Justice Taney Vilified
Chief Justice Roger Taney is vilified for his language of decision, in Dred Scott, because it is deemed politically correct to vilify it, by politicians and historians who refuse to acknowledge to their constituencies that, as a matter of law, Taney’s language exactly defines the reality of the times in which he lived. Indeed, it exactly defines the legal history of the relation between white men and Africans in America─from 1620, when the first Africans arrived at Jamestown, to 1867 when the Constitution was amended to abolish slavery and confer American citizenship on them.
Here is the language he is cursed for:
“[T]hey had, for more than a century before [the founding of the Union] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man were bound to respect. . . It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, and men in every grade and position in society daily acted upon it. . . without doubting for a moment the correctness of this opinion. And in no nation was this opinion more firmly fixed. . . than by the English Government and English people. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic.”
What Taney meant by the line, “they [the Africans] had no rights which the white man were bound to respect,” is that the positive law─that is, the constitutional and statutory law─did not recognize the concept of Africans possessing civil rights. When there are “rights” recognized by the law, it necessarily follows that there are “duties” connected to the “rights” which, to enforce and vindicate, the law provides “remedies.” It is purely this objective sense of the law, as it existed in the America of 1620-1867, that Taney meant his language to convey. In other words, because the Africans possessed no civil rights, the white man was not bound by any legal duty to respect what did not exist in the eye of the law.
Here follows an example of how the lawyers of 1857 explained the civil status of Africans in antebellum Virginia:
“African slavery as it exists in Virginia is an institution sui generis (i.e., “not like anything else.”). It is different from Feudal Villenage and the Roman Servitude. And no illustrations or analogies drawn from these sources can elucidate its legal character or relations. Slavery was not recognized by the Common Law of England at the time that country established colonies in America and, therefore, the status of the Africans, under law, depends entirely upon the constitutional and statute law of Virginia. In regard therefore to his civil rights and relations¸ the slave is that which the constitutional and statute law makes him. He is that in legal contemplation, and nothing more.
What then is the civil status of the slave, as shown by the constitutional and statute law? By that law and from the necessary nature of slavery as it exists thereunder, the slave has no civil rights and no legal capacity whatever. Recognized rights on the part of the governed imply corresponding legal duties on the part of the government, for rights and duties are correlative terms. If the slave has recognized civil rights, the State protects and is bound to protect those rights, and the obligation is to the slave. Recognized civil rights also imply civil remedies to enforce them, for without these, rights are nothing, and hence the universal maxim of the law that there is no legal right without a legal remedy. If the slave has civil rights, he must have civil remedies, which attach to him as a slave.
According to Blackstone, all civil rights may be reduced to three primary articles: the right of personal liberty, the right of personal security, and the right of private property. Now which of these civil rights has the slave, that the State recognizes an obligation to enforce? And what remedy has the slave, to enforce them? Save the privilege, given him by statute in the single case of a suit for freedom, in what manner can a slave assert any legal right, plead, or be impleaded? Has he magna carta or habeas corpus? Where are his constitutional guarantees? To ask these questions is to answer them.
In a state of slavery, the right of personal liberty and the right of private property are wholly abolished; the person of the slave being at the absolute disposal of the master; and property he is incapable of acquiring and holding. As for personal security, the protection of life and limb given him by the law (for he cannot claim it as a right) that but perpetuates his existence and market value in the state of slavery. Law, as to him, is only a compact between his rulers, in which he is utterly unknown.”
The text of the lawyers writing in 1857, in the Virginia Supreme Court case of Bailey v. Poindexter Exe, goes on for forty pages─all of which confirm the objective accuracy of Taney’s choice of language. The point is, that though the language rings offensive to our ears─living as we do in a different world, a world that has evolved one hundred and fifty years from the time in which Taney lived─it accurately reflects the legal fact that white men, in the America of our past, were not legally bound to respect “rights” slaves did not legally possess.
What is important to understand about this legal state of things, is not that it existed, but why it existed. Here is the explanation for it, in the words of the lawyers, an explanation printed in law case after law case, in books and newspapers, in the speeches of the politicians, Lincoln included.
“That the Civil Law of the Roman Empire is no part of the law of Virginia, it would be a waste of words to show. But even it were, its maxim favorem libertatis would have no just application to Virginia slaves. Roman slaves were of the same generie or similar race and color with their masters. Once emancipated, they stood upon the same common platform of civil and political rights and privileges. The Institutes of Justinian enrobed the emancipated slave with all the civil and political franchises which the proudest descendant of the Caesars could claim as the heritage of his fathers.
So, too, with the villiens of the English Common Law. They were of the same race and color of their lords. Emancipated they became fully entitled at once to all the civil and political rights and immunities of the free people of England. They were easily incorporated into the great body politic, and in time, they and their descendants became yeomen, farmers, merchants, professional men, generals, bishops, lords. Many of the noblest families that illustrate the annals of society and government trace their blood back to no better fountain than the feudal villien. And, hence, manumissions were inferred from the slightest circumstance of mistake or negligence in the lord, and in this way, with cooperating causes, the whole system of feudal slavery wore away and expired in England, without an act of Parliament upon the subject.
Now, unless the Virginia slave be of the same race and color as his master; unless when emancipated, he can remain upon the soil and become one of the free citizens of the Commonwealth; unless his children are incorporated and blended with the great body of the community, and placed upon the same level of social, civil, and political freedom and equality; unless all the vistas of wealth, enterprise and ambition are unfolded to his energies and aspirations; unless by the high and noble powers of educated intellect, he can rise to respectability, influence, and honor, and become a valuable citizen to the State; and, above all, unless it be the policy of the laws to abolish slavery and inaugurate promiscuous amalgamation of the negro and white races by the same process of judicial extermination by which Roman servitude and feudal villienage were undermined and swept away; then there is no reason and no propriety in applying Virginia slaves the maxims of the Civil and Common law in favorem libertatis.
If, instead of all those rights and privileges and prospects, the emancipated slave, remaining in the State, is condemned, with all his posterity to hopeless and perpetual degradation; if his color transmits the eternal mark of his ignominy to all his descendants, and though the law might abolish slavery, God alone could obliterate the traces of its existence; if he populates the poor house and the penitentiary; if he spreads discontent, disobedience and disorderly habits among the surrounding slaves, and becomes indeed but a festering gangrene on the bosom of the slaveholding community, then there can be little pretense for favoring his freedom.”
Here you see the great objective truth the generations of historians and politicians since the Civil War, have hidden. Their mantra has been that slavery caused the American Civil War, that the war was about slavery, that the North fought the South to free the slaves, when the plain truth of the matter is that white racism caused the Civil War. The reason slavery was not abolished in America without a war, was that the whole white population of America in the antebellum time could not bring themselves to accept Africans into their communities as citizens with equal political and social rights. At the bottom of the thing, the South seceded from the Union, because her white people felt certain the North─through the Republican Party’s control of the Federal Government─meant to bottle the Africans up in the South, which would create a situation where the pressure of economic circumstances would force freedom for the Africans which would, in turn, bring such a fierce competition for political control that the result would be war anyway.
So it is a pathetic commentary of our time, that, in the main, the current crop of politicians and historians can rail about six ton granite boulders, with tiny plaques memorializing the Confederate Dead, being “racist symbols,” when the plain truth is black Americans ought to recognize it was the moral courage of the Confederate soldier and the Union soldier, fighting themselves to the last ditch, that is the efficient cause of their ancestors’ sudden freedom. A moral courage worth their respect.
It is silly to assert this is a “racist symbol.”
“. . . black students who charged [the rock is] a symbol of racism. . . “