The Roger Brooke Taney Statue (Monuments part 3)

One of the four monuments hauled away in the dead of night on August 16, 2017 was a seated likeness of Chief Justice Roger Brooke Taney, created by William Henry Rinehart in 1871. In keeping with my theory that we need to pay particular attention to whatever the cultural Marxists are trying to hide or suppress, this is a good time to take another look at old Judge Taney.

The only thing that everybody knows about the man is that he authored a notorious ob iter dictum in the Dred Scott case of 1857. There is no one I know who regards his remarks in that case as wise or historically correct with regard to the status of blacks at the time of the adoption of the Constitution. By misusing judicial power (in an attempt to foreclose the political debate concerning the spread of slavery to the U.S. territories), his decision anticipated the 20th-century judicial activism that is so much praised by the left. As in the case of more recent efforts by the Court to overrule popular deliberation on racial issues, the Dred Scott decision exacerbated passions on both sides.

But Taney served on the court for 28 years, and his other decisions showed a good sense of the tension between individual liberty and the common good. Charles River Bridge v. Warren Bridge (1873) insisted on a strict construction of state contracts and refused to support the notion of implied monopolies. The decision was important in encouraging competition in the marketplace. Luther v. Borden (1849) set a sound example of judicial self-restraint. Genesee Chief v. Fitzhugh (1852) very sensibly extended the legal authority of the federal government to the navigable inland waters of America. Prigg v. Pennsylvania (1842) insisted on the positive responsibility of states to enforce federal fugitive slave laws. Whether those laws were good laws is beside the point if you believe that judges should not legislate from the bench.

The case of greatest interest to Baltimoreans was Ex parte Merryman. Here I shall quote from my own little history of Baltimore County.

John Merryman was a prominent citizen. He served as president of the Maryland State Agricultural Society (1857-1861) and president of the Board of County Commissioners (1857). A member of Sherwood Protestant Episcopal Church, he was at various times a vestryman, registrar, and treasurer. By 1861, he was also first lieutenant in the Baltimore County Horse Guards, and it was in this capacity that he ran afoul of Lincoln’s army of occupation.

On April 19, 1861, Union soldiers passing through on their way to Washington fired upon a mob at the corner of Pratt and Commerce Streets in Baltimore. The similarity of the incident to the Boston Massacre of 1770 was not lost on the citizens of Baltimore, and the fact that the troops involved were from Massachusetts added a bitterly ironic touch. An outraged public called the event the Pratt Street Massacre, and James Ryder Randall, a young school teacher from Baltimore who believed that a friend of his had been killed in the fray, wrote the poem “Maryland, My Maryland.” Sung to the tune of “O Tannenbaum,” it became an instant hit in the south and was adopted some 78 years later as Maryland’s state song.

 The despot’s heel is on thy shore, Maryland;

His torch is at thy temple door, Maryland.

Avenge the patriotic gore that flecked the streets of Baltimore,

And be the battle queen of yore, Maryland.

Spoilsports have been trying to replace it with one or another piece of insipid slop ever since I can remember. The latest such offering is here. The breaking news on this front is that the geniuses in the state senate have just voted to re-designate “Maryland, My Maryland” as the “Historic State Song.” I actually think that’s a fair compromise. The whole business of naming state songs, birds, amphibians, cakes, etcetera has always struck me as ridiculous. Might as well have an official silly walk. Official documents never printed more than three verses, and nobody ever sang the really good part about spurning the northern scum anyway. The monuments are a different matter, so let’s return to the tale of John Merryman.

Naturally, the mayor and businessmen of Baltimore were less enthusiastic about gore and vengeance and more interested in quieting things down before any more damage was done. As Mayor William Brown later recalled, “it was suggested that the most feasible, if not the only practicable, mode of stopping for a time the approach of troops to Baltimore was to obstruct the Philadelphia, Wilmington and Baltimore and the Northern Central Railroads by disabling some of the bridges on both roads…” For a southern sympathizer like Mr. Brown, this idea had the added advantage of hampering the Yankee war effort. Governor Thomas H. Hicks appeared to agree with this suggestion when it was made but later denied that he had any part in the decision.

Believing that he was acting under orders from the governor, John Merryman rode out with some of the horse guard to burn the bridges. Recoiling from the destruction of so much valuable property, he burned only one bridge, south of Parkton, leaving the others intact. Then he courteously offered to assist Major Belger of the Union army in any way that he could in turning back to Pennsylvania the troops that were backing up along the blocked rail line, even going so far as to offer to slaughter his own cattle if necessary to feed the northern soldiers.

A righteous man sleeps soundly, and so did John Merryman until 2 a.m. on May 25, when blue-coated soldiers burst into his home and led him away under guard to Fort McHenry. There he was held without trial, on a charge of treason. The commandant, General George Cadwalader, refused to allow Merryman’s lawyer to read or copy any official papers related to the arrest.

The next day, Sunday, May 26, Chief Justice of the U.S. Supreme Court Roger Brooke Taney issued a writ of habeas corpus. In those days, when the Supreme Court was not in session, the justices rode the circuit (a practice that ended in 1869), and by chance, the Chief Justice was presiding at that moment in the circuit court in Baltimore City. When the military authorities refused to honor the writ, Taney was incensed. In his opinion, he wrote, “…I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.” As a practical description of life under military occupation, many another Marylander was to discover that Taney’s words were only too true. Lincoln ignored the ruling and continued the suspension of habeas corpus. The pace of arrests increased, including Baltimore’s mayor and police commissioner.

In summary, the man whose sad and weary visage used to greet visitors to the northern part of Mount Vernon Place should be better loved than he has been. In an unforced cuck, Republican Maryland Governor Larry Hogan had another statue of Taney removed from the lawn of the State House in Annapolis one night in August of 2017. The Washington Post reports that Democrat Mike Miller, President of the Maryland Senate, denounced the move and “said the statue should stay put to help educate people about the past. He credited Taney for ‘anti-slavery words and actions,’ saying that ‘unlike George Washington who freed his slaves upon his death, Taney freed his slaves early in his life.’ He also noted Taney’s many roles in public service including state lawmaker and attorney general, secretary of war, U.S. attorney general and U.S. treasury secretary.” When the state’s leading Republican has less sense than the leading Democrat, we’re in trouble.