The Rights of the People

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:- ROP 161.3

“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. ROP 162.1

To this the opposition-Abraham Lincoln, Springfield, Ill., June 26, 1857-replied:- ROP 162.2

“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? ROP 162.3

“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.’ ROP 162.4

“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. ROP 162.5

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:- ROP 163.1

“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. ROP 163.2

“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? ROP 163.3

“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. ROP 163.4

“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. ROP 164.1

The next night, July 10, 1858, Lincoln spoke in reply to Douglas, and upon this point said:- ROP 164.2

“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. ROP 164.3

“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. ROP 164.4

“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. ROP 165.1

“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. ROP 165.2

“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. ROP 165.3

Again: In a speech at Bloomington, Illinois, July 16, 1858, Senator Douglas said:- ROP 166.1

“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. ROP 166.2

The next night, July 17, at Springfield, Illinois, Lincoln replied and said:- ROP 166.3

“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. ROP 166.4

“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. ROP 166.5

“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. ROP 166.6

Once more: In the debate at Galesburg, Illinois. October 7, 1858, between them, Douglas said:- ROP 167.1

“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. ROP 167.2

And in the debate at Quincy he said:- ROP 167.3

“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. ROP 167.4

In the Quincy, Illinois, debate, October 13, 1858, upon this Lincoln said:- ROP 167.5

“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. ROP 167.6