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

Chapter 14

Now where was his warrant for these scandalous denunciations? Was it to be found in the words "every officer," etc. to which I have referred? If so, common fairness required that he should have set them forth so that the readers of his speech might judge for themselves what the President intended by them. This he was too sagacious to do, for if he named them he was bound to give the whole paragraph. If he omitted this the President"s friends would have pointed out the deception. If he gave the whole his readers would have seen that General Jackson could not have used the words in the sense attributed to them by Mr. Webster. In this dilemma he contented himself with subst.i.tuting bold and reckless a.s.sumption for proof. Mr. Clay was less cautious, as it was his nature to be; he extracted the obnoxious words without the context, and founded upon them charges like these,--charges by which none who read his speech would have been misled if he had quoted the message fairly:--"There are some parts of his message that ought to excite deep alarm, and that especially in which the President announces that each public officer may interpret the Const.i.tution as he pleases. His language is "each public officer, who takes an oath to support the Const.i.tution, swears that he will support it as he understands it and not as it is understood by others." "The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that point the President is independent of both." Now, Mr. President, I conceive, with great deference, that the President has mistaken the purport of the oath to support the Const.i.tution of the United States. No one swears to support it as he understands it, but to support it simply as it is in truth. All men are bound to obey the laws, of which the Const.i.tution is the supreme; but must they obey them as they are, or as they understand them? If the obligation of obedience is limited and controlled by the measure of information, in other words if the party is bound to obey the Const.i.tution only as he understands it, what would be the consequence?" No warrant for these broad and unfounded imputations, on the part of either of the senators, was to be found in the fact that the objections to the new Bank Bill applied equally to the old, nor for the ground thence a.s.sumed that it was the intention of President Jackson to treat that as a nullity and to embarra.s.s its directors in winding up its concerns. There was not only nothing in the message to justify such a charge, but its whole character was directly opposite, and that too plainly to be controverted. His agency was not necessary to enable them to wind it up. The courts were sufficient for that, and they were on the side of the bank. Even if it were otherwise, there were legitimate considerations which would have justified him in allowing a charter which had received the sanction of a predecessor in office to proceed to its consummation, whatever he might think of its const.i.tutionality. Nor had Mr. Webster or Mr. Clay a moment"s doubt that it was his intention to do so. Their violent not to say savage tirades against the veteran had a different object--and that was the election.

There, fortunately, they were unsuccessful, or we might yet have been in our Federal relations, as we unhappily are in those of the States, a bank-ridden people.

But I cannot allow this great const.i.tutional question, respecting the relation which the three great departments of the Federal Government--executive, legislative, and judicial--were by the Const.i.tution designed to occupy toward each other, to pa.s.s without farther notice. One more vitally important has not arisen nor can ever arise out of our complex and peculiar form of government, and it is also one which there is reason to apprehend has not been studied with adequate care, by many who are in other respects sufficiently astute in detecting const.i.tutional encroachments.

General Jackson--though owing to his military employment he had not been for many years of his life much engaged in party politics--was yet, from a very early period, strongly imbued with the principles of the fathers of the republican school in regard to the objects and only legitimate purposes of Government and the true construction of the Federal Const.i.tution. His views in these respects were sufficiently disclosed in the course of his brief services in both Houses of Congress, during the administration of Washington, and more particularly in his celebrated letter to Williamson about the year 1800.

Judge White, then his personal and political friend, followed Mr.

Webster in the debate on the Veto Message and in the course of his speech laid down, in a perspicuous and satisfactory manner, the principles applicable to the question of the relative powers and duties of the several departments of the General Government which President Jackson then, as he had at all times, sustained. Deeply incensed at the gross perversions of his message, on the part of the advocates of the bank, but at all times and under all circ.u.mstances against parleying with his enemies in the midst of a battle, the President contented himself with frequent and unreserved expression of concurrence in the views which had been taken of the subject, on the floor of the Senate, by Judge White, and although reelected under the clamor which had been raised against him upon that point, and more determined than ever to prevent, by all const.i.tutional means, the extension of the charter of the existing bank, he was equally decided, as he had always been, not to interpose, nor did he interpose, any obstructions to the employment by it of all the means provided by the charter to conduct business to its end and to wind up its affairs after its termination.

Senator White"s definition of the Const.i.tution was expressed in the following words: "The honorable Senator argues that the Const.i.tution has const.i.tuted the Supreme Court a tribunal to decide great const.i.tutional questions, such as this; and that when they have done so, the question is put at rest, and every other department of the government must acquiesce. This doctrine I deny. The Const.i.tution vests "the judicial power in a Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Whenever a suit is commenced and prosecuted in the courts of the United States, of which they have jurisdiction, and such suit is decided by the Supreme Court,--as that is the court of last resort,--its decision is final and conclusive between the parties. But as an authority it does not bind either the Congress or the President of the United States. If either of these coordinate departments is afterwards called upon to perform an official act, and conscientiously believes the performance of that act will be a violation of the Const.i.tution, they are not bound to perform it, but, on the contrary, are as much at liberty to decline acting as if no such decision had been made.... If different interpretations are put upon the Const.i.tution by the different departments, the people is the tribunal to settle the dispute. Each of the departments is the agent of the people, doing their business according to the powers conferred; and where there is a disagreement as to the extent of these powers, the people themselves, through the ballot-boxes, must settle it."

This is the true view of the Const.i.tution. It is that which was taken by those who framed and adopted it, and by the founders of the Democratic party. It is one which was universally acquiesced in at the formation of the Government, and for some time thereafter. It is a matter of great moment, and one which cannot be too closely scrutinized, especially at the present moment when there is abundant reason to apprehend that heresies of a marked character in respect to it are being infused into the public mind. The principle which inculcates the necessity of distributing the powers of government among several departments, and that they should be independent of each other in the performance of the duties a.s.signed to them by the Const.i.tution, has united in its favor the opinions of the friends of liberty everywhere from a very early period to the present time. Montesquieu said: "There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates;" or "if the power of judging be not separated from the legislative and executive powers." The American Revolution provided the fairest opportunity to test the merits of this doctrine that the world had ever seen, and it was not lost sight of by the statesmen of that day. Many of the States recorded their adherence to it on the face of their const.i.tutions, some of which were framed and adopted _flagrante bello_, and all paid due respect to it in the construction of their organic laws. The settlement and ratification of the Federal Const.i.tution carried the discussion of its merit to our national councils where, and more particularly in the discussion upon the question of ratification, the matter was very closely examined and by very able hands. The opponents of the Const.i.tution resisted it earnestly and with ability, on the ground, amongst others, that it did not provide sufficient guarantees to protect the departments from reciprocal encroachments, and to secure the required independence of each. The difficulties, inherent in the very nature of government, of carrying those securities to an extent which would silence cavil in respect to them, obtained for this objection advantages which, in view of the well understood reverence of the people for the main principle, caused no small degree of inquietude to those able defenders of the Const.i.tution--Madison, Hamilton, and Jay. The numbers of the "Federalist" which touch upon this point are full of interest and will well repay re-perusal. They afford the strongest evidence of an earnest adherence, on the part of those great men, to the general principle, and will, if I do not deceive myself, be found quite inconsistent with several positions which have since been taken upon the subject. In the 47th number of the "Federalist," Mr. Madison thus expresses his own views, and of course those of his a.s.sociates, Hamilton and Jay, as they acted in concert: "One of the princ.i.p.al objections inculcated by the more respectable adversaries to the Const.i.tution, is its supposed violation of the political maxim that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the Federal Government no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The acc.u.mulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be p.r.o.nounced the very definition of tyranny. Were the Federal Const.i.tution, therefore, really chargeable with this acc.u.mulation of power, or with a mixture of powers having a dangerous tendency to such an acc.u.mulation, no further arguments would be necessary to inspire a universal reprobation of the system".... In No. 48, speaking of the three great departments, he says: "It is equally evident that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers." ...

In No. 49, he notices a proposition of Mr. Jefferson to authorize a Convention upon a call of two of the three departments, for "altering the Const.i.tution or correcting breaches of it," and says,--"The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." He then goes on to urge objections to too frequent appeals to the people in that form, and sustains the opinion that it would be better to rely on other safeguards against encroachments which he details. In Nos. 78 and 81, General Hamilton, admitting that "there is no liberty where the power of judging be not separated from the legislative and executive powers," shows at great length the comparative weakness of the judicial power, and the very slight probability that "the general liberty of the people can ever be endangered from that quarter."

The provisions of the Const.i.tution will be searched in vain for any which indicate a design on the part of its framers to give to one of the departments power to control the action of another in respect to its departmental duties under that instrument. All _legislative power_ granted by the Const.i.tution was vested in a Congress, to be composed of two Houses. The _executive power_ of the Government was vested in a President. Specific powers to be exercised in conjunction with the Senate, as well as some in respect to which a question might arise whether they would otherwise have pa.s.sed to the executive, were added, but the Const.i.tution in respect to the legislative power, contained no limitations or restrictions. All executive authority to be exercised under it was granted to the President, and he was hence spoken of by the writers of the "Federalist" as the _sole depositary_ of executive power.

By the third article of the Const.i.tution the same expression is used in respect to the Supreme Court, &c.: "_The judicial power of_ the United States shall be vested in _one Supreme Court_ and certain inferior tribunals." But as these terms would, standing by themselves, have conveyed all the judicial power of the United States to the Supreme Court, and as no such grant could be properly made because a large share of it had, in a previous part of the Const.i.tution, been granted to a court of impeachment, of which the Supreme Court only supplied the presiding officer on a single occasion,--the trial of a President,--and was designed to be still farther restricted, the Const.i.tution immediately proceeds to say, that "The judicial power shall extend to all cases in law and equity arising under this Const.i.tution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting, amba.s.sadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction, etc." No oath to support the Const.i.tution is prescribed by it, in regard to the inc.u.mbents of the legislative or judicial branches of the Government, other than the general provision that all officers of a certain description, (which included them,) whether belonging to the Federal or State governments, should swear to support the Federal Const.i.tution.

In regard to the executive department the case is very different. The Const.i.tution requires from the President, and from him only, that he should, in addition to the oath of office, before he enter upon its duties, swear "_that he will, to the best of his ability, preserve, protect, and defend the Const.i.tution of the United States_."

Is it not surprising that under a Const.i.tution so constructed, exhibiting on its face such features, the idea should ever have been advanced that it was to the judicial power of the Government that its framers looked for the preservation of that sacred instrument? So far as it concerns the private rights of citizens and foreigners in questions of _meum and tuum_, growing out of the laws and Const.i.tution of the United States, or controversies regarding the separate and special interests of contending States, or of the United States, and in respect to the rights of foreign ministers and consuls, it was intended to be supreme and so made, nor has its supremacy in all these respects ever been questioned. But it seems very absurd to suppose that it was intended to oblige the President of the United States,--the officer clothed with the whole executive power of the Government; the only officer, except the Vice-President, who is chosen by the whole people of the United States; the champion, designated by the Const.i.tution itself to "preserve, protect, and defend" it in the performance of the executive duties committed to his charge,--duties affecting what Hamilton happily describes as "the general liberty of the people," to distinguish it from affairs of _meum and tuum_,--to keep his eye upon the Supreme Court calendar, and to gather from its decisions in respect to the private rights of parties litigant the measure of his const.i.tutional powers, and to stop or go on in the execution of the important national offices a.s.signed to his department as its judgments may be deemed to authorize or forbid his further proceeding. I can easily understand why a cla.s.s of men, born with certain dispositions and trained to corresponding opinions, should desire such a construction of the Federal Const.i.tution; but in the face of facts and considerations like these, I can find no explanation of the boldness with which so groundless a pretension has been advanced, other than in the recklessness by which the spirit of political encroachment is and will be characterized as long as it finds facilities for its gratification in the weakness or the pa.s.sions of mankind. The deeper the subject is looked into, the more apparent to all _bona fide_ searchers for truth will become the fallacy of the principle which claims for the Supreme Court a controlling power over the other departments in respect to const.i.tutional questions. Inquirers of this description cannot fail to appreciate the difficulty, nay the impossibility of reconciling Mr.

Webster"s unreserved admission of the President"s "undoubted right in the exercise of his functions, when a bill is presented for his approval, to consider in all cases whether such a bill be compatible with the Const.i.tution, and whether he can approve it, consistently with his oath of office," and to approve, or refuse to approve according to the result, with his severe denunciation of him for regarding an act as unconst.i.tutional, which had been approved by one of his predecessors, but which he, notwithstanding, conscientiously believed to be unconst.i.tutional, and for withholding the power of the executive from the execution of any such act. Everybody knows that an act which is contrary to the Const.i.tution is a nullity, although it may have pa.s.sed according to the forms of the Const.i.tution. That instrument creates several departments, whose duty it may become to act upon such a bill, in the performance of their respective functions. The theory of the Const.i.tution is that these departments are coordinate and independent of each other, and that when they act in their appropriate spheres they each have a right, and it is the duty of each to judge for themselves in respect to the authority and requirements of the Const.i.tution, without being controlled or interfered with by their co-departments, and are each responsible to the people alone who made them for the manner in which they discharge their respective duties in that regard. It is not therefore to be presumed that that instrument, after making it the President"s especial duty to take an oath to preserve and uphold the Const.i.tution and prevent its violation, intended to deny to him the right to withhold his a.s.sent from a measure which he might conscientiously believe would have that effect, and to impose upon him the necessity of outraging his conscience, by making himself a party to such a violation. The Const.i.tution, which was framed by great men, the form of which has been so much and so justly admired, is not so imperfect nor subject to such a reproach. The matter does not necessarily end with a refusal on the part of the executive to do an act which he believes Congress had no right, under the Const.i.tution, to require his department to perform. Although the President, representing one of the three great departments of the Government, possesses in this respect a right which neither the citizen nor any other officer or officers of the Government, not having the control of such a department, can exercise, yet if he allows himself to be governed by unworthy motives he is liable to impeachment and expulsion from office. It is in this way, or by his removal by the people, that the wrong he does to the public is redressed. But this is not all. If the act has been pa.s.sed according to the forms of the Const.i.tution, and is judged to be const.i.tutional by the judicial department of the Federal Government, it is obligatory upon the citizens, binds and controls their private rights and personal interests, and can be carried into effect in respect to those by the judiciary, which also judges for itself regarding the const.i.tutionality of such law. It is the department by which laws, affecting as well the private rights of the citizen as those of the States, which can be made the subjects of litigation, are carried into effect. It has ample power conferred upon it to cause its judgments and decrees to be executed. Officers are appointed whose duty it is made by law to obey its orders, and these officers have the right given to call out the civil power of their respective districts to enable them to execute judicial decrees. Nor do the rights secured to it by the Const.i.tution stop here. If resistance is offered to the execution of a judgment or decree--made by the proper court to which jurisdiction of the matter which such judgment or decree seeks to enforce is given by the Const.i.tution--too great to be overcome by the civil power, it is the duty of the President, upon the request of the officers of the court, to order out the military power to sustain that of the judiciary. It would be no answer on his part to such a call to say that the right which the decree or judgment seeks to enforce arises under a law which he deems unconst.i.tutional. That is, under the circ.u.mstances, a matter that he has no right to inquire into. The decision of that question has been delegated to a different department, and has by that department been decided differently. The Const.i.tution requires that the judgments of that department, upon subjects committed to it, should be enforced. It makes that enforcement, in extreme cases, the duty of the military. The President is intrusted with the command of that force and, in such a case, his power in regard to it is ministerial only. It is his duty, in such a case, to sustain the judicial power by the aid of the military, and if he failed in its performance he would subject himself to impeachment and removal from office. Not only is the entire power of the government thus pledged to the maintenance of judicial authority, whilst acting in the line of its duties, but there lies no appeal from its judgments or decrees. They are final and obligatory upon the rights and interests of the parties. They can neither be reversed by any other tribunal, nor is it in the power of the remaining departments of the Government united to set them aside or to treat them as a nullity, however contrary to the Const.i.tution they may be.

We are not without experience upon this point. Our history bears indelible record of the abuse of power in that form during the administration of the elder Adams. The unconst.i.tutionality of the Sedition Law will now be scarcely controverted by any ingenuous mind.

The Supreme Court, nevertheless, decided it to be const.i.tutional, tried citizens for having violated its provisions, and caused fines and imprisonment to be inflicted upon them. When a majority of the Senate of the United States, friends of the bank, placed upon its journal an unconst.i.tutional act of condemnation against President Jackson, for the steps he had taken to relieve the country from that inst.i.tution, the same body, after its political complexion had been sufficiently changed through the influence of an offended public sentiment, not only reversed the sentence but expunged it from the record. This it had a right to do, because both acts were committed by the same branch of the same department. But the executive and legislative departments had no such power over the unconst.i.tutional sentences that were p.r.o.nounced under the Sedition Law, because they had no right to interfere with the acts of a coordinate department. The President had an express right to pardon such offenses, and the national legislature had a const.i.tutional right to return the money collected from those who committed them, and they did so. But the judgments of the court remained, and will forever remain, unreversed. In England, judicial convictions, attainders, judgments of forfeitures of franchises, etc., may be reversed by act of Parliament, but no such interference by one department of the government with the authorized proceedings of a coordinate department are permitted by our Const.i.tution, simply because the great departments of our Government are by the Const.i.tution made coordinate and independent of each other. Can any reflecting mind, in view of these facts, doubt the sufficiency of the protection which that instrument provides for the personal rights of the citizen and for private interests of every description, or for a moment apprehend the disorganization of society described by Mr. Webster as a consequence of carrying into effect the principles avowed by President Jackson?

The judicial power of the Federal Government, according to the description here given of the binding force, the finality and efficiency of its decisions upon the parties and their rights in all cases which may be brought before it, answers all the purposes of its inst.i.tution.

Was it the intention of the framers of the Const.i.tution that it should be clothed with other powers, and if so, what are they? The duties imposed on the executive and legislative departments are of higher importance than those of the judiciary, in proportion as the interests of the nation are of more consequence than the separate interests of individuals and minor a.s.sociations. They include the question of peace or of war, and the maintenance of the latter, international obligations in the forms of treaties, their construction and execution, the regulation of foreign commerce and commerce among the States, the regulation of the currency, the establishment of a mint, the a.s.sessment and collection of the national revenue, the raising, regulating, and command of an army and navy, the establishment of a general and of particular post-offices, the regulation and protection of the Indian tribes, and many other duties which it is unnecessary to specify. In none of these is it contemplated by the Const.i.tution that the judicial power shall take a part. The powers and duties of the other departments upon these subjects are to some extent specified in the Const.i.tution, and the residue are left to the direction of the legislature which acts, in respect to them, through the Executive as the department especially charged with the execution of the laws. In the performance of their high duties these departments are, at almost every step, met by const.i.tutional questions. The Houses of the legislature, in every law or resolution that they pa.s.s, have to consider whether it is authorized by the Const.i.tution to which they have sworn to conform, and the President and Senate, when they make a treaty, are bound to consider and decide the same question. The President, as the sole depositary of the executive power, is under a similar obligation. His first inquiry is, whether the Const.i.tution authorizes him to apply the power of his department to the execution of the business before him, or, if it is one of the numerous functions which the legislature is in the constant habit of calling upon him to perform, has the legislature power under the Const.i.tution to direct the thing to be done, and can he do it consistently with his oath to preserve and uphold that instrument?

How are they to act in the decision of these questions? By what considerations are they to be controlled? They know that they are responsible to the people, under whose commission they act, for all they do. The Const.i.tution does not give to one department the right to decide such questions for another, either in terms or by necessary implication, nor subject them to any other responsibility, nor place before them any guide for the government of their decisions other than their own discretion and their own consciences, and has caused to be placed upon their consciences an oath that they will, in no event, act contrary to that instrument. Under such circ.u.mstances, I ask, what are they to do?

What can they do, consistently with the duty they owe to G.o.d, to their country, and to themselves, other than to decide such questions for themselves, following the dictates of their own judgment? Can it be believed that those who framed and adopted the Const.i.tution intended to place these high functionaries,--the only representatives of the people, in the great departments of the government, over whose continuance in office the people possess control--to place them, in respect to their official acts, about which a const.i.tutional question can be raised, under the guidance of a department over which the people possess no such control, to be regulated by its decisions in private actions, to which such functionaries are not parties, and of which decisions they are, notwithstanding, to take notice at their peril. If a system so anti-republican could have been designed by those who made the Const.i.tution, is it to be supposed that they would have omitted to declare, on the face of the instrument, that such was their intention, leaving those functionaries to grope their way to its discovery. Such a question--one in which the character of our political inst.i.tutions is so much involved, and upon a right understanding of which their ultimate safety may depend--should be stripped of every uncertainty. The claim set up for the Supreme Court must be good throughout, or it is not good at all. The principle, that the final decision of const.i.tutional questions belongs exclusively to the supreme judicial tribunal, set up in Mr. Webster"s speech, must be true throughout, or it cannot be true to any extent. It amounts to this: the inc.u.mbents of the legislative and executive departments, in respect to questions of const.i.tutional power, are _ministerial officers only_. Const.i.tutional questions are points in respect to which they have no right to exercise their own discretion, but are bound, at every important step, to look to the judiciary for guidance, and if they omit to adopt its decisions, if it has made any, they do so at their peril:--the former department at the hazard of having its laws, if the Supreme Court regard them as unconst.i.tutional, treated as a nullity, not only when they are relied upon "in cases in law and equity," but in all cases, and everywhere. From the nature of their action, members of Congress do not subject themselves to personal responsibility, except when they act corruptly. But the situation of the inc.u.mbent of the executive department is less favorable. Deprived of all discretion, and bound to thus understand his position, he encounters personal responsibility, in certain cases, whichever way he may act. If he find a law upon the statute book, approved by one of his predecessors--and to relieve the country from which has perhaps been one of the reasons for the removal of the latter from office--a law which he deems unauthorized by the Const.i.tution, but which the Supreme Court holds to be const.i.tutional, he must either violate his oath of office and execute it, or refuse to do so and expose himself to impeachment for a failure in the discharge of his official duties. If he persists in the observance of a law which the Supreme Court has, in a private suit, held to be unconst.i.tutional, he incurs a similar responsibility; and if he omits its observance, he does violence to his own conscience by failing to perform his official duties according to his oath. Let me ill.u.s.trate this view of the subject by particular and possible cases.

Take that referred to by General Hamilton in his papers written in defense of President Washington"s proclamation of neutrality, over the signature of "Pacificus."

The President has power, by and with the advice of the Senate, to make treaties with foreign governments. Private rights, subject to judicial investigation, often grow out of public treaties. The interpretation and enforcement of these rights belong exclusively to the judiciary, and in the execution of its power it may hold the treaty, under which the claim arises, unconst.i.tutional for any of the reasons for which laws may be so regarded. Its decision is binding and final upon the parties and their interests.

Then comes the execution of that treaty between the governments that are parties to it. This, on our part, belongs exclusively to the legislative and executive departments. The duty of the former is to pa.s.s the laws necessary to its execution, and that of the latter to see to their enforcement, and to do such other acts as he may do, under the Const.i.tution, without a law.

A foreign government calls for the interference of these departments to redeem the national faith, pledged through executive instrumentality, and for the redemption of which the executive, and the legislature, where necessary, are the agents designated by the Const.i.tution. They see and feel their duty, but have been rendered powerless. The Supreme Court has decided the treaty to be unconst.i.tutional. No matter how obscure the parties by whom its interference was asked, no matter how unimportant the interest in respect to which the decision was made, from the moment it is promulgated, it becomes a rule of action for every department of the government, and every public functionary as well as every citizen. If the national legislature pa.s.ses a law to carry into effect the void treaty its law becomes a nullity. If the executive issues an order for its execution, or toward the performance of the treaty in any way to his subordinates, they are not bound to obey it, and the Supreme Court will sustain them in their contumacy. If he take measures to enforce his authority, he makes himself amenable to that tribunal. Acting in such a matter as a ministerial officer only, without a right to employ his own discretion, he subjects himself to impeachment if he persists.

Alexander Hamilton--who, if he was not the one who suggested the lat.i.tudinarian doctrine of "implied powers," was certainly its most effective supporter, and through life its watchful guardian--in No. 1 of Pacificus, has said that though the judiciary department is charged with the interpretation of treaties, "it exercises this function only where contending parties bring before it a specific controversy;" that "it has no concern with p.r.o.nouncing upon the external political relation of treaties between government and government;" that "this proposition is too plain to need being insisted upon;" that "it belongs to the executive department to exercise the function in question, when a proper case for it occurs," "as the _interpreter_ of the national treaties, in those cases in which the judiciary is not competent,--that is, between government and government; as the _power_ which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force."

James Madison, in conjunction with Hamilton and Jay, in the numbers of the "Federalist," avows doctrines at war with this a.s.sumption of power in the Supreme Court. Thomas Jefferson, whose anxious patriotism was always alive to such subjects, and the political thoughts and studies of whose life were exclusively directed toward the protection of human rights through the instrumentality of free governments, opposed the doctrine vehemently, from first to last, and long after his retirement from public life, its pa.s.sions and excitements, expressed himself in regard to it, on different occasions, in terms which follow. In 1815, in answer to the direct question put to him by a citizen of Georgia, he says:--"The second question, whether the judges are invested with exclusive authority to decide on the const.i.tutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Const.i.tution which has given that power to them more than to the executive or legislative branches. Questions of property, of character, and of crime, being ascribed to the judges, through a definite course of legal proceeding,--laws, involving such questions, belong, of course, to them, and as they decide on them ultimately and without appeal, they, of course, decide _for themselves_. The const.i.tutional validity of the law, or laws, again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for _themselves_, also, whether, under the Const.i.tution, they are valid or not. So, also, as to laws governing the proceedings of the legislature; that body must judge _for itself_ the const.i.tutionality of the law, and, equally, without appeal or control from its coordinate branches. And, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coordinate authorities."

Again, so late as 1819, in a very interesting letter to Judge Spencer Roane, he says:--"My construction of the Const.i.tution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Const.i.tution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.... But you intimate a wish that my opinion should be known on this subject. No, dear Sir, I withdraw from all contests of opinion and resign every thing cheerfully to the generation now in place. They are wiser than we were, and their successors will be wiser than they, from the progressive advance of science. Tranquillity is the _summum bonum_ of age. I wish, therefore, to offend no man"s opinion, nor to draw disquieting animadversions on my own. While duty required it, I met opposition with a firm and fearless step. But loving mankind in my individual relations with them, I pray to be permitted to depart in their peace, and, like the superannuated soldier, "_quadragenis stipendiis emeritis_," to hang my arms on the post."

Mr. Jefferson, in these letters, speaks of his uniform opposition to the opposite doctrine, and refers to the inconvenience that may at times arise from conflicting decisions. But that, he thought, might be safely dealt with through the prudence of public functionaries, and he names instances when they were so treated: one in England, where an instance of difference occurred, in the time of Lord Holt, between the judges of England and the House of Commons; and another in this country, when a difference of opinion was found to exist between the Federal Judiciary and the House of Representatives. The Supreme Court decided, in a case of _meum and tuum_, that William Duane was not a citizen, and the House of Representatives, upon a question of membership, decided that William Smith, whose character of citizenship stood on precisely the same ground, was a citizen. These decisions were made in high party times, whilst the Federalists were in power. Duane was an Irishman, who had married into the family of Dr. Franklin, and was editor of the "Aurora," the most prominent Republican newspaper. Smith was an ardent Federalist from South Carolina, a man of good talents himself, but who delivered speeches in the House prepared by Hamilton in his closet, as was charged by Jefferson at the time, and has now been fully proved by the publication of Hamilton"s private papers.

But the establishment of the const.i.tutional rule sustained by Jefferson would not have saved the country from practical inconveniences, which he did not notice because he knew them to be unavoidable. A concession to the other great departments of the right to decide for themselves const.i.tutional questions applicable to, and that necessarily arise in the discharge of, their official functions, still leaves them, to a serious extent, dependent upon the judicial power. Whilst it would exempt the inc.u.mbents from the penalty of impeachment when they act in good faith, they and their subordinates remain liable whenever their acts may be construed into an injurious interference with the property or personal rights of individuals, to be called before the judicial tribunal, to be there subjected to a different interpretation of the Const.i.tution from that which they, or their superiors in authority, have placed upon it, and to be melted in damages for their public acts, however pure their motives may have been.

In a government, constructed like ours in some degree of conflicting parts, it is ever difficult, if not at times impossible, to prevent such a discrepancy, and those who framed ours, upon the whole, were wise in not attempting to do so. As a tribute to the personal rights of man and the security of private property, existing provisions go far to atone for whatever of individual injustice they may occasion. The legislative department has the power to indemnify those who suffer in this way and invariably does so when they have acted in good faith. The losses thus incurred by individuals, in the first instance, are in the end transferred to the whole community, which is abundantly remunerated by the benefits it derives from the system as a whole. Should a federal organization ever obtain which shall attempt, through an abuse of its power, to exert a dangerous influence over the Government, to an extent and in a way to arrest the attention of the people, they will neither be at a loss for a remedy nor fail in its adoption.

But to extend the control of the judiciary, through their decisions "in cases in law and equity," over the action of the other departments in the discharge of the duties a.s.signed to them, for the extent and gravity of which we have only to look to the Const.i.tution, and which, for the most part, steer entirely clear of private and separate interests, would be a measure of a very different character. It was upon these public functionaries that the entire political power of the Federal Government was intended to be conferred, and to the limited tenure by which they held their offices and to their direct responsibility to the people that the latter have always looked for the means to control their action. It is upon this swift and certain responsibility they have hitherto relied for their ability to bring the government back, without great delay, to the republican track designed for it by the Const.i.tution, whenever it might be made to depart from it through, the infidelity of their representatives. Truly says Mr. Jefferson, in one of his letters last referred to, "when the legislative or executive functionaries act unconst.i.tutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of const.i.tutional power."

Nor have the people been slow to exert their powers to reform abuses which they honestly, whether erroneously or not, believed to exist, by displacing representatives whom they considered unfaithful, whenever the occasion has seemed to them of sufficient magnitude to call for its exercise. The commencement of the nineteenth century was made forever memorable in our political annals by a display of this power, and it was again exerted in 1828, in 1840, in 1844, and in 1852. The result of the election of 1848 was altogether occasioned by divisions in the Democratic party, and I feel that I venture nothing in attributing that of 1840 mainly to a mistake in the public mind, which it has since magnanimously acknowledged, and with that atonement I am more than satisfied.

But if the inc.u.mbents of the legislative and executive departments have no right to decide for themselves const.i.tutional questions that arise in the performance of their official functions; if it be indeed true that the National Legislature, in discharging the important duties of laying and collecting taxes, duties, imposts, and excises; in borrowing money on the credit of the United States; in regulating commerce with foreign nations, and among the several States, and with the Indian tribes; in establishing uniform rules of naturalization and on the subject of bankruptcies; in coining money and regulating the value thereof, and of foreign coins, and fixing the standard of weights and measures; in providing punishment for counterfeiting the securities and current coin of the United States; in establishing post-offices and post-roads; in promoting science and useful arts; in const.i.tuting tribunals inferior to the Supreme Court; in defining and punishing piracies and felonies committed on the high seas and offences against the law of nations; in declaring war; granting letters of marque and reprisal, and making rules concerning captures on land and water; in raising and supporting armies; in providing and maintaining a navy; in making rules for the government and regulation of the land and naval forces; in providing for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion; in providing for organizing armies and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; in the exercise of exclusive jurisdiction in all cases whatsoever in the ten-mile-square and in the forts of the United States; and in making necessary and proper laws for carrying into execution the foregoing powers and all other powers vested by the Const.i.tution in the Government of the United States, or in _any department_ or officer thereof: and that the President, in a.s.suming command of the army or navy of the United States and of the militia of the several States, when called into their service; in making treaties by and with the advice of the Senate; and in the appointment of all the officers of the United States, with limited and specific exceptions, and in filling up all vacancies that may arise during the recess of the Senate; in receiving amba.s.sadors and other public ministers; and in taking care that the laws be faithfully executed,--are both bound to look to the decisions, of the Supreme Court, "in cases of law and equity" that are brought before them, for the character and extent of their powers under the Const.i.tution, and to be governed by them, what becomes of the distinguishing feature of Republican Government--the responsibility of the representative to the people for the faithful performance of his duties? A people so intelligent, and withal so just as ours, would surely never think of dismissing one branch of their public servants for acts in respect to which they had placed them under the absolute guidance of another branch. To single out one department from the rest by placing its inc.u.mbent under a special oath to protect and preserve the Const.i.tution, and then to make it his duty to obey the directions of another in that very function, absolutely and unconditionally, would, I cannot but think, be going quite as far in that direction as the character of any people for justice and wisdom could bear.

To whom are the members of the Federal Judiciary responsible for the truthfulness of their const.i.tutional expositions and for the wisdom of the steps they take to make them effectual? To no human being. They can only be displaced by impeachment and criminal conviction. That mere error of judgment, without positive proof of corruption, can never be made the basis of such a proceeding, is known to all. Is it not, then, most apparent that to place the fidelity to the Federal Const.i.tution of the representatives of the people and of the States and of most of the effective officers employed in the conduct of public affairs, save only those that are of a judicial character, under the supervision of that department, is nothing less than to divest the Government of its republican features and to subst.i.tute in its place the control of an irresponsible judicial oligarchy--to make the Const.i.tution a lie, and turn to mockery its most formal provisions, designed to secure to the people a control over the action of the Government under its authority?

Is it not remarkable that a doctrine, so clearly anti-republican in its character and tendencies, should have been so long kept on foot under a system so truly republican as ours, and may we not trace its origin to the same inexhaustible fountain from whence have proceeded the most tenacious of our party divisions--an inextinguishable distrust, on the part of numerous and powerful cla.s.ses, of the capacities and dispositions of the great body of their fellow-citizens?

The want of a proper respect for the people, as has been often said, was Hamilton"s great misfortune. If he could have felt otherwise, he would have been a Republican. This distrust of the capacity and disposition of the ma.s.ses, which had been the bane of his life, retained its hold upon his strong mind and ardent feelings when he bequeathed it to his political disciples, and it has been the shibboleth of their tribe ever since. In a large degree wealthy and proud of their social position, their fear of the popular will, and desire to escape from popular control, instead of being lessened, is increased by the advance of the people in education and knowledge. Under no authority do they feel their interests to be safer than under that which is subject to the judicial power, and in no way could their policy be more effectually promoted than by taking power from those departments of the Government over which the people have full control, and acc.u.mulating it in that over which they may fairly be said to have none.

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 Ca.s.s, in 1848--The Result a Rupture in the Democratic Party and Defeat of Ca.s.s--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 Const.i.tutional 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 Const.i.tution, 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 circ.u.mstances 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 const.i.tutional 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 Ca.s.s, 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,--circ.u.mstances 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 inst.i.tutions. 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 subst.i.tute 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 pa.s.sion 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 circ.u.mstances, 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, ent.i.tled 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 Const.i.tution 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 pa.s.s 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 inst.i.tute 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 inst.i.tution. 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 a.s.sert them, may endanger the peace and welfare of millions,--are extinguished through the agency of the organ of the Government const.i.tuted 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, a.s.suming 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 pa.s.sed 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 Const.i.tution of the United States, and not ent.i.tled 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, antic.i.p.ating 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 circ.u.mstance 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 const.i.tutionality of the Missouri Compromise Act; and, finally, that the case was one which the court had n
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