Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

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.