Roger Brooke Taney. corporations was in 1836 in a singularly unsatisfactory and transitory state of development. Many cases involving this question came before the Supreme Court during Taney's administration. By a steady progression he finally reached, in Ohio and Mississippi Railroad Company v. Wheeler, I Black 286, the decision that a suit by or against a corporation must be conclusively presumed to be a suit by or against the citi zens of the State which created it. The greatest work of Taney, however, seems to me to be in those cases of consti tutional law in which he guarded the rights and powers of the States. It was due to him more than to any other man that the power of the States to make internal improvements was retained at a time when it was peculiarly necessary that they should have full liberty, unrestrained by any constitutional limita tions, to sweep away excrescences and obso lete institutions and build anew works ade quate to the times and to the future. This power the Chief Justice preserved in one of his very first opinions in Charles River Bridge v. Warren Bridge, 11 Peters 420, where he laid down the doctrine that a State in granting a franchise could not be pre sumed to have made also an implied con tract, which in effect would guarantee the value of the franchise. No mention of Taney's judicial career could be made that did riot include a refer ence to his opinion in the case of the Genessee Chief v. Fitzhugh, 12 How. 443. That judgment extended the maritime and admiralty jurisdiction of the United States over the great lakes and rivers, and estab lished the doctrine upon a firm foundation of reason and unanswerable logic. It has probably had as beneficent an influence over the growth of the country as any legal doctrine that has ever been propounded. This opinion of the Chief Justice is second only to his masterly judgment in the Charles River Bridge case. Upon these two cases his reputation as a great judge may rest secure. At the extremity of his judicial career is
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his judgment in ex parte Merryman, Camp bell 246, in 1861 on the circuit, where he held that the President had no right to sus pend the writ of habeas corpus. This case on the circuit irresistibly recalls to memory that other judgment in ex parte Bollman and Swartwout, 4 Cranch, 75, of his great prede cessor. Ex parte Merryman was the last case in which the voice of the Chief Justice was heard from the judgment seat. The occasion, however, for protest against the unconstitutional usurpation of power by other branches of the national government was not over. The bitter necessities of civil war dwarfed and buried all other considera tions, both constitutional and political. In a letter to Mr. Chase, the Secretary of the Treasury, dated February 16, 1863, as the head of the judiciary he called the Secretary's attention to the unconstitutional construction of the clause of the act of Congress which imposed a tax of three per cent, on the salaries of Federal officers, so that it was applied to the salaries of the judges. The Secretary treated the letter with silent con tempt. Mr. Chief Justice Taney is an interesting problem in human character. To me that problem is unsolvable. It is not a pleasant thing to criticise a great magistrate for un judicial conduct, but I have seen no ex planation, and can conceive of none, which satisfactorily explains his attitude and con duct in the Dred Scott case. The legal status of slavery, which was the main issue on the merits of that celebrated action of tort, is an obsolete question, and can never be of lesjal importance again or of more than his torical interest. I shall not, therefore, enter here upon any criticism of it, but would refer the curious to the case itself in' 19 Howard. 393. and to the joint article upon it by Mr. Justice Gray and the late Judge Lowell in 20 Law Reporter, 61. written in 1857, when they were at the bar. In both will be found full discussions of the right of the United States to acquire territory by treaty or conquest, and to govern it: a dis cussion of peculiar and controlling interest
