of that opinion. I have examined the view of the Supreme Court of the
United States on the question of the power of the Constitution to carry
slavery into free territory belonging to the United States, and I tell
you that I believe any tolerably respectable lawyer in the United States
can show, beyond all question, to any fair and unprejudiced mind, that
the decision has nothing to stand upon except assumption, and bad logic
from the assumptions made. The main proposition on which that decision
is founded, the corner-stone of it, without which it is nothing, without
which it fails entirely to satisfy the mind of any man, is this: that
the Constitution of the United States recognizes property in slaves,
and protects it as such. I deny it. It neither recognizes slaves as
property, nor does it protect slaves as property."
The Senator here, you see, says that the whole decision is based on
that assumption, which is false. He says that the Constitution does
not recognize slaves as property, nor protect them as property, and his
reasoning, a little further on, is somewhat curious. He says:
"On what do they found the assertion that the Constitution recognizes
slavery as property? On the provision of the Constitution by which
Congress is prohibited from passing a law to prevent the African
slave trade for twenty years; and therefore they say the Constitution
recognizes slaves as property."
I should think that was a pretty fair recognition of it. On this point
the gentleman declares:
"Will not anybody see that this constitutional provision, if it works
one way, must work the other? If, by allowing the slave trade for twenty
years, we recognize slaves as property, when we say that at the end of
twenty years we will cease to allow it, or may cease to do so, is not
that denying them to be property after that period elapses?"
That is the argument. Nothing but my respect for the logical intellect
of the Senator from Maine could make me treat this argument as serious,
and nothing but having heard it myself would make me believe that he
ever uttered it. What, sir! The Constitution of our country says to the
South, "you shall count as the basis of your representation five slaves
as being three white men; you may be protected in the natural increase
of your slaves; nay, more, as a matter of compromise you may increase
their number if you choose, for twenty years, by importation; when these
twenty years are out, you shall stop." The Supreme Court of the United
States says, "well; is not this a recognition of slavery, of property
in slaves?" "Oh, no," says the gentleman, "the rule must work both
ways; there is a converse to the proposition." Now, sir, to an
ordinary, uninstructed intellect, it would seem that the converse of the
proposition was simply that at the end of twenty years you should not
any longer increase your numbers by importation; but the gentleman says
the converse of the proposition is that at the end of the twenty years,
after you have, under the guarantee of the Constitution, been adding by
importation to the previous number of your slaves, then all those that
you had before, and all those that, under that Constitution, you have
imported, cease to be recognized as property by the Constitution, and
on this proposition he assails the Supreme Court of the United States--a
proposition which he says will occur to anybody.
Mr. Fessenden. Will the Senator allow me?
Mr. Benjamin. I should be very glad to enter into this debate now, but I
fear it is so late that I shall not be able to get through to-day.
Mr. Fessenden. I suppose it is of no consequence.
Mr. Benjamin. What says the Senator from Vermont (Mr. Collamer), who
also went into this examination somewhat extensively. I read from his
printed speech:
"I do not say that slaves are never property. I do not say that they
are, or are not. Within the limits of a State which declares them to be
property, they are property, because they are within the jurisdiction of
that government which makes the declaration; but I should wish to speak
of it in the light of a member of the United States Senate, and in the
language of the United States Constitution. If this be property in the
States, what is the nature and extent of it? I insist that the Supreme
Court has often decided, and everybody has understood, that slavery is
a local institution, existing by force of State law; and of course that
law can give it no possible character beyond the limits of that State."
I shall no doubt find the idea better expressed in the opinion of Judge
Nelson, in this same Dred Scott decision. I prefer to read his language.
* * * * *
"Here is the law; and under it exists the law of slavery in the
different States. By virtue of this very principle it cannot extend
one inch beyond its own territorial limits. A State cannot regulate
the relation of master and slave, of owner and property, the manner and
title of descent, or anything else, one inch beyond its territory. Then
you cannot, by virtue of the law of slavery, if it makes slaves property
in a State, if you please, move that property out of the State. It ends
whenever you pass from that State. You may pass into another State that
has a like law; and if you do, you hold it by virtue of that law; but
the moment you pass beyond the limits of the slaveholding States, all
title to the property called property in slaves, there ends. Under such
a law slaves cannot be carried as property into the Territories, or
anywhere else beyond the States authorizing it. It is not property
anywhere else. If the Constitution of the United States gives any other
and further character than this to slave property, let us acknowledge it
fairly and end all strife about it. If it does not, I ask in all candor,
that men on the other side shall say so, and let this point be
settled. What is the point we are to inquire into? It is this: does
the Constitution of the United States make slaves property beyond the
jurisdiction of the States authorizing slavery? If it only acknowledges
them as property within that jurisdiction, it has not extended the
property one inch beyond the State line; but if, as the Supreme Court
seems to say, it does recognize and protect them as property further
than State limits, and more than the State laws do, then, indeed, it
becomes like other property. The Supreme Court rests this claim upon
this clause of the Constitution: 'No person held to service or labor in
one State, under the laws thereof, shall, in consequence of any law or
regulation therein, be discharged from such service or labor; but shall
be delivered up on claim of the party to whom such service or labor may
be due.' Now the question is, does that guaranty it? Does that make
it the same as other property? The very fact that this clause makes
provision on the subject of persons bound to service, shows that the
framers of the Constitution did not regard it as other property. It
was a thing that needed some provision; other property did not. The
insertion of such a provision shows that it was not regarded as other
property. If a man's horse stray from Delaware into Pennsylvania, he can
go and get it. Is there any provision in the Constitution for it? No.
How came this to be there, if a slave is property? If it is the same as
other property, why have any provision about it?'"
It will undoubtedly have struck any person, in hearing this passage read
from the speech of the Senator from Vermont, whom I regret not to see
in his seat to-day, that the whole argument, ingeniously as it is put,
rests upon this fallacy--if I may say so with due respect to him--that
a man cannot have title in property wherever the law does not give him
a remedy or process for the assertion of his title; or, in other words,
his whole argument rests upon the old confusion of ideas which considers
a man's right and his remedy to be one and the same thing. I have
already shown to you, by the passages I have cited from the opinions of
Lord Stowell and of Judge Story, how they regard this subject. They say
that the slave who goes to England, or goes to Massachusetts, from a
slave State, is still a slave, that he is still his master's property;
but that his master has lost control over him, not by reason of the
cessation of his property, but because those States grant no remedy to
the master by which he can exercise his control.
There are numerous illustrations upon this point--illustrations
furnished by the copyright laws, illustrations furnished by patent laws.
Let us take a case, one that appeals to us all. There lives now a man
in England who from time to time sings to the enchanted ear of the
civilized world strains of such melody that the charmed senses seem to
abandon the grosser regions of earth, and to rise to purer and serener
regions above. God has created that man a poet. His inspiration is his;
his songs are his by right divine; they are his property so recognized
by human law; yet here in these United States men steal Tennyson's works
and sell his property for their profit; and this because, in spite of
the violated conscience of the nation, we refuse to give him protection
for his property. Examine your Constitution; are slaves the only species
of property there recognized as requiring peculiar protection? Sir, the
inventive genius of our brethren of the North is a source of vast wealth
to them and vast benefit to the nation. I saw a short time ago in one of
the New York journals, that the estimated value of a few of the patents
now before us in this Capital for renewal, was $40,000,000. I cannot
believe that the entire capital, invested in inventions of this
character in the United States can fall short of one hundred and fifty
or two hundred million dollars. On what protection does this vast
property rest? Just upon that same constitutional protection which gives
a remedy to the slave owner when his property is, also found outside of
the limits of the State in which he lives.
Without this protection, what would be the condition of the northern
inventor? Why, sir, the Vermont inventor protected by his own law would
come to Massachusetts, and there say to the pirate who had stolen his
property, "Render me up my property or pay me value for its use." The
Senator from Vermont would receive for answer, if he were the counsel of
the Vermont inventor, "Sir, if you want protection for your property go
to your own State; property is governed by the laws of the State within
whose jurisdiction it is found; you have no property in your invention
outside of the limits of your State; you cannot go an inch beyond it."
Would not this be so? Does not every man see at once that the right
of the inventor to his discovery, that the right of the poet to his
inspiration, depends upon those principles of eternal justice which God
has implanted in the heart of man, and that wherever he cannot exercise
them it is because man, faithless to the trust that he has received from
God, denies them the protection to which they are entitled?'
Sir, follow out the illustration which the Senator from Vermont himself
has given; take his very case of the Delaware owner of a horse riding
him across the line into Pennsylvania. The Senator says: "Now, you
see that slaves are not property like other property; if slaves were
property like other property, why have you this special clause in your
Constitution to protect a slave? You have no clause to protect the
horse, because horses are recognized as property everywhere." Mr.
President, the same fallacy lurks at the bottom of this argument, as of
all the rest. Let Pennsylvania exercise her undoubted jurisdiction over
persons and things within her own boundary; let her do as she has
a perfect right to do--declare that hereafter, within the State of
Pennsylvania, there shall be no property in horses, and that no man
shall maintain a suit in her courts for the recovery of property in a
horse; and where will your horse-owner be then? Just where the English
poet is now; just where the slaveholder and the inventor would be if the
Constitution, foreseeing a difference of opinion in relation to rights
in these subject-matters, had not provided the remedy in relation to
such property as might easily be plundered. Slaves, if you please, are
not property like other property in this: that you can easily rob us of
them; but as to the right in them, that man has to overthrow the
whole history of the world, he has to overthrow every treatise on
jurisprudence, he has to ignore the common sentiment of mankind, he has
to repudiate the authority of all that is considered sacred with man,
ere he can reach the conclusion that the person who owns a slave, in
a country where slavery has been established for ages, has no other
property in that slave than the mere title which is given by the statute
law of the land where it is found. * * *
ABRAHAM LINCOLN,
OF ILLINOIS. (BORN 1809, DIED 1865.)
ON THE DRED SCOTT DECISION,
SPRINGFIELD, ILLINOIS, JUNE 26, 1857.
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 to 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 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."
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 the 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 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 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 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 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.