Taney Court (1837–1864)

Roger Brooke Taney served a chief justice from 1837 to 1864. In that period the court heard relatively few cases that would be categorized as ‘‘civil liberties’’ cases today. The Bill of Rights did not apply to the states at this time and the federal government rarely interfered in the day-to-day lives of most people. Nevertheless, civil liberties issues reached the Court in a few significant cases, mostly, but not exclusively, involving slavery and the Civil War.

In Justice Taney’s first term as chief justice, the Court decided two cases that had civil liberties implications, although at the time they were not discussed in that way. New York v. Miln (1837) involved a New York statute that required every ship entering that state from abroad to provide the state with a list of all passengers, including their names, ages, and country of origin. In addition, the law required:

from every master of such vessel that he be bound with sureties in such sum as the mayor, &c., shall think proper, in a sum not to exceed 300 dollars, for every passenger, to indemnify and save harmless the mayor, &c., of the city of New York, and the overseers of the poor of the city from all expenses of the maintenance of such person, or of the child or children of such person, born after such importation; in case such person, child or children, shall become chargeable to the city within two years.

This law was aimed at regulating immigrants and the poor. Miln, the master of a ship that docked in New York, refused to comply with the law, arguing it violated the commerce clause. The Court upheld the law as a legitimate regulation of local ‘‘police powers’’ and ignored its implications for commerce. The case is usually seen as a modification of the commerce clause. However, the case also allowed for the local regulation of immigrants and, by implication, the exclusion of undesirable people. Counsel in the case argued that this law was consistent with state laws that prohibited free blacks from entering southern ports. In Charles River Bridge Co. v. Warren Bridge Co. (1837) the Court allowed Massachusetts to charter the Warren Bridge Company to construct a bridge that would compete with the existing Charles River Bridge. This case is usually seen as one involving the contracts clause of the Constitution. But, it can also be understood as an aspect of ‘‘takings’’ jurisprudence, in the sense that the Court did not see the construction of a competing bridge as ‘‘taking’’ property.

In Permoli v First Municipality of New Orleans (1845) the Supreme Court reaffirmed that the First Amendment did not apply to the states. This case involved a local regulation in New Orleans that limited which churches could be used for funerals. Permoli, a Catholic priest, challenged the law on First Amendment grounds, but the Court refused to interfere, arguing that the amendment did not limit the states, but only the national government. This would remain the rule until the Fourteenth Amendment altered the Constitution after the Civil War.

Cases involving slavery raised a series of civil liberties questions for the Court. In United States v. Amistad (1841) the Court upheld the district court’s ruling that Africans illegally brought to the New World as slaves had a right to revolt, and even kill those enslaving them, in order to gain their freedom. The Court’s ultimate decision in the Amistad case turned on the interpretation of various treaties and had little impact on slavery or civil liberties. But, the case did stand for the principle that people had the right to vindicate their liberty if they were illegally held as slaves.

The implications of the Amistad ruling were not directed at American slavery. The Taney Court consistently upheld the rights of masters to recover fugitive slaves and denied the rights of alleged fugitive slaves to a due process hearing to determine their status. In Prigg v. Pennsylvania (41 U.S., 16 Pet., 539, 1842) the Court held that Fugitive Slave Law of 1793 was constitutional and that alleged slaves were not entitled to a jury trial or any due process protections when being returned to a slave state. In addition, the Court held that the states were precluded from protecting the civil liberties and due process rights of fugitive slaves.

In Jones v. Van Zandt (1847) the Court held that whites did not need official ‘‘notice’’ to be liable for civil penalties if they helped a fugitive slave escape. In this case, an Ohio Quaker, John Van Zandt, had offered a ride to a group of slaves walking on a road in Ohio. Van Zandt claimed that he had no notice that these were slaves and thus he could not be liable for the value of the one slave who was never captured and returned to bondage. The Court disagreed and in effect nationalized the southern presumption that all blacks were slaves unless they could prove otherwise, even if found in a free state.

In Dred Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), the Taney Court held that the Fifth Amendment to the Constitution prevented Congress from banning slavery in the federal territories because this amounted to an unconstitutional ‘‘taking’’ of private property. In his majority opinion Chief Justice Taney asserted that the Bill of Rights was applicable to all of the federal territories. The U.S. Supreme court would back away from this position in the Insular Cases, decided between 1901 and 1920.

The Supreme Court never attempted to interfere with President Lincoln’s prosecution of the Civil War. In Ex parte Merryman (1862) Chief Justice Taney, acting in his capacity as circuit justice, issued a writ of habeas corpus, ordering that Merryman, a civilian, be released from military custody. By this time Lincoln has suspended habeas corpus in Maryland and the commanding general at Fort McHenry (where Merryman was in the brig) ignored Taney’s order. The full Supreme Court never heard the case. In Ex parte Vallandigham (1864) the Court refused to hear the case of Clement Vallandigham, a Confederate sympathizer in Ohio who was convicted by a military court for antiwar speeches. The Court claimed it had no jurisdiction to review the military trial. After the war, in Ex parte Milligan (1866) the Court would reverse this position, overturning the military conviction of Lambdin Milligan.

PAUL FINKELMAN

References and Further Reading

• Curtis, Michael Kent. Free Speech, ‘‘The People’s Darling Privilege’’: Struggles for Freedom of Expression in American History. Durham, NC: Duke University Press, 2001.
• Hyman, Harold M., and William M. Wiecek. Equal Justice Under Law: Constitutional Development, 1835–1875. New York: Harper and Row, 1982.
• Neely, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.