As before remarked, there are some who, in addition to the principle, desire authority. The authority has been given. Yet there are still others who, in addition to both the principle and the authority, desire precedent before they can be fully satisfied of the correctness of a position, and particularly such a position as is held in this discussion. And, fortunately for all, this position is supported by every kind of evidence that any person may desire. It is supported by the firm evidence of the national principle, by the satisfactory evidence of national authority, and by the final evidence of national precedent.
The question still under discussion is the right of the people to appeal from and to reverse any decision of the Supreme Court of the United States touching any matter as to the meaning or interpretation of the Constitution.
There are two notable examples of national precedent on this subject,-one in the action of each of the two great political parties of the nation's history, the Democratic and the Republican parties.
First, during President Jackson's administration the Supreme Court decided that Congress could charter a National Bank, and that such bank was constitutional. President Jackson "asserted that he, as president, would not be bound to hold a National Bank to be constitutional, even though the Court had decided it to be so," and, accordingly, vetoed the Act of Congress for a recharter. "The whole Democratic party revolted against that decision" of the Court, and "reduced the decision to an absolute nullity." 29
Secondly, the Supreme Court of the United States once rendered a decision on the slavery question in which a specific interpretation of the Constitution was made in favor of slavery as a national institution, and such interpretation declared to be the meaning and intent of the Constitution. The decision was endorsed by a large number of people, and it was ably defended in open and public discussion for several years by one of the leading men of the nation, a United States senator at the time-Stephen A. Douglas. Yet against all this, that decision was openly attacked, first in comparative obscurity and under great reproach, then in a larger field, and finally before the whole nation, by Abraham Lincoln; and the decision was reversed by the people of the United States.
That decision was, and ever since has been known as,
The Dred Scott Decision
As this precedent is so marked, so apt, so undeniable, so universally known, and withal so perfect a parallel with the "Christian nation" decision, it will be discussed here as fully as the question demands.
In noticing the "Christian nation" decision in previous chapters reference has been made more than once to the close parallel between it and the Dred Scott decision. For this reason the Dred Scott decision is of double value in this discussion, (a) in that it is such an undeniable national precedent as to the right of the people to appeal from a Supreme Court decision; and (b) in that the exact parallel between it and the "Christian nation" decision serves to set in the strongest possible light the perfect absurdity of the "Christian nation" decision throughout.
We shall therefore first set down the parallel between these two decisions in such a way that no one can fail to see it. Next we shall cite the arguments made in defense of the Dred Scott decision and those made against it, pointing out the application of both to the "Christian nation" decision, though indeed the application is so plain as scarcely to be mistakable.
The main point of the Dred Scott decision was the recognition of slavery as a national institution within the meaning and intent of the Constitution. And from the notice already given to the Christian nation decision it is perfectly clear that its main point is the recognition of the "Christian religion" as a national institution within the meaning and intent of the Constitution. The logic of the one made this a slave nation, as the logic of the other makes this a "Christian nation."
No one denied that, under the Constitution, slavery was a State institution and a State question in such States as had it or chose to have it; the question involved in the Dred Scott decision was whether it was a national institution. Likewise no one can deny that, under the Constitution as it was originally made, religion was a State institution and a State question in such States as had it or chose to have it; the question involved in the Christian nation decision is whether it is a national institution.
The task therefore before the Dred Scott court was to show that slavery was, and was intended to be, included in the Constitution of the United States as a national affair; just as the task before the Christian nation court was to show that "Christianity, general Christianity," is, and was intended to be, included in the Constitution of the United States as a national affair.
The Dred Scott court sought to acccomplish its task, not by the examination of the Constitution itself, nor by an examination of the proceedings of the conventions wherein it was made or the words and works of the men who made it-all this was left out; but by citing the history of European nations, the legislation of the Colonies, the Declaration of Independence (!), and the legislation of the States, precisely as the "Christian nation" court sought to accomplish its task. From this evidence the Dred Scott court drew the conclusion that "the right of property in a slave is distinctly and expressly affirmed in the Constitution; precisely as the Christian nation court, from parallel evidence, and by parallel method, has drawn the conclusion that the "meaning" of the language of the Constitution is that "this is a Christian nation." Neither Madison, Jefferson, nor yet Washington is as much as named in the Dred Scott decision, anymore than in the Christian nation decision.
The Dred Scott court made as its leading statement the proposition that at the time of the adoption of the Constitution-
"They [the negro race] had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no right, which the white man was bound to respect; and the negro might justly be reduced to slavery for his [the whiteman's] benefit."
The Christian nation court made as its leading statement the proposition that-
"This is a religious people. This is historically true. From the discovery of this continent to the present hour there is a single voice making this affirmation."
To prove its proposition that such is the meaning and intent of the Constitution-
The Dred Scott court said:- [1] "The public history of every European nation displays it in a manner too plain to be mistaken.... And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English government and English people.... The opinion thus entertained and acted upon in England was naturally impressed upon the Colonies they founded on this side of the Atlantic." The Christian nation court said:- [1] "The commission to Christopher Columbus prior to his sail westward, is from Ferdinand and Isabella, etc.... The first colonial grant, that made to Sir Walter Raleigh, in 1584, was from 'Elizabeth, by the Grace of God, of England, France, and Ireland, queene, defender of the faith,' etc.... The first charter of Virginia, granted by King James I.... Language of similar import may be found in the subsequent charters of that Colony from the same king.... In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant." [2] "Accordingly, a negro of the African race was regarded by them [the Colonies] as an article of property, and held and bought and sold as such in every one of the thirteen Colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States.... The legislation of the different Colonies furnishes positive and indisputable proof of this fact. It would be tedious ... to enumerate the various laws passed upon this subject.... As a sample of the legislation ... the province of Maryland, in 1717, passed a law, etc. "The other colonial law to which we refer was passed by Massachusetts in 1705," etc. 30 [2] "The celebrated compact made, by the pilgrims in the Mayflower 1620, recites, etc. "The fundamental orders of Connecticut, under which a provisional government was instituted in 1633, 1639, commence with this declaration, etc. "In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited," etc. [3] "The language of the Declaration of Independence is equally conclusive." [3] "Coming nearer to the present time, the Declaration of Independence recognizes, etc." [4] "When we look to the condition of this race in the several States at the time.... And we may here again refer ... to the plain and unequivocal language of the laws of the several States.... Their statue books are full of provisions relating to this class," etc. "Thus Massachusetts, in 1786," etc. "So, too, in Connecticut, 1774, 1781, 1833." "By the laws of New Hampshire, collected and finally passed in 1815, ... a subsequent collection made in 1855." "In 1822 Rhode Island, in its revised code, ... reenacted in its revised code of 1844." [4] "If we examine the constitutions of the various States we find in them a constant recognition of religious obligations. Every constitution of every one of the forty-four States contains language which either directly or by clear implication recognizes," etc. "The Constitution of Illinois. 1870," etc. "The Constitution of Indiana, 1816," etc. "The Declaration of Rights of the Constitution of Maryland 1867," etc. "Or like ... the Constitution of Massachusetts, 1780," etc. "Or ... the Constitution of Mississippi, 1832," etc. "Or ... the Constitution of Delaware, 1776." [5] "It would be impossible to enumerate ... the various laws marking the condition of this race.... In addition to those already referred to, it is sufficient to say that Chancellor Kent, whose accuracy and research no one will question, states," etc. [5] "While, because of a general recognition of this truth, the question has seldom been presented to the courts, yet we find that in Updegraph vs. the Commonwealth, it was decided that 'Christianity, general Christianity, is, and always has been, a part of the Common Law of Pennsylvania.... And in the People vs. Ruggles, Chancellor Kent, the great commentatoron American law, ... said," etc. [6] "They [these laws] ... are a faithful index to the states of feeling towards the class of persons of whom they speak.... They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power.... "We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the states men of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States as to the rights of man and the rights of the people was intended to include them, or to give to them or their posterity the benefit of any of its provisions." "Now, as we have already said in an earlier part of this opinion, the right of property in a slave is distinctly and expressly affirmed in the Constitution." [6] "Even the Constitution of the United States ... contains in the first amendment a declaration common to the constitutions of all the States.... There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons; they are organic utterances; they speak the voice of the entire people." "These, and many other matters which might be noticed, add a volumeof unofficial declarations to the mass of organic utterances that this is a christian nation." In view of these quotations, no man can deny that the Dred Scott decision and the Christian nation decision are in principle and in method exactly parallel. And as certainly as the Dred Scott decision established slavery as a national institution, so certainly the Christian nation decision establishes "the Christian religion" as a national institution. According to the plain words of the Dred Scott decision, slavery is absolutism and despotism. This is the truth; and it is no less the truth that any governmental establishment of "the Christian religion" is also sheer absolutism and despotism. Slavery is civil despotism; established religion is religious despotism. Of the former Abraham Lincoln said: "When the white man governs himself, that is self-government; but when he governs himself and also another man, that is more than self-government-that is despotism." 31 And of the latter say we: When any man chooses to be religious for himself, that is religious freedom; but when any man proposes to be religious for himself and also for another man, that is less than religious freedom-that is religious despotism. As certainly therefore as the Dred Scott decision, in nationalizing slavery, established a national civil despotism, if that decision had not been reversed, so certainly the Christian nation decision, in nationalizing "the Christian religion," establishes a national religious despotism, if this decision shall not be reversed.
Undoubtedly the real bearing of the Dred Scott decision in all its parts was more clearly seen by Abraham Lincoln than, by any other man in the United States. The leadership of the opposition to the decision therefore naturally fell to him, while, from whatever cause, the defense of the decision devolved upon United States Senator Stephen A. Douglas. And not only does the parallel hold good as between these two decisions in themselves, but it continues throughout the discussion of the two decisions-the main arguments made in defense of the Dred Scott decision, or in apology for it, are precisely the ones that are now made in support of the Christian nation decision, or in apology for it, while every argument made against the Dred Scott decision is equally valid and lies with full force against the Christian nation decision. Indeed, in many instances the mere insertion of the words "Christian nation" instead of the words "Dred Scott," and the words "religion" or "religious despotism" in place of the word "slavery," will make whole pages of Lincoln's speeches as applicable and as powerful against the Christian nation decision and its bearing as they were against the Dred Scott decision and its bearing.
Of course these arguments pro and con. cannot be given of even indicated here in detail. The main ones, however, even at some length, may properly be here set down, because it is in forgetting this history that this vital principle of the nation is forgotten. And let it not be forgotten that in reproducing this matter here, the sole object is to demonstrate the utter weakness of the "Christian nation" decision and of the arguments in its favor, and, on the other hand, to demonstrate the perfect propriety, and, indeed, the necessity of uncompromising opposition to that decision, upon national principle, upon national authority, and upon national precedent.
The arguments reproduced here as once made in behalf of the Dred Scott decision, are in very substance, and largely in very words, the arguments, and the only ones, that are now made or that can be made in behalf of the Christian nation decision. And the answer to these arguments in the former case are exactly our answers now in this latter case. The decisions and the arguments in favor of it were invalid in the former case, and so they are in the latter case, while the opposition and the arguments thereof, being proper, sound, and constitutional against the former decision, so they are also against the latter decision.
For and Against Decisions
The former decision was finally delivered about the beginning of the year 1857. It made a great commotion, and the opposition was instant and open and emphatic. Against this opposition the affirmative-Senator Douglas-in behalf of the decision declared:
"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 decision 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." 32 -Political Speeches and Debates, p. 43.
To this the opposition-Abraham Lincoln, Springfield, Ill., June 26, 1857-replied:-
"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.... Judge Douglas ... 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 the government.... 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.... 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."-Political Speeches and Debates, pp. 42, 43.
In 1858 Lincoln and Douglas were rival candidates for the United States senatorship; and the Dred Scott decision was the leading issue. Friday evening, July 9, Senator Douglas made a speech in Chicago, in which, noticing Lincoln's speech upon his nomination for senator, he said:-
"The other proposition discussed by Mr. Lincoln in his speech, consists in a crusade against the Supreme Court of the United States on account of the Dred Scott decision. On this question also I desire to say to you unequivocally, that I take direct and distinct issue with him. I have no warfare to make on the Supreme Court of the United States, either on account of that or any other decision which they have pronounced from that bench. The Constitution of the United States has provided that the powers of government (and the constitution of each State has the same provision) shall be divided into three departments-Executive, Legislative, and Judicial. The right and the province of expounding the Constitution and construing the law are vested in the judiciary established by the Constitution. As a lawyer, I feel at liberty to appear before the court and controvert any principle of law while the question is pending before the tribunal; but when the decision is made, my private opinion, your opinion, all other opinions, must yield to the majesty of that authoritative adjudication.
"I wish you to bear in mind that this involves a great principle, upon which our rights, our liberty, and our property all depend. What security have you for your property, for your reputation, and for your personal rights, if the courts are not upheld, and their decisions respected when once fairly rendered by the highest tribunal known to the Constitution?
"I do not choose, therefore, to go into any argument with Mr. Lincoln in reviewing the various decisions which the Supreme Court has made, either upon the Dred Scott case or any other. I have no idea of appealing from the decision of the Supreme Court upon a constitutional question to the decisions of a tumultuous town meeting. I am aware that once an eminent lawyer of this city, now no more, said that the State of Illinois had the most perfect judicial system in the world, subject to but one exception, which could be cured by a slight amendment, and that amendment was to so change the law as to allow an appeal from the decisions of the Supreme Court of Illinois, on all constitutional questions, to justices of the peace.
"My friend, Mr. Lincoln, who sits behind me, reminds me that that proposition was made when I was judge of the Supreme Court. Be that as it may, I do not think that fact adds any greater weight or authority to the suggestion. It matters not with me who was on the bench, whether Mr. Lincoln or myself, whether a Lockwood or a Smith, a Taney or a Marshall; the decision of the highest tribunal known to the Constitution of the country must be final till it is reversed by an equally high authority. Hence, I am opposed to this doctrine of Mr. Lincoln by which he proposes to take an appeal from the decision of the Supreme Court of the United States, upon this high constitutional question, to a Republican caucus sitting in the country. Yes, or any other caucus or town meeting, whether it be Republican, American, or Democratic. I respect the decisions of that august tribunal. I shall always bow in deference to them. I am a law-abiding man. I will sustain the Constitution of the country as our fathers have made it. I will yield obedience to the laws whether I like them or not, as I find them on the statute book. I will sustain the judicial tribunals and constituted authorities in all matters within the pale of their jurisdiction as defined by the Constitution."-Id., pp. 69, 70.
The next night, July 10, 1858, Lincoln spoke in reply to Douglas, and upon this point said:-
"Another of the issues he says that is to be made with me is upon his devotion to the Dred Scott decision, and my opposition to it.
"I have expressed heretofore, and I now repeat my opposition to the Dred Scott decision; but I should be allowed to state the nature of that opposition, and I ask your indulgence while I do so. What is fairly implied by the term Judge Douglas has used, 'resistance to the decision'? I do not resist it. If I wanted to take Dred Scott from his master, I would be interfering with property, and that terrible difficulty that Judge Douglas speaks of, of interfering with property, would arise. But I am doing no such thing as that; but all that I am doing is refusing to obey it as a political rule. If I were in Congress, and a vote should come up on a question whether slavery should he prohibited in a new territory, in spite of the Dred Scott decision I would vote that it should.
"That is what I should do. Judge Douglas said last night that before the decision he might advance his opinion, and it might be contrary to the decision when it was made, but after it was made, he would abide by it until it was reversed. Just so! We let this property abide by the decision, but we will try to reverse that decision. We will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed. Somebody has to reverse that decision, since it was made, and we mean to reverse it, and we mean to do it peaceably.
"What are the uses of decisions of courts?-They have two uses. As rules of property they have two uses. First, they decide upon the question before the court. They decide in this case that Dred Scott is a slave; nobody resists that. Not only that, but they say to everybody else that persons standing just as Dred Scott stands, are as he is. That is, they say that when a question comes up upon another person, it will be so decided again, unless the court decides in another way, unless the court overrules its decision. Well, we mean to do what we can to have the court decide the other way. That is one thing we mean to try to do.
"The sacredness that Judge Douglas throws around this decision is a degree of sacredness that has never been before thrown around any other decision. I have never heard of such a thing. Why, decisions apparently contrary to that decision, or that good lawyers thought were contrary to that decision, have been made by that very court before. It is the first of its kind; it is an astonisher in legal history; it is a new wonder of the world. It is based upon falsehood in the main as to facts; allegations of facts upon which it stands are not facts at all in many instances, and no decision made on any question-the first instance of a decision made under so many unfavorable circumstances-thus placed, has ever been held by the profession as law, and it has always needed confirmation before the lawyers regarded it as settled law. But Judge Douglas will have it that all hands must take this extraordinary decision, made under these extraordinary circumstances, and give their vote in Congress in accordance with it, yield to it, and obey it in every possible sense."-Id., 84, 85.
Again: In a speech at Bloomington, Illinois, July 16, 1858, Senator Douglas said:-
"I therefore take issue with Mr. Lincoln directly in regard to this warfare upon the Supreme Court of the United States. I accept the decision of that court as it was pronounced. Whatever my individual opinions may be, I, as a good citizen, am bound by the laws of the land as the Legislature makes them, as the court expounds them, and as the executive officer administers them. I am bound by our Constitution as our fathers made it, and as it is our duty to support it. I am bound as a good citizen to sustain the constituted authorities, and to resist, discourage, and beat down, by all lawful and peaceful means, all attempts at exciting mobs, or violence, or any other revolutionary proceedings, against the Constitution and the constituted authorities of the country."-Id., pp. 108, 109.
The next night, July 17, at Springfield, Illinois, Lincoln replied and said:-
"Now as to the Dred Scott decision, for upon that he makes his last point at me. He boldly takes ground in favor of that decision.
"This is one-half the onslaught, and one-third of the plan, of the entire campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott's master, and against Dred Scott and his family, I do not propose to disturb or resist the decision.
"I never have proposed to do any such thing. I think that in respect for judicial authority my humble history would not suffer in comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs,"-Id. p. 155.
Once more: In the debate at Galesburg, Illinois. October 7, 1858, between them, Douglas said:-
"Why this attempt then to bring the Supreme Court into disrepute among the people? It looks as if there was an effort being made to destroy public confidence in the highest judicial tribunal on earth. Suppose he succeeds in destroying public confidence in the court, so that the people will not respect its decisions, but will feel at liberty to disregard them and resist the laws of the land, what will he have gained? He will have changed the government from one of laws into that of a mob, in which the strong arm of violence will be substituted for the decisions of the courts of justice. He complains because I do not go into an argument reviewing Chief Justice Taney's opinion, and the other opinions of the different judges, to determine whether their reasoning is right or wrong on the questions of law. What use would that be? He wants to take an appeal from the Supreme Court to this meeting, to determine whether the questions of law were decided properly. He is going to appeal from the Supreme Court of the United States to every town meeting, in the hope that he can excite a prejudice against that court, and on the wave of that prejudice ride into the Senate of the United States when he could not get there on his own principles or his own merits."-Id., pp. 372, 373.
And in the debate at Quincy he said:-
"He [Lincoln] tells you that he does not like the Dred Scott decision. Suppose he does not; how is he going to help himself? He says he will reverse it. How will he reverse it? I know of but one mode of reversing judicial decisions, and that is by appealing from the inferior to the superior court. But I have never yet learned how or where an appeal could be taken from the Supreme Court of the United States! The Dred Scott decision was pronounced by the highest tribunal on earth. From that decision there is no appeal this side of heaven."-Id., pp. 396, 397.
In the Quincy, Illinois, debate, October 13, 1858, upon this Lincoln said:-
"We oppose the Dred Scott decision in a certain way, upon which I ought perhaps to address you a few words. We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on the members of Congress, or the President, to favor no measure which does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the States themselves. We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."-Id., p. 384.
The Meaning of the Declaration
Another leading point in defense of the decision, was the necessity of maintaining the correctness of the use that the court had made of the Declaration of Independence. The court had argued as follows:-
"The language of the Declaration of Independence is equally conclusive. It begins by declaring.... It then proceeds to say: 'We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted deriving their just powers from the consent of the governed.'
"The general words above used would seem to embrace the whole human family, and if they were used in a similar instrument at this day, would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration, for if the language as understood in that day would embrace then, then the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and fragrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they confidently appealed, they would have deserved and received universal rebuke and reprobation.
"Yet the men who framed this Declaration were great men-high in literary acquirements-high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which by common consent had been excluded from civilized governments and the family of nations, and doomed to slavery."
In support of this view of the Supreme Court that "all men" did not include the negro, Senator Douglas argued thus:-
"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."-Quoted by Lincoln, Springfield, Ill., speech, June 26, 1857; Id., p. 48.
"I believe the Declaration of Independence, in the words 'all men are created equal,' was intended to allude only to the people of the United States, to men of European birth or descent, being white men; that they were created equal, and hence that Great Britain had no right to deprive them of their political and religious privileges; but the signers of that paper did not intend to include the Indian or the negro in the Declaration, for if they had, would they not have been bound to abolish slavery in every State and Colony from that day?"-Springfield, III, speech, July 77, 1858; Id., p. 139.
The answer to this division will be clearer, and its pertinency to the Christian nation decision more readily discerned, by separating it according to the two points made. For both these points-the perversion of the plain words of the Declaration, and the drawing of those who made it, into this perversion-are equally the mode of the Christian nation decision and its defenders.
First, to the idea that the men of the Revolution actually meant the words "all men" to exclude the negro, or else laid themselves open to "universal rebuke and reprobation," Lincoln replied:-
"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 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 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"-Springfield, Ill., Speech, June 26, 1857; Id., pp. 47, 48.
"I do not propose, in regard to this argument drawn from the history of former times, to enter into a detailed examination of the historical statements he has made. I have the impression that they are inaccurate in a great many instances-sometimes in positive statement-but very much more inaccurate by the suppression of statements that really belong to the history. But I do not propose to affirm that this is so to any very great extent, or to enter into any very minute examination of his historical statements. I avoid doing so upon this principle-that if it were important for me to pass out of this lot in the least period of time possible, and I came to that fence, and saw by a calculation of my known strength and agility that I could clear it at a bound, it would be folly for me to stop and consider whether I could or not crawl through a crack. So I say of the whole history contained in his essay, 33 where he endeavored to link the men of the Revolution to popular sovereignty. It only requires an effort to leap out of it, a single bound to be entirely successful. If you read it over you will find that he quotes here and there from documents of the revolutionary times, tending to show that the people of the Colonies were desirous of regulating their own concerns in their own way....
"Now, however this history may apply, and whatever of his argument there may be that is sound and accurate or unsound and inaccurate, if we can find out what these men did themselves do upon this very question of slavery in the Territories, does it not end the whole thing? If, after all this labor and effort to show that the men of the Revolution were in favor of his popular sovereignty, and his mode of dealing with slavery in the Territories, we can show that these very men took hold of that subject, and dealt with it, we can see for ourselves how they dealt with it. It is not a matter of argument or inference, but we know what they thought about it.
"It is precisely upon that part of the history of the country that one important omission is made by Judge Douglas. He selects parts of the history of the United States upon the subject of slavery, and treats it as the whole.... There was another part of our political history, made by the very men who were the actors in the Revolution, which has taken the name of the 'Ordinance of '87.' Let me bring that history to your attention. In 1784, I believe, this same Mr. Jefferson drew up an ordinance for the government of the country upon which we now stand, or, rather, a frame or draft of an ordinance for the government of this country, here in Ohio, our neighbors in Indiana, us who live in Illinois, our neighbors in Wisconsin and Michigan. In that ordinance, drawn up not only for the government of that Territory, but for the Territories south of the Ohio River, Mr. Jefferson expressly provided for the prohibition of slavery.
"Judge Douglas says, and perhaps is right, that that provision was lost from that ordinance. I believe that is true. When the vote was taken upon it, a majority of all present in the Congress of the confederation voted for it; but there were so many absentees that those voting for it did not make the clear majority necessary, and it was lost. But three years after that the Congress of the confederation were together again, and they adopted a new ordinance for the government of this Northwest Territory, not contemplating territory south of the river, for the States owning that territory had hitherto refrained from giving it to the general government; hence they made the ordinance to apply only to what the government owned. In that, the provision excluding slavery was inserted and passed unanimously, or, at any rate, it passed and became a part of the law of the land. Under that ordinance we live....
"Not only did that ordinance prevail, but it was constantly looked to whenever a step was taken by a new Territory to become a State. Congress always turned their attention to it, and in all their movements upon this subject, they traced their course by that Ordinance of '87. When they admitted new States they advised them of this ordinance as a part of the legislation of the country. They did so because they had traced the Ordinance of '87 throughout the history of the country. Begin with the men of the Revolution, and go down for sixty entire years, and until the last scrap of that Territory comes into the Union in the form of the State of Wisconsin, everything was made to conform with the Ordinance of '87, excluding slavery from that vast extent of country.
"I omitted to mention in the right place that the Constitution of the United States was in process of being framed when that ordinance was made by the Congress of the Confederation; and one of the first acts of Congress itself, under the new Constitution itself, 34 was to give force to that ordinance by putting power to carry it out in the hands of the new officers under the Constitution, in place of the old ones, who had been legislated out of existence by the change in the government from the confederation to the Constitution. Not only so, but I believe Indiana once or twice, if not Ohio, petitioned the general government for the privilege of suspending that provision and allowing them to have slaves. A report made by Mr. Randolph, of Virginia, himself a slaveholder, was directly against it, and the action was to refuse them the privilege of violating the Ordinance of '87.
"This period of history, which I have run over briefly, is, presume, as familiar to most of this assembly as any other part of the history of our country. I suppose that few of my hearers are not as familiar with that part of history as I am, and I only mention it to recall your attention to it at this time and hence I ask how extraordinary a thing it is that a man who has occupied a position on the floor of the Senate of the United States, who is now in his third term, and who looks to see the government of this whole country fall into his own hands, pretending to give a truthful and accurate history of the every question in this country, should so entirely ignore the whole of that portion of our history, the most important of all. Is it not a most extraordinary spectacle that a man could stand up and ask for any confidence in his statements who sets out as he does with portions of history, calling upon the people to believe that it is a true and fair representation then the leading part and controlling feature of the whole history is carefully suppressed? 35
"But the mere leaving out is not the most remarkable feature of this most remarkable essay. His proposition is to establish that the leading men of the Revolution were for his great principle of nonintervention by the government in the question of slavery in the Territories, while history shows that they decided, in the cases actually brought before them, in exactly the contrary way, and he knows it. 36 Not only did they so decide at that time, but they stuck to it during sixty years, through thick and thin, as long as there was one of the revolutionary heroes upon the stage of political action. Through their whole course, from first to last, they clung to freedom.
"And now he asks the community to believe that the men of the Revolution were in favor of his great principle, when he have the naked history that they themselves dealt with this very subject matter of his principle, and utterly repudiated his principle, acting upon a precisely contrary ground. It is as impudent and absurd as if a prosecuting attorney should stand up before a jury and ask them to convict A as the murderer of B, while B was walking alive before them."-Speech, Columbus, Ohio, September, 1859; Id., pp. 496-473.
In another speech touching the history here referred to, he closed his reference with these words:-
"Thus, with the author of the Declaration of Independence, the policy of prohibiting slavery in the new territory originated. Thus, away back of the Constitution, in the pure, fresh, free breath of the Revolution, the State of Virginia and the National Congress put that policy in practice."-Peoria, Ill., October 16, 1854; Id., p. 3.
Secondly, to the idea that the Declaration could be used by such interpretation in the interests of despotism, Lincoln replied:-
"Now, I ask you in all soberness if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this government into a government of some other form? 37
"Those arguments that are made, that the inferior race are to be treated with as much allowance as they are capable of enjoying; that as much is to be done for them as their condition will allow-what are these arguments? They are the arguments that kings have made for enslaving the people in all ages of the world. You will find that all the arguments in favor of kingcraft were of this class; they also bestrode the necks of the people, not that they wanted to do it, but because the people were better off for being ridden. That is their argument, and this argument of the Judge is the same old serpent that says, You work, and I eat; you toil, and I will enjoy the fruits of it.
"Turn it whatever way you will, whether it come from the mouth of a king, as an excuse for enslaving the people of his country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent; and I hold, if that course of argumentation that is made for the purpose of convincing the public mind that we should not care about this, should be granted, it does not stop with the negro. I should like to know if, taking this old Declaration of Independence, which declares that all men are equal upon principle, and making exceptions to it, where will it stop? If one man says it does not mean a negro, why not another say it does not mean some other man? If that Declaration is not the truth, let us get the statute book in which we find it and tear it out. Who is so bold as to do it? If it is not true let us tear it out. [Cries of No! no!] Let us stick to it, then let us stand firmly by it, then."-Chicago, Speech, July 10, 1858; Id., p. 90.
"They meant to set up a standard maxim for free society, which should be familiar to all, and referred to 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 of all people of all color everywhere. The assertion that 'all men are created equal' was of no practical use in affecting our separation from England; 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 time, 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."-Springfield, Ill, Speech, June 26, 1857; Id, p. 48.
"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 [and now the consciences of all, a. t. j.] 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."-Id., p. 46.
"Dicta" and "Decision."
Another plea, which, however, was rather in the shape of an apology for the Dred Scott decision, was that all that part against which the great objection was made was mere "obiter dicta," 38 that is, things said only by the way, or in passing; that it was "extra-judicial," and therefore of no real force in law, and so there was no need of paying any particular attention to it nor of raising any opposition against it. This plea Lincoln defined as "a little quibble among lawyers between the words 'dicta' and 'decision,'" 39 and replied to it as follows:-
"I know the legal arguments that can be made,-that after a court has decided that it cannot take jurisdiction in a case, it then has decided all that is before it, and that is the end of it. A plausible argument can be made in favor of that proposition; but I know that Judge Douglas has said in one of his speeches that the court went forward, like honest men as they were, and decided all the points in the case. If any points are really extra judicially decided because not necessarily before them, then this one as to the power of the Territorial Legislature to exclude slavery is one of them, as also the one that the Missouri Compromise was null and void. They are both extra-judicial, or neither is, according as the court held that they had no jurisdiction in the case between the parties, because of want of capacity of one party to maintain a suit in that, court.
"I want, if I have sufficient time, to show that the court did pass its opinion; but that is the only thing actually done in the case. If they did not decide, they showed what they were ready to decide whenever the matter was brought before them. What is that opinion? After having argued that Congress had no power to pass a law excluding slavery from a United States Territory, they then used language to this effect, That inasmuch as Congress itself could not exercise such a power, it followed as a matter of course that it could not authorize a territorial government to exercise it; for the territorial Legislature could do no more than Congress could do. Thus it expressed its opinion emphatically against the power of a territorial Legislature to exclude slavery, leaving us in just as little doubt upon that point as upon any other point they really decided."-Jonesboro, Ill., Debate, September 15, 1858; Id., pp. 271, 272.
And again:-
"There is no sort of question that the Supreme Court has decided that it is the right of the slaveholder to take his slave and hold him in the Territory; and saying this, Judge Douglas himself admits the conclusion. He says, 'It this is so, this consequence will follow;' and because this consequence would follow, his argument is, 'The decision cannot, therefore, be that way-that would spoil my popular sovereignty, and it cannot be possible that this great principle has been squelched out in that extraordinary way. It might be, if it were not for the extraordinary consequences of spoiling my humbug.'"-Columbus, O., Speech, 1859; Id., p. 477.
Is It Only Theory?
Another plea, akin to this "little quibble," was that, even admitting the points against which the opposition was contending, to be really a part of the decision itself, after all it was merely an abstract question of no moment whatever in any practical way. This view was stated by Senator Douglas thus:-
"Mr. Lincoln says that this Dred Scott decision destroys the doctrine of popular sovereignty, for the reason that the court has decided that Congress has no power to prohibit slavery in the Territories, and hence he infers that it would decide that the territorial Legislatures could not prohibit slavery there. I will not stop to inquire whether the court will carry the decision that far or not. It would be interesting as a matter of theory, but of no importance in practice."-Springfield, Ill., Speech, July 17, 1858; Id., pp. 134, 135.
"It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may, or may not, go into a territory under the Constitution.... Hence, no matter what the decision of the Supreme Court may be on that abstract question, etc."-Freeport, Ill., Debate, August 27, 1858; Id., pp. 213, 214.
To this, Lincoln replied thus:-
"He says this Dred Scott case is a very small matter at most-that it has no practical effect; that at best, or, rather, I suppose, at worst, it is but an abstraction. I submit that the proposition that the things which determines whether a man is free or a slave is rather concrete than abstract. I think you would conclude that it was if your liberty depended upon it, and so would Judge Douglas if his liberty depended upon it."-Springfield, Ill., Speech, July 17, 1858; Id., p. 157.
"A decision of the Supreme Court is made, by which it is declared that Congress, if it desires to prohibit the spread of slavery into the Territories, has no constitutional power to do so. Not only so, but that decision lays down principles which, if pushed to their logical conclusion,-I say pushed to their logical conclusion, would decide that the constitutions of free States, forbidding slavery, are themselves unconstitutional. Mark me, I do not say the judges said this, and let no man say I affirm the judges used these words; but I only say it is my opinion that what they did say, if pressed to its logical conclusion, will inevitably result thus....
"Take it just as it stands, and apply it as a principle; extend and apply that principle elsewhere; and consider where it will lead you.... I say, if this principle is established, ... when this is done, where this doctrine prevails, the miners and sappers will have formed public opinion for the slave trade. They will be ready for Jeff. Davis and Stephens and other leaders of that company to sound the bugle for the revival of the slave trade for the second Dred Scott decision, for the flood of slavery to be poured over the free States, while we shall be here tied down and helpless and run over like sheep."-Columbus, O., Speech, 1859; Id., pp. 460, 478, 480.
Such were the main pleas and the answers thereto, upon the merits of the Dred Scott decision. And we say again that every one of these pleas, in very substance, and almost in the very words, is now held and urged in behalf of the Christian nation decision. And the answers of Abraham Lincoln to those pleas in support of that decision in that day, are precisely our answers to these same pleas in support of this decision in this our day. No less than he in that case, do we oppose this decision now and appeal from it. No more than he in that case, do we in this case propose to disturb any right of property, create any disorder, or excite any mobs. No less than he in that case, are we in this case "working on the plan of the founders of the government," and "fighting it upon these original principles-fighting it in the Jeffersonian, Washingtonian, and Madisonian fashion." No more now than then ought the people to allow themselves to be made helpless and tied down and run over like sheep.
The people in that day arose in their right and reversed that decision, and thus added the force of national precedent to that of national principle and national authority, upon the right of the people to appeal from any Supreme Court decision touching any constitutional question. Will the people in this our day realize the danger of the religious despotism which lurks in this decision as did they in that day the danger of the civil despotism that lay in that decision, and again arise in their right-their right by fundamental principle, by national authority, and by national precedent-and reverse this decision?