[79] It was impossible for the four distinguished
gentlemen[80] who owned the rest of these names to refuse to plead.
Accordingly Douglas sneered vehemently at the idea that two presidents,
the chief justice, and he himself had been concerned in that grave crime
against the State which was imputed to them; and when, by his lofty
indignation, he had brought his auditors into sympathy, he made the only
possible reply: that the real meaning, the ultimate logical outcome, of
what Lincoln had said was, that a decision of the Supreme Court was to
be set aside by the political action of the people at the polls. The
Supreme Court had interpreted the Constitution, and Lincoln was inciting
the people to annul that interpretation by some political process not
known to the law. For himself, he proclaimed with effective emphasis his
allegiance to that great tribunal in the performance of its
constitutional duties. Lincoln replied that he also bowed to the Dred
Scott decision in the specific case; but he repudiated it as a binding
rule in political action.[81] His point seemed more obscure than was
usual with him, and not satisfactory as an answer to Douglas. But as
matter of fact no one was deceived by the amusing adage of the
profession: that the courts do not _make_ the law, but only _declare
what it is_. Every one knew that the law was just what the judges chose
from time to time to say that it was, and that if judicial
_declarations_ of the law were not reversed quite so often as
legislative _makings_ of the law were repealed, it was only because the
identity of a bench is usually of longer duration than the identity of a
legislative body.
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