The Writings of Abraham Lincoln Vol. 1-7


iSpeech

"Question 1.--If the people of Kansas shall, by means entirely
unobjectionable in all other respects, adopt a State
constitution, and ask admission into the Union under it, before
they have the requisite number of inhabitants according to the
English bill, "-some ninety-three thousand,-" will you vote to
admit them?"

As I read the Judge's answer in the newspaper, and as I remember
it as pronounced at the time, he does not give any answer which
is equivalent to yes or no,--I will or I won't. He answers at
very considerable length, rather quarreling with me for asking
the question, and insisting that Judge Trumbull had done
something that I ought to say something about, and finally
getting out such statements as induce me to infer that he means
to be understood he will, in that supposed case, vote for the
admission of Kansas. I only bring this forward now for the
purpose of saying that if he chooses to put a different
construction upon his answer, he may do it. But if he does not,
I shall from this time forward assume that he will vote for the
admission of Kansas in disregard of the English bill. He has the
right to remove any misunderstanding I may have. I only mention
it now, that I may hereafter assume this to be the true
construction of his answer, if he does not now choose to correct
me.

The second interrogatory that I propounded to him was this:

"Question 2.--Can the people of a United States Territory, in any
lawful way, against the wish of any citizen of the United States,
exclude slavery from its limits prior to the formation of a State
Constitution?"

To this Judge Douglas answered that they can lawfully exclude
slavery from the Territory prior to the formation of a
constitution. He goes on to tell us how it can be done. As I
understand him, he holds that it can be done by the Territorial
Legislature refusing to make any enactments for the protection of
slavery in the Territory, and especially by adopting unfriendly
legislation to it. For the sake of clearness, I state it again:
that they can exclude slavery from the Territory, 1st, by
withholding what he assumes to be an indispensable assistance to
it in the way of legislation; and, 2d, by unfriendly legislation.
If I rightly understand him, I wish to ask your attention for a
while to his position.

In the first place, the Supreme Court of the United States has
decided that any Congressional prohibition of slavery in the
Territories is unconstitutional; that they have reached this
proposition as a conclusion from their former proposition, that
the Constitution of the United States expressly recognizes
property in slaves, and from that other Constitutional provision,
that no person shall be deprived of property without due process
of law. Hence they reach the conclusion that as the Constitution
of the United States expressly recognizes property in slaves, and
prohibits any person from being deprived of property without due
process of law, to pass an Act of Congress by which a man who
owned a slave on one side of a line would be deprived of him if
he took him on the other side, is depriving him of that property
without due process of law. That I understand to be the decision
of the Supreme Court. I understand also that Judge Douglas
adheres most firmly to that decision; and the difficulty is, how
is it possible for any power to exclude slavery from the
Territory, unless in violation of that decision? That is the
difficulty.

In the Senate of the United States, in 1850, Judge Trumbull, in a
speech substantially, if not directly, put the same interrogatory
to Judge Douglas, as to whether the people of a Territory had the
lawful power to exclude slavery prior to the formation of a
constitution. Judge Douglas then answered at considerable
length, and his answer will be found in the Congressiona1 Globe,
under date of June 9th, 1856. The Judge said that whether the
people could exclude slavery prior to the formation of a
constitution or not was a question to be decided by the Supreme
Court. He put that proposition, as will be seen by the
Congressional Globe, in a variety of forms, all running to the
same thing in substance,--that it was a question for the Supreme
Court. I maintain that when he says, after the Supreme Court
have decided the question, that the people may yet exclude
slavery by any means whatever, he does virtually say that it is
not a question for the Supreme Court. He shifts his ground. I
appeal to you whether he did not say it was a question for the
Supreme Court? Has not the Supreme Court decided that question?
when he now says the people may exclude slavery, does he not make
it a question for the people? Does he not virtually shift his
ground and say that it is not a question for the Court, but for
the people? This is a very simple proposition,--a very plain and
naked one. It seems to me that there is no difficulty in
deciding it. In a variety of ways he said that it was a question
for the Supreme Court. He did not stop then to tell us that,
whatever the Supreme Court decides, the people can by withholding
necessary "police regulations" keep slavery out. He did not make
any such answer I submit to you now whether the new state of the
case has not induced the Judge to sheer away from his original
ground. Would not this be the impression of every fair-minded
man?

I hold that the proposition that slavery cannot enter a new
country without police regulations is historically false. It is
not true at all. I hold that the history of this country shows
that the institution of slavery was originally planted upon this
continent without these "police regulations," which the Judge now
thinks necessary for the actual establishment of it. Not only
so, but is there not another fact: how came this Dred Scott
decision to be made? It was made upon the case of a negro being
taken and actually held in slavery in Minnesota Territory,
claiming his freedom because the Act of Congress prohibited his
being so held there. Will the Judge pretend that Dred Scott was
not held there without police regulations? There is at least one
matter of record as to his having been held in slavery in the
Territory, not only without police regulations, but in the teeth
of Congressional legislation supposed to be valid at the time.
This shows that there is vigor enough in slavery to plant itself
in a new country even against unfriendly legislation. It takes
not only law, but the enforcement of law to keep it out. That is
the history of this country upon the subject.

I wish to ask one other question. It being understood that the
Constitution of the United States guarantees property in slaves
in the Territories, if there is any infringement of the right of
that property, would not the United States courts, organized for
the government of the Territory, apply such remedy as might be
necessary in that case? It is a maxim held by the courts that
there is no wrong without its remedy; and the courts have a
remedy for whatever is acknowledged and treated as a wrong.

Again: I will ask you, my friends, if you were elected members of
the Legislature, what would be the first thing you would have to
do before entering upon your duties? Swear to support the
Constitution of the United States. Suppose you believe, as Judge
Douglas does, that the Constitution of the United States
guarantees to your neighbor the right to hold slaves in that
Territory; that they are his property: how can you clear your
oaths unless you give him such legislation as is necessary to
enable him to enjoy that property? What do you understand by
supporting the Constitution of a State, or of the United States?
Is it not to give such constitutional helps to the rights
established by that Constitution as may be practically needed?
Can you, if you swear to support the Constitution, and believe
that the Constitution establishes a right, clear your oath,
without giving it support? Do you support the Constitution if,
knowing or believing there is a right established under it which
needs specific legislation, you withhold that legislation? Do
you not violate and disregard your oath? I can conceive of
nothing plainer in the world. There can be nothing in the words
"support the Constitution," if you may run counter to it by
refusing support to any right established under the Constitution.
And what I say here will hold with still more force against the
Judge's doctrine of "unfriendly legislation." How could you,
having sworn to support the Constitution, and believing it
guaranteed the right to hold slaves in the Territories, assist in
legislation intended to defeat that right? That would be
violating your own view of the Constitution. Not only so, but if
you were to do so, how long would it take the courts to hold your
votes unconstitutional and void? Not a moment.

Lastly, I would ask: Is not Congress itself under obligation to
give legislative support to any right that is established under
the United States Constitution? I repeat the question: Is not
Congress itself bound to give legislative support to any right
that is established in the United States Constitution? A member
of Congress swears to support the Constitution of the United
States: and if he sees a right established by that Constitution
which needs specific legislative protection, can he clear his
oath without giving that protection? Let me ask you why many of
us who are opposed to slavery upon principle give our
acquiescence to a Fugitive Slave law? Why do we hold ourselves
under obligations to pass such a law, and abide by it when it is
passed? Because the Constitution makes provision that the owners
of slaves shall have the right to reclaim them. It gives the
right to reclaim slaves; and that right is, as Judge Douglas
says, a barren right, unless there is legislation that will
enforce it.

The mere declaration, "No person held to service or labor in one
State under the laws thereof, escaping into another, shall in
consequence of any law or regulation therein be discharged from
such service or labor, but shall be delivered up on claim of the
party to whom such service or labor may be due, "is powerless
without specific legislation to enforce it." Now, on what ground
would a member of Congress, who is opposed to slavery in the
abstract, vote for a Fugitive law, as I would deem it my duty to
do? Because there is a constitutional right which needs
legislation to enforce it. And although it is distasteful to me,
I have sworn to support the Constitution; and having so sworn, I
cannot conceive that I do support it if I withhold from that
right any necessary legislation to make it practical. And if
that is true in regard to a Fugitive Slave law, is the right to
have fugitive slaves reclaimed any better fixed in the
Constitution than the right to hold slaves in the Territories?
For this decision is a just exposition of the Constitution, as
Judge Douglas thinks. Is the one right any better than the
other? Is there any man who, while a member of Congress, would
give support to the one any more than the other? If I wished to
refuse to give legislative support to slave property in the
Territories, if a member of Congress, I could not do it, holding
the view that the Constitution establishes that right. If I did
it at all, it would be because I deny that this decision properly
construes the Constitution. But if I acknowledge, with Judge
Douglas, that this decision properly construes the Constitution,
I cannot conceive that I would be less than a perjured man if I
should refuse in Congress to give such protection to that
property as in its nature it needed.

At the end of what I have said here I propose to give the Judge
my fifth interrogatory, which he may take and answer at his
leisure. My fifth interrogatory is this:

If the slaveholding citizens of a United States Territory should
need and demand Congressional legislation for the protection of
their slave property in such Territory, would you, as a member of
Congress, vote for or against such legislation?

[Judge DOUGLAS: Will you repeat that? I want to answer that
question.]

If the slaveholding citizens of a United States Territory should
need and demand Congressional legislation for the protection of
their slave property in such Territory, would you, as a member of
Congress, vote for or against such legislation?

I am aware that in some of the speeches Judge Douglas has made,
he has spoken as if he did not know or think that the Supreme
Court had decided that a Territorial Legislature cannot exclude
slavery. Precisely what the Judge would say upon the subject--
whether he would say definitely that he does not understand they
have so decided, or whether he would say he does understand that
the court have so decided,--I do not know; but I know that in his
speech at Springfield he spoke of it as a thing they had not
decided yet; and in his answer to me at Freeport, he spoke of it,
so far, again, as I can comprehend it, as a thing that had not
yet been decided. Now, I hold that if the Judge does entertain
that view, I think that he is not mistaken in so far as it can be
said that the court has not decided anything save the mere
question of jurisdiction. 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 plausib1e 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 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 can 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 on that point
as upon any other point they really decided.

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