It appears extraordinary that Judge Douglas should make such a statement.
He knows that, by the law, no one can vote who has not been registered;
and he knows that the free-State men place their refusal to vote on the
ground that but few of them have been registered. It is possible that this
is not true, but Judge Douglas knows it is asserted to be true in letters,
newspapers, and public speeches, and borne by every mail and blown by
every breeze to the eyes and ears of the world. He knows it is boldly
declared that the people of many whole counties, and many whole
neighborhoods in others, are left unregistered; yet he does not venture
to contradict the declaration, or to point out how they can vote without
being registered; but he just slips along, not seeming to know there is
any such question of fact, and complacently declares:
"There is every reason to hope and believe that the law will be
fairly and impartially executed, so as to insure to every bona fide
inhabitant the free and quiet exercise of the elective franchise."
I readily agree that if all had a chance to vote they ought to have voted. If, on the contrary, as they allege, and Judge Douglas ventures not to particularly contradict, few only of the free-State men had a chance to vote, they were perfectly right in staying from the polls in a body.
By the way, since the Judge spoke, the Kansas election has come off. The Judge expressed his confidence that all the Democrats in Kansas would do their duty-including "free-State Democrats," of course. The returns received here as yet are very incomplete; but so far as they go, they indicate that only about one sixth of the registered voters have really voted; and this, too, when not more, perhaps, than one half of the rightful voters have been registered, thus showing the thing to have been altogether the most exquisite farce ever enacted. I am watching with considerable interest to ascertain what figure "the free-State Democrats" cut in the concern. Of course they voted,—all Democrats do their duty,—and of course they did not vote for slave-State candidates. We soon shall know how many delegates they elected, how many candidates they had pledged to a free State, and how many votes were cast for them.
Allow me to barely whisper my suspicion that there were no such things in Kansas as "free-State Democrats"—that they were altogether mythical, good only to figure in newspapers and speeches in the free States. If there should prove to be one real living free-State Democrat in Kansas, I suggest that it might be well to catch him, and stuff and preserve his skin as an interesting specimen of that soon-to-be extinct variety of the genus Democrat.
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. 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 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 government. We think its decisions on constitutional questions, when fully settled, should control not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. 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 to overrule this. We offer no resistance to it.
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.