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.
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.
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.
FOOTNOTES:
[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."
[38] The italics are mine.