shall appoint Presidential electors in the manner its legislature may direct, goes on to say that "Congress may determine the time of choosing the electors." In pursuance of this provision, Congress, in 1792, passed an act, that electors shall be chosen within the thirty-four days next preceding the first Wednesday in December, without designating any particular day or days for holding the elections, but leaving it to each legislature to designate its own day within those limits. This law was passed by the framers of the Constitution, acquiesced in and conformed to by the legislatures of all the States; it is in force to this day, and its validity has never been called in question. Here the Constitution left it discretionary with Congress to determine the time of holding the elections; Congress exercised only a part of the power, and, contrary to the rule laid down by the committee, its legislation was not only not complete, but could not "execute itself without the intervention of the State legislatures," for, if the legislatures had not intervened to fix a certain day, the law would have been a mere nullity from uncertainty. The parallel between the two cases is therefore perfect, and the astutest intellect cannot detect the slightest available distinction between them. That law was as much in the nature of a mandamus from Congress to the States, commanding them to legislate upon the subject so as to supply the omission of a precise day for holding the elections, as this can be for forming the required districts. That case is even stronger than this, for it is not absolutely beyond dispute that Congress had a right there to act only on a part of the subject.

1. Resolved by the General Assembly of the Commonwealth of Kentucky, That the adoption, by a majority of the States, of the general ticket system of electing Representatives to Congress, would be subversive of the true republican principle of popular representation, of the theory of the Constitution, and inflict an irremediable national calamity.

2. That at the time of the adoption of the apportionment act of 1842, there was urgent need of the interposition of Congress, by prescribing the district system, to prevent the further spread of a great national evil.

3. That the manner in which Congress did interpose by the second section of that act, was not merely within its undoubted

competency, but was in the only rightful manner in which Congress should ever exercise its discretionary power over that subject, except in the case of a State willfully neglecting to adopt the necessary legislation.

4. That Congress having prescribed the general rule, it is the plain duty of the States, under the imperative mandate of the Constitution, to conform thereto by all needful legislation.

5. That the power in Congress to produce uniformity in the mode of elections, by prescribing the district system as the only mode, is vitally important to the well-being of the republic; and it is the duty of the Senators and Representatives of Kentucky to resist all attempts to annul or abrogate that power, as exercised in the second section of the apportionment act of 1842.

6. That in behalf of the people of this Commonwealth, we do most solemnly protest against the recent action of the House of Representatives in Congress, in nullifying that law, as a flagrant abuse of the power of that House, and an outrageous violation of the Constitution and the law.

CHAPTER XX.

THE DRED SCOTT CASE.

REVIEWED MARCH, 1857.

IN reviewing the decision in this case, the subject will be divided into

1st. The jurisdiction.

2d. The derivation of congressional power over territories.

3d. The extent of congressional power over territories.

4th. The power to prohibit slavery.

5th. The policy and justice of the Missouri Compromise.

THE JURISDICTION.

The majority of the Court decided that plaintiff, Scott, being a negro, he could not be a citizen of Missouri; that therefore the Circuit Court had no jurisdiction over the case; and it was accordingly remanded, with directions to be dismissed for want of jurisdiction.

Having so decided, the Court should have stopped there, and not attempted to go any further into the case. All beyond that was extra-judicial, and entitled to no further respect than if the judges had expressed the same opinions in a debating club, or had published them in a newspaper for the undisguised purpose of aiding a political party.

There are, no doubt, instances where other judges have extrajudicially expressed opinions on points not properly cognizable in the cases before them; but with good judges such instances have been rare, and they never occur without meeting the serious. censure of every judicious member of the bar. They always partake, more or less, of what is most obnoxious to an American lawyer. They are, in fact, usurpations of power. The only apology for them, and the only instances where they should be

tolerated, is when they afford the means of informing inferior courts of the settled opinion of an appellate court upon matters of practice, or such like minor points, where it is fully as important that they should be settled as that they should be rightly decided. The attempt, thus prematurely and extra-judicially, to reach points involving political or constitutional law, is especially to be deprecated. We all acquire our prepossessions and prejudices on these subjects before attaining the bench, and nothing about poor human nature would warrant a popular belief that the mere putting on of the judicial ermine will always eradicate such preconceived prejudices. The Supreme Court has heretofore been very chary of its power to annul an act of Congress. It has been viewed as a delicate, invidious power, only to be used when absolutely necessary, and even then only with the utmost caution and circumspection. This is believed to be the first instance in which the Court has attempted to annul a long course of congressional legislation upon a matter of much importance.

There are peculiar reasons why the majority of the judges should, in this case, have done nothing extra-judicial to foist upon the country their premature opinions upon the points unnecessarily raised. Those points were among the most prominent issues in the late heated party contest for the Presidency. They still are, and will long continue to be, subjects of the most angry party strife. One of the parties was accused with having, for party ends, wantonly violated a great national compromise, adopted for the sake of peace, and cheerfully acquiesced in for more than thirty years as a great and needful national pacificator. The party was also accused of having at the same time, for like purpose, wantonly violated its most solemn party pledge, not to permit the slavery question to be again agitated in or out of Congress. This rendered the extra-judicial points raised subjects of extreme delicacy, and such as should have induced any judges to manifest reluctance to decide even when properly before them, rather than any undue eagerness to seize hold of and prematurely to decide them. This sort of proper delicacy should have had controlling influence with these judges. They should not have forgotten, they should not for a moment have overlooked. the fact, that every man of them owed his elevation to the bench full as much to his affiliation with that offending party as to any

presumable superior qualification. They should not have forgotten, that for the foolish-not to say wicked-action of the party upon the main point involved, it had narrowly escaped disastrous overthrow at the last, and fearfully anticipated complete defeat at the next Presidential election. They should not have forgotten, that to declare the Missouri Compromise unconstitutional was to afford their party leaders a justification which few of them had the audacity to allege in their own behalf; and that such a decision was worth to them ten times more than all the apologies they had been able to invent.

Still another reason, on the score of delicacy, for such forbearance. The three judges who did not concur in the opinion may fairly be offset against the three ablest of the six who did. There were then but three, and they the least able judges on the bench, who had to sustain the full weight of this novel opinion, to be thus prematurely and illegally thrust upon the country. Congress had exercised the power, or its equivalent, in various instances, without its constitutionality having been seriously challenged by any man of respectable standing as a constitutional lawyer. It had done so with the sanction of Washington, Adams, Jefferson, Madison, Monroe, J. Q. Adams, and Polk, and, as is believed, with the entire approbation, so far at least as to the mere question of power, of all the very able lawyers and statesmen who composed the cabinets of those Presidents. The power had been exercised with the reiterated direct and indirect sanction of the able judges of appellate courts in at least three slave and at least four free States, while the decision of no appellate court had anywhere impugned the validity of the power. Any three judges, even though they were all Mansfields or Marshalls, should have felt a natural repugnance to the poising their peculiar novel opinion against such a host of able lawyers, judges, and statesmen.

There is still another legal reason why these judges should have forborne to express any opinion on the constitutionality of the Missouri Compromise. They decide, or rather say, that the voluntary sojourn of the master with his slave in Illinois, under the influence of its constitution, did not emancipate the slave. They say it is the law of Missouri, and not that of Illinois, which determines his condition, and that, by the law of Missouri, he is still a slave. The same rule applies, and of course determines, the