Books: Justice for the Justice

WITHOUT FEAR OR FAVOR by Walker Lewis. 556 pages. Houghton Mifflin. $7.50.

When the old man finally died at the age of 87, President Lincoln dutifully came calling at his modest home on Indiana Avenue for a final look at his gaunt face before the coffin was closed. But for all the solemn condolences, there was no real sorrow in official Washington when Chief Justice Roger

Brooke Taney died on Oct. 12, 1864. At best, there was a widespread sense of relief; at worst, an unconcealed jubilation.

For the old Chief Justice was an uncompromising constitutionalist, a stout defender of the citizen’s civil rights who had struck down many wartime measures when they threatened individual rights. And many an abolitionist believed that Taney was largely to blame for the Civil War itself because of his decision refusing to free Dred Scott.

As a result, historians have all too often put Taney down as an obstructionist and defender of slavery. Now, in a beguiling biography, Author Lewis, a Washington lawyer and amateur historian, sets out to put the record straight.

Minor Vice. A tall man with a conspicuous stoop and a diffident manner, Taney looked rather like a fragile Lincoln. Courtly in dealing with lawyers, a gentle and loving family man, he had only one known vice, and that a minor one: a ferocious addiction to Cuban Principes cigars, which discolored his teeth and left his judicial robes reeking of tobacco smoke.

He was nearly 80 and had been Chief Justice for 20 years, with an outstanding record as a fair and impartial judge, when the Dred Scott case came before the Supreme Court. Author Lewis is at his skilled best when he describes the legal maneuvering and collusion between principals that made it a test case in the first place. Dred Scott was a slave who belonged to an Army surgeon named John Emerson. His master had taken Dred with him when he was ordered to duty at Fort Snelling in the Louisiana Territory. Fort Snelling was north of the line dividing slave and free territory set by the Missouri Compromise. Basically, the issue to be decided was whether Scott’s service there conferred freedom on him and all of his family.

Although each of the nine Supreme Court Justices delivered a separate opinion, the court held by a vote of 7 to 2 that it did not. Taney became the focal point for public outrage because, among other things, he delivered an opinion in which he lamented the “unfortunate” condition of the Negro race but construed the Constitution, along with the “fixed and universal” belief of the age that wrote it, as demonstrating that Negroes were legally “a separate class of persons” not covered by the constitutional asseveration that “all men are created equal.” The law as written, Taney concluded, gave him no ground to assert that Negroes were not “beings of an inferior order … so far inferior that they had no rights which the white man was bound to respect.”

Abolitionists promptly took up the opinion and used it as a stick to beat Taney with. But Author Lewis argues that Taney was guided by his dedication to the rule of law rather than by any sympathy for slavery, pointing out that Taney had freed the last of his own eight slaves as far back as 1821, and for most of his life was an outspoken critic of slavery. With his brother-in-law, Francis Scott Key, the Maryland attorney who is best remembered for writing the words to The Star-Spangled Banner, Taney was a prime mover in the American Colonization Society, designed to establish a home in Africa for freed Negroes.

Firm Hand. The Dred Scott decision alone made Taney extremely unpopular in the North, but public ire reached a crescendo after Fort Sumter, when he steadfastly opposed the war-harassed Lincoln Administration as it tried to circumvent constitutional safeguards for the sake of wartime efficiency.

Civil War or not, Taney held that it was the duty of the court to maintain “with an even and firm hand the rights and powers of the Federal Government, and of the States, and of the citizens, as they are written in the Constitution …” In a series of unpopular decisions, he held that the President alone did not have the power to order the seizure of ships trading with Confederate ports; he ordered the federal provost marshal to pay damages and costs for merchandise which had been confiscated because it was bound for Virginia. He outraged the Administration by filing an opinion that the Secretary of the Treasury was acting illegally when he deducted income tax from judicial salaries. He refused to sanction any attempt by the President to suspend the writ of habeas corpus.

As the attacks against him grew in intensity and viciousness, the old Chief Justice’s health steadily declined. He was conscious of the gloating watchfulness and sensitive to hostility, which is perhaps why, even near the end, he did not seem to fear or resent death. Indeed, Taney seemed to be more concerned with the fact that the war was interfering with his supply of Cuban Principes.