I have said, in substance, that the Dred Scott decision was in part based on assumed historical facts which were not really true, and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.
On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen States--to wit, New Hampshire, Massachusetts, New York, New Jersey, and North Carolina--free negroes were voters, and in proportion to their numbers had the same part in making the Constitution that the white people had.
He shows this with so much particularity as to leave no doubt of its truth; and as a sort of conclusion on that point, holds the following language:
"The Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of 'the people of the United States' by whom the Constitution was ordained and established; but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption."
Again, Chief Justice Taney says:
"It is difficult at this day to realize the state of public opinion, in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted."
And again, after quoting from the Declaration, he says:
"The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood."
In these the Chief Justice does not directly assert, but plainly assumes as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution.
This assumption is a mistake. In some trifling particulars the condition of that race has been ameliorated; but as a whole, in this country, the change between then and now is decidedly the other way, and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States--New Jersey and North Carolina--that then gave the free negro the right of voting, the right has since been taken away, and in a third--New York--it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then such legal restraints have been made upon emancipation as to amount almost to prohibition. In those days Legislatures held the unquestioned power to abolish slavery in their respective States, but now it is becoming quite fashionable for State constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man's bondage to the new countries was prohibited, but now Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed and sneered at and construed and hawked at and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him, ambition follows, philosophy follows, and the theology of the day fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him; and now they have him, as it were, bolted in with a lock of hundred keys, which can never be unlocked without the concurrence of every key--the keys in the hands of a hundred different men, and they scattered to hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.
It is grossly incorrect to say or assume that the public estimate of the negro is more favorable now than it was at the origin of the government.
Three years and a half ago, Judge Douglas brought forward his famous Nebraska Bill. The country was at once in a blaze. He scorned all opposition, and carried it through Congress. Since then he has seen himself superseded in a Presidential nomination by one indorsing the general doctrine of his measure, but at the same time standing clear of the odium of its untimely agitation and its gross breach of national faith; and he has seen that successful rival constitutionally elected, not by the strength of friends, but by the division of adversaries, being in a popular minority of nearly four hundred thousand votes. He has seen his chief aids in his own State, Shields and Richardson, politically speaking, successively tried, convicted, and executed for an offence not their own but his. And now he sees his own case standing next on the docket for trial.