The Cleveland Daily Herald
Cleveland, June 1, 1859
When it is Settled Right, then, it will be Settled, and not till Then.
Words never were more fitly spoken than those by Judge Brinkerhoff when, in his opinion upon the Habeas Corpus case, he, in reference to the question of the constitutionality of the Fugitive Law, said:
So surely as he matured conviction of the mass of intelligent mind of this country must ultimately control the operations of the government in all its departments, so surely is this question not settled. When it is settled right, then it will be settled, and not till then.
How can the tyranny of prior decisions be more glaring shown than by pointing to such able and honest lawyers as Judges Swan and Peck, who bow in obedience to prior decisions which, they admit, were the questions original ones, would not receive their assent. We can see why a Justice of the Peace should accept as law the decision of the Court of Common Pleas; why the Court of Common Pleas should accept as law the decision of the District Court; why the District Court should accept as law the decision of the Supreme Court; but why the Supreme Court, which is the highest State tribunal, and which, as representing the sovereignty of a State, should admit no superiority, even in the Federal Supreme Court, why that Court should yield up its dignity to be shackled by prior decisions is inexplicable.
And this instance shows how law is made. – And the Dred Scott decision is another case in point to show how law is manufactured. The Democrats, as is well known, cooked up that famous case and brought it before the Supreme Court for the express purpose of manufacturing law relative to the Territories. And how one of its principles was manufactured is well told by Judge Brinkerhoff, who says:
From the foundation of the government until within the last ten years, congress claimed and exercised, without question, full and complete legislative power over the territories of the United States; and as early as 1828, in American Insurance Company v. Canters, (I Peters, 546,) the Supreme Court of the United States, Chief Justice Marshall delivering its opinion, unanimously decided that in the territories Congress rightfully exercises the “combined powers of the general and of a State government.” Yet, in the recent case of Dred Scott v. Sanford, (19 Howard, 393,) all this is overturned and disregarded, and the whole past theory and practice of the government in this respect attempted to be revolutionized by force of a judicial ipse dixit.
Now that Dred Scott decision has probably been held to be law by every Federal District Court in the Union and by some of the State Courts. Not because its principles are right, but because the case Res Judicata. And so the courts will go on falling before this wicked decision, one after another, like a row of bricks, until even honest lawyers, in a few years, will not dare to entertain the original question but will acquiesce in its wicked ness because a long line of Judges – some with brains and without integrity and others having neither brains nor honesty – have pronounced those words that seal Judges’ lips – Res Judicata.
True it is with every question – and let that sentiment be a motto – “when it is settled right, then, tit will be settled, and not till then.”