because the vain effort had been made to settle the controversy in this manner.

The supreme court of the United States must have had the same opinion of its competency as Buchanan had, if the expectation of the latter was to be fulfilled that the court would render an opinion containing a decision respecting the principle, and which, on that account, could claim to be a final settlement of the controversy. But from Buchanan's own reasoning it followed that, in this case, his good and bad citizens would undoubtedly coincide, respectively, with the two political parties. The characterization of the "principle" of the Kansas-Nebraska bill as a "happy conception" evidently contained a recognition of the unquestionable fact that, together with it, something new was introduced into the legislation of the Union. More than this, the expression was very unhappily chosen, if this new thing, thus introduced into the country's legislation, was to be declared an absolute postulate of the constitution,-a postulate only just now discovered. But if the application of the principle of "popular sovereignty" was not required by the constitution, but only recommendable on grounds of equity or political expediency, it must, to say the least, have appeared very surprising, at the first glance, that, so far as the time at which it came into force was concerned, the question of equity and political expediency should be transformed into a pure question of law under the constitution, which was to be decided by the supreme court of the United States. A metamorphosis thus wonderful could not be. understood; the most that can be said of it is that it might be taken on faith. But the Union had now lived more than two generations under the constitution. Several territories had been organized and admitted into the Union as states during that period.

THE SLAVERY QUESTION.

17

On the occasion of their admission, the slavery question had repeatedly given rise to the most violent party struggles, but they had been fought on different ground and settled in a different way. The doctrines now represented by the president were an achievement of recent years, and they had furnished a basis for the transformation and for a new formation of parties. If the announced judgment of the federal supreme court bore the character described, then the two parties to the case before that court were the two great political parties of the country; and in the constitutional creed of the republican party since its origin, two chief articles were the two principles: Congress alone has jurisdiction over the slavery question in the territories; and the doctrine of popular sovereignty, whose unconditional rejection is demanded by every political, economic, practical and moral consideration, is destitute of all constitutional foundation. It was, accordingly, a notorious fact that the republicans emphatically denied the jurisdiction of the United States supreme court on the general question, and, as they further considered the doctrine of popular sovereignty worthy of condemnation from every point of view, they could not, evidently, in the face of all the requirements of logic, believe, notwithstanding, that the special question was, as Buchanan asserted, a "judicial" one under the constitution. If, spite of this, Buchanan really expected that a judgment of the supreme court would practically be a settlement of the controversy, then he could not but believe that the republicans, for some reason or other, surrendering their constitutional, political, economic and moral convictions, would accept the supreme court as an extra-constitutional arbitration court to whose sentence they would voluntarily submit. If this could be at all supposed, an absolute condition

precedent thereto was unquestionably this: that the republicans should hold the slightest suspicion of the partiality of the supreme court to be excluded. But they had already long branded the supreme court as the "citadel " of slavery, and the history of its development, with which even the educated strata of the people were exceedingly little acquainted, was suggestive of the thought that the south had, systematically and conscious of its aim, labored for decades to make it such in very deed.

The law of September 24, 1789, on the organization. of the judiciary system of the Union, provided that a chief justice and five associate justices should constitute the supreme court of the United States, established by the constitution, and divided the Union into thirteen districts, which were to be comprised in three circuits,— an eastern, a middle and a western circuit, an appeal lying to them from the district courts. A law of April 20, 1802, raised the number of the circuits to six, and the north and the south were given three each. Maine and the states of Kentucky and Tennessee continued to constitute separate and exclusive districts, but were not included in any of the circuits.3 Neither was any consideration shown to Ohio, although it was admitted on the following day into the Union. Not until 1807, by a law of February 24 of that year, were Kentucky, Tennessee and Ohio formed into a seventh circuit, and, ac

1 The fundamental idea was to make each state a separate district. North Carolina and Rhode Island, however, could not be taken into consideration, as they had not yet ratified the constitution. On the other hand, Kentucky and Maine were even now formed into districts, although they still were parts of Virginia and Massachusetts respectively, and although Maine was admitted into the Union only thirty years afterwards (March 3, 1820).

2 U. S. Stat. at L., I, p. 73.

3 Ibid., II, p. 157.

THE JUDICIARY SYSTEM.

19

cordingly, a seventh associate justice was added to the supreme court of the United States.1

So far there was nothing to be observed of any influence of the slave-holding interest on the organization of the judiciary system. On the occasion of the next important law, however, an attempt to influence it was clearly perceptible. The storms of the Missouri struggle and of the nullification experiment by South Carolina had swept over the country. The abolitionists, under the war-standard of the unbending and inviolable principle, had entered on the scene, and the slavocracy had opened their eyes to the fact that the condition precedent to the continuance of slavery was its supremacy over the Union. Of how great importance, therefore, a preponderant position in the supreme court of the United States was, could not escape the keen eyes of the leaders, and the little interest public opinion had in questions relating to the organization of a judiciary as well as the little understanding it had of them, made the realization of their wishes in that direction easy. By the law of March 3, 1837, the number of associate justices of the supreme

1 U. S. Stat. at L., II, pp. 420, 421.

2 Whether authoritative proof can be produced for J. M. Ashley's assertion that Calhoun was the father of the idea, I do not know; that the assumption seems probable to me I need not say, in view of my opinion on the towering position of Calhoun among all the leaders of the slavocracy. The passage in Ashley's speech of May 29, 1860, from which the facts adduced in the text are chiefly taken, is as follows: "Failing, however, to secure the open indorsement by the democratic party of that day of the favorite theory of the slave power, Mr. Calhoun hit upon the plan of getting possession of the supreme court, because it is a power the furthest removed from the people, is held in great esteem by them, and such acts of aggression as Mr. Calhoun contemplated, if committed by the supreme court, he knew would be so quietly done as to excite no alarm and pass almost unnoticed." Congr. Globe, I Sess. 36th Congr., App., p. 366.

court was increased to eight, and that of the circuit courts to nine. Kentucky and Tennessee were separated from Ohio, which henceforth, together with Indiana, Illinois and Michigan, constituted the seventh circuit. The two new circuits were made up of Kentucky, Tennessee and Missouri; and of Alabama, Louisiana, Mississippi and Arkansas, respectively. The free states, with a population (according to the census of 1840) of 9,654,865, had, therefore, four circuit courts, while the slave states, with a white population of only 4,573,930, had five. In consequence of the rapid increase of population in the free states, this unequal apportionment became more inequitable and more unreasonable as years rolled by. It at last came to such a pass that the judge of the seventh circuit had more to do than the five judges of the southern circuits together, while the new, free states admitted into the Union were allowed no representation in the supreme court of the United States, and were neither assigned a place in the existing circuits nor constituted circuits themselves, although the amount of judicial business in them in 1860, of which such courts would have