It is sometimes gravely urged, that, since the Supreme Court of the United States has affirmed the constitutionality of the Fugitive Act, there only remains to us, in all places, whether in public station or in private life, the duty of absolute submission. Yes, Sir, that is the assumption, which you will perceive is applied to the humblest citizen who holds no office and has taken no oath to support the Constitution, as well as to the public servant who is under the special obligations of an official oath. Now, without stopping to consider the soundness of the judgment affirming the constitutionality of this Act, let me say that the Constitution, as I understand it, exacts no such passive obedience. In taking the oath to support the Constitution, it is as I understand it, and not as other men understand it. [Loud applause.]
In adopting this rule, first authoritatively enunciated by Andrew Jackson, when, as President of the United States, in the face of the Supreme Court, he asserted the unconstitutionality of the Bank, I desire to be understood as not acting hastily. Let me add, that, if it needed other authority in its support, it has the sanction also of the distinguished Cabinet by which he was then surrounded, among whom were that unsurpassed jurist, Edward Livingston, Secretary of State, and that still living exemplar of careful learning and wisdom, Roger B. Taney, then Attorney-General, now Chief-Justice of the United States. Beyond these, it has the unquestionable authority of Thomas Jefferson, by whom it was asserted again and again as a rule of conduct. Thus, if any person at this day be disposed to deal sharply with me on account of the support which I now most conscientiously give to this rule, let him remember that his thrusts will pierce not only myself, the humblest of its supporters, but also the great fame of Andrew Jackson and of Thomas Jefferson,—patriots both of eminent life and authority, on whose Atlantean shoulders this principle of Constitutional Law will ever firmly rest.
Reason here is in harmony with authority. From the necessity of the case I must swear to support the Constitution either as I do understand it or as I do NOT understand it. [Laughter.] But the absurdity of dangling on the latter horn of the dilemma compels me to take the former, and there is a natural end of the argument. [Great laughter and cheers.] Is there a person in Congress or out of it, in the National Government or State Government, who, when this inevitable alternative is presented, will venture to say that he swears to support the Constitution as he does not understand it? [Laughter and applause.] The supposition is too preposterous. But let me ask gentlemen disposed to abandon their own understanding of the Constitution, and to submit their conscience to the standard of other men, By whose understanding do they swear? Surely not by that of the President: this is not alleged: but by the understanding of the Supreme Court. In other words, to this Court, being at present nine persons,—represented by a simple majority, it may be of one only,—is accorded the power of fastening such interpretation as they see fit upon any part of the Constitution,—adding to it, or subtracting from it, or positively varying its requirements,—actually making and unmaking the Constitution; and to their work all good citizens must bow, as of equal authority with the original instrument, ratified by solemn votes of the whole people! [Great applause.] If this be so, the oath to support the Constitution is hardly less offensive than the famous "et cætera" oath devised by Archbishop Laud, where the subject swore to certain specified things, with an "&c." added. Such an oath I have not taken. ["Good! good!">[ An old poet anticipates my objection:—
"Who swears &c. swears more oaths at once
Than Cerberus out of his triple sconce;
Who views it well with the same eye beholds
The old half serpent in his numerous folds
Accursed."[136]
The power of our Supreme Court is great, and its sphere is vast; but there are limits to its power and its sphere. According to the Constitution, "the judicial power shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties"; but it by no means follows that the interpretation of the Constitution, incident to the trial of these "cases," is final. Of course, the judgment in the "case" actually pending is final, as the settlement of a controversy, for weal or woe, to the litigating parties; but as a precedent it is not final even on the Supreme Court itself. When cited afterwards, it will be regarded with respect as an interpretation of the Constitution, and, if nothing appears against it, of controlling authority; but, at any day, in any litigation, at the trial of any "case," it will be within the unquestionable competency of the Court to review its own decision, so far as it establishes any interpretation of the Constitution. If the Court itself be not constrained by its own precedents, how can coördinate branches, under oath to support the Constitution, and, like the Court itself, called incidentally to interpret the Constitution, be constrained by them? In both instances, the power to interpret is simply incident to other principal duties, as the trial of "cases," the making of laws, or the administration of government; and it seems as plainly incident to a "case" of legislation or of administration as to a "case" of litigation. And on this view I shall act with entire confidence, under the oath I have taken.
For myself, let me say, that I hold judges, and especially the Supreme Court, in much respect; but I am too familiar with the history of judicial proceedings to regard them with any superstitious reverence. [Sensation.] Judges are but men, and in all ages have shown a full share of human frailty. Alas! alas! the worst crimes of history have been perpetrated under their sanction. The blood of martyrs and of patriots, crying from the ground, summons them to judgment. It was a judicial tribunal which condemned Socrates to drink the fatal hemlock, and which pushed the Saviour barefoot over the pavements of Jerusalem, bending beneath his cross. It was a judicial tribunal which, against the testimony and entreaties of her father, surrendered the fair Virginia as a slave,—which arrested the teachings of the great Apostle to the Gentiles, and sent him in bonds from Judæa to Rome,—which, in the name of the Old Religion, persecuted the saints and fathers of the Christian Church, and adjudged them to a martyr's death, in all its most dreadful forms,—and afterwards, in the name of the New Religion, enforced the tortures of the Inquisition, amidst the shrieks and agonies of its victims, while it compelled Galileo to declare, in solemn denial of the great truth he had disclosed, that the earth did not move round the sun. It was a judicial tribunal which, in France, during the long reign of her monarchs, lent itself to be the instrument of every tyranny, as during the brief Reign of Terror it did not hesitate to stand forth the unpitying accessary of the unpitying guillotine. Ay, Sir, it was a judicial tribunal in England, surrounded by all forms of law, which sanctioned every despotic caprice of Henry the Eighth, from the unjust divorce of his queen to the beheading of Sir Thomas More,—which lighted the fires of persecution that glowed at Oxford and Smithfield, over the cinders of Latimer, Ridley, and John Rogers,—which, after elaborate argument, upheld the fatal tyranny of ship money against the patriot resistance of Hampden,—which, in defiance of justice and humanity, sent Sidney and Russell to the block,—which persistently enforced the laws of Conformity that our Puritan fathers persistently refused to obey, and afterwards, with Jeffreys on the bench, crimsoned the pages of English history with massacre and murder, even with the blood of innocent women. Ay, Sir, it was a judicial tribunal in our own country, surrounded by all forms of law, which hung witches at Salem,—which affirmed the constitutionality of the Stamp Act, while it admonished "jurors and people" to obey,—and which now, in our day, lends its sanction to the unutterable atrocity of the Fugitive Slave Act. [Long continued applause, and three cheers for Sumner.]