that the Federal Government (through any of its organs) was not the final judge of the extent of its own powers. This view was put forth in the Virginia and Kentucky resolutions of 1798-9. On the contrary, the Northern States, which answered these resolutions, took the position that the Supreme Court was the final arbiter. The South, however, did not hold, and, so far as I know, no eminent Southern statesman had ever held,-to the position that the Federal Government itself was not bound to abstain from the exercise of a power that the Supreme Court held did not belong to it. The South was willing that the Supreme Court decision should bind the Federal Government in the denial of a power, though it should not bind the States in affirming a power that the States alleged did not exist. The theory of the North, however, was, in the main, that the Supreme Court was the final judge.

This celebrated decision held two points of immense interest to the South.

I. That Congress had no power to prohibit slavery in the Territories.

2. That persons of African descent, whose ancestors had been imported into the United States as slaves, were not citizens.

The decision did not settle these questions in the minds. of the politicians. It but added fuel to the flame of sectional excitement. It was denounced everywhere in the North. Its binding effect on Congress was denied. It was admitted only that it bound the parties to the suit on the mere question of right to the thing in dispute between them in that very case. This was the view of Mr. Lincoln. So far as I have observed, this is the first instance in which it was seriously maintained by any political party or by any considerable number of statesmen that Congress could rightfully exercise a power denied to it by the Supreme Court; though there are instances in which careful and conservative statesmen considered that, even on constitutional grounds, it was right to decline to exercise a power conceded by the Supreme Court to be constitutional. If Congress should exercise the power to abolish or prohibit slavery in a territory, it is evident that in every case involving the freedom of a slave under that law the Supreme Court, whilst holding the views announced in

the Dred Scott case, would decide that freedom was not conferred, and hence the only effect of such a law would be to involve in an interminable litigation parties asserting a right to slaves.

RE-ORGANIZATION OF THE SUPREME COURT

This view was not unobserved by the statesmen of the North who determined to exercise the power, notwithstanding the decision of the Supreme Court denying it. Mr. Seward, at an early day after the decision, gave notice of a bill to reorganize the Supreme and Circuit Courts of the United States in such a way as to equalize the representation of the several States in the courts as far as possible according to their Federal population, and to secure greater facility and despatch of business.1

He

What Mr. Seward meant by this bill, to secure representation of the States in the Supreme Court according to the Federal population, is not difficult to divine. In the first place, the majority of the judges were to be from the North, and what he expected from the Northern judges is plainly inferable from what he said in his speech of March 3, 1858, on the subject of the decision in the Dred Scott case. represented that after Mr. Buchanan's election, but before he came into office, "he approached or was approached by the Supreme Court of the United States"; that "the Court did not hesitate to please the incoming President by seizing this extraneous and idle forensic discussion [of the Dred Scott case] and converting it into an occasion for pronouncing an opinion that the Missouri prohibition was void; and that, by force of the Constitution slavery existed. . . . in all the Territories of the United States, paramount to any popular sovereignty within the Territories, and even to the authority of Congress itself." He described the appearances of the judges at the inauguration in their robes, "which yet exacted public reverence." He said, "The people, unaware of the import of the whisperings carried on between the President and the Chief Justice, and imbued with reverence for both,

'Appendix to the Congressional Globe, 1st Session, 35th Congress,

filled the avenues and gardens far away as the eye could reach." 99 1

The Chief Justice alluded to was the venerable Taney, and the court itself, thus ridiculed and denounced, was no less illustrious for the character and abilities of its members than it had been in any former period of its history. Mr. Seward was then the acknowledged leader of the Republican party. In learning, genius, and political skill he was without a peer. In influence in shaping and directing the policies of the party and public opinion in the North, he was without a rival.2

1 Congressional Globe, 1st Session, 35th Congress, p. 941.

2 It appears, however, from the correspondence of President Buchanan, that there had been an interchange of letters between himself and two members of the Supreme Court, Mr. Justice Catron and Mr. Justice Grier (to which correspondence Chief Justice Taney was confessedly privy), relative to the Dred Scott case, a few weeks prior to its formal announcement by the Supreme Court, which was made shortly after the inauguration of Mr. Buchanan, on March 4, 1857. See "The Works of James Buchanan," collected and edited by John Bassett Moore, Vol. X (1910), pp. 106-108.

AUSTIN BAXTER KEEP.

CHAPTER VIII

LINCOLN AND THE DOUGLAS DEBATE

In this same year, 1858, came on the great contest between Mr. Douglas and Mr. Lincoln for the United States Senatorship from Illinois. This was signalized by the ability and high character of the contestants and the importance of the questions involved. These questions related alone to slavery and to the status of the free Negro. Mr. Lincoln denounced the Dred Scott decision, claiming that it had no binding force except between the parties to it, and he avowed his opinion that slavery should be prohibited in the Territories, that decision to the contrary notwithstanding. He manifested also a deep opposition to slavery everywhere, though renouncing all intention to interfere with it in the States by direct Congressional action. He also avowed his wish to have the free Negroes colonized; and declared his firm opposition to all claims set up for the Negro for social and political equality. He avowed that there was a physical difference between the two races that would forever forbid such equality, and he affirmed that, inasmuch as it was certain that the two races could not live together on terms of equality, he was for assigning the superior place to the whites.

In his speech at Springfield in 1858 Mr. Lincoln said: "Under the operation of this policy [non-intervention] that agitation not only has not ceased but is continually augmented. In my opinion it will not cease till 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 government 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 future 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 IRREPRESSIBLE CONFLICT

ADVANCE IN ANTI-SLAVERY VIEWS

This quotation from Mr. Lincoln, with other evidences hereafter to be introduced, shows the advanced position that was now being taken by the North. In the beginning the slavery question had been debated more as a question of political power. The moral aspect, though often presented, was subordinated to the other. It had all along, up to this time, been discussed on the concession that it was not to be interfered with in the States. In the Federal Convention, which framed the Constitution, Mr. Ellsworth said: "The morality and wisdom of slavery are considerations for the States themselves. . . . The old Confederation did not meddle with this point [the importation of slaves], and I do not see any greater necessity for bringing it within the policy of the Union. . . . The States are the best judges of their particular interests. . . . Let us not intermeddle."

Mr. Gerry said: "We have nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it [the slave trade]." In the controversies afterward as to Louisiana, Missouri, and Texas, and as to slave extension in the Territories, it was all along conceded that slavery was a State matter exclusively, nor was it intimated that there was such an incongruity between the institutions of the States as to render their confederation impossible, or that such an incongruity must be removed.

Now, however, the pretensions of the anti-slavery men had been advanced. Whilst admitting the want of power to interfere with it in the States, it was affirmed that its existence in some States constituted a "division of the house," which therefore could not stand; and it was declared that the agitation would go on until the public mind should rest in the conviction that slavery was in the course of ultimate extinction, or until slavery should be established in the Northern States. The Northern people were thus educated to believe that slavery was a national and not a State matter,