Exceptional Countenance given by the Democratic Party to the
Federalist Doctrine of the Supremacy of the Judicial over the other
Departments on the Occasion of the Dred Scott Decision--Former
Acquiescence of the Country as to the Power of Congress over
Slavery in the Territories--That Power brought in question by
General Cass, in 1848--The Result a Rupture in the Democratic Party
and Defeat of Cass--The subsequent Election of Pierce--Repeal of
the Missouri Compromise--Dangers of that Step--The Kansas-Nebraska
Act--Opinions of the Judges in the Dred Scott Case how far
extra-Judicial--Probable Motives of the Chief Justice and his
Brethren--The Author's Recollections of Taney--The Motives of the
Judges Good, but their _obiter dicta_ a Mistake--The Course of
President Buchanan, with respect to the Dred Scott Decision, an
Abandonment of the Democratic Principle of the Independence of each
of the three great Departments in deciding Constitutional
Questions--Subsequent Action of the Democratic Party on this
Subject--Importance of returning to original Doctrines of the
Party.
If this essay shall be ever published, the censures I have bestowed upon
the old Federal party and its successors for their persevering efforts
to destroy the balances of the Constitution, in this respect of the
relative powers of the departments, will doubtless be met by those who
still sympathize with its opinions, by a reference to the proceedings in
the case of Dred Scott. Of this no one will have a right to complain, so
long as those who so refer confine themselves to facts; for truth is
truth, whatever may be the circumstances under which it is applied, and
wrong is wrong, by whomsoever it may be committed and by whatever party
it may be sustained. It will be alleged that the Supreme Court, now
composed of gentlemen who are acknowledged members of the Democratic
party, has in that case set up the right to guide the official action
of the executive and legislative departments of the Government upon a
great constitutional question,--that the Executive has recognized that
right, and has promised to conform his own course to it when exercised,
and that these proceedings have received the approbation and support of
the Democratic party.
In the notice I propose to take of that case, it is not my intention to
discuss the correctness or incorrectness of the decision that was made
in respect to the power of Congress to legislate upon the subject of
slavery in the Territories. I will however state in advance and in few
words the view I now take of the general subject.
The acquiescence of the country in the power of Congress referred to,
from the Presidency of Washington to that of Polk inclusive, is well
known. Every President signed bills for carrying it into effect, when
any such became necessary and were presented for their approval, and the
other great departments of the Government not only complied with the
rule but, in innumerable instances, recognized its validity. This
continued until the year 1848, when a point, which had so long been
considered settled, was brought in question by an opinion expressed by
General Cass, then being a candidate for the Presidency, in a letter to
Mr. Nicholson, of Tennessee, adverse to the powers of Congress. The
Democratic party, whose candidate he was, adopted his opinions, and the
consequences were a rupture in that party, the elevation of an
old-school Federalist to the Presidency, and an administration of the
Federal Government upon the long exploded principles of Federalism. In
1852 the Democracy of the Union, instructed by experience in regard to
the destructive tendency of slavery agitations, resolved to avoid them
in future, united on General Pierce as their candidate, supported him
on their old and time-honored principles, and elected him by a
triumphant majority.
This result, so auspicious to the country, was unhappily followed by the
repeal of the Missouri Compromise, and a consequent reopening of the
agitation upon the subject of slavery, in a form and under influences
more portentous of evil than any which had before attended it.
I received information of that event whilst I was abroad, a
sojourner in a country which was under the dominion of an absolute
monarch,--circumstances which never fail to increase the attachment of a
true-hearted American, however orthodox he may have been before in his
devotion, to home and its inestimable institutions. Although forever
withdrawn from public life, I could not be indifferent to a measure
promising such startling consequences. Having had full opportunities to
become acquainted with the evil which the infusion of slavery agitation
into the partisan feelings of the country was capable of producing, I
felt, in all their force, the dangers to which our political fabric
would be exposed by that act, and mourned over its adoption. Whatever
may be thought or said of it in other respects, in regard to its
influence in exciting sectional animosities to a far more perilous
height than they had ever reached before there is not now room for two
opinions.
Under the feelings of the moment, I naturally extended to the substitute
Congress had provided, the odium which, in my view, belonged to the act
of repeal, and could see no adequate relief save in a restoration of the
Compromise. But as passion subsided I became convinced of the
impracticability of that step, and turned my attention to a more careful
consideration of the Kansas-Nebraska Act, and I became satisfied that,
if honestly executed, it was all that could, under existing
circumstances, be done, or, perhaps, desired. Having been a second time
invited by my old political friends of Tammany Hall, before the
Presidential election of 1856, to submit my views upon the then state of
the question, I gave them in a letter which presented the whole subject
in a form and was written in a spirit which many thought well calculated
to make favorable impressions on well-intentioned and sober-minded men.
It contained a simple and truthful description of the position I had
before occupied upon the slavery subject, an exposition of the reasons
by which I was yet satisfied that it had been well taken, and of the
ground of my expectation that Mr. Buchanan would do all in his power to
cause the Kansas-Nebraska Act to be carried into full and fair effect.
I have read all the opinions given by the judges in the Dred Scott case
with care, and will state the impressions which they have made upon my
mind. I had never examined the question, and learned, with serious
misgivings as to its correctness, that the court had decided that a man
of African birth, though free and, in the State in which he resided,
entitled to all the rights of a citizen, was not also a citizen of the
United States. My mind remained in this state, with partial alleviations
of my anxiety, derived from newspaper sketches of the subject referring
to instances in which the principle had been acted upon in the
administration of public affairs, until I read very deliberately the
voluminous opinions of the judges. The able, judgelike, and I may add,
statesmanlike, views taken by Chief Justice Taney and by Justice Daniel,
of that branch of the subject, have satisfied me that the judgment of
the court upon it was right. I am now convinced that the sense in which
the word "citizen" was used by those who framed and ratified the Federal
Constitution was not intended to embrace the African race, whose
ancestors were brought to this country and sold in slavery. I shall
content myself with stating the result of my reflections, without going
into details, as that would be to re-argue the question, which would be
foreign to my present object. I do not say that the subject is free from
difficulties. No adverse opinion could pass through the ordeal of so
subtle and masterly an argument as that of Justice Curtis, who bestowed
more attention upon the point than his dissenting brother, and escape
unscathed.
The weight of facts and argument is, notwithstanding, in my judgment, on
the side of the decision of the court.
A decision in favor of a free black man's right to institute a suit in
the Federal court, on the grounds of citizenship and his residence in a
different State from the defendant, would undoubtedly establish his
right under the Constitution to the enjoyment in a slave State of all
the privileges allowed to its own citizens. The extent to which such a
construction and the practical operation of the rights which might be
claimed under it would increase the difficulties, already so great, of
maintaining the unity and harmonious action of the Federal system, will
be more and more apparent the deeper the matter is considered. I think
it is quite certain that if the Constitution had been supposed to
contain a provision legitimately authorizing such consequences, it would
not have been agreed to by the slaveholding States, nor, in view of the
liberal spirit evinced even by the latter at the time of the formation
of the Constitution in regard to the extension of slavery, would such a
provision have been insisted upon by their brethren of the States which
had the happiness to be comparatively free from the institution. The
decision must, therefore, be regarded as fortunate, as I cannot but hold
it to be correct. For though the personal rights of individuals, however
humble their position in society, are not the less important and their
protection no less the duty of government, yet the great community may
felicitate itself that claims like these,--the practical enjoyment of
which, while of little value, relatively, to the few who assert them,
may endanger the peace and welfare of millions,--are extinguished
through the agency of the organ of the Government constituted for their
adjustment. It is in such cases, when confined to its necessary and
legitimate duties, that the salutary influence of that high tribunal is
felt by all.
The plaintiff, Dred Scott, alleged in his declaration--as he was bound
to allege to give the Circuit Court jurisdiction of the cause--that he
was a citizen of Missouri. Sandford, the defendant, plead to the
jurisdiction and alleged for cause of abatement that Scott was not a
citizen of Missouri as averred in his declaration, "_because_ he is a
negro of African descent; his _ancestors were of pure African blood and
were brought into this country and sold as negro slaves_." To this plea
there was a demurrer by which the facts set forth in the plea were
admitted, and upon the issue in law thus joined the Circuit Court gave
judgment that the demurrer be sustained. The plea, it will be perceived,
did not aver that Scott was a slave, or state any fact from which the
inference that he was such unavoidably resulted. The plaintiff was,
therefore, to be regarded in the decision upon the demurrer as a free
man, and was so regarded by the Circuit Court and by the Supreme
Court.[37] The effect of the final decision, assuming it to have been
the opinion of the court, was that the judgment of the Circuit Court
upon the demurrer be reversed, and a mandate issued directing the suit
to be dismissed from that court for want of jurisdiction. This disposed
of every question in the case that entered into, or could exert the
slightest influence upon the personal rights of the parties or the
ultimate judgment of the Supreme Court. Judge Daniel in his
opinion--inferior to none that were delivered--admitted this in so many
words: "According to the view taken of the case as applicable to the
demurrer to the plea in abatement in this cause," (said he,) "the
question subsequently raised upon the several pleas in bar _might be
passed by, as requiring neither a particular examination nor an
adjudication directly upon them_." This was, beyond all doubt, the true
condition of the case. Every other question bore upon one point only,
and that was, whether Scott had become a free man,--a question not put
in issue by the plea in abatement, and according to the opinion of the
court of no real consequence in the decision of the cause.
[37] The opinion of the Supreme Court is thus summed up by the Chief
Justice: "And upon a full and careful consideration of the subject
_the court_ is of opinion _that upon the facts stated in the plea in
abatement_ Dred Scott was not a citizen of Missouri within the
meaning of the Constitution of the United States, and not entitled
as such to sue in its courts; and consequently that the Circuit
Court had no jurisdiction of the cause and that the judgment on the
plea in abatement is erroneous."
The result would, therefore, seem to be that every thing subsequently
said and done by the court was extrajudicial--_obiter dicta_ decisions,
which, not affecting the merits of the case, are of no authority. But
the court, anticipating such an objection, made very considerable
efforts, in advance, to repel and disprove it. Both the Chief Justice
and Judge Wayne insisted earnestly on the circumstance that this was a
writ of error to the Circuit Court and not to a State court; that the
question did not relate to the jurisdiction of the Supreme Court, but of
its own inferior court, and that in such cases it was the practice and
the duty of the Supreme Bench to take a wider range in the correction of
errors than when the case came up from the State courts, and the
question was whether the Supreme Court had a right to act in the matter.
In the latter case they admitted that the judges ought to stop the
moment they found that none existed, and if they did not, all beyond was
extrajudicial. They urged that the general judgment in favor of the
defendant, in a case in which the Circuit Court had no jurisdiction, was
an error apparent on the record which it was proper in the Supreme Court
to correct by a reversal of that judgment, and that for this purpose it
became necessary to decide the issue presented by the special plea which
involved the constitutionality of the Missouri Compromise Act; and,
finally, that the case was one which the court had not sought, but which
had been brought before it in the regular course of judicial
proceedings; that the issues it involved were those which the parties
had presented for the decision of the court, and that it was its duty to
dispose of them.
That the court had neither sought the case nor exerted any agency in
framing the issues it presented was undeniably true, and the reasons
assigned in justification of its course are certainly entitled to great
respect. How far their strength is impaired by the following
considerations, those who have sufficient curiosity to study the case
will judge for themselves. That the parties, at the commencement of the
proceedings in the Supreme Court, were both desirous to have the issue
joined upon the merits examined and decided upon by that court, is very
evident, but it is questionable whether the wishes and interests of both
were not superseded by its action. The plaintiff secure, as he supposed,
by the stand he had acquired in the Circuit Court through the decision
of that tribunal upon the demurrer in his favor, was of course
solicitous to reverse the judgment which had been given by that court in
favor of the defendant upon the merits. The defendant had two objects in
view,--the first of which was to reverse the judgment upon the demurrer,
and, if he failed in that, to sustain the judgment in his favor upon the
merits. On the argument of the cause it was made a grave question
whether the point raised by the plea to the jurisdiction was legally
before the Supreme Court,--a question of no small difficulty and one in
regard to which there was a diversity of opinion to the last, even among
the judges who were in favor of the decision of the court. It was
contended by the plaintiff in error that the defendant had conceded the
jurisdiction of the Circuit Court by pleading over, and that he had not
brought his writ of error to reverse his own judgment. But the Supreme
Court overruled these objections, reversed the judgment in his favor,
and directed the suit to be dismissed from the Circuit Court for the
want of jurisdiction. By this decision, which the plaintiff could not
foresee, and was not bound to anticipate, all his interest in a decision
upon the merits was of course superseded. The defendant having succeeded
in driving the plaintiff out of the court below, could have no possible
desire that the judgment rendered in _his own favor_ should be reversed;
affirmed it could not be on account of the want of jurisdiction in the
Circuit Court. His application to the Supreme Court to have that point
of the case acted upon was therefore superseded by its own act. Such
anomalous proceedings, as an elaborate opinion in favor of all the
claims set up by a party terminating with the reversal of a judgment in
his favor, are happily of rare occurrence in judicial tribunals so able
and elevated as ours. It is perhaps questionable whether the judgments
for the defendant in the court below did not fall with the dismissal of
the cause from before the Circuit Court for want of jurisdiction,
without farther interference on the part of the Supreme Court. Still in
a case involving so many and such extraordinary complications, the
latter might well feel itself at liberty to decide also the questions
that were raised and had been very fully discussed before it upon the
merits of the cause. But on what grounds it could regard such a course
as obligatory and necessary to the complete administration of justice
between the parties litigant before it, I cannot see, and I find it
difficult to believe that the members of the court would have given
themselves the trouble to prepare such elaborate opinions upon questions
the decision of which was not necessary to the judgment of the court, if
their solution could have had no other bearing than upon the personal
rights of Dred Scott. I think it more likely that the judges who united
in the opinion that the Missouri Compromise Act was unconstitutional,
seeing the extraordinary revolution which its repeal had produced in the
political and fraternal feelings of the people of the United States, and
sincerely believing the safety of the Union endangered by continued
agitation upon so disturbing a subject, hoped to arrest it by the
judgment of the Supreme Court upon the point in question,--a step which,
if not actually called for, they yet believed fully justified by the
case before them.
Chief Justice Taney, who, by his superior intellect and elevation of
character, was enabled to give to such a movement its greatest impulse,
was not exempt from an original bias in favor of the doctrine advanced
by Mr. Webster in the discussions upon the Bank Veto, when the latter
declared,--"Hitherto it has been _thought_ that the final decision of
constitutional questions belonged to the supreme judicial tribunal. The
very nature of free government, it has been _supposed_, enjoins this;
and our Constitution, moreover, has been _understood_ so to provide
clearly and expressly."[38] The peculiarity of these expressions
challenges our attention in passing. The guarded and sly manner in which
they put forth the doctrines of the old Federal party, without assuming
the responsibility of affirming them, is in their author's best manner.
[38] The italics are mine.
Nor did the Chief Justice stand alone in that position among his
judicial brethren. He had occupied a distinguished place in the Federal
ranks to an advanced period in his professional life; he had acquired an
enviable fame at the Bar, and had left it, as most old lawyers do, with
feelings of admiration and respect not only for his professional
brethren but for the Bench, in the influence and power of which they
seldom fail to take the deepest interest. It was hardly to be expected
that he should, on taking his seat, have proved insensible to the
_esprit du corps_ which had long prevailed in and around that high
tribunal, and which, directed by the plastic hand of John Marshall, had
charmed minds as strong as his own, even although professing opposite
political principles. Story and Thompson, who had been stars of
considerable magnitude in the old Republican party, were in succession
subdued by Marshall's magnetic influence to conditions in this regard
favorable to the acceptance of almost any extension of the doctrine of
the supremacy of the Supreme Court.
Although the master-mind which gave it life and by which it was
installed has departed, the proceedings now the subject of our review
give us abundant reason to apprehend that the spirit has retained its
place and power. In respect to many hardly contested issues brought
before the Court, occurring vacancies and new appointments have
doubtless worked important changes in its opinions; but on that of the
supremacy of the judicial over the other departments of the Government
in constitutional questions, there are yet, it is to be feared, few
dissentients on the Bench, and least of all on the question from which
opposition to the decision in the Dred Scott case proceeded. That
decision was therefore pronounced under the full persuasion that, in
addition to its quieting effect upon the public mind, it, of right,
ought to have a controlling influence over the action of the other
departments of the Government; that it ought to influence the action of
Congress in particular, and that, if an attempt should be made to revive
the condemned act, it would guide the course of the Executive. Judge
Daniel, in the modest, hesitating terms in which he expressed his
concurrence in the farther proceedings, which he admitted to be
unnecessary, seems to have thought it due to the political school in
which he had been reared to put some qualification upon the power of the
court to settle the conflicting views upon the subject that prevailed
out of doors and might find place in the other departments of the
Government. But my worthy friend, Judge Wayne, had no such reserve. He
thought that the case, in addition to private rights of great value,
involved "constitutional principles of the highest importance, about
which there had become such a difference of opinion that the peace and
harmony of the country required the settlement of them by judicial
decision."
The Chief Justice was too circumspect not to content himself with
action, and not to avoid expressions open to unfavorable criticism. I
cannot suffer the allusions I have made to circumstances in the previous
career of this excellent man to pass without a disclaimer of the
slightest intention to impeach his motives in any thing. I have known
him long and well. We stood shoulder to shoulder by the side of General
Jackson at the most eventful period of his second term of office, and
did all we could do to sustain him by our coöperation and advice. I do
not know that we differed on any point; and I do know that there could
not have been a more upright and vigilant public officer than he was;
nor could any man have had a more faithful or a more efficient friend
than he proved to that noble old man. I witnessed from beginning to end
the virulent and violent persecutions he experienced at the hands of his
old Federal and Whig friends, and was deeply affected by the steady,
self-possessed and manly spirit with which he endured them. This
impressed me with a respect for his character and a personal attachment
which no after-occurrence has weakened. He was my choice as the
candidate of the Democratic party for the Presidency in 1852, and there
has been no time since at which I would not have rejoiced to see him at
the head of the Government. I would have expected to find in him some
defects, which being bred in the bone would come out in the flesh, but
that never was with me, as was known to my familiar associates in
political life, an objection to the elevation to office of gentlemen
whose political _status_ was similar to his own. I took them _cum
onere_, and sometimes, though certainly not always, gained by the
experiment. He was a man of innate as well as cultivated integrity in
sentiment and action, and the longer we live the higher value we learn
to place on this quality in a public man. Conscious of the importance of
sincerity and truthfulness in all the movements of Government, whose
office it is to enforce the observance of moral obligation, men of this
character can never be induced to countenance public measures unless
they are not only pure in themselves, but supported by pure means. Such
a man was Roger B. Taney, and such men I never suspect of unworthy
motives in any thing they say or do. Neither have I the slightest doubt
of the good intentions by which his associates on the bench were
influenced in the proceedings of which I am speaking. Yet I cannot but
think that in going beyond the necessities of the case they made a
grievous mistake. The question, which the court undertook to settle, was
political, and had assumed a partisan character of great virulence.
There are two classes in every community whose interference in politics
is always and very naturally distasteful to sincere republicans, and
those are judges and clergymen. Their want of sympathy, as a general
rule, for popular rights, is known throughout the world, and in this
country that repugnance received an enduring impulse from the unanimity
with which a vast majority of both classes banded themselves on the side
of power, in the stormy time of the first Adams, and from the bitterness
with which they railed from the bench and the pulpit at the
public-spirited and patriotic men, who sought to relieve the country
from misrule. Both were again called to the political field, though on
different sides, during our recent troubles; yet the circumstance that
the judges took part with a majority of those who constituted the
Democratic party of the United States was not sufficient to neutralize
the dislike to their interference in politics which was seated in the
Democratic mind. To add a deeper shade to this trespass upon the
time-honored creed of the Democratic party, the anti-Democratic doctrine
was conveyed to the public in a form professing to be a necessary
adjudication in the regular course of the administration of justice,
whilst it is, to a considerable extent at least, exposed to the
imputation of having in truth been an extrajudicial opinion, voluntarily
and not necessarily delivered,--a mode of bringing before the country
the opinions of the supreme bench, formerly much in use, but which,
since the case of Marbury and Madison, has been peculiarly repulsive to
Democrats, and which Mr. Jefferson spent much time in holding up to
odium.
To do full justice to Mr. Buchanan in respect to the extent to which
this action of the Supreme Court received his sanction, it becomes
necessary to state with more precision than might otherwise be deemed
requisite, in connection with admitted facts, his avowals on the
subject, which are contained in his inaugural address.
The Kansas-Nebraska Act was designed to settle, as far as an act of
Congress could do so, two points, viz.--1st, that Congress possessed no
power to legislate upon the subject of slavery in the Territories, and
therefore it repealed the Missouri Compromise Act; and 2d, that it
belongs to the majority of the people of the Territory to decide whether
slavery shall or shall not exist within its bounds.
President Buchanan treated every point which the Kansas Act professed to
settle as removed from the scope of partisan warfare, and congratulated
the country on the happy conception through which the Congress had
accomplished results so desirable.
That body recognized in the fullest manner the power and the right of a
majority of the people of Kansas to decide upon their domestic
institutions, including the subject of slavery, but was silent as to the
period when that right should be exercised. That was, therefore, left an
open question, and the President expressed his views in regard to it in
the following words: "A difference of opinion has arisen in regard to
the time when the people of a Territory shall decide this question for
themselves. This is happily a matter of little practical importance, and
besides it is a judicial question, which legitimately belongs to the
Supreme Court of the United States, before whom it is now pending, and
will, it is understood, be speedily and finally settled. To their
decision, in common with all good citizens, I shall cheerfully submit,
whatever this may be, though it has been my individual opinion," etc.
It is not necessary for the purpose of this reference to inquire either
how far that question was decided by the Supreme Court, in the case
referred to, or whether the President does justice to its importance. In
respect to the latter point it is well known that a contrary opinion is
extensively entertained. It will not be denied that the case he speaks
of was that of Dred Scott, and that the questions to be decided in it
related only to the personal rights and interests of the parties to the
suit. It is in the settlement of such only that the Supreme Court could
exercise jurisdiction upon such a subject, and all will admit that if it
belongs to a Territory to determine the question of the toleration of
slavery there, the occasion of the formation of its State constitution
will be a proper time for the settlement of that question, if a majority
consent that the decision shall be so long deferred. The question in
regard to the true time can, therefore, only arise, when a majority wish
to act upon the subject at an earlier period. If such an attempt be
made, the most extreme advocates for judicial supremacy would not
pretend that it would be competent for the Supreme Court to arrest the
proceedings by injunction or writ of prohibition, or any other process.
It could, therefore, only be in cases involving individual interests,
which might be supposed to be affected by such a proceeding on the part
of the Territory, that the judicial tribunals could interfere, and it
was to such a case that the President was understood to refer. It was of
an expected decision of the court in a case in law, brought for the
settlement of private rights, that the President spoke, when he said
that, though he had an opinion of his own, he would, notwithstanding,
submit to the decision of the court upon the point, whatever that might
be. By this declaration he announced to his constituents that in the
exercise of the executive power upon the subject, whenever that might
become necessary, he would take notice of the decision of the Supreme
Court in the case he referred to as then pending, and would feel it to
be his duty to maintain the rule it should lay down in respect to the
particular question of which he spoke, and _a fortiori_ in respect to
the main question, the right of the Territory to act upon the matter,
and that he would do so because the court had so decided without
reference to his individual opinion in the premises--the consequence of
which would be, that if his official sanction or coöperation should
become necessary to a settlement of the question of slavery by the
people of the Territory, he would give it if the people had acted
conformably to the rule prescribed by the court, or withhold it if they
had acted contrary thereto; and that if Congress should undertake to
legislate upon any part of the subject against the decision of the
Supreme Court, in respect to its constitutional powers, he would
withhold his assent from any bill of that character which the two houses
might pass.
It is our duty, and must be our aim, to interpret the language employed
by the President according to what we, in good faith, believe to have
been his intention. Attempts to pervert the sense of what is said by a
man placed in his situation and acting under his grave responsibilities,
would not injure him, and could not fail to recoil upon their author.
If, dealing with his avowals in that spirit, we are yet bound to believe
that the declaration which I have described is the legitimate
interpretation and effect of his language, it is not only our right but
our duty to speak of it as we conscientiously think it deserves. It can
be scarcely necessary to say that those who regard the Republican
principles of government applicable to the question before us, as they
have been set forth in this work, as the true and only principles of the
Constitution, must either abandon the tenets of their predecessors and
their own convictions, or treat the declaration of Mr. Buchanan as a
voluntary and seemingly a ready sacrifice of a most cherished principle
of the Democratic faith--the reciprocal independence of the great
departments of government; a principle the importance of which was
apparent to and insisted on by the friends of liberty long before the
establishment of our independence, and for the practical enforcement of
which the American Revolution was regarded as presenting the best
opportunity ever offered. For the security of this principle the fathers
of our political school made the greatest efforts, and the invasion of
it was met by Mr. Jefferson, at the commencement of his administration,
with characteristic firmness, and was the subject of his anxious
watchfulness during the closing scenes of his life.
The recent action of the Democratic party upon this subject must be
considered with many grains of allowance. The long-continued support of
a majority of the people,--the only test of political merit in a
Republic,--has secured a preference for its principles of which it may
well be proud; and the general fidelity of its members to the faith they
profess is creditably illustrated by the fact that after all the changes
to which its organization has been exposed, its ranks, whatever may be
the case as to some of its leaders, are mainly composed of men with like
dispositions with those by whom that organization was effected; yet its
best friends set up in its behalf no claim to infallibility, nor do they
pretend that its members have never failed in their duty to the cause.
They know that men do not escape from their liability to err by uniting
with a political association. Circumstances of the gravest character
have besides put the adherence of its members to the principles of their
party, in the matter under consideration, to a severer test than any to
which they have hitherto been exposed. For the first time since its
ascent to power in the Federal Government, two of the three great
departments, the Executive and the Judicial, are presided over by
gentlemen who, though raised to their places by its favor, had not been
bred in its ranks but joined them at comparatively advanced periods in
their lives, with opinions formed and matured in an antagonist school.
The motives by which these gentlemen were led to enlist under the
Democratic banner were, beyond question, of the purest character, and
the high position to which they have been raised by their new friends
shows that they were appreciated as they deserved. Most of the
principles and opinions they formed in the ranks of the adversary have
doubtless been changed, and ours adopted in their stead, but,
unfortunately, that which is the subject of our present remark appears
not to have been among the number.
Several of the members of the President's cabinet and of the bench of
the Supreme Court, perhaps a majority of each, stand in the same
category. In Congress the state of things is not materially different;
when we look at the gentlemen who have been most prominent in the Kansas
embroilment, on the side of the administration, we find an unprecedented
number of the same class. It is most proper to avoid referring
unnecessarily to names in a work of this character, especially when such
reference is not for particular commendation, but the innocence of the
motive in this case will excuse a slight departure from the rule. Among
the most prominent of those who have taken the lead on the Democratic
side in the two houses of Congress in respect to the affairs of Kansas,
will be found the names of Toombs, of the Senate, and Stephens, of the
House--both from Georgia, and both, for aught I know or have ever known,
honorable men, doubtless actuated by good motives. I know neither
personally, and never heard of either particularly, save as extreme
partisans in the ranks of our opponents. I will not vouch for precise
accuracy as to dates, but I am persuaded I will not err materially in
saying that neither professed to belong to the Democratic party until
after their appointment and election to their present posts. All of
these gentlemen not merely believe, as it is very natural that they
should, in this supremacy of the judicial power in such matters,--an
idea always heretofore scouted by the Democracy of the land,--but they
maintain it before the country, under circumstances rendered very
imposing by their high official positions, as a test of party fidelity.
The Executive, whose elevation to power cost the Democracy so fearful a
struggle, and from whose success so much was and still is expected, has
done this clearly and undisguisedly in respect to the support of
Lecompton, and virtually in respect to the question of judicial
supremacy. Mr. Stephens offered a resolution declaring the support of
the Lecompton Act, a measure closely interwoven with the principle of
which we are speaking, as a test question in the Democratic caucus over
which presided Mr. Cochran,--a promising young man from New York,
descended from a family as thoroughly imbued with Hamiltonian Federalism
as any this State has produced (one of them Hamilton's brother-in-law),
brought up till he arrived at man's estate among the straightest of the
sect, and on that account entitled to greater credit for throwing
himself with becoming zeal into the Democratic ranks, but for the same
reason less likely to embrace their creed in its full extent, and less
qualified to instruct them in the principles of their faith.
But there is an obstacle to an adherence on the part of the Democratic
party to their ancient faith, in respect to these proceedings of the
court, far more potent than those to which I have referred. This arises
from the circumstance that those proceedings had their origin mainly in
a sincere belief that they were necessary to protect a paramount and
absorbing interest in nearly half the States of the Confederacy, with
the security and quiet of which the citizens of those States believe
their happiness and welfare to be inseparably involved. These are also
the States in which the Democratic party possesses comparatively its
greatest influence, and in some of which the true principles of the
Constitution have in general, and especially at earlier periods in our
history, been sought after with great avidity, and in which that under
consideration found its earliest, ablest, and most persevering
supporters. I need not speak of the control which this belief is capable
of exerting over most of those who are by their position brought within
the range of its practical operation. Minds thus excited find no
insuperable difficulty in placing the object of their solicitude upon
the footing of the _salus populi_, or in looking upon any measure that
tends to its security as justifiable, because it is in execution of the
_suprema lex_. Before such a feeling, so widely diffused, constitutional
objections and all the principles which on ordinary occasions bind the
consciences and influence the actions of men, are seldom, if ever, of
much avail.
Neither will full justice have been done to the subject, notwithstanding
this formidable array of hindrances in the path of duty, if I omit to
refer to the inducement, always so strong with political parties, to
avail themselves of every opportunity that presents or seems to present
itself to "_commend the poisoned chalice_" to the lips of their
opponents--a temptation they find it hard to resist, however much their
own hands or consciences may have to be soiled in the operation. Few of
the present generation who have made themselves at all conversant with
the course of public affairs, need to be told how constant and openly
professed has been the faith of the old Federalists and their political
successors in the infallibility and omnipotence of the decisions of the
Supreme Court of the United States upon constitutional questions. The
complaints of the old Republicans and their successors upon that head
have been both loud and long continued. When they made the country ring
with them in respect to the unconstitutionality and tyrannical character
of the Alien and Sedition Laws, the ready and only reply of their
opponents was, that it belonged to the judicial power to decide upon
their constitutionality, and that their expediency was a matter to be
solved in the breast of Congress. In more modern times, when its
unconstitutionality was objected to the second Bank of the United
States, the decision of the Supreme Court in favor of the power of
Congress to establish it was the equally ready and confident answer to
all complaints on that ground. Other and similar instances might be
referred to, but it is unnecessary. For the first time since the
formation of the present Government the supreme bench, considerably
changed in the political complexion of its members and tempted,
doubtless more or less under the pressure of an all-absorbing popular
influence at the South, to borrow a leaf from the book of our political
opponents, has undertaken to control, adversely to the views of those
opponents, a great political question by an extrajudicial decision of
the court. As one of the consequences, a hue and cry has been raised
against that august tribunal, hitherto revered by them as the only
political sanctuary; trusted as the ark of safety;--a clamor reaching to
a demand for the reorganization of the court itself;--a point never even
approached by the Democracy when their displeasure has been raised to
the greatest height by its unauthorized assumptions of political power.
It is not then surprising that portions of the Democratic party should
have been led to give the qualified assent which they have given to the
Federal principle under consideration. I say qualified, for the guarded
manner in which those who so assent have urged the influence which the
decision of the court ought to have upon the question, must have been
apparent to all; and this has been very much to their credit,
especially in the slaveholding States. The references which have been
made to the doings of the judiciary, in most instances, have savored
more of what is known in the law as a _plea of estoppel_ than of a claim
of right,--a plea by which the truth or falsity of any matter brought
forward by one party is waived, and its admission resisted on the ground
that the party relying upon it has precluded himself from introducing it
by some act or concession appearing upon the record, or established
_aliunde_. If the doctrine of estoppel could be applied to politicians,
it would certainly not be difficult to show that the Federal party and
its successors are very clearly estopped from objecting to the action of
the Supreme Court of which we have been speaking.
It may, under such circumstances, be safely assumed that the Democratic
party has not committed itself to a departure from its professed
principles upon this subject to an extent which it cannot be relieved
from without a sacrifice of self-respect on the part of its members, or
without serious prejudice to its well-earned title to the confidence of
the country. That it will so relieve itself its past good sense and
active patriotism forbid us to doubt. Let us hope that the protecting
care of a kind Providence, which has hitherto carried our country in
safety through so many perils, will in His own good time afford us a
breathing spell at least, from the baleful excitements attendant upon
slavery agitation. When that happy period arrives ... besides the
incalculable advantage it will bring to the highest interests of all
parties and all sections of our country, the Democrats in the
slaveholding States will not fail to see the folly of asking their
political coadjutors in the free States to coöperate in the support of
measures and principles in sustaining which they cannot be sustained at
home. The hair-breadth escape of their common party from destruction at
the last Presidential election, and the deplorable condition to which
the Democratic party has been reduced in the non-slaveholding States, by
a past disregard of that consideration, will then be allowed their
proper admonitory effect. All will then acknowledge that in the steps
which have recently been taken, having their origin in the same bitter
and deplorable source, the Democratic party, always before the able and
zealous defender of the Constitution against similar inroads, had
entered upon a path which leads directly and inevitably to a revolution
of the Government in the most important of its functions--a revolution
which would in time substitute for the present healthful and beneficial
action of public opinion the selfish and contracted rule of a judicial
oligarchy, which, sympathizing in feeling and acting in concert with the
money power, would assuredly subvert the best features of a political
system that needs only to be honestly administered to enable it to
realize those anticipations of our country's greatness which now warm
the hearts and animate the patriotism and nerve the arms of her faithful
sons.