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."