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pretation as they see fit upon any part of the Constitution, --- adding to it, or subtracting from it, or positively varying its requirements, ----actually making and unmaking the Constitution; and to their work all good citizens must bow, as of equal authority with the original instrument, ratified by solemn votes of the whole people! [Great applause.] If this be so, the oath to support the Constitution is hardly less offensive than the famous "et cætera” oath devised by Archbishop Laud, where the subject swore to certain specified things, with
“ &c.” added. Such an oath I have not taken. [“ Good ! good !”] An old poet anticipates my objection:
“Who swears' foc. swears more oaths at once
The power of our Supreme Court is great, and its sphere is vast; but there are limits to its power and its sphere. According to the Constitution, “the judicial power shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties " ; but it by no means follows that the interpretation of the Constitution, incident to the trial of these "cases," is final. Of course, the judgment in the “case” actually pending is final, as the settlement of a controversy, for weal or woe, to the litigating parties; but as a precedent it is not final even on the Supreme Court itself. When cited afterwards, it will be regarded with respect as an interpretation of the Constitution, and, if nothing appears against it, of controlling authority ; but, at any day, in any litigation, at the trial of any “case,” it will be within the unquestionable competency of the Court to review its own decision, so far as it establishes any interpretation of the Constitution. If the Court itself be not constrained by its own precedents, how can coördinate branches, under oath to support the Constitution, and, like the Court itself, called incidentally to interpret the Constitution, be constrained by them? In both instances, the power to interpret is simply incident to other principal duties, as the trial of " cases,” the making of laws, or the administration of government; and it seems as plainly incident to a "case" of legislation or of administration as to a "case" of litigation. And on this view I shall act with entire confidence, under the oath I have taken.
i Cleveland. See Hudibras, ed. Grey, Part I. Canto 2, Note to v. 650.
For myself, let me say, that I hold judges, and especially the Supreme Court, in much respect; but I am too familiar with the history of judicial proceedings to regard them with any superstitious reverence. [Sensation.] Judges are but men, and in all ages have shown a full share of human frailty. Alas! alas! the worst crimes of history have been perpetrated under their sanction. The blood of martyrs and of patriots, crying from the ground, summons them to judgment. It was a judicial tribunal which condemned Socrates to drink the fatal hemlock, and which pushed the Saviour barefoot over the pavements of Jerusalem, bending beneath his cross.
It was a judicial tribunal which, against the testimony and entreaties of her father, surrendered the fair Virginia as a slave, — which arrested the teachings of the great Apostle to the Gentiles, and sent him in bonds from Judæa to Rome, -- which, in the name of the Old Religion, persecuted the saints and fathers of the Christian Church, and adjudged them to a martyr's death, in all its most dreadful forms, — and afterwards, in the name of the N Religion, enforced the tortures of the Inquisition, amidst the shrieks and agonies of its victims, while it compelled Galileo to declare, in solemn denial of the great truth he had disclosed, that the earth did not move round the sun. It was a judicial tribunal which, in France, during the long reign of her monarchs, lent itself to be the instrument of every tyranny, as during the brief Reign of Terror it did not hesitate to stand forth the unpitying accessary of the unpitying guillotine. Ay, Sir, it was a judicial tribunal in England, surrounded by all forms of law, which sanctioned every despotic caprice of Henry the Eighth, from the unjust divorce of his queen to the beheading of Sir Thomas More, — which lighted the fires of persecution that glowed at Oxford and Smithfield, over the cinders of Latimer, Ridley, and John Rogers, — which, after elaborate argument, upheld the fatal tyranny of ship money against the patriot resistance of Hampden, — which, in defiance of justice and humanity, sent Sidney and Russell to the block, — which persistently enforced the laws of Conformity that our Puritan fathers persistently refused to obey, and afterwards, with Jeffreys on the bench, crimsoned the pages of English history with massacre and murder, even with the blood of innocent women. Ay, Sir, it was a judicial tribunal in our own country, surrounded by all forms of law, which hung witches at Salem, which affirmed the constitutionality of the Stamp Act, while it admonished “jurors and people" to obey, --and which now, in our day, lends its sanction to the unutterable atrocity of the Fugitive Slave Act. [Long continued applause, and three cheers for Sumner.]
Of course judgments of courts are binding upon inferior tribunals, and their own executive officers, whose virtue does not prompt them to resign rather than aid in executing an unjust mandate. Over all citizens, whether in public or private station, they will naturally exert, as precedents, an impartial influence. This I admit. But no man, who is not lost to self-respect, and ready to abandon that manhood which is shown in the Heaven-directed countenance, will voluntarily aid in enforcing a judgment which in conscience he believes wrong. He will not hesitate “to obey God rather than men," and calmly abide the peril he provokes. Not lightly, not rashly, will he take the grave responsibility of open dissent; but if the occasion requires, he will not fail. Pains and penalties may be endured, but wrong must not be done. [Cheers.] “Where I cannot obey I am willing to suffer," was the exclamation of the author of "Pilgrim's Progress," when imprisoned for disobedience to an earthly statute. Elsewhere I have said what I now repeat and proclaim on the house-top. Better suffer injustice than do it. Better be even the poor slave returned to bondage than the unhappy Commissioner. [Applause and sensation.]
I repeat, judges are but men, and I know no difference between the claim of power now made for them and that other insulting pretension put forth sometimes in the name of a king and sometimes of a people. Listen to what King James of England once wrote: “It is atheism and blasphemy to dispute what God can do: good Christians content themselves with his will revealed in his word. So it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that: but rest
in that which is the king's revealed will in his law.” 1 Thus wrote one who was called “the wisest fool of Christendom.” And so we are to rest in that popular will revealed in the Fugitive Slave Act, and ratified by the Supreme Court. The rabble of revolutionary France, in a spirit kindred to that of King James, cried out, as the executioner's cart tracked its way in blood, “We can do what we please," — adding, “There is no God.” Of course, if there were no God, they could not do as they pleased; nor could the king, whose pretension for himself was no better than that of the rabble. But there is a God, to be obeyed in all things, although kings, people, and even courts, assert the contrary.
The whole dogma of passive obedience must be rejected, whatever guise it assumes, under whatever alias it skulks, — whether in tyrannical usurpations of king, parliament, or judicial tribunal, — whether in exploded theories of Sir Robert Filmer, or rampant assumptions of the Fugitive Slave Act. The rights of the civil power are limited; there are things beyond its province; there are matters out of its control; there are cases in which the faithful citizen may say,— ay, must say,--"I will not obey.” One of the highest flights of Mirabeau was, when, addressing the National Assembly of France, he protested against a law then pending, and exclaimed, “If you make such a law, I swear never to obey it!"2 No man now responds to the words of Shakespeare, “If a king bid a man be a villain, he is
1 Speech in the Star-Chamber, June 20, 1616: Works of the Most High and Mighty Prince, James, by the Grace of God King of Great Britain, &c., (London, 1616, folio,) p. 557. See also Finch's Law, p. 81.
2 Projet de Loi sur les Émigrations, 28 Février, 1791: Euvres, (Paris, 1834,) Tom. III. p 85.