of the government, whose decisions should control the general policy of the country until reversed by some lawful process. "We think the Dred Scott decision is erroneous," he said to his neighbors at Springfield. "We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this. We offer no resistance to it." But in the heat of the fray he grew less temperate in his views. A year later, in a speech at Edwardsville, he exclaimed: "Familiarize yourselves with the chains of bondage and you prepare your own limbs to wear them. Accustomed to trample on the rights of others, you have lost the genius of your own independence and become the fit subjects of the first cunning tyrant who rises among you. And let me tell you, that all these things are prepared for you by the teachings of history, if the elections shall promise that the next Dred Scott decision and all future decisions will be quietly acquiesced in by the people."

Undoubtedly Lincoln accepted without reserve the declaration of the Republican platform on which he was elected in 1860: "That the new dogma that the Constitution, of its own force, carries slavery into any or all of the Territories of the United States, is a dangerous political heresy, at variance with the explicit provisions of that instrument itself, with contemporaneous exposition, and with legislative and judicial precedent; is revolutionary in its tendency and subversive of the peace and harmony of the country."

In his first inaugural address, he gave a temperate and reasoned view of the place of the Supreme Court in our system:

"I do not forget the position, assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the govern

Nicolay and Hay, Complete Works, Vol. II, p. 321.

Ibid., Vol. XI, p. 110.

ment upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made, in ordinary litigation between parties in personal actions, the people have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them and it is no fault of theirs if others seek to turn their decisions to political purposes." 1

It was the Democratic party that was to raise the next serious controversy - the party which, in the moment of triumph over the Dred Scott decision, had pledged itself to abide by the “decisions of the Supreme Court on all questions of constitutional law." In 1895, the Supreme Court, by a narrow vote of five to four, declared unconstitutional the federal income-tax law passed by a Democratic Congress the preceding year; and when the Democratic national convention assembled in 1896, there was a great deal of feeling among the radical elements against what they deemed the unwarranted act of the Court in reversing a previous opinion upholding a federal income-tax law. This feeling was intensified by controversies over the use of injunctions in labor disputes.3

Accordingly Senator James K. Jones, as chairman of the committee on resolutions, brought in a platform containing two sharp attacks on the federal judiciary: "Until the money question is settled, we are opposed to any agitation for further changes in our tariff laws, except such as are necessary to meet the deficit in revenue caused by the adverse decision of the Supreme Court on the income-tax. But for this decision by the Supreme Court, there would be no deficit in the revenue under the law passed by a Democratic Congress in strict pursuance of the uniform decisions of that court for nearly 100 years, that Court having in that decision sustained constitutional objections to its enactment which had previously been overruled by the ablest Judges who have ever sat on that Bench. We declare that it is the duty of Congress to use all the constitutional power which remains after

'Works, Vol. VI, p. 179–180.

For an insight into the political feeling involved in this controversy, see Mr. Choate's celebrated argument in the Income-Tax Case, Readings, p. 283. See above, p. 305.

may

that decision, or which may come from its reversal by the Court as it may hereafter be constituted, so that the burdens of taxation may be equally and impartially laid, to the end that wealth bear its due proportion of the expenses of the government.” The platform furthermore declared, with special reference to the recent Chicago strike: "We denounce arbitrary interference by federal authorities in local affairs as a violation of the Constitution of the United States and a crime against free institations, and we especially object to government by injunction as a new and highly dangerous form of oppression by which federal Judges, in contempt of the laws of the states and rights of citizens, become at once legislators, judges, and executioners.”

In vain did Senator Hill of New York protest against these clauses, denouncing them as foolish, ridiculous, unnecessary, revolutionary, and unprecedented in the history of the party. Mr. Bryan, in his crown of thorns and cross of gold appeal, replied to Mr. Hill with vehement directness: "They criticise us for our criticism of the Supreme Court of the United States. My friends, we have made no criticism. We have simply called attention to what you know. If you want criticism, read the dissenting opinions of the court. That will give you criticisms. They say we passed an unconstitutional law. I deny it. The income-tax was not unconstitutional when it was passed. It was not unconstitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind; and we cannot be expected to know when a judge will change his mind."

Some obvious lessons seem to come from a dispassionate review of the judicial conflicts which have occurred in our history. Criticism of the federal judiciary is not foreign to political contests; no party, when it finds its fundamental interests adversely affected by judicial decisions, seems to hesitate to express derogatory opinions; the wisest of our statesmen have agreed on the impossibility of keeping out of politics decisions of the Supreme Court which are political in their nature; finally, in spite of the attacks of its critics and the fears of its friends, the Supreme Court yet abides with us as the very strong tower defending the American political system.

'Official Proceedings of the Democratic National Convention, 1896, pp. 190 ff. 'See Readings, p. 288, and above, p. 164.

CHAPTER XVI

FOREIGN AFFAIRS

The General Direction of Foreign Affairs

THE Constitution of the United States contains no express provision for a Department of Foreign Affairs, and says very little about the method by which our foreign relations are to be managed. However, it impliedly makes the President the official spokesman of the nation in such matters by giving him the power to appoint our representatives abroad and to negotiate treaties with the approval of the Senate.'

Not only is the President the official representative in communicating the will of the United States to other countries; he is the sole official agent through whom the ministers of other countries can communicate with the United States. This has been the rule since the foundation of our government. Mr. Lee, as AttorneyGeneral, pronounced the opinion, in 1797, that foreign ministers had no authority to communicate their sentiments to the American people by publications in the newspapers, for that would be considered contempt of this government.

While the President of the United States is our official spokesman in dealing with other nations, the actual conduct of foreign affairs is vested in the Secretary of State. The Department of State, of which the Secretary is the head, was organized in 1789 by Congress. The act provided that the Secretary of State should perform such duties as the President should intrust to him, relative to correspondences, commissions, and instructions to the public ministers and consuls sent out from the United States, and also pertaining to negotiations with the public ministers from foreign states or princes. In short, the Secretary is to conduct all matters respecting foreign affairs which the President may

1 Readings, p. 183.

'It was first called the Department of Foreign Affairs, but the name was shortly changed.

'Readings, p. 291.

assign to his Department, and furthermore, he must manage the business as the President may direct.'

The Department of State is thus the legal organ of communication between the President and foreign countries, and is so recognized by foreign powers, for it is to the Secretary of State that they address their communications to our government. When the French minister, in 1793, directed a letter to the President of the United States, the Secretary replied that it was not proper for diplomatic representatives residing here to institute correspondence with the chief executive. Of course, in actual practice this strict official routine is not always observed; many questions of foreign policy are undoubtedly considered by the President in his informal relations with the ministers of other countries. In final analysis, the practice depends on the nature of the business and the personality of the President.

It is through the Secretary of State, also, that the President transmits letters and papers to foreign governments, and the latter must recognize as official only those communications which come through this agency. No officer of the United States, civil or military, should address a foreign government, except through the Department of State, or our diplomatic representatives abroad. Even when the President writes to a foreign ruler an autograph letter of condolence on the death of a relative, it is countersigned and transmitted by the Secretary of State.3

The important business of the Department has the personal attention of the Secretary. International disputes, questions of general policy, or any matters of great weight, are considered by him, and he keeps in close touch with the President, discussing with him, and sometimes with the entire Cabinet, matters of special significance.

1 Readings, p. 200.

The communications thus made to the Department of State are transmitted to the President whenever they are deemed of sufficient importance, or there are special reasons for such an action.

'The President himself may draft a despatch to a foreign country, with or without the advice of his Cabinet, but the despatch is signed by the Secretary, so that all communications appear to be through him officially. Congratulatory letters which the President signs are sometimes even drafted by a clerk in the Department of State.

1

J