Page:Popular Science Monthly Volume 83.djvu/549

Rh of the legislative and judicial departments as is sometimes supposed, and in rendering decisions the courts on occasion make the law as well as declare what the law is. For the courts in their rulings to avoid any recognition of a higher sense of justice in the community until it has found expression in a legislative enactment seems a travesty upon justice to those who hold this position. There is little doubt that the unpopular reception accorded the Dred Scott decision was based upon some such view as this. In point of fact, there is a large body of judge-made law. Some decisions have even gone further and have amended the constitution by interpretation, a procedure which the difficulty of formally amending our organic law invites. In the opinion of many legal lights, Justice Harlan had good ground for accusing the majority of reading the word "reasonable" into the anti-trust act in the Standard Oil and American Tobacco Company cases.

The second feature of the Dred Scott decision to which it is desired to allude here is the storm of popular disapproval which greeted its announcement. The present age is familiar with the heated discussions to which the judicial determination of cases involving the ideals of democracy and the rights of property frequently give rise. Both parties to such controversies have so much at stake that it is hard for either to be a good loser. When anything that a man has once possessed himself of is placed in jeopardy, or when any ideal upon which the fortunes of humanity are supposed to rest is called in question, a complacent mood is too much to expect. Nor is this peculiar to this age. Those who assume that failure to acquiesce cheerfully in the rulings of the courts is without precedent in the past will do well to recall the attitude of Jefferson and Jackson, and especially the outburst of indignation which the Dred Scott decision called forth. As an example of what some look upon as treason to the courts, the contempt with which this decision was regarded has not been duplicated before or since.

The way in which Mr. Lincoln took the Supreme Court to task deserves a passing notice. He did not content himself with maintaining that the decision was bad law. In a speech at Springfield, Illinois, June 17, 1858, he boldly insinuated that Chief Justice Taney, Stephen A. Douglas, James Buchanan and Franklin Pierce conspired together in handing down the Dred Scott decision. After citing the successive points in the alleged conspiracy, he threw his indictment into the following classic:

We can not absolutely know that all these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen—Stephen, Franklin, Roger and James, for instance—and when we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortices exactly fitting, and all the lengths and