you, and partly by my own inclination. Two weeks ago Judge Douglas spoke
here on the several subjects of Kansas, the Dred Scott decision, and Utah.
I listened to the speech at the time, and have the report of it since.
It was intended to controvert opinions which I think just, and to assail
(politically, not personally) those men who, in common with me, entertain
those opinions. For this reason I wished then, and still wish, to make
some answer to it, which I now take the opportunity of doing.
I begin with Utah. If it prove to be true, as is probable, that the people
of Utah are in open rebellion to the United States, then Judge Douglas is
in favor of repealing their territorial organization, and attaching them
to the adjoining States for judicial purposes. I say, too, if they are in
rebellion, they ought to be somehow coerced to obedience; and I am not now
prepared to admit or deny that the Judge's mode of coercing them is not
as good as any. The Republicans can fall in with it without taking back
anything they have ever said. To be sure, it would be a considerable
backing down by Judge Douglas from his much-vaunted doctrine of
self-government for the Territories; but this is only additional proof
of what was very plain from the beginning, that that doctrine was a mere
deceitful pretense for the benefit of slavery. Those who could not
see that much in the Nebraska act itself, which forced governors, and
secretaries, and judges on the people of the Territories without their
choice or consent, could not be made to see, though one should rise from
the dead.
But in all this it is very plain the Judge evades the only question the
Republicans have ever pressed upon the Democracy in regard to Utah. That
question the Judge well knew to be this: "If the people of Utah peacefully
form a State constitution tolerating polygamy, will the Democracy admit
them into the Union?" There is nothing in the United States Constitution
or law against polygamy; and why is it not a part of the Judge's "sacred
right of self-government" for the people to have it, or rather to keep
it, if they choose? These questions, so far as I know, the Judge never
answers. It might involve the Democracy to answer them either way, and
they go unanswered.
As to Kansas. The substance of the Judge's speech on Kansas is an effort
to put the free-State men in the wrong for not voting at the election of
delegates to the constitutional convention. He says:
"There is every reason to hope and believe that the law will be fairly
interpreted and impartially executed, so as to insure to every bona fide
inhabitant the free and quiet exercise of the elective franchise."
It appears extraordinary that Judge Douglas should make such a statement.
He knows that, by the law, no one can vote who has not been registered;
and he knows that the free-State men place their refusal to vote on the
ground that but few of them have been registered. It is possible that this
is not true, but Judge Douglas knows it is asserted to be true in letters,
newspapers, and public speeches, and borne by every mail and blown by
every breeze to the eyes and ears of the world. He knows it is boldly
declared that the people of many whole counties, and many whole
neighborhoods in others, are left unregistered; yet he does not venture
to contradict the declaration, or to point out how they can vote without
being registered; but he just slips along, not seeming to know there is
any such question of fact, and complacently declares:
"There is every reason to hope and believe that the law will be
fairly and impartially executed, so as to insure to every bona fide
inhabitant the free and quiet exercise of the elective franchise."
I readily agree that if all had a chance to vote they ought to have voted.
If, on the contrary, as they allege, and Judge Douglas ventures not to
particularly contradict, few only of the free-State men had a chance to
vote, they were perfectly right in staying from the polls in a body.
By the way, since the Judge spoke, the Kansas election has come off. The
Judge expressed his confidence that all the Democrats in Kansas would
do their duty-including "free-State Democrats," of course. The returns
received here as yet are very incomplete; but so far as they go, they
indicate that only about one sixth of the registered voters have really
voted; and this, too, when not more, perhaps, than one half of the
rightful voters have been registered, thus showing the thing to have
been altogether the most exquisite farce ever enacted. I am watching with
considerable interest to ascertain what figure "the free-State Democrats"
cut in the concern. Of course they voted,--all Democrats do their
duty,--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 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 to 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 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 at our whole republican system of government--a blow
which, if successful, would place all our rights and liberties at the
mercy of passion, anarchy, 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 recharter, 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 cannot 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 precedents drawn
from that course 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 coordinate authorities of this government. The
Congress, the executive, and the courts 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 sustain 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
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 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 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 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 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 offence 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 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 afterward, 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
developments, 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 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--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.
I have now briefly expressed my view of the meaning and object of that
part of the Declaration of Independence which declares that "all men are
created equal."
Now let us hear Judge Douglas's view of the same subject, as I find it in
the printed report of his late speech. Here it is:
"No man can vindicate the character, motives, and conduct of the signers
of the Declaration of Independence, except upon the hypothesis that
they referred to the white race alone, and not to the African, when they
declared all men to have been created equal; that they were speaking of
British subjects on this continent being equal to British subjects
born and residing in Great Britain; that they were entitled to the same
inalienable rights, and among them were enumerated life, liberty, and
the pursuit of happiness. The Declaration was adopted for the purpose of
justifying the colonists in the eyes of the civilized world in withdrawing
their allegiance from the British crown, and dissolving their connection
with the mother country."
My good friends, read that carefully over some leisure hour, and ponder
well upon it; see what a mere wreck--mangled ruin--it makes of our once
glorious Declaration.
"They were speaking of British subjects on this continent being equal to
British subjects born and residing in Great Britain"! Why, according
to this, not only negroes but white people outside of Great Britain and
America were not spoken of in that instrument. The English, Irish, and
Scotch, along with white Americans, were included, to be sure, but the
French, Germans, and other white people of the world are all gone to pot
along with the Judge's inferior races!
I had thought the Declaration promised something better than the condition
of British subjects; but no, it only meant that we should be equal to them
in their own oppressed and unequal condition. According to that, it gave
no promise that, having kicked off the king and lords of Great Britain, we
should not at once be saddled with a king and lords of our own.
I had thought the Declaration contemplated the progressive improvement in
the condition of all men everywhere; but no, it merely "was adopted for
the purpose of justifying the colonists in the eyes of the civilized world
in withdrawing their allegiance from the British crown, and dissolving
their connection with the mother country." Why, that object having been
effected some eighty years ago, the Declaration is of no practical use
now--mere rubbish--old wadding left to rot on the battlefield after the
victory is won.
I understand you are preparing to celebrate the "Fourth," to-morrow week.
What for? The doings of that day had no reference to the present; and
quite half of you are not even descendants of those who were referred to
at that day. But I suppose you will celebrate, and will even go so far
as to read the Declaration. Suppose, after you read it once in the
old-fashioned way, you read it once more with Judge Douglas's version. It
will then run thus: