DISSENT BY CURTIS.

543

the constitutionality of acts of Congress prohibiting slavery in the territories. Congress had power to establish territorial governments, under such conditions and subject to such limitations as it judged necessary and proper. This power it had exercised from the beginning of the government. "Here are eight distinct instances,' continued Curtis, "beginning with the first Congress and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six instances in which Congress organized governments of territories by which slavery was recognized and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution, contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to."

No decision thus far in our history provoked greater immediate public interest. It was a victory for State sovereignty and slavery. The Supreme Court had at last spoken. What higher authority existed in the Nation? Was not the slavery question finally set at rest? The decision went to an already divided public opinion. The Democratic party accepted it as a final settlement of the

1 Id. 619.

544

STATUS OF THE BLACK RACE.

whole matter. The Chief-Justice had decided according to law, the facts, and the principles of American government. Was not government in America exclusively for the white race? Let the laws and constitutions of twentyseven of the thirty-one States answer. Did not the constitutions of all these twenty-seven explicitly declare that only whites were citizens? Even in the five States organized out of the old Northwest, and in Iowa and California,1 both organized on free soil, only white men could be citizens. New York admitted the black man to citizenship, but fixed qualifications which established his inferiority. New Hampshire, Vermont and Massachusetts suffered him to vote, but negroes were so few in those States that their treatment in them was exceptional, and

1 N. Y. constitution 1821, Art. II; constitution 1846, Art. II. "The question of equal suffrage to colored persons was submitted separately for adoption in 1846 and rejected by a vote of 83,306 to 223,834. It was again submitted in 1860 with like result, the vote being 197,503 to 337,984." Hough, N. Y. Convention Manual, 1867, I, 50. "In the rejected constitutions of 1867 the question of requiring a property qualification for colored persons was decided, in 1869, in favor of such requirement by a vote of 282,403 to 249,802." Hough, American Constitutions, II, 74, note. The constitution of 1777 gave the right to vote to every male inhabitant of full age, residents of the county six months who possessed a freehold in the county valued at £20, or rented a tenement of the yearly value of 40s, and had been rated and paid taxes to the State, or who were freemen of the city of New York or Albany on or before October 14, 1775. These could vote for members of Assembly. To vote for a State Senator or Governor the elector must possess a freehold of the value of £100 (articles VII, X, XVII). The constitutions of 1821 and 1846 abolished property qualifications for white men, but prescribed for free men of color three years' residence, as against two for whites, and a freehold clear estate valued at $250. (Art. II.)

2 Numbers of Voters-Electors worth $100 ($250 or over) in land: 1790, 19,369; 1821, 100,490; 1846.* Worth $20 to $100 ($50 to

*In 1845 there were 42,321 persons of color in New York State, of whom 2,025 were taxed. Census, 1855, Albany, 1857, p. xiv.

race.

SENATOR DOUGLAS ON DRED SCOTT.

545

could not be construed as a precedent for the other twentyeight States in the Union. Even in States which forbade slavery, the free negro was considered and treated as an inferior;1 he was excluded from schools, from the trades, from the professions, from the society of the superior There was a mournful truth in the words of the Chief-Justice, that for more than a century before the Declaration of Independence and the Constitution, the blacks had 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 rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

Of opinions on the decision itself, those uttered by two men, at the time political opponents, may be said to express the divided sentiment of the Nation and to indicate whither the country was tending. These men were Stephen A. Douglas, United States Senator from Illinois, and lately a competitor with Buchanan for the Presidency; and Abraham Lincoln, also of Illinois, and now entering upon that great national campaign which resulted, four years later, in his inauguration as Buchanan's successor. "The material and controlling points in the case, those which have been made the subject of unmeasured abuse and denunciation," said Douglas, in a speech $250): 1790, 23,425; 1821, 8,985. Electors not freeholders, but renting tenements worth 40s ($5): 1790, 14,674; 1821, 93,035. Other electorst: 1790, 138; 1821, 56,877‡. Totals: 1790, 57,606; 1821, 259,387; 1846, 550,673.

1 See my Constitutional History of the American People, 17761850, Vol. I, Chapter xii.

†Freemen of New York or Albany on October 14, 1775, and April 20, 1777, respectively.

Non-freeholders who paid poll-tax, or served in the militia, or did exemption service to the State, under the law.

546

LINCOLN ON DRED SCOTT.

at Springfield, Illinois,' "may be thus stated: First, 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. Secondly, the act of March sixth, 1820, commonly called the Missouri Compromise act, was unconstitutional and void before it was repealed by the Nebraska act,2 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 soyereignty and self-government is sustained and firmly estab lished by the authority of this decision." Douglas had just pronounced this decision of the courts one that would stand in all future time a proud monument to the greatness of the judges who made it. But in drawing his own conclusions from the opinion, he was guilty, as has been pointed out by an eminent authority, of "a glaring non sequitur." If Congress could not prohibit slavery from,

1 Nicolay and Hay's Lincoln, II, 83.

2"-it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic constitutions in their own way, and subject only to the Constitution of the United States."-Kansas and Nebraska act of May 30, 1854.

Statutes at Large, X, 283.

Nicolay and Hay's Lincoln, II, 84.

LINCOLN ON DRED SCOTT.

547

a territory, how could a territorial legislature, the creation of Congress, prohibit it? Evidently the plain conclusion from the decision was that neither Congress nor a territorial legislature could do it. Douglas, the father of the "popular sovereignty" theory of the day, which his adversaries dubbed "squatter sovereignty," was making a desperate effort to save his theory from judicial destruction. His efforts cost him the loss of nearly every vote in his party, in 1860, in the slave-holding States.

Lincoln's opinion of the Dred Scott decision, given also in a speech at Springfield, Illinois, a few days after Douglas had spoken, gave voice to the belief of the young party of which he was the leader in the West and which was rapidly gathering strength and organizing throughout the free States. "That decision," said he, "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 usesfirst, 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