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and of course they did not vote for Slave State candidates. We soon shall know how many delegates they elected, how many candidates they had pledged to a free State, and how many votes were cast for them.
Allow me to barely whisper my suspicion, that there were no such things in Kansas as "Free State Democrats "-that they were altogether mythical, good only to figure in newspapers and speeches in the Free States. If there should prove to be one real, living Free State Democrat in Kansas, I suggest that it might be well to catch him, and stuff and preserve his skin, as an interesting specimen of that soon to be extinct variety of the genus Democrat.
And now, as to the Dred Scott decision. That decision declares two propositions-first, that a negro can not sue in the United States Courts; and secondly, that Congress can not 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 upon McLean and Curtis, than he could on Taney.
He denounces all who question the correctness of that decis ion, 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 re-affirmed 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 factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country. But Judge Douglas considers this view awful. Hear him:
"The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government-a blow which, if successful, would place all our rights and liberties at the mercy of passion, anarcy and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and enemies of the Constitution-the friends and the enemies of the supremacy of the laws.'
Why, this same Supreme Court once decided a national bank to be Constitutional; but General Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on Constitutional ground, declaring that each public functionary must support the Constitution, "as he understands it." But hear the General's own words. Here they are, taken from his veto message:
"It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of Constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress, in 1815, decided against a bank; another in 1816, decided in its favor. Prior to the present Congress, therefore, the prece
dents drawn from that source were equal. If we resort to the States the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me."
I drop the quotations merely to remark, that all there ever was, in the way of precedent, up to the Dred Scott decision, on the points therein decided, had been against that decision. But hear General Jackson further:
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the Executive and the Court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others."
Again and again have I heard Judge Douglas denounce that bank decision, and applaud General Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head. It will call to mind a long and fierce political war in this country, upon an issue which, in his own language, and, of course, in his own changeless estimation, was a distinct issue between the friends and the enemies of the Constitution," and in which war he fought in the ranks of the enemies of the Constitution.
I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true, and I ought not to leave the subject without giving some reasons for saying this: I, therefore, give an instance or two, which I think fully sustains me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length, that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.
On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen States, to-wit: New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth, and as a sort of conclusion on that point, holds the following language :
"The Constitution was ordained and established by the
people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of the people of the United States,' by whom the Constitution was ordained and established; but in at least five of the States they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption.'
Again, Chief Justice Taney says: "It is difficult, at this day, to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted." And again, after quoting from the Declaration, he says: "The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood."
In these 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 the 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 prohibitionand 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, sneered at, construed, 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 prisc-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 be produced to make the impossibility of his escape more complete
than it is.
It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the Government.
Three years and a half ago Judge Douglas brought forward his famous Nebraska bill. The country was at once in a blaze. He scorned all opposition, and carried it through Congress. Since then he has seen himself superseded in a Presidential nomination, by one indorsing the general doctrine of his measure, but at the same time standing clear of the odium of its untimely agitation, and its gross breach of national faith and he has seen that successful rival constitutionally elected, not by the strength of friends, but by the division of his adversaries, being in a popular minority of nearly four hundred thousand votes. He has seen his chief aids in his own State, Shields and Richardson, politically speaking, successively tried, convicted, and executed, for an offense not their own, but his. And now he sees his own case, standing next on the docket for trial.
There is a natural disgust, in the minds of nearly all white people, to 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