"I should like, if I had time, to attempt to demonstrate the fallacy

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.

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