Page:Southern Historical Society Papers volume 26.djvu/62

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52 Southern Historical Society Papers.

Government, it will be sufficient to recall the treatment it experienced in two memorable instances during the late war, as recorded by a leading Republican "after the most straitest sect" of that political faith.

" The Dred Scott decision," says Mr. Blaine, " received no respect after Mr. Lincoln became President, and without reversal by the court was utterly disregarded."

And again, almost immediately afterward, on the same page, " When President Lincoln, in 1861, authorized the denial of the writ of habeas corpus to persons arrested on a charge of treason, Chief Justice Taney delivered an opinion in the case of John Merryman, denying the President's power to suspend the writ, declaring that Congress only was competent to do it. The executive department paid no attention to the decision." {Twenty Years of Congress, Vol. I, page 137.)

The reader will not fail to observe the naive unconsciousness with which it is here assumed by implication that the obligation of the constitutional oath, when particularly inconvenient or disagreeable to comply with, may be quietly set aside. As regards the Supreme Court itself, "Weighed in the balances and found wanting," must be the solemn verdict of History upon this tribunal, however admir- able in its appropriate sphere, when viewed as the final arbiter of those high constitutional questions to which the real parties are not individuals or corporations amenable to process, but governments and commonwealths. For this function, as was long since pointed out by Mr. Calhoun with characteristic clearness and force, it could never have been intended, and is, from its organization, nature and limitations, essentially unfit. Brought face to face with questions like these, the Court, if it does not yield submissively to the sentiment of the party dominant for the time being, and place the dictates of its will, however ill-considered, intemperate or unjust, above the autho- rity of the organic law, must stand helpless and without remedy, while it sees its decisions contemptuously set aside by the other branches of the Government, or, still worse, reversed by a bench re-constituted for that purpose. The subject cannot, in this place, be pursued further, but it is surely sufficiently evident that to trust political rights of the most vital character to the guardianship of a body such as this would be mere fatuity.

Justification of course there can be none ; it remains only to in- quire what palliation, if any, can be found, from the point of view of the actors themselves, for an outrage which in the case of political