process was like in the 19th century? >> Sure. Lincoln appointed five, actually, and was successful in all of these. I bet you're surprised because republicans controlled congress. The process was actually very partisan in the 19th century also. Some of the best examples of this are John Tyler, who was president in the early 1840s. We think of him as a man without a party. He was vice president for William Henry Harrison. And he was supposedly a Whig but the Whigs hated him. And he tried to get nine Supreme Court Justices. He tried a couple of times with two different guys. And he only was successful with one. It did not go well. And one of the justices positions was open for two years while he was waiting for a nomination. And the very best example of this is Roger Taney himself, who was put up for Supreme Court Justice in an associate justice position by Andrew Jackson in 1835, was basically not confirmed by the senate at this time. It was a hostile senate. Mostly people who were opposed to Jackson. The next year, there's turnover. Get a new democratic senate. And he puts Taney up for Chief Justice, and it's confirmed. So, that, the original position that he was put up for, associate justice, stayed open for over a year while they were waiting to fill that. And so, it is a very partisan process. And was in the 19th century. Other questions? >> [inaudible] >> Might not be true. If Lincoln were correct about the conspiracy, was it, would it have been illegal? Would laws have been broken? Or just unethical? Or amoral? Or what? >> That's a really good question. And this is sort of at the heart of my research. Is to try to understand what was considered ethically appropriate in the 19th century. And most of what happened looks to be perfectly ethical from the position of most of the politicians who were working in this period. It's all legal, but they saw it as perfectly within the bounds. Whether this would have been the reaction of the public had they known really what was going on, I'm not sure. That's harder to figure out because there aren't a lot of examples of it becoming public knowledge. So, we don't get a ton of outcry about it, which means it's hard to know what would happen if it became more public. But certainly Taney in particular, saw himself as perfectly within the law and behaving in perfectly ethical ways. >> We have time for one more. >> [inaudible] ok. >> Hello. In your talk, there was one [inaudible] line, about regardless of whether the conspiracy actually existed, it's... [inaudible]. Regardless of whether the conspiracy actually existed, it seems, the existence of conspiracy seemed plausible and therefore had political value [inaudible] running for a position. One reason, that to me is the more interesting part about the political value of plausibility regardless of the underlying facts. Wonder if you can talk a little bit more about what the political value was, and wasn't, and how that played out... [inaudible] connections to seriously curious today. >> [Laughter] >> I also... >> Well, so, this is part of. This fellow right here. I appreciate mentioning the Slave Power Conspiracy. It was part of a tradition right around this time since the early 1850s to say that there was a conspiracy among slaveholders to perpetuate slavery, to do all they could to spread slavery to the north. And so, Lincoln is participating in this tradition. This Slave Power Conspiracy suggestion. And it was very effective among republican voters. They were very worried about losing their own liberty. They thought they were going to lose their liberty if slaveholders were able to get control of the north. Lincoln actually later made several references to another court case where he called the second Dred Scott. Which was going though the New York court system at this time. Lemons v. The People. Which was another case that involved New York, whether slaveholders could bring their slaves to New York. And the New York legislature had said no in 1841. And this case was appealed in the New York State Courts. And the New York State Courts had said no, it's totally fine to ban slaveholders from bringing their slaves into New York. And Lincoln was afraid this was going to get to the Supreme Court. So there would actually be a case where northern states had to allow slavery in their states. So, this is a situation where it actually plays well to the fears of northerners who think that our state is free, our state allows me to have the kind of liberty that I want. And now we're in a situation where slaveholders might change that. Because they're going to change the circumstances on the ground. It was a very powerful argument at that time. >> All right. >> Thank you all very much. [ Applause ] >> This has been a presentation of the Library of Congress. Visit us at


Early life and career

Taney was born in Calvert County, Maryland on March 17, 1777, to Michael Taney V and Monica Brooke Taney. Taney's ancestor, Michael Taney I, had migrated from England in 1660 and he and his family established themselves as prominent Catholic landowners in Maryland. As Roger Taney's older brother, Michael Taney VI, was expected to inherit the family's plantation, Taney's father encouraged him to study law. At the age of fifteen, Taney was sent to Dickinson College, where he studied ethics, logic, languages, mathematics, and other subjects. After graduating from Dickinson in 1796, he read law under Judge Jeremiah Townley Chase in Annapolis. Taney was admitted to the Maryland bar in 1799.[1]

Marriage and family

Taney married Anne Phoebe Charlton Key, sister of Francis Scott Key, on January 7, 1806.[2] They had six daughters together. Though Taney himself remained a Catholic, all of his daughters were raised as members of Anne's Episcopal Church.[3] Taney rented an apartment during his years of service with the federal government, but he and his wife maintained a permanent home in Baltimore. After Anne died in 1855, Taney and two of his unmarried daughters moved permanently to Washington, D.C.[4]

Early political career

After gaining admission to the state bar, Taney established a successful legal practice in Frederick, Maryland. At his father's urging, he ran for the Maryland House of Delegates as a member of the Federalist Party. With the help of his father, Taney won election to the House of Delegates, but he lost his campaign for a second term. Taney remained a prominent member of the Federalist Party for several years, until he broke with the party due to his support of the War of 1812. He joined the Democratic-Republican Party and, in 1816, won election to a five-year term in the Maryland State Senate.[5] In 1823, Taney moved his legal practice to Baltimore, where he gained widespread notoriety as an effective litigator. In 1826, Taney and Daniel Webster represented merchant Solomon Etting in a case that appeared before the Supreme Court of the United States. In 1827, Taney was appointed as the Attorney General of Maryland.[6] Taney supported Andrew Jackson in the 1824 presidential election and the 1828 presidential election. He joined Jackson's Democratic Party and served as a leader of Jackson's 1828 campaign in Maryland.[7]

Taney's attitudes toward slavery were complex. He emancipated his own slaves[8] and gave pensions to those who were too old to work.[citation needed] In 1819, he defended an abolitionist Methodist minister who had been indicted for inciting slave insurrections by denouncing slavery in a camp meeting.[citation needed] In his opening argument in that case, Taney condemned slavery as "a blot on our national character."[9]

Jackson administration

Bureau of Engraving and Printing portrait of Taney as Secretary of the Treasury
Bureau of Engraving and Printing portrait of Taney as Secretary of the Treasury

Cabinet member

As a result of the Petticoat Affair, in 1831 President Jackson asked for the resignations of most of the members of his cabinet, including Attorney General John M. Berrien.[10] Jackson turned to Taney to fill the vacancy caused by Berrien's resignation, and Taney became the president's top legal adviser. In one advisory opinion that he wrote for the president, Taney argued that the protections of the United States Constitution did not apply to free blacks; he would revisit this issue later in his career.[11] Like his predecessors, Taney continued the private practice of law while he served as attorney general, and he served as a counsel for the city of Baltimore in the landmark Supreme Court case of Barron v. Baltimore.[12]

Taney became an important lieutenant in the "Bank War," Jackson's clash with the Second Bank of the United States (or "national bank"). Unlike other members of the cabinet, Taney argued that the national bank was unconstitutional and that Jackson should seek to abolish it. With Taney's backing, Jackson vetoed a bill to renew the national bank's charter,[13] which was scheduled to expire in 1836.[14] The Bank War became the key issue of the 1832 presidential election, which saw Jackson defeat a challenge from national bank supporter Henry Clay. Taney's unyielding opposition to the bank, combined with Jackson's decisive victory in the election, made the attorney general one of the most prominent members of Jackson's cabinet.[15]

Jackson escalated the Bank War after winning re-election. When Secretary of the Treasury William J. Duane refused to authorize the removal of federal deposits from the national bank, Jackson fired Duane and gave Taney a recess appointment as secretary of the treasury.[16] Taney redistributed federal deposits from the national bank to favored state-chartered banks, which became known as "pet banks."[17] In June 1834, the Senate rejected Taney's nomination as secretary of the treasury, leaving Taney without a position in the cabinet.[18] Taney was the first cabinet nominee in the nation's history to be rejected by the Senate.[19]

Supreme Court nominations

Despite Taney's earlier rejection by the Senate, in January 1835 Jackson nominated Taney to fill the seat of retiring Supreme Court Associate Justice Gabriel Duvall. Opponents of Taney ensured that his nomination was not voted on before the end of the Senate session, thereby defeating the nomination. The Democrats picked up seats in the 1834 and 1835 Senate elections, giving the party a stronger presence in the chamber. In July 1835, Jackson nominated Taney to succeed Chief Justice John Marshall, who had died earlier in 1835. Though Jackson's opponents in the Whig Party once again attempted to defeat Taney's nomination, Taney won confirmation in March 1836.[20] He was the first Catholic to serve on the Supreme Court.[21]

The Taney Court

Marshall had dominated the Court during his 35 years of service, and his opinion in Marbury v. Madison had helped establish the federal courts as a co-equal branch of government. To the dismay of states' rights advocates, the Marshall Court's rulings in cases such as McCulloch v. Maryland had upheld the power of federal law and institutions over state governments. Many Whigs believed that Taney was a "political hack" and worried about the direction that he would take the Supreme Court. One of Marshall's key allies, Associate Justice Joseph Story, remained on the Court when Taney took office, but Jackson appointees made up a majority of the Court.[22] Though Taney would preside over a jurisprudential shift toward states' rights, the Taney Court did not reject broad federal authority to the degree that many Whigs initially feared.[23]


Charles River Bridge v. Warren Bridge presented one of the first major cases of the Taney Court. In 1785, the legislature of Massachusetts had chartered a company to build the Charles River Bridge on the Charles River. In 1828, the state legislature chartered a second company to build a second bridge, the Warren Bridge, just 100 yards away from the Charles River Bridge. The owners of the Charles River Bridge sued, arguing that their charter had given them a monopoly on the operation of bridges in that area of the Charles River. The attorney for the Charles River Bridge, Daniel Webster, argued that the state of Massachusetts had violated the Commerce Clause by disregarding the monopoly that the state had granted to his client. The attorney for Massachusetts, Simon Greenleaf, challenged Webster's interpretation of the charter, noting that the charter did not explicitly grant a monopoly to the proprietors of the Charles River Bridge.[24] In his majority opinion, Taney ruled that the charter did not grant a monopoly to the Charles River Bridge. He held that, while the Contract Clause prevents state legislatures from violating the express provisions of a contract, the Court would interpret a contract provision narrowly when it conflicted with the general welfare of the state. Taney argued that any other interpretation would prevent advancements in infrastructure, since the owners of other state charters would demand compensation in return for relinquishing implied monopoly rights.[25]

In Mayor of the City of New York v. Miln (1837), the plaintiffs challenged New York statute required masters of incoming ships to report information on all passengers they brought into the country, i.e. age, health, last legal residence, etc. The question before the Taney court was whether or not the state statute undercut Congress's authority to regulate commerce; or was it a police measure, as New York claimed, fully within the authority of the state. Taney and his colleagues sought to devise a more nuanced means of accommodating competing federal and state claims of regulatory power. The Court ruled in favor of New York.[citation needed]

In Briscoe v. Commonwealth Bank of Kentucky (1837), the third critical ruling of Taney's debut term, the Chief Justice confronted the banking system, in particular state banking. Disgruntled creditors had demanded invalidation of the notes issued by Kentucky's Commonwealth Bank, created during the panic of 1819 to aid economic recovery. The institution had been backed by the credit of the state treasury and the value of unsold public lands, and by every usual measure, its notes were bills of credit of the sort prohibited by the federal Constitution. Briscoe demanded that purveyors of rag paper be forced to pay debts in sound paper or precious metal, as contracts most often stipulated. Kentucky officials contended that their debtor bank, had not issued bills of credit of the sort prohibited by the Constitution because the institution had been granted a separate corporate identity by legislative charter. Surely the framers had in mind banning only notes issued directly by treasuries or land offices.[citation needed]

Briscoe v. Bank of Kentucky manifested this change in the field of banking and currency in the first full term of the court's new chief justice. Article I, section 10 of the Constitution prohibited states from using bills of credit, but the precise meaning of a bill of credit remained unclear. In the 1830 case, Craig v. Missouri, the Marshall Court had held, by a vote of 4 to 3, that state interest-bearing loan certificates were unconstitutional. However, in the Briscoe case, the Court upheld the issuance of circulating notes by a state-chartered bank even when the Bank's stock, funds, and profits belonged to the state, and where the officers and directors were appointed by the state legislature. The Court narrowly defined a bill of credit as a note issued by the state, on the faith of the state, and designed to circulate as money. Since the notes in question were redeemable by the bank and not by the state itself, they were not bills of credit for constitutional purposes. By validating the constitutionality of state bank notes, the Supreme Court completed the financial revolution triggered by President Andrew Jackson's refusal to recharter the Second Bank of the United States and opened the door to greater state control of banking and currency in the antebellum period. The opinion given by the majority, which Taney was a part of, fit neatly into the Jacksonian economic plan by holding that the notes of the Bank of Kentucky were not bills of credit prohibited by the Constitution, even though the state owned the banks and the notes circulated by state law as legal. Thus, the bank notes were constitutional.[citation needed]

In the 1839 case of Bank of Augusta v. Earle, Taney joined with seven other justices in voting to reverse a lower court decision that had barred out-of-state corporations from conducting business operations in the state of Alabama.[26] Taney's majority opinion held that out-of-state corporations could do business in Alabama (or any other state) so long as the state legislature did not pass a law explicitly prohibiting such operations.[27]

In Prigg v. Pennsylvania (1842), the Taney Court agreed to hear a case regarding slavery, slaves, slave owners, and states' rights. It held that the Constitutional prohibition against state laws that would emancipate any "person held to service or labor in [another] state" barred Pennsylvania from punishing a Maryland man who had seized a former slave and her child, and had taken them back to Maryland without seeking an order from the Pennsylvania courts permitting the abduction. In his opinion for the Court, Justice Joseph Story held not only that states were barred from interfering with enforcement of federal fugitive slave laws, but that they also were barred from assisting in enforcing those laws. In a concurring opinion, Taney argued that the constitutional guarantee of slaveholders' rights to ownership and the prohibition in Article IV against preventing slaves' return to their masters in Southern states imposed a positive duty on states to enforce federal fugitive slave laws.[citation needed]

The Taney Court also presided over the case of slaves who had taken over the Spanish schooner Amistad. Associate Justice Joseph Story wrote the Court's decision and opinion, upholding their right as free men to have defended themselves by attacking the crew and trying to gain freedom. Taney joined Story's unanimous majority opinion but left no written record of his own in regard to the Amistad case.[citation needed]


In the 1847 License Cases, Taney developed the concept of police power. He wrote that "whether a state passes a quarantine law, or a law to punish offenses, or to establish courts of justice ... in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion." This broad conception of state power helped to provide a constitutional justification for state governments to take on new responsibilities, such as the construction of internal improvements and the establishment of public schools.[28]

Taney's 1849 majority opinion in Luther v. Borden provided an important rationale for limiting federal judicial power. The Court considered its own authority to issue rulings on matters deemed to be political in nature. Martin Luther, a Dorrite shoemaker, brought suit against Luther Borden, a state militiaman because Luther's house had been ransacked. Luther based his case on the claim that the Dorr government was the legitimate government of Rhode Island, and that Borden's violation of his home constituted a private act lacking legal authority. The circuit court, rejecting this contention, held that no trespass had been committed, and the Supreme Court, in 1849, affirmed. The decision provides the distinction between political questions and justiciable ones. Taney asserted that, "the powers given to the courts by the Constitution are judicial powers and extend to those subject, only, which are judicial in character, and not to those which are political."[29] The majority opinion interpreted the Guarantee Clause of the Constitution, Article IV, Section 4. Taney held that under this article Congress is able to decide what government is established in each state. This decision was important, because it is an example of judicial self-restraint. Many Democrats had hoped that the justices would legitimize the actions of the Rhode Island reformers. However, the justices' refusal to do so demonstrated the Court's independence and neutrality in a politically charged atmosphere. The Court showed that they could rise above politics and make the decision that it needed to make.[citation needed]

In 1852, the Genesee Chief v. Fitzhugh, dealt with the issue of admiralty jurisdiction. This case regarded a collision that occurred on Lake Ontario in 1847. The propeller of the boat, Genesee Chief, struck and sank the schooner, Cuba. Suing under the 1845 act that extended admiralty jurisdiction to the Great Lakes, the owners of the Cuba alleged that the negligence of the Genesee Chief caused the accident. Counsel for the Genesee Chief blamed the Cuba and contended that the incident occurred within New York's waters, outside the reach of federal jurisdiction. The key constitutional question was whether the case properly belonged in the federal courts. The case also derived its importance not from the facts of the collision, but about whether admiralty jurisdiction extended to the great freshwater lakes. In England, only tidal rivers had been navigable; hence, in English Law, the Admiralty Courts, which had been given jurisdiction over navigable waters, found their jurisdiction limited to places which felt the effect of the tides of the sea. In the United States, the vast expanse of the Great Lakes and stretches of the continental rivers, extending for hundreds of miles, were not tidal; yet upon these waters large vessels could move, with burdens of passengers and cargo. Taney ruled that the admiralty jurisdiction of the US Courts extends to waters, which are actually navigable, without regard to the flow of the ocean tides. Taney's majority opinion established a broad new definition of federal admiralty jurisdiction. According to Taney, the 1845 act fell within Congress's power to control the jurisdiction of the federal courts. "If this law, therefore, is constitutional, it must be supported on the ground that the lakes and navigable waters connecting them are within the scope of admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted."[30] Taney's opinion marked a significant expansion of federal judicial power and an important step in establishing uniform federal admiralty principles.[citation needed]

The United States increasingly polarized along sectional lines during the 1850s, with slavery acting as the central source of sectional tension.[31] Taney wrote the majority opinion in the 1851 case of Strader v. Graham, in which the Court held that slaves from Kentucky who had conducted a musical performance in the free state of Ohio remained slaves because they had voluntarily returned to Kentucky. Taney's narrowly constructed opinion was joined by both pro-slavery and anti-slavery justices on the Court.[32] While the Court avoided splitting over the issue of slavery, debates over the status of slavery in the territories, as well as the Fugitive Slave Act of 1850, continued to roil the nation.[33]

Dred Scott decision

Chief Justice Roger B. Taney, photograph by Mathew Brady
Chief Justice Roger B. Taney, photograph by Mathew Brady

As Congress was unable to settle the debate over slavery, some leaders from both the North and the South came to believe that only the Supreme Court could bring an end to the controversy.[34] The Compromise of 1850 contained provisions to expedite appeals regarding slavery in the territories to the Supreme Court, but no suitable case arose until Dred Scott v. Sandford reached the Supreme Court in 1856.[35] In 1846, Dred Scott, an enslaved African-American man living in the slave state of Missouri, had filed suit against his master for his own freedom. Scott argued that he had legally gained freedom in the 1830s, when he had resided with a previous master in both the free state of Illinois and a portion of the Louisiana Territory that banned slavery under the Missouri Compromise. Scott prevailed in a state trial court, but that ruling was reversed by the Missouri Supreme Court. After a series of legal maneuvers, the case finally made its way to the Supreme Court in 1856. Although the case concerned the explosive issue of slavery, it initially received relatively little attention from the press and from the justices themselves.[36]

In February 1857, a majority of the judges on the Court voted to deny Scott freedom simply because he had returned to Missouri, thereby reaffirming the precedent set in Strader. However, after two of the Northern justices objected to the decision, Taney and his four Southern colleagues decided to write a much broader decision that would bar federal regulation of slavery in the territories. Like the other Southerners on the Court, Taney was outraged over what he saw as "Northern aggression" towards slavery, an institution that he believed was critical to "Southern life and values."[37] Along with newly-elected President James Buchanan, who was aware of the broad outlines of the upcoming decision, Taney and his allies on the Court hoped that the Dred Scott case would permanently remove slavery as a subject of national debate. Reflecting these hopes, Buchanan's March 4, 1857 inaugural address indicated that the issue of slavery would soon be "finally settled" by the Court.[38] To avoid the appearance of sectional favoritism, Taney and his Southern colleagues sought to win the support of at least one Northern justice to the Court's decision. At the request of Associate Justice John Catron, Buchanan convinced Northern Associate Justice Robert Cooper Grier to join the majority opinion in Dred Scott.[37]

Taney wrote the Court's majority opinion, which he announced on March 6, 1857. He first held that no African-American, free or enslaved, had ever enjoyed the rights of a citizen under the Constitution. He argued that, since the time of the ratification of the Constitution, blacks had been "regarded as beings of an inferior order, altogether unfit to associate with the white race ... and so far inferior, that they had no rights which the white man was bound to respect." To bolster the argument that blacks were widely regarded as legally inferior when the Constitution was adopted, Taney pointed to various state laws, but ignored the fact that five states had allowed blacks to vote in 1788.[39] He next declared that the Missouri Compromise was unconstitutional, and that the Constitution did not grant Congress the power to bar slavery in the territories. Taney argued that the federal government served as a "trustee" to the people of the territory, and could not deprive the right of slaveowners to take slaves into the territories. Only the states, Taney asserted, could bar slavery. Finally, he held that Scott remained a slave.[40]

The Dred Scott opinion received strong criticism in the North, and Associate Justice Benjamin Robbins Curtis resigned in protest.[41] Rather than removing slavery as an issue, it bolstered the popularity of the anti-slavery Republican Party. Republicans like Abraham Lincoln rejected Taney's legal reasoning and argued that the Declaration of Independence showed that the Founding Fathers favored the protection of individual rights for all free men, regardless of race.[42] Many Republicans accused Taney of being part of a conspiracy to legalize slavery throughout the United States.[43]

American Civil War

Taney's grave in Frederick, Maryland
Taney's grave in Frederick, Maryland

Running on an anti-slavery platform, Republican nominee Abraham Lincoln won the 1860 presidential election, defeating Taney's preferred candidate, John C. Breckinridge.[44] Several Southern states seceded in response to Lincoln's election and formed the Confederate States of America; the American Civil War began in April 1861 with the Battle of Fort Sumter.[45] Unlike Associate Justice John Archibald Campbell, Taney did not resign from the Court to join the Confederacy, but he believed that the Southern states had the constitutional right to secede and he blamed Lincoln for starting the war. From his position on the Court, Taney challenged Lincoln's more expansive view of presidential and federal power during the Civil War.[46] He did not get the opportunity to rule against the constitutionality of the Emancipation Proclamation, the Legal Tender Act, or the Enrollment Act, but he did preside over two important Civil War cases.[47]

After secessionists destroyed important bridges and telegraph lines in the border state of Maryland, Lincoln suspended the writ of habeas corpus in much of the state. That suspension allowed military officials to arrest and imprison suspected secessionists for an indefinite period and without a judicial hearing. After the Baltimore riot of 1861, Union officials arrested state legislator John Merryman, who they suspected of having destroyed Union infrastructure. Union officials allowed Merryman access to his lawyers, who delivered a petition of habeas corpus to the federal circuit court for Maryland. In his role as the head of that circuit court, Taney presided over the case of Ex parte Merryman.[48] Taney held that only Congress had the power to suspend the writ of habeas corpus, and he ordered the release of Merryman.[49] Lincoln ignored Taney's order and argued that the Constitution did in fact give the president the power to suspend the writ of habeas corpus. Nonetheless, he requested that Congress authorize him to suspend the writ, which it did by passing the Habeas Corpus Suspension Act of 1863.[50]

In 1863, the Supreme Court heard the Prize Cases, which arose after Union ships blockading the Confederacy seized ships that conducted trade with Confederate ports.[51] An adverse Supreme Court decision would strike a major blow against Lincoln's prosecution of the war, since the blockade cut off the crucial Confederate cotton trade with European countries.[52] The Court's majority opinion, written by Associate Justice Grier, upheld the seizures and ruled that the president had the authority to impose a blockade without a congressional declaration of war. Taney joined a dissenting opinion written by Associate Justice Samuel Nelson, who argued that Lincoln had overstepped his authority by ordering a blockade without the express consent of Congress.[53]


Taney died on October 12, 1864, at the age of 87.[54] The following morning, the clerk of the Supreme Court announced that "the great and good Chief Justice is no more." He served as chief justice for 28 years, 198 days, the second longest tenure of any chief justice.[54] Taney was nearly penniless by the time of his death, and he left behind only a $10,000 life insurance policy and worthless bonds from the state of Virginia.[55]

President Lincoln made no public statement in response to Taney's death. Of his cabinet, Lincoln and three members — Secretary of State William H. Seward, Attorney General Edward Bates, and Postmaster General William Dennison — attended Taney's memorial service in Washington. Only Bates joined the cortège to Frederick, Maryland for Taney's funeral and burial at St. John the Evangelist Cemetery.[56] Lincoln appointed Salmon P. Chase, a strongly anti-slavery Republican from Ohio, to succeed Taney.[57]


Roger B. Taney statue removed from Mount Vernon Place, Baltimore in August 2017[58]
Roger B. Taney statue removed from Mount Vernon Place, Baltimore in August 2017[58]
Roger Taney appears on a 1940 U.S. revenue stamp
Roger Taney appears on a 1940 U.S. revenue stamp

Historical reputation

After his death, Taney remained a controversial figure. Secretary of the Navy Gideon Welles spoke for many Northerners when he stated that the Dred Scott decision "forfeited respect for [Taney] as a man or a judge."[59] In early 1865, the House of Representatives passed a bill to appropriate funds for a bust of Chief Justice Taney to be displayed in the Supreme Court alongside those of his four predecessors.[60] In response, Senator Charles Sumner of Massachusetts said:

I speak what cannot be denied when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion. You have not forgotten that terrible decision where a most unrighteous judgment was sustained by a falsification of history. Of course, the Constitution of the United States and every principle of Liberty was falsified, but historical truth was falsified also.[61][62]

George Ticknor Curtis, one of the lawyers who argued before Taney on behalf of Dred Scott, held Taney in high esteem despite his decision in Dred Scott. In a volume of memoirs written for his brother Benjamin Robbins Curtis, George Ticknor Curtis gave the following description of Taney:

He was indeed a great magistrate, and a man of singular purity of life and character. That there should have been one mistake in a judicial career so long, so exalted, and so useful is only proof of the imperfection of our nature. The reputation of Chief Justice Taney can afford to have anything known that he ever did and still leave a great fund of honor and praise to illustrate his name. If he had never done anything else that was high, heroic, and important, his noble vindication of the writ of habeas corpus, and of the dignity and authority of his office, against a rash minister of state, who, in the pride of a fancied executive power, came near to the commission of a great crime, will command the admiration and gratitude of every lover of constitutional liberty, so long as our institutions shall endure.[63]

Biographer James F. Simon writes that "Taney's place in history [is] inextricably bound to his disastrous Dred Scott opinion." Simon argues that Taney's opinion in Dred Scott "abandoned the careful, pragmatic approach to constitutional problems that had been the hallmark of [Taney's] early judicial tenure."[64] Historian Daniel Walker Howe writes that "Taney's blend of state sovereignty, white racism, sympathy with commerce, and concern for social order was typical of Jacksonian jurisprudence."[65] Law professor Bernard Schwartz list Taney as one of the ten greatest Supreme Court justices, writing that "Taney's monumental mistake in Dred Scott should not overshadow his numerous accomplishments on the Court. Taney was second only to Marshall in laying the foundation of our constitutional law."[66] Taney's mixed legacy was noted by Justice Antonin Scalia in his dissenting opinion in Planned Parenthood v. Casey:

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon to be played out consequences for the Nation—burning on his mind.


Taney's home, Taney Place, in Calvert County, Maryland, was listed on the National Register of Historic Places in 1972. Another property owned by Taney, called the Roger Brooke Taney House (although he never lived there), is in Frederick, Maryland. The House and its associated outbuildings are not open to the public but are open for tours by appointment. In the past the house the property interpreted the life of Taney and his wife Anne Key (sister of Francis Scott Key), as well as various aspects of life in early nineteenth century Frederick County".[67][68]

Several places and things have been named for Taney, including Taney County, Missouri, the USCGC Taney (WPG-37),[69] and the Liberty ship SS Roger B. Taney.[70] In 1993, the Roger B. Taney Middle School in Temple Hills, Maryland was renamed for Justice Thurgood Marshall.[71] A statue of Taney formerly stood on the grounds of the Maryland State House, but the state of Maryland removed the statue in 2017.[72] That same year, the Baltimore City Council voted to remove a statue of Taney.[58]

See also


  1. ^ Simon (2006), pp. 5–7
  2. ^ "Roger Brooke Taney". NNDB: Tracking the Whole Entire World. Soylent Communications. Retrieved July 7, 2012.
  3. ^ Simon (2006), p. 8
  4. ^ Simon (2006), pp. 95–97
  5. ^ Simon (2006), pp. 7–9
  6. ^ Simon (2006), pp. 12–13
  7. ^ Simon (2006), p. 14
  8. ^ McNeal, J., "Roger Brooke Taney", The Catholic Encyclopedia, New York: Robert Appleton Company, 1912. Retrieved May 28, 2009 from New Advent.
  9. ^ Huebner (2010), pp. 17–38
  10. ^ Cole (1993), pp. 84–86
  11. ^ Simon (2006), pp. 15–17
  12. ^ Howe (2007), p. 441
  13. ^ Simon (2006), pp. 19–20
  14. ^ Howe (2007), p. 387
  15. ^ Simon (2006), pp. 21–22
  16. ^ Simon (2006), pp. 22–23
  17. ^ Howe (2007), pp. 392–393
  18. ^ Simon (2006), p. 24
  19. ^ "Nominations". Washington, D.C.: Office of the Secretary, United States Senate. Retrieved June 11, 2018.
  20. ^ Simon (2006), pp. 24–26
  21. ^ Bunson, Matthew (March 20, 2017). "Catholics and the Supreme Court". National Catholic Register. Retrieved November 8, 2018.
  22. ^ Simon (2006), pp. 27–29
  23. ^ Simon (2006), pp. 35–36
  24. ^ Simon (2006), pp. 29–32
  25. ^ Simon (2006), pp. 33–34
  26. ^ Huebner (2003), p. 74
  27. ^ Simon (2006), pp. 36–37
  28. ^ Schwartz (1995), pp. 103–104
  29. ^ Luther v. Borden, 48 US 1 (1849).
  30. ^ The Propeller Genesee Chief v. Fitzhugh, 53 US 443 (1851).
  31. ^ Simon (2006), pp. 90–91
  32. ^ Simon (2006), pp. 93–94
  33. ^ Simon (2006), p. 94
  34. ^ Simon (2006), pp. 98–100
  35. ^ McPherson (2003), p. 172
  36. ^ Simon (2006), pp. 102–105
  37. ^ a b McPherson (2003), pp. 171–174
  38. ^ Simon (2006), pp. 117–120
  39. ^ Simon (2006), pp. 121–124
  40. ^ Simon (2006), pp. 124–125
  41. ^ Simon (2006), pp. 125–130
  42. ^ Simon (2006), pp. 138–139
  43. ^ Simon (2006), pp. 155–156
  44. ^ Simon (2006), pp. 168–171, 177
  45. ^ Simon (2006), pp. 171–172, 182
  46. ^ Simon (2006), pp. 194–195, 220–221
  47. ^ Simon (2006), pp. 222–223, 245
  48. ^ Simon (2006), pp. 183–187
  49. ^ Simon (2006), pp. 189–192
  50. ^ Simon (2006), pp. 195–197
  51. ^ Simon (2006), pp. 205–207
  52. ^ Simon (2006), pp. 225–226
  53. ^ Simon (2006), pp. 229–232
  54. ^ a b "Roger Brooke Taney, 1836-1864". Washington, D.C.: The Supreme Court Historical Society. Retrieved January 16, 2018.
  55. ^ Simon (2006), p. 269
  56. ^ "Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook". Archived from the original on September 3, 2005. Retrieved September 3, 2005. Supreme Court Historical Society at Internet Archive.
  57. ^ Simon (2006), pp. 267–268
  58. ^ a b Nirappil, Fenit (August 16, 2017). "Baltimore hauls away four Confederate monuments after overnight removal". Maryland Politics. The Washington Post.
  59. ^ Simon (2006), p. 266
  60. ^ Roger B. Taney, Augustus Saint-Gaudens (1848–1907) Marble, 1876 ca. United States Senate Arts and History.
  61. ^ Konig, David Thomas; Finkelman, Paul; Bracey, Christopher Alan (2014). The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law. Ohio University Press. p. 228.
  62. ^ Simon, James, F., Lincoln and Chief Justice Taney,(Simon and Schuster, 2006) p. 268
  63. ^ Curtis, Benjamin R., ed. (November 1, 2002) [1879]. A Memoir of Benjamin Robbins Curtis, LL.D. with some of his Professional and Miscellaneous Writings, Vol. I. The Lawbook Exchange, Ltd. pp. 239–240. ISBN 1-58477-235-2. Retrieved January 23, 2016.
  64. ^ Simon (2006), pp. 270–271
  65. ^ Howe (2007), p. 445
  66. ^ Schwartz (1995), 102–103
  67. ^ "Roger Brooke Taney House". VisitFrederick. Retrieved April 2, 2019. The site, including the family’s living quarters, a summer kitchen and slaves’ quarters, interprets the life of Taney and various aspects of middle class life in early nineteenth century Frederick County. The Roger Brooke Taney House is not open to the public. The exterior can be viewed from the street, but visitors will not be able to enter the house. Groups may contact Heritage Frederick for tours by appointment.
  68. ^ "Roger Brooke Taney House : General Information". Historical Society of Frederick County. Retrieved January 23, 2016.
  69. ^ "Taney II (Coast Guard Cutter No. 68)". Naval History and Heritage Command. United States Navy. Retrieved December 27, 2017.
  70. ^ Maryland in World War II.: Military participation. Maryland Historical Society. 1950. p. 360. |access-date= requires |url= (help)
  71. ^ Leff, Lisa (March 5, 1993). "P.G. COUNTY REPLACES TANEY WITH MARSHALL". Washington Post. Retrieved December 27, 2017.
  72. ^ Brian Witte, "Maryland removes Dred Scott ruling author's statue", Associated Press, August 18, 2017.


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