Chapter 5 Douglas and Lincoln on Dred Scott - Abraham Lincoln Vol.2

CHAPTER V
DOUGLAS AND LINCOLN ON DRED SCOTT
 Manifestly, when the educated intellects of the learned judges differed so radically concerning the principles of law and the facts of history applicable to the Dred Scott question, the public at large could hardly be expected to receive the new dogmas without similar divergence of opinion. So far from exercising a healing influence, the decision widened immensely the already serious breach between the North and the South. The persons immediately involved in the litigation were quickly lost sight of;[1] but the constitutional principle affirmed by the court was defended by the South and denounced by the North with zeal and acrimony. The Republican party did not further question or propose to disturb the final judgment in the case; but it declared that the Dred Scott doctrines of the Supreme Court should not be made a rule of political action, and precisely this the South, together with the bulk of the Northern Democrats, insisted should be done.
  [Sidenote] 19 Howard, pp. 460-1.
A single phase of the controversy will serve to illustrate the general drift of the discussion throughout the Union. Some three months after the delivery of the opinion of the court, Senator Douglas found himself again among his constituents in Illinois, and although there was no political campaign in progress, current events and the roused state of public feeling seemed to require that he should define his views in a public speech. It marks his acuteness as a politician that he already realized what a fatal stab the Dred Scott decision had given his vaunted principle of "Popular Sovereignty," with which he justified his famous repeal of the Missouri Compromise. He had ever since argued that Congressional prohibition of slavery was obsolete and useless, and that the choice of slavery or freedom ought to be confided to the local Territorial laws, just as it was confided to local State constitutions. But the Dred Scott decision announced that slaves were property which Congress could not exclude from the Territories, adding also the inevitable conclusion that what Congress could not do a Territorial Legislature could not.
Difficult as this made his task of reconciling his favorite theory with the Dred Scott decision, such was his political boldness, and such had been his skill and success in sophistry, that he undertook even this hopeless effort. Douglas, therefore, made a speech at Springfield, Illinois, on the 12th of June, 1857, in which he broadly and fully indorsed and commended the opinion of Chief-Justice Taney and his concurring associates, declaring that "Their judicial decisions will stand in all future time, a proud monument to their greatness, the admiration of the good and wise, and a rebuke to the partisans of faction and lawless violence. If unfortunately any considerable portion of the people of the United States shall so far forget their obligations to society as to allow the partisan leaders to array them in violent resistance to the final decision of the highest judicial tribunal on earth, it will become the duty of all the friends of order and constitutional government, without reference to past political differences, to organize themselves and marshal their forces under the glorious banner of the Union, in vindication of the Constitution and supremacy of the laws over the advocates of faction and the champions of violence."
Proceeding then with a statement of the case, he continued: "The material and controlling points in the case, those which have been made the subject of unmeasured abuse and denunciation, may be thus stated: 1st. The court decided that under the Constitution of the United States, a negro descended from slave parents is not and cannot be a citizen of the United States. 2d. That the act of March 6, 1820, commonly called the Missouri Compromise act, was unconstitutional and void before it was repealed by the Nebraska act, and consequently did not and could not have the legal effect of extinguishing a master's right to his slave in that Territory. While the right continues in full force under the guarantees of the Constitution, and cannot be divested or alienated by an act of Congress, it necessarily remains a barren and a worthless right, unless sustained, protected, and enforced by appropriate police regulations and local legislation, prescribing adequate remedies for its violation. These regulations and remedies must necessarily depend entirely upon the will and wishes of the people of the Territory, as they can only be prescribed by the local legislatures. Hence the great principle of popular sovereignty and self-government is sustained and firmly established by the authority of this decision."
It is scarcely possible that Douglas convinced himself by such a glaring _non sequitur_; but he had no other alternative. It was a desperate expedient to shield himself as well as he might from the damaging recoil of his own temporizing statesmanship. The declaration made thus early is worthy of historical notice as being the substance and groundwork of the speaker's famous "Freeport doctrine," or theory of "unfriendly legislation," to which Lincoln's searching interrogatories drove him in the great Lincoln-Douglas debates of the following year. Repeated and amplified at that time, it became in the eyes of the South the unpardonable political heresy which lost him the Presidential nomination and caused the rupture of the Democratic National Convention at Charleston in the summer of 1860. For the moment, however,  the sophism doubtless satisfied his many warm partisans. He did not dwell on the dangerous point, but trusted for oratorical effect rather to his renewed appeals to the popular prejudice against the blacks, so strong in central Illinois, indorsing and emphasizing Chief-Justice Taney's assertion that negroes were not included in the words of the Declaration of Independence, and arguing that if the principle of equality were admitted and carried out to its logical results, it would necessarily lead not only to the abolition of slavery in the slave-States, but to the general amalgamation of the two races.
The Republican party of Illinois had been greatly encouraged and strengthened by its success in electing the State officers in the previous autumn; and as their recognized leader and champion, Lincoln made a reply to this speech some two weeks later, June 26, 1857, also at Springfield. Though embracing other topics, the question of the hour, the Dred Scott decision, was nevertheless its chief subject. The extracts here presented from it will give the reader some idea of its power of statement and eloquence:
    And now [said Mr. Lincoln] as to the Dred Scott decision. That     decision declares two propositions--first, that a negro cannot sue     in the United States courts; and secondly, that Congress cannot     prohibit slavery in the Territories. It was made by a divided     court--dividing differently on the different points. Judge Douglas     does not discuss the merits of the decision, and in that respect I     shall follow his example, believing I could no more improve on     McLean and Curtis, than he could on Taney. He denounces all who     question the correctness of that decision, as offering violent     resistance to it. But who resists it? Who has, in spite of the     decision, declared Dred Scott free, and resisted the authority of     his master over him? Judicial decisions have two uses--first, to     absolutely determine the case decided, and, secondly, to indicate     to the public how other similar cases will be decided when they     arise. For the latter use they are called "precedents" and     "authorities." We believe as much as Judge Douglas (perhaps more)     in obedience to and respect for the judicial department of     government. We think its decisions on constitutional questions,     when fully settled, should control, not only the particular cases     decided, but the general policy of the country, subject to be     disturbed only by amendments of the Constitution as provided in     that instrument itself. More than this would be revolution. But we     think the Dred Scott decision is erroneous. We know the court that     made it has often overruled its own decisions, and we shall do     what we can to have it overrule this. We offer no resistance to     it. Judicial decisions are of greater or less authority as     precedents according to circumstances. That this should be so,     accords both with common sense and the customary understanding of     the legal profession. If this important decision had been made by     the unanimous concurrence of the judges, and without any apparent     partisan bias, and in accordance with legal public expectation,     and with the steady practice of the departments throughout our     history, and had been in no part based on assumed historical facts     which are not really true; or, if wanting in some of these, it had     been before the court more than once, and had there been affirmed     and reaffirmed through a course of years, it then might be,     perhaps would be, factious, nay, even revolutionary, not to     acquiesce in it as a precedent. But when, as is true, we find it     wanting in all these claims to the public confidence, it is not     resistance, it is not factions, it is not even disrespectful, to     treat it as not having yet quite established a settled doctrine     for the country.
Rising above all questions of technical construction to the broad and universal aspects of the issue, Mr. Lincoln continued:
    The Chief-Justice does not directly assert, but plainly assumes as     a fact, that the public estimate of the black man is more     favorable now than it was in the days of the Revolution. This     assumption is a mistake. In some trifling particulars the     condition of that race has been ameliorated; but as a whole, in     this country, the change between then and now is decidedly the     other way; and their ultimate destiny has never appeared so     hopeless as in the last three or four years. In two of the five     States--New Jersey and North Carolina--that then gave the free     negro the right of voting, the right has since been taken away;     and in a third--New York--it has been greatly abridged; while it     has not been extended, so far as I know, to a single additional     State, though the number of the States has more than doubled. In     those days, as I understand, masters could, at their own pleasure,     emancipate their slaves; but since then such legal restraints have     been made upon emancipation as to amount almost to prohibition. In     those days, legislatures held the unquestioned power to abolish     slavery in their respective States; but now it is becoming quite     fashionable for State constitutions to withhold that power from     the legislatures. In those days, by common consent, the spread of     the black man's bondage to the new countries was prohibited; but     now Congress decides that it will not continue the prohibition,     and the Supreme Court decides that it could not if it would. In     those days, our Declaration of Independence was held sacred by     all, and thought to include all; but now, to aid in making the     bondage of the negro universal and eternal, it is assailed, and     sneered at, and construed and hawked at, and torn, till if its     framers could rise from their graves they could not at all     recognize it. All the powers of earth seem rapidly combining     against him. Mammon is after him, ambition follows, philosophy     follows, and the theology of the day is fast joining the cry. They     have him in his prison house, they have searched his person and     left no prying instrument with him. One after another they have     closed the heavy iron doors upon him; and now they have him, as it     were, bolted in with a lock of a hundred keys, which can never be     unlocked without the concurrence of every key; the keys in the     hands of a hundred different men, and they scattered to a hundred     different and distant places; and they stand musing as to what     invention, in all the dominions of mind and matter, can he     produced to make the impossibility of his escape more complete     than it is....
    There is a natural disgust in the minds of nearly all white people     at the idea of an indiscriminate amalgamation of the white and     black races; and Judge Douglas evidently is basing his chief hope     upon the chances of his being able to appropriate the benefit of     this disgust to himself. If he can by much drumming and repeating     fasten the odium of that idea upon his adversaries, he thinks he     can struggle through the storm. He therefore clings to this hope     as a drowning man to the last plank. He makes an occasion for     lugging it in, from the opposition to the Dred Scott decision. He     finds the Republicans insisting that the Declaration of     Independence includes _all_ men, black as well as white, and     forthwith he boldly denies that it includes negroes at all, and     proceeds to argue gravely that all who contend it does, do so only     because they want to vote, and eat, and sleep, and marry with     negroes. He will have it that they cannot be consistent else. Now     I protest against the counterfeit logic which concludes that     because I do not want a black woman for a slave I must necessarily     want her for a wife. I need not have her for either. I can just     leave her alone. In some respects she certainly is not my equal;     but in her natural right to eat the bread she earns with her own     hands, without asking leave of any one else, she is my equal and     the equal of all others.
    Chief-Justice Taney, in his opinion in the Dred Scott case, admits     that the language of the Declaration is broad enough to include     the whole human family; but he and Judge Douglas argue that the     authors of that instrument did not intend to include negroes, by     the fact that they did not at once actually place them on an     equality with the whites. Now this grave argument comes to just     nothing at all by the other fact that they did not at once or ever     afterwards actually place all white people on an equality with one     another. And this is the staple argument of both the Chief-Justice     and the Senator, for doing this obvious violence to the plain,     unmistakable language of the Declaration.
    I think the authors of that notable instrument intended to include     all men; but they did not intend to declare all men equal in all     respects. They did not mean to say all were equal in color, size,     intellect, moral development, or social capacity. They defined     with tolerable distinctness in what respects they did consider all     men created equal--equal with "certain inalienable rights, among     which, are life, liberty, and the pursuit of happiness." This they     said, and this they meant. They did not mean to assert the obvious     untruth that all were then actually enjoying that equality, nor     yet that they were about to confer it immediately upon them. In     fact they had no power to confer such a boon. They meant simply to     declare the right, so that the enforcement of it might follow as     fast as circumstances should permit. They meant to set up a     standard maxim for free society, which should be familiar to all,     and revered by all; constantly looked to, constantly labored for,     and even though never perfectly attained, constantly approximated,     and thereby constantly spreading and deepening its influence and     augmenting; the happiness and value of life to all people of all     colors everywhere. The assertion that "all men are created equal"     was of no practical use in effecting our separation from Great     Britain; and it was placed in the Declaration, not for that but     for future use. Its authors meant it to be, as, thank God, it is     now proving itself, a stumbling-block to all those who in after     times might seek to turn a free people back into the hateful paths     of despotism. They knew the proneness of prosperity to breed     tyrants, and they meant when such should reappear in this fair     land and commence their vocation, they should find left for them     at least one hard nut to crack.
---------- [1] The ownership of Dred Scott and his family passed by inheritance to the family of a Massachusetts Republican member of Congress. The following telegram, copied from the "Providence Post" into the "Washington Union," shows the action of the new owner: "St. Louis, May 26 [1857]. Dred Scott with his wife and two daughters were emancipated to-day by Taylor Blow, Esq. They had been conveyed to him by Mr. Chaffee for that purpose."