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- the very question upon which the new Republican party was then staking its hopes and gaining its strength.
The response which this momentous decision met was widespread and decided. The southern states accepted Chief Justice Taney's opinion as final, and a section of the Democratic party, assembled in convention at Charleston, South Carolina, in April, 1860, resolved that it would "abide by the decisions of the Supreme Court of the United States on the questions of constitutional law."
In the North, however, it met with a storm of protest. The legislatures of Connecticut, Maine, Ohio, New Hampshire, Vermont, and Massachusetts passed resolutions condemning the decision.
Whereas [runs the Maine resolutions], such extra-judicial opinion subordinates the political power and interests of the American people to the cupidity and ambition of a few thousand slaveholders, who are thereby enabled to carry the odious institution of slavery wherever the national power extends, and predooms all territory which the United States may hereafter acquire by purchase or otherwise to a law of slavery as irrepealable as the organic constitution of the country; and
Whereas, such extra-judicial opinion of a geographical majority of the Supreme Court is conclusive proof of the determination of the slaveholding states to subvert all the principles upon which the American union was formed, and degrade it into an engine for the extension and perpetuation of the barbarous and detestable system of chattel slavery: Therefore
Resolved, that the extra-judicial opinion of the Supreme Court in the case of Dred Scott is not binding in law or conscience upon the government or citizens of the United States and that it is of an import so alarming and dangerous as to demand the instant and emphatic reprobation of the country.
Resolved, that the Supreme Court of the United States should, by peaceful and constitutional measures, be so reconstituted as to relieve it from the domination of a sectional faction. . . .'
Lincoln, who afterward sacrificed slavery and waged war to save the Constitution, viewed this epoch-opening decision with more calm, but he refused to accept it as the final word on slavery in the territories. Two or three months after it was rendered, he declared his belief in, and respect for, the judicial department
1 Senate Mis. Doc., No. 14, 35th Cong., 1st Sess., 1857-58.
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. 2 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."
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
1 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. 3 See above, p. 305.
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 may 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 institutions, 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.” 1
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.2
1Official Proceedings of the Democratic National Convention, 1896, pp. 190 f. 2 See Readings, p. 288, and above, p. 164.
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.1
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.