CHAPTER VIII.

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.

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