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D . E . B . A . T . E . S
THE
Douglas L. Wilson Historical Research and Narrative
The series of debates between Abraham Lincoln and Stephen A. Douglas in the fall of 1858 is acknowledged on all sides as the centerpiece of one of the most famous political contests in American history. But in spite of this, the experience of most students and first-time readers of the debates is one of confusion and disappointment. Why is this? Weren't these men both masters of communication, two of the greatest orators of the golden age of oratory? Weren't the issues they were debating directly related to the most dramatic and momentous in our history—slavery and the survival of the Union? Though they were contesting for a seat in the U.S. Senate, wasn't it a fact, and weren't people aware at the time that a future presidency was hanging in the balance? How is it that such indisputably important debates so often fail to galvanize the attention of contemporary Americans? To answer these questions is to begin to confront not only the import of the debates themselves but the problems of making sense of another era. The past typically presents itself at two levels, which we may call the macro and the micro. At the macro level we look for and see only the prime elements of the big picture, and this results in a highly selective narrative, with a reasonably clear line of causation and a coherent sequence of events. Thus we may characterize what happened between, say, 1800 and 1865, by saying that the United States became divided sectionally into North and South because of and eventually fought a civil war over the issue of slavery. Could anything be plainer? But history at the micro level is always more messy and chaotic, a
Robert Marshall Root painting of Lincoln-Douglas Debate at Charleston
11
perspective that notoriously distracts from and often casts doubt on the validity of the big picture. Thus at the micro level we must acknowledge many things that don't seem to fit, as for example, that the largest political party in the North, the Democrats, consistently opposed waging a civil war, particularly one over slavery, or that most Northern citizens who answered the call to arms did not do so, and would not have done so, to end slavery. With the Lincoln-Douglas Debates, a similar situation prevails. At the macro level, we can see that Lincoln could not have been nominated, let alone elected president in 1860, if he had not gained national attention two years earlier as the debate opponent of Douglas, a man with a huge national reputation and who was on track to be the presidential nominee of the Democratic party. Since Lincoln subsequently defeated Douglas for the presidency in 1860, the debates are, by definition, important historical events. Lincoln had earned the right to confront Douglas by attacking his Kansas-Nebraska act and arousing concern about the spread of slavery into the territories. And in the 1858 debates themselves, he urged that Douglas's indifference to the spread of slavery was, among other things, a moral issue, and that Douglas and the Democrats were delinquent for not acknowledging that slavery was wrong. With the debates, as with history in general, both the macro and the micro level have their own importance and validity, and we do well to keep this in mind as we read and discuss them. Because we see slavery so clearly as a moral issue, Lincoln's attack on Douglas and the Democrats fits beautifully into our macro version of the events leading up to the Civil War, but at the same time it creates false expectations in those reading the debates for the first time. What they find at the micro level for the most part is not so much a high-minded discussion about the morality of slavery but rather a highly partisan and personal exchange of charges and accusations, many of them focusing on obscure political squabbles and long-forgotten issues. Both candidates claim to have detected a highly dubious "conspiracy" involving the other; both charge the other with dissimulation and fraud; both spend a significant amount of time defending and justifying their party affiliations; at one point there is even the suggestion that their "personal difficulties" may lead to a fight. As partisan politicians, they often appear to differ little from their contemporary counterparts. For twenty-first-century readers it is important to emphasize that it was Douglas, not Lincoln, who was the great man of these debates. Not only was Douglas the incumbent, who had already been elected twice to his seat in the Senate, but he was, as Lincoln acknowledges, a world-renown statesman, perhaps the best-known and most highly regarded member of the U.S. Congress. Though Lincoln and Douglas started out together in the Illinois legislature more than twenty years earlier and had met in debate many times, it was Douglas who had succeeded grandly, while Lincoln's political career had petered out. In the first debate at Ottawa, Douglas moved quickly to capitalize on those circumstances and put Lincoln in his place. Maintaining all the while that he is speaking as an old friend, Douglas tells the story of their "friendship" in a way that is highly discreditable to Lincoln and deliberately provoking. Lincoln, he says, was a hard-drinking saloon keeper in New Salem, who used those attributes to get elected to the legislature. Later, he says, Lincoln "turned up as a member of Congress" when Douglas was already in the Senate, and Lincoln "distinguished himself [and ruined his political career] by his opposition to the Mexican war, taking the side of the common enemy against his own country." Still later, Douglas says, Lincoln conspired secretly to "abolitionize" his own Whig party, that is, to undermine their traditional moderate stand on slavery and make them unwitting pawns of the abolitionists, the relatively small but vocal band of militant anti-slavery activists. It is a blatantly personal attack, with a well-calculated mixture of fact and fiction, but in practical terms it is highly effective, for Lincoln is clearly agitated and thrown off balance. His reply comes off as an awkward attempt to both answer some of the charges and yet not pay too much attention to them, and as a result, he does not make a consistently strong response and does not even use all the time available to him (as Douglas is quick to point out) to get his own message across. Clearly Lincoln has been put on the defensive, an especially disadvantageous position for the challenger. Trying 12 to claim the initiative becomes a prime task in the rest of the debates, and one way to approach the debates is to follow them from this perspective. The moral issue of cruelty and injustice of slavery is what modern-day readers expect to be Lincoln's most prominent theme, for they assume that his antipathy to slavery made him an abolitionist. Thus they are confused by his attempts to distance himself from the abolitionists in the debates and to fend off Douglas's attempts to place him in their camp, and they are disappointed that, while implying that slavery is wrong, Lincoln doesn't get around to arguing the morality of slavery until the fifth debate at Galesburg. There, and in the last two debates, he begins to argue insistently that slavery is immoral and that Douglas's indifference to the moral issue is the most consequential issue dividing them. To the historical neophyte, these are confusing developments, but recognizing these circumstances constitutes an excellent starting point for grasping that there is more at issue than slavery and for analyzing the dynamics of the debates.
Another approach with ties to the present is the issue of "political correctness." This may be a late-twentieth-century expression, but it is an old phenomenon. It says that, while we live in a free country, there are certain beliefs that are essentially sacrosanct and not open to discussion, and that to challenge these beliefs is to invite odium and outrage for a private citizen and political suicide for an officeseeker. But the debates show that what is considered politically correct can and does change drastically over the course of time, which is one of the things that makes history so interesting. After his devastating depiction of Lincoln's political career in the first speech of the first debate, Douglas proceeds to attack his opponent for what he perceives is a very vulnerable position—Lincoln's stand on the Declaration of Independence. Since his speech on the Dred Scott decision the year before, Lincoln had been making prominent use of the Declaration of Independence and clearly hoped to put Douglas in a position of having to argue with or reject its most resonant claim—that all men are created equal. Before the "joint discussions" with Douglas were arranged, Lincoln had made a fiery speech in Chicago in which he had urged "let us discard all this quibbling about this man and the other man—this race and that race and the other race being inferior, and therefore they must be placed in an inferior position ... Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal." This was, of course, very advanced thinking for 1858, and Douglas was out to make sure that Lincoln paid the full political price for it. Political correctness in Illinois, as in most of the North in 1858, specified that black people in general were not the equal of whites, but as a race were inferior. Therefore even free blacks were unwelcome in most places and were rarely extended the right to vote or become jurors. Even many abolitionists, who were out to destroy slavery at any cost, did not claim that blacks were the equal of whites in every respect. Therefore, a politician who seemed to argue that the equality recognized by the Declaration was oblivious to race made himself eligible to the charge of being radical and unrepresentative. This is the context of Douglas's battering of Lincoln on this issue in the first debate, using terms that were as politically telling and effective then as they are ugly and unutterable now. Lincoln and the abolitionists, says Douglas, "maintain that negro equality is guaranteed by the laws of God, and that it is asserted in the Declaration of Independence. I do not question Mr. Lincoln's conscientious belief that the negro was made his equal, and hence is his brother (laughter), but for my own part, I do not regard the negro as my equal, and positively deny that he is my brother or any kin to me whatever." About his own prejudices, Douglas was clear and unapologetic: "For one, I am opposed to negro citizenship in any and every form. I believe this government was made on the white basis. I believe it was made by white men, for the benefit of white men ... and I am in favor of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians, and other inferior races." 13 What makes the issue particularly ironic for a contemporary reader is that Lincoln's attempt to defend himself from the charge of political incorrectness is itself, for our time, painfully incorrect. Forced by the situation to retreat from his advanced Chicago position, Lincoln insisted in reply that "anything that argues me into his idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse.... I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position." To American readers in our time, these are both highly offensive positions. Most first-time readers are not much surprised by Douglas's stance, but they are very much surprised that Lincoln, the man who signed the Emancipation Proclamation and wrote the Gettysburg Address, should take such a position. At first glance, he seems to differ little from Douglas. But this apparent similarity presents us with an opportunity to get at the crucial differences in the positions of the two candidates. Douglas declares that whites, having made the government by and for themselves, can do whatever they want with respect to blacks. Lincoln disagrees. He argues that the Declaration asserts that there are certain rights that are inalienable, that cannot be denied, and that "there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty and the pursuit of happiness." Slavery is an outright denial of these inalienable rights. To dramatize the difference between himself and Douglas, and to create a concrete image of these abstract rights, Lincoln adds, "I agree with Judge Douglas he is not my equal in moral or in many respects — certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man." The Lincoln-Douglas Debates are challenging to teach, being very different from what most students and other first-time readers expect to find. But these disappointed expectations are potential entry points at which the debates can be approached on their own terms. Acknowledging our own confusion and disappointment with the debates gives us a handle on two of the most vexing problems in studying history: the disparities between the perspectives presented by the macro and micro levels, and making the difficult and at times demanding adjustment between contemporary attitudes and values and those of a previous era. In this way, study of the debates may help to establish a basis for a better understanding of history in general. CURRICULUM MATERIALS Lynn R. Nelson Overview Main Ideas These activities engage students in the ideas that form the core of the Lincoln-Douglas Debates of 1858. In a very real sense the Lincoln-Douglas Debates are a window in time; for example the inclusion of African Americans under the covenant-created principles of the Declaration of Independence move students back in time to the American Revolution. Popular sovereignty raises an issue that persists into the twentieth century—enforcement or inattention to constitutional principles by state and local governments. The analysis of primary source documents (three of the Lincoln-Douglas Debates, Lincoln's eulogy to Henry Clay, A House Divided Speech, and the Dred Scott and Lemmon court decisions) provide students with an opportunity to examine the issues that divided the hearts and minds of the American people in the years prior to the Civil War. Rather than complete a series of activities, students are to analyze documents with the purpose of entering into these debates either as one of the candidates, a prominent American involved in the issues being debated, or a newspaper reporter. Connections with the Curriculum The debates and the court cases summarized in the following documents are grounded in understandings that form the National History Standards as well as developing understandings from the Illinois Learning Standards: 14.A.3; 14.A.4; 14.A.5; 14.F.3a; 14.F.4a; 16.A.4b; 16.A.5a; 16.A.5b; 16.C.3b(US). Teaching Level These activities and documents are appropriate for grades 10-12, and they maybe modified for younger students. Some students will require help to understand nineteenth-century vocabulary and speech patterns. Materials for each Student
• A copy of documents
14 Objectives for Each Student • Explain Stephen Douglas's and Abraham Lincoln's positions on the central issues under debate: Expansion of slavery• Understand the beliefs and positions of the senatorial candidates as products of mid-nineteenth-century American culture • Analyze non-debate documents such as court decisions and Henry Clay's eulogy, and connect the themes in their documents with debate topics • Understand and appreciate the difficulty in accurately reporting the candidates' speeches
Opening the Lesson Ask students to describe their understanding of the Lincoln-Douglas Debates. Questions should examine the circumstances and issues that framed this event. Some possible questions are:
• When and where did these debates take place?
Developing the Lesson See the heading at the start of Activity 1, Activity 2, and Activity 3. Concluding the Lesson As a summary ask students to consider what surprised them in the ideas expressed by Douglas and Lincoln. Remind students that these men were a product of American culture in the first half of the nineteenth century. Second, set the stage for future lessons. What issues were left unsettled by the debates? Given the attitudes regarding racial inequality expressed by both candidates, what do you predict will be the outcome of the Civil War for African Americans? Extending the Lesson Have students read the complete text of one or more of the debates as a means to more fully understand the issues and to appreciate the give and take that Douglas and Lincoln employed in attacking the position and character of their opponent. Assessing the Lesson If the teacher chooses to involve students in the Lincoln-Douglas Debates, alternative assessment opportunities arise.
• Evaluate the speeches of the candidates and other speakers.
One effective mechanism to evaluate the historical knowledge, reasoning, and communications skills of students is to employ The Alternative Assessment In the Social Sciences written by Lawrence W. McBride, Frederick D. Drake, and Marcel Lewinski. This rubric is available from the Standards and Assessment Section of the Illinois Board of Education: 100 N. First St., Room S-100, Springfield, IL 62777-0001; Phone: 217/782-4321. The extended debate format and newspaper assignment will provide students with an opportunity to demonstrate an understanding of the key issues that provided the framework for these debates. 15 Activity 1 — The Gathering Storm Developing the Lesson The Lincoln-Douglas Debates took place across Illinois during the summer and fall of 1858. Douglas and Lincoln canvassed the state of Illinois as nominees of the Democratic and Republican parties. Douglas was the incumbent senator and Lincoln was attempting to replace him. The debates focused on ideas that had been debated from the beginning of the Republic, such as the inclusive or exclusive nature of citizenship and issues as current as the Dred Scott decision. The documents included in Activity 1 represent differing viewpoints on issues that were quite important to Douglas and Lincoln. All of the documents with the exception of Lemmon v. The People were known to the debaters prior to the first debate in Ottawa. There is no evidence that either Douglas or Lincoln were familiar with the Lemmon case at the time of the debates. The case was initiated in the New York State Court system in 1852, and the court of appeals decision was announced in 1860, more than a year after the election. However, the arguments employed by the majority of the court and those of the dissenting justices echo issues raised during the debate and provide evidence that a prediction Lincoln made during the debate might come true. Document 1 Document 2 Document 3
1. Who are the authors of each document? 2. What was the purpose of each document? 3. What position does the document take on the issue of African American citizenship? 4. Does the document support or oppose the extension of slavery into the territories? 5. Does the document represent the principles of the Republican or Democratic party in 1858? 6. How might American citizens react to the ideas expressed in this document? 16 Activity 1 — Document 1
Subject:
DRED SCOTT, PLAINTIFF IN ERROR, Justice Catron, Justice Wayne, Justice Nelson, Justice Grier, Justice Daniel, and Justice Campbell concurring in separate opinions. Justice McLean and Justice Curtis dissenting in separate opinions. It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it. The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts? The court thinks the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts. It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States. It then proceeds to say: 'We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.' The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. 17 Activity 1 — Document 1 — continued We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before the court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State. Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen. The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this if it is beyond the powers conferred on the Federal Government it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution. It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument. Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident. So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois. Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction. 18 Activity 1 — Document 2 Washington Union December 1, 1857
The Chicago Times, and some one or two other papers of like proneness to find fault with the Union are grievously exercised over one of our late editorials because as they interpret it, we advance a novel and alarming doctrine as to the extension of slavery into the free states. In discussing one of the heresies of free soilism we restated the constitutional principle recognized in the Dred Scott case which determined that the owner of a slave does not lose the title to his property by carrying him into a state whose laws prohibit the existence of slavery. In stating this principle, our language may have been less guarded than it should have been, considering the readiness of such journals as those before referred to as cavil with the Union, but we had no other purpose than to confront free soilers with a great fundamental principle solemnly settled by the highest judicial tribunal known to our government. It was not meant by us that the owner of a slave could carry him into a free state and there settle permanently, and by that means establish slavers in such free state contrary to its laws. Whatever power the state might have to impair the contract by which the owner in such case would hold his title to his property, the fact of his settling permanently in a state whose laws prohibited slavery would be deemed conclusive of his purpose to abide by it's laws. The result, however, is entirely different when the settlement in a free state is only temporary. In such class it is well settled that his title is not affected, but is unimpaired on his return to a state where slavery is recognized by its laws. The conclusion is a legitimate and necessary deduction from the fact that the constitution of the United States recognizes and guarantees the title to property in slaves. It was this principle that we were laying down in the article to which exception is taken, and the interference drawn from it, that we were advancing the doctrine that slavery could be established in any free state in defiance of its' laws, is wholly gratuitous and unwarranted. 19 Activity 1 — Document 3 LEMMON vs PEOPLE
COURT OF APPEALS OF NEW YORK
March, 1860, Decided PRIOR HISTORY: Appeal from the Supreme Court. On the 6th day of November, 1852, Louis Napoleon, a colored citizen of this State, made application upon a sufficient petition and affidavit to Mr. Justice Paine of the Superior Court of the city of New York, for a writ of habeas corpus to be directed to one Jonathan Lemmon and the keeper of house No. 3 Carlisle street, New York, requiring them to bring before said justice the bodies of eight colored persons, one man, two women and five children, who on the day preceding were confined and restrained of their liberty on board the steamer City of Richmond, in the harbor of New York, and were taken therefrom on the night of that day to No. 3 Carlisle street, and there detained under the pretence that they were slaves. Lemmon made a return to the writ under oath, in which he averred that the eight persons named were the slaves and property of Juliet Lemmon his wife, who had been the owner of such persons as slaves for several years, she being a resident and citizen of the State of Virginia: that service and labor as slaves was due by them under the Constitution and laws of Virginia: "that the said Juliet, with her said slaves, persons or property, is now in transitu or transit from the State of Virginia aforesaid to the State of Texas, the ultimate place of destination and another slaveholding State of the United States of America, and that she was so on her way in transitu or transit when the aforesaid eight persons or slaves were taken from her custody or possession under the writ of habeas corpus:" "that the said Juliet never had any intention of bringing the said slaves or persons into the State of New York to remain therein, and that she did not bring them into said State in any manner nor for any purpose whatever, except in transitu or transit from the State of Virginia aforesaid through the port or harbor of New York, on board of steamship for their place of destination, the State of Texas aforesaid: that the said Juliet, as such owner of the aforesaid slaves or persons, was at the time they were taken from her as aforesaid, on the writ of habeas corpus, and she thereby deprived of the possession of them, passing with them through the said harbor of New York, where she was compelled by necessity to touch or land, without, on her part, remaining or intending to remain longer than necessary:" DISPOSITION: Judgment affirmed. SYLLABUS: The Revised Statutes (tit. 7, ch. 20, part 1, as amended by ch, 247 of 1841), render free every person formerly held as a slave who is introduced into this State by the voluntary act or consent of his master. The Federal Constitution recognizes the plenary and exclusive power of the States in this particular, by the express limitation thereof in the case of fugitives from service. The adoption of the provision on that subject is evidence of the understanding of the parties to the compact that in its absence even a fugitive would be emancipated upon reaching a free State; not merely by force of laws prohibiting slavery, but for want of positive law subjecting him to a condition abhorred by the common law and the law of nations. A fortiori would a slave become free if voluntarily brought by his master into a free State. The intention, and the effect, of the statutes of this State bearing upon the point are very plain and unequivocal. By an act passed in 1817, it was declared that no person held as a slave should be imported, introduced or brought into this State on any pretence whatever, except in the cases afterwards mentioned in the act, and any slave brought here contrary to the act was declared to be free. Each State has, moreover, the right to enact such rules as it may see fit respecting the title to property, and to declare what subjects shall, within the State, possess the attributes of property, and what shall be incapable of a proprietary right. These powers may of course be variously limited or modified by its own constitutional or fundamental laws; but independently of such restraints (and none are alleged to exist affecting this case) the legislative authority of the State over these subjects is without limit or control, except so far as the State has voluntarily abridged her jurisdiction by arrangements with other States. The Constitution declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. (Art. 4, §2.) No provision in that instrument has so strongly tended to constitute the citizens of the United States one people as this. The language is that they shall have the privileges and immunities of citizens in the several States. In my opinion the meaning is, that in a given State, every citizen of every other State shall have the same privileges and immunities—that is, the same rights— 20 Activity 1 — Document 3 — continued which the citizens of that State possess. In the first place, they are not to be subjected to any of the disabilities of alienage. They can hold property by the same titles by which every other citizen may hold it, and by no other. A citizen of Virginia, having his home in that State, and never having been within the State of New York, has the same rights under our laws which a native born citizen, domiciled elsewhere, would have, and no other rights. The position that a citizen carries with him, into every State into which he may go, the legal institutions of the one in which he was born, cannot be supported. Wright, J. The question is one affecting the State in her sovereignty. As a sovereign State she may determine and regulate the status or social and civil condition of her citizens, and every description of persons within her territory. This power she possesses exclusively; and when she has declared or expressed her will in this respect, no authority or power from without can rightly interfere, except in the single instance of a slave escaping from a State of the Union into her territory; and in this, only because she has, by compact, yielded her right of sovereignty. (U.S. Const., art. 4, § 2.) She has the undoubted right to forbid the status of slavery to exist in any form, or for any time, or for any purpose, within her borders, and declare that a slave brought into her territory from a foreign State, under any pretence whatever, shall be free. DISSENT BY: Clerke; Comstock; Selden The people of the United States, therefore, "in order to form a more perfect union" than had existed under the old Confederacy, declare and provide, among other things in the Constitution under which we have now the privilege of living, that Congress (alone) shall have power to regulate commerce among the several States; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; to coin money as the genuine. Is it consistent with this purpose of perfect union, and perfect and unrestricted intercourse, that property which the citizen of one State brings into another State, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control? It has been adjudicated in the celebrated Dred Scott case, in a court whose decisions on this subject are controlling, that the Constitution of the United States recognizes slaves as property, and this is an essential element of the decision. Chief Justice Taney, who delivered the opinion of the court, says: "The only two provisions which point to them and include them, treat them as property, and make it the duty of the government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a government of special, delegated powers, no authority beyond these two provisions can be constitutionally exercised. The government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society may require. Every State is at liberty, in reference to all who come within its territory, with the intent of taking up their abode in it for any length of time, to declare what can or cannot be held as property. The right to the labor and service of persons held in slavery, is incontestably recognized as property in the Constitution of the United States. The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government. While the violation of the right yielded by what is termed comity under the law of nations, would, under certain circumstances, be a just cause of war, the rights growing out of this conventional obligation are properly within the cognizance of the judicial tribunals, which they are bound to recognize and enforce. That portion of the act of the Legislature of this State which declares that a slave brought into it belonging to a person not an inhabitant of it shall be free, is unconstitutional and void, so far as it applies to a citizen of any other State of this Union, where the right to property in the service and labor of slaves exists, who is passing through this State, and who has no intention of remaining here a moment longer than the exigencies of his journey require. 21 Activity 1 — Document 3 — continued Dred Scott v. Sandford
1. As you read the opinions of Chief Justice Taney and Associate Justice Nelson, consider the following questions: a. What is the legal status of African Americans according to this opinion? 2. Carefully read the editorial from the Washington Union and the excerpts from the Lincoln-Douglas Debates and consider the following questions: a. How do the editors of the Washington Union interpret the Dred Scott decision regarding the status of slavery in the states and territories? 3. Lemmon v. The People represents conflicting opinions regarding the ability of a state to regulate or outlaw slavery within its borders. After reading the majority opinion that sustained a lower court opinion freeing the slaves brought from Virginia to New York, consider the following questions: a. What issues of legal interpretation separated the justices who wrote the majority opinion from those justices, especially Justice Clerke who argued for a dissenting position? 22 Activity 2 — Mr. Lincoln Developing the Lesson Stephen Douglas was "the Great Man" at the beginning of these debates, and Lincoln was a well-known Illinois lawyer and Whig politician who had recently joined the new Republican party and carried that party's endorsement in the 1858 Senate contest. Activity 2 examines Lincoln's beliefs prior to the 1858. Lincoln's eulogy of Henry Clay was written six years prior to the debates, and his acceptance speech—"A House Divided Speech"—was given at the state Republican party convention in Springfield, Illinois, on June 17, 1858. Read these documents with the following questions in mind. Which of Henry Clay's principles or ideas does Lincoln admire? Which principles does Lincoln believe should serve as the organizing theme of the Republican party's campaign for state officers in 1858? To what extent do the principles that Lincoln advocates in 1858 reflect the characteristics he admired in Henry Clay? 23 Activity 2, Document 1 — Lincoln's Eulogy on Henry Clay Carefully read Abraham Lincoln's remarks on the occasion of Henry Clay's death. Keep in mind that this essay was written a little more than six years before the first of the Lincoln-Douglas Debates. What characteristics and accomplishments did Lincoln admire in the life of Henry Clay? If you had read this eulogy prior to the debates of 1858, what predictions would you have made regarding Lincoln's position regarding slavery?
Excerpts from Abraham Lincoln's Eulogy on Henry Clay HONORS TO HENRY CLAY Having been led to allude to domestic slavery so frequently already, I am unwilling to close without referring more particularly to Mr. Clay's views and conduct in regard to it. He ever was, on principle and in feeling, opposed to slavery. The very earliest, and one of the latest public efforts of his life, separated by a period of more than fifty years, were both made in favor of gradual emancipation of the slaves in Kentucky. He did not perceive, that on a question of human right, the negroes were to be excepted from the human race. And yet Mr. Clay was the owner of slaves. Cast into life where slavery was already widely spread and deeply seated, he did not perceive, as I think no wise man has perceived, how it could be at once eradicated, without producing a greater evil, even to the cause of human liberty itself. His feeling and his judgment, therefore, ever led him to oppose both extremes of opinion on the subject. Those who would shiver into fragments the Union of these States; tear to tatters its now venerated constitution; and even burn the last copy of the Bible, rather than slavery should continue a single hour, together with all their more halting sympathisers, have received, and are receiving their just execration; and the name, and opinions, and influence of Mr. Clay, are fully, and, as I trust, effectually and enduringly, arrayed against them. But I would also, if I could, array his name, opinions, and influence against the opposite extreme—against a few, but an increasing number of men, who, for the sake of perpetuating slavery, are beginning to assail and to ridicule the white-man's charter of freedom—the declaration that "all men are created free and equal." So far as I have learned, the first American, of any note, to do or attempt this, was the late John C. Calhoun; and if I mistake not, it soon after found its way into some of the messages of the Governors of South Carolina. I quote from a speech of Mr. Clay delivered before the American Colonization Society in 1827. "We are reproached with doing mischief by the agitation of this question. The society (American Colonization Society) goes into no household to disturb its domestic tranquility; it addresses itself to no slaves to weaken their obligations of obedience. It seeks to affect no man's property. It neither has the power nor the will to affect the property of any one contrary to his consent. The execution of its scheme would augment instead of diminishing the value of the property left behind. The society, composed of free men, concerns itself only with the free. Collateral consequences we are not responsible for. It is not this society which has produced the great moral revolution which the age exhibits. What would they, who thus reproach us, have done? If they would repress all tendencies towards liberty, and ultimate emancipation, they must do more than put down the benevolent efforts of this society. They must go back to the era of our liberty and independence, and muzzle the cannon which thunders its annual joyous return. They must renew the slave trade with all its train of atrocities. They must suppress the workings of British philanthropy, seeking to meliorate the condition of the unfortunate West Indian slave. They must arrest the career of South American deliverance from thraldom. They must blow out the moral lights around us, and extinguish that greatest torch of all which America presents to a benighted world—pointing the way to their rights, their liberties, and their happiness. And when they have achieved all those purposes their work will be yet incomplete. They must penetrate the human soul, and eradicate the light of reason, and the love of liberty. Then, and not till then, when universal darkness and despair prevail, can you perpetuate slavery, and repress all sympathy, and all humane, and benevolent efforts among free men, in behalf of the unhappy portion of our race doomed to bondage." 24 Activity 2, Document 2 — Lincoln's "A House Divided" Speech The "house divided" metaphor is visited and revisited by Abraham Lincoln and Stephen A. Douglas throughout their series of debates. Lincoln uses this Biblical metaphor to describe the threat slavery posed to the Union and to press his attack on Douglas's doctrine of popular sovereignty. Douglas, in turn, uses this metaphor to join Lincoln with abolitionists and depict him as a radical and a threat to the future of the nation. Imagine you are waiting to listen to Mr. Lincoln deliver his acceptance speech as the nominee of the Republican party in Springfield, Illinois, on June 16, 1858. Your friends, who are members of the Democratic party describe Lincoln as a "Black Republican abolitionist." What do you expect him to say in his speech? After reading his speech what are his positions on slavery and the events surrounding the slavery issue? Is Lincoln an abolitionist? On what basis does Abraham Lincoln claim that the Supreme Court may make Illinois a slave state? Does the Lemmon case support this assertion? Key excerpts from the House Divided Speech follow. They are sufficient to complete this exercise. For a copy of the complete House Divided Speech see Roy P. Easier, The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, New Jersey: Rutgers University Press, 1953), 2: 461-69.
Excerpts from Lincoln's House Divided Speech MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION: If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it. We are now far into the fifth year since a policy was initiated with the avowed object, and confident promise, of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease, until a crisis shall have been reached and passed. "A house divided against itself cannot stand." I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South. The new year of 1854 found slavery excluded from more than half the States by State Constitutions, and from most of the national territory by Congressional prohibition. Four days later, commenced the struggle which ended in repealing that Congressional prohibition. This opened all the national territory to slavery, and was the first point gained. Under the Dred Scott decision "squatter sovereignty" squatted out of existence, tumbled down like temporary scaffolding—like the mould at the foundry served through one blast and fell back into loose sand—helped to carry an election, and then was kicked to the winds. His [Stephen Douglas] late joint struggle with the Republicans, against the Lecompton Constitution, involves nothing of the original Nebraska doctrine. That struggle was made on a point—the right of a people to make their own constitution—upon which he and the Republicans have never differed. The several points of the Dred Scott decision, in connection, with Senator Douglas's "care not" policy, constitute the piece of machinery, in its present state of advancement. This was the third point gained. The working points of that machinery are: First, That no negro slave, imported as such from Africa, and no descendant of such slave, can ever be a citizen of any State, in the sense of that term as used in the Constitution of the United States. This point is made in order to deprive the negro, in every possible event, of the benefit of that provision of the United States Constitution, which declares that "The citizens of each State, shall be entitled to all privileges and immunities of citizens in the several States." 25 Activity 2, Document 2 - continued Secondly, That "subject to the Constitution of the United States," neither Congress nor a Territorial Legislature can exclude slavery from any United States territory. This point is made in order that individual men may fill up the Territories with slaves, without danger of losing them as property, and thus to enhance the chances of permanency to the institution through all the future. Thirdly, That whether the holding of a negro in actual slavery in a free State, makes him free, as against the holder, the United States courts will not decide, but will leave to be decided by the courts of any slave State the Negro may be forced into by the master. This point is made, not to be pressed immediately; but, if acquiesced in for awhile, and apparently indorsed by the people at an election, then to sustain the logical conclusion that what Dred Scott's master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State. It should not be overlooked that, by the Nebraska bill, the people of a State as well as Territory, were to be left "perfectly free," "subject only to the Constitution." Why mention a State? They were legislating for Territories, and not for or about States. Certainly the people of a State are and ought to be subject to the Constitution of the United States; but why is mention of this lugged into this merely Territorial law? Why are the people of a Territory and the people of a State therein lumped together, and their relation to the Constitution therein treated as being precisely the same? While the opinion of the court, by Chief Justice Taney, in the Dred Scott case, and the separate opinions of all the concurring Judges, expressly declare that the Constitution of the United States neither permits Congress nor a Territorial Legislature to exclude slavery from any United States Territory, they all omit to declare whether or not the same Constitution permits a State, or the people of a State, to exclude it. In what cases the power of the States is so restrained by the United States Constitution, is left an open question, precisely as the same question, as to the restraint on the power of the Territories, was left open in the Nebraska act. Put this and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits. And this may especially be expected if the doctrine of "care not whether slavery be voted down or voted up," shall gain upon the public mind sufficiently to give promise that such a decision can be maintained when made. Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome, or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State. To meet and overthrow the power of that dynasty, is the work now before all those who would prevent that consummation. That is what we have to do. How can we best do it? There are those who denounce us openly to their own friends, and yet whisper us softly, that Senator Douglas is the aptest instrument there is with which to effect that object. They wish us to infer all, from the facts, that he now has a little quarrel with the present head of the dynasty; and that he has regularly voted with us on a single point, upon which he and we have never differed. They remind us that he is a great man, and that the largest of us are very small ones. Let this be granted. But "a living dog is better than a dead lion." Judge Douglas, if not a dead lion, for this work, is at least a caged and toothless one. How can he oppose the advances of slavery? He don't care anything about it. His avowed mission is impressing the "public heart" to care nothing about it. A leading Douglas democratic newspaper thinks Douglas's superior talent will be needed to resist the revival of the African slave trade. Does Douglas believe an effort to revive that trade is approaching? He has not said so. Does he really think so? But if it is, how can he resist it? For years he has labored to prove it a sacred right of white men to take negro slaves into the new Territories. Can he possibly show that it is less a sacred right to buy them where they can be bought cheapest? And unquestionably they can be bought cheaper in Africa than in Virginia. He has done all in his power to reduce the whole question of slavery to one of a mere right of property; and as such, how can he oppose the foreign slave trade—how can he refuse that trade in that "property" shall be "perfectly free"—unless he does it as a protection to the home production? And as the home producers will probably not ask the protection, he will be wholly without a ground of opposition. Senator Douglas holds, we know, that a man may rightfully be wiser to-day than he was yesterday—that he may rightfully change when he finds himself wrong. But can we, for that reason, run ahead, and infer that he will make any particular change, of which he, himself, has given no intimation? Can we safely base our action upon any such vague inference? 26 Activity 3 — The Expanded Debate Developing the Lesson
After reading short sections from the debates, newspaper editorials, court decisions, and other documents, students have an impression of the importance of the Lincoln-Douglas Debates in defining the issues that concerned Americans in 1858. This assignment expands the scope of debate by involving students in an extended reading of the debates themselves, but it also extends the debates in another direction. The actual debates were fairly formal events with an opening speech, a rejoinder, and a concluding speech. The debaters took turns throughout the seven debates with Douglas giving the opening and closing remarks at the first joint debate in Ottawa, Illinois, and Lincoln offering his reply to Douglas's opening remarks. The organization of the following activity extends the debate to include persons who were involved in the issues contested by Lincoln and Douglas. Depending on the resources available—time, Internet access, and library materials—teachers should modify the format to serve their purposes. The Debaters
Abraham Lincoln Procedure Divide the class into research teams of three to four students each. Assign each team to one of the individuals involved in the debate. The excerpts of the Lincoln-Douglas Debates will serve as an adequate starting point for some of the individuals. However, some individuals, such as Lyman Trumbull, are only briefly mentioned, and students will need to spend time on the Internet or in the library to prepare their character for the debate. The following data retrieval chart should prove helpful to students as they carry out their research. 27 Activity 3— continued The Lincoln-Douglas Debates Brief Biography Position on key issues
Slavery in states Slavery in territories Missouri Compromise Kansas-Nebraska Act Popular Sovereignty Dred Scott Decision House Divided Speech/Principle African Americans as citizens A complete text of all debates is available at a number of sites on the Internet including http://www.debateinfo.com/halLofJame/lincoln-douglas/ Each group should prepare a six-minute or twelve-minute statement summarizing the person they are representing on issues outlined in the data retrieval chart. The students representing the positions of Douglas and Lincoln are allocated twelve minutes to present the candidates' positions on these issues. The debate begins with Senator Douglas stating his positions on the issues of the campaign followed by Lincoln's speech. Next, the students representing each of the other persons involved in these issues, such as Chief Justice Roger Taney, present a six-minute summary of his position. A press conference round table follows the initial speeches. The two students in each group of three who have not assumed the identities of Douglas, Lincoln, or other individuals who are directly involved in the debate assume the identity of newspaper reporters. If the teacher wished to enhance the realism of this part of the activity, students should examine the party identification of the newspapers they represent. For example, The Chicago Press and Tribune, was sympathetic to the Republican party and Lincoln's views, while the Chicago Times is regarded as supporting the principles of Douglas and the Democratic party. Reporters should prepare questions prior to the debate, but they may modify their questions or develop new questions as a result of what is said by the candidates or other speakers. The reporters need to take notes on the responses provided by the speakers. The teacher is advised not to record this class electronically or, if the class is recorded, to not make the recording available as students report the debate in their own newspaper. Students need to understand that the reporters in 1858 had to take notes on the debates and try to record the comments of the candidates as accurately as possible. Historians today are faced with the accuracy of these reporters' articles given the difficulty in taking accurate notes and the political biases of various newspapers. The culminating activity for the students is the creation of a minimum of two and perhaps three newspapers. Students whose research centered on Senator Douglas, Chief Justice Taney, Associate Justice Samuel Nelson, and Senator Toombs should report the debates and write editorials for the Chicago Times. Lincoln, Trumbull, Lovejoy, Frederick Douglass, and Dred Scott will write an edition of The Chicago Press and Tribune. If student interest is high and reference materials are available a third newspaper could be added. The Washington Union represented the views of Buchanan Democrats. Students whose research familiarized the with the ideas of Senator Toombs and Justices Taney and Nelson should be assigned to write for the Washington Union if this option is exercised. The final step is the evaluation of the newspaper articles and editorials. Using the McBride/Drake rubric, students' work should be evaluated on three dimensions: knowledge of the issue surrounding the debates, the student's ability to use reasoning to analyze and connect these issues, and the student's ability to communicate clearly these issues in reports and editorials. 28 |
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