In continuing the publication of the important judicial papers connected with the case of Dred Scott versus John F.A. Sandford, (the publication of which has been interrupted for a week by other pressing matter,) we are brought to-day to the opinion filed by Mr. Justice DANIEL, the renewed and careful perusal of which has inspired us with fresh regret that the Supreme Court of the United States should have been called to pronounce its judgment upon questions involved in political controversy. He must be an inattentive observer of human affairs, as well as a most indulgent critic of human nature, who does not recognise how difficult it is, in times of high partisan excitement, to preserve that evenness of the judicial temper which should ever manifest itself alike in the form and in the substance, in the style and in the matter, of every judgment pronounced by the Bench. That inflexible impartiality which forms the attribute of the upright judge, and that freedom from bias and passion which constitutes the prime characteristic of judicial speech, become only the more incumbent on those who occupy the highest place in our national judicature; and in proportion to the magnitude of the interests upon which they are called to decide should be the jealous care on their part to preserve themselves not only from the influence of prejudice, but from the very appearance of all partisan prepossession.
The venerable CHIEF JUSTICE, in delivering the Opinion of the Court, has maintained throughout that calmness of argument and moderation of statement which should characterize all that emanates from the Judge. He approaches the consideration of each question, as it rises before him in the review of the case, with a gravity suited alike to the judicial character and to the serious nature of the topics discussed. Lord BACON, who certainly knew theoretically what befitted the high function of those who wear the ermine, if in practice he failed to preserve the purity of the latter, has well said, in one of his familiar Essays, that “judges ought to be more learned than witty, more reverend than plausible, and more advised than confident” -an assemblage of qualities which, alike in their positive significance and in their contrasted order, conspire to portray that recollection of thought, composure of manner, and discretion of speech which every judicial functionary should seek to exemplify, and which, as every reader will attest, whatever may be his judgment as to its legal merits or political bearings, find an admirable illustration in the elaborate opinion of Chief Justice TANEY.
For some cause, however, Mr. Justice DANIEL seems to have been less happy in his inspirations while pronouncing his separate opinion in the Dred Scott case, and, without materially adding to the argument of the Chief Justice or opening up any new view of the questions involved in the discussion, has sometimes allowed himself a little wider margin of disquisition, and has certainly indulged in a more fervid style of discussion than his colleagues on the Bench seem to have thought essential to a full exposition of their opinions. How much of this exuberance of diction should be ascribed to a warmer temperament we are unable to say, though that great allowances should be made for such natural differences as proverbially exist among “many men” with their “many minds” will be readily admitted by all. Still, without in any degree impeaching the integrity, or, we may add, the soundness of Judge DANIEL’S opinion, we can none the less regret the occasional warmth and rhetorical earnestness, we might justly say the vehemence, of the terms in which it is couched. At the very opening of his remarks he affords an illustration of the somewhat extra-judicial style of commentation upon which we are animadverting. For, instead of imitating the prudent reserve of Chief Justice TANEY, who abstains from casting any imputation upon the motives of the parties to the suit at the bar, and who meets the “serious question” presented at its threshold with the single remark that “it is brought here by those who have a right to bring it,” Mr. Justice DANIEL does not scruple to ascribe to one side in the suit - that of the plaintiff in error -an ulterior aim beyond the ostensible exigencies of the case as it stood between Dred Scott and Mr. Sandford. However “evident” it may have been to the mind of Mr. Justice DANIEL that “nothing less than the ambitions and far-reaching pretension to compass” certain objects of vital concern affecting “not only the faculties and ‘practical operation appropriate to the American ‘Confederacy as such, but also the rights and pow-‘ers of its separate and independent members,” was “either directly essayed or necessarily implied in the positions attempted in the argument for the plaintiff in error,” it was surely wholly unnecessary for him to characterize the pleadings on one side of the case in terms which, to say the least, are invidious, as questioning the directness of purpose manifested by the learned counsel of that side in the discharge of their professional duty. Here again we might quote a maxim of Bacon’s to the effect that “patience and gravity of hearing are an essential part of justice, and an over-speaking judge is no well-tuned cymbal,” to which it is added, by the same great philosopher, that “there is due from the judge to the advocate some commendation and gracing [favor] where causes are well-handled and fair-pleaded, especially towards the side which obtaineth not, for that upholds in the client in the reputation of his counsel and beats down in him the conceit of his cause.” So far from following this dictum of the British Judge, Mr. Justice DANIEL has reserved a special condemnation and disfavor for the side which “obtained not” in the Dred Scott case, and has so far forfeited a means of “beating down” in the losing party “the conceit of his cause.”
Without being hypocritical, we might specify other passages in this opinion which seem to breathe a too excited spirit for the calm atmosphere of the Supreme Court. One of these passages, found on the four hundred and eighty-eighth page of the Report, in the pamphlet copy of the same, becomes only the more unseemly because prefaced by the declaration that the “position” in question – the constitutionality of the Missouri Compromise – even conceding its validity, could, “so far as the rights involved in this case are concerned,” by no rational interpretation be held to affect the social status of Dred Scott – a status defined and ascertained by the laws of Missouri. If, then, in the estimation of Mr. Justice DANIEL, there was no need, “so far as the rights involved” in the Dred Scott case were concerned, to pronounce upon the constitutionality of the Missouri Compromise, but these “rights” would remain the same even conceding the validity of the prohibitory provision in the law of March 6, 1820, it is only the more to be regretted that the “impotence of the pretension” founded upon that legislation should have imparted to it no “claim” to his “forbearance,” and that, irrelevant as it was to a substantial decision in the premises, he should have deemed it an indispensable duty to manifest his “antipathy and disgust at its sinister aspect.” It may be, however, that his remarks under this head were meant to be mere obiter dicta, and as such not held to be strictly subject to the proprieties of judicial speech; but, in any event, it seems to us that the intrinsic strength of his opinion would have been enhanced in the estimation of every reader if the learned Judge had employed in its delivery a more dispassionate style of reasoning.