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Page 35
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.
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