What he says now is something different in language, and we will consider whether it is not different in sense too. It is now that the Dred Scott decision, or rather the Constitution under that decision, does not carry slavery into the Territories beyond the power of the people of the Territories to control it as other property. He does not say the people can drive it out, but they can control it as other property. The language is different; we should consider whether the sense is different. Driving a horse out of this lot is too plain a proposition to be mistaken about; it is putting him on the other side of the fence. Or it might be a sort of exclusion of him from the lot if you were to kill him and let the worms devour him; but neither of these things is the same as "controlling him as other property." That would be to feed him, to pamper him, to ride him, to use and abuse him, to make the most money out of him, "as other property"; but, please you, what do the men who are in favor of slavery want more than this? What do they really want, other than that slavery, being in the Territories, shall be controlled as other property? If they want anything else, I do not comprehend it. I ask your attention to this, first, for the purpose of pointing out the change of ground the judge has made; and, in the second place, the importance of the change,--that that change is not such as to give you gentlemen who want his popular sovereignty the power to exclude the institution or drive it out at all. I know the judge sometimes squints at the argument that in controlling it as other property by unfriendly legislation they may control it to death; as you might, in the case of a horse, perhaps, feed him so lightly and ride him so much that he would die. But when you come to legislative control, there is something more to be attended to. I have no doubt, myself, that if the Territories should undertake to control slave property as other property that is, control it in such a way that it would be the most valuable as property, and make it bear its just proportion in the way of burdens as property, really deal with it as property,--the Supreme Court of the United States will say, "God speed you, and amen." But I undertake to give the opinion, at least, that if the Territories attempt by any direct legislation to drive the man with his slave out of the Territory, or to decide that his slave is free because of his being taken in there, or to tax him to such an extent that he cannot keep him there, the Supreme Court will unhesitatingly decide all such legislation unconstitutional, as long as that Supreme Court is constructed as the Dred Scott Supreme Court is. The first two things they have already decided, except that there is a little quibble among lawyers between the words "dicta" and "decision." They have already decided a negro cannot be made free by Territorial legislation.
What is the Dred Scott decision? Judge Douglas labors to show that it is one thing, while I think it is altogether different. It is a long opinion, but it is all embodied in this short statement: "The Constitution of the United States forbids Congress to deprive a man of his property, without due process of law; the right of property in slaves is distinctly and expressly affirmed in that Constitution: therefore, if Congress shall undertake to say that a man's slave is no longer his slave when he crosses a certain line into a Territory, that is depriving him of his property without due process of law, and is unconstitutional." There is the whole Dred Scott decision. They add that if Congress cannot do so itself, Congress cannot confer any power to do so; and hence any effort by the Territorial Legislature to do either of these things is absolutely decided against. It is a foregone conclusion by that court.
Now, as to this indirect mode by "unfriendly legislation," all lawyers here will readily understand that such a proposition cannot be tolerated for a moment, because a legislature cannot indirectly do that which it cannot accomplish directly. Then I say any legislation to control this property, as property, for its benefit as property, would be hailed by this Dred Scott Supreme Court, and fully sustained; but any legislation driving slave property out, or destroying it as property, directly or indirectly, will most assuredly, by that court, be held unconstitutional.
Judge Douglas says if the Constitution carries slavery into the Territories, beyond the power of the people of the Territories to control it as other property; then it follows logically that every one who swears to support the Constitution of the United States must give that support to that property which it needs. And, if the Constitution carries slavery into the Territories, beyond the power of the people, to control it as other property, then it also carries it into the States, because the Constitution is the supreme law of the land. Now, gentlemen, if it were not for my excessive modesty, I would say that I told that very thing to Judge Douglas quite a year ago. This argument is here in print, and if it were not for my modesty, as I said, I might call your attention to it. If you read it, you will find that I not only made that argument, but made it better than he has made it since.
There is, however, this difference: I say now, and said then, there is no sort of question that the Supreme Court has decided that it is the right of the slave holder to take his slave and hold him in the Territory; and saying this, judge Douglas himself admits the conclusion. He says if that is so, this consequence will follow; and because this consequence would follow, his argument is, the decision cannot, therefore, be that way,--" that would spoil my popular sovereignty; and it cannot be possible that this great principle has been squelched out in this extraordinary way. It might be, if it were not for the extraordinary consequences of spoiling my humbug."
