and extent of their powers under the Constitution, 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 incumbent under a special oath to protect and preserve the Constitution, 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 constitutional 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 Constitution 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 substitute in its place the control of an irresponsible judicial oligarchy to make the Constitution 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 classes, 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 masses, 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 accumulating it in that over which they may fairly be said to have none.

CHAPTER VIII.

The subse

Dangers

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 Cass, in 1848 The Result a Rupture in the Democratic Party and Defeat of Cass quent Election of Pierce Repeal of the Missouri Compromise 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 Constitutional 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 Constitution, 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 circumstances under which it is applied, and wrong ist 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 constitutional 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 Cass, 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. 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

In

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, circumstances 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 institutions. Although forever withdrawn from public life, I could not be indif ferent 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 substitute 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 passion 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