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Court of Appeals, composed of six or seven judges in the respective circuits, one of the justices of the Supreme Court presiding, there would be a much less number of appeals taken to the Supreme Court of the United States than there is under the present system. Under the existing system, an appeal from a District Court to a Circuit Court of the United States is a mere mockery. I do not speak offensively; but I say, in its practical effect it is a mockery, and for this reason: a case is first tried before the district judge, and then an appeal is taken to the Circuit Court. The Circuit Court is composed of that same district judge and one judge of the Supreme Court of the United States. If, when the case comes up for hearing before the Circuit Court, the district judge is of the same opinion that he was before, as he probably would be, and the circuit judge differs from him, there would then be no decision, and the case would be certified to the Supreme Court of the United States to decide between them. If, on the contrary, the circuit judge should agree with the judge below, then there would be a decision, but the appeal would have been useless, for it merely led to the affirmation of the opinion below. The consequence is, that whenever there is a difference of opinion between the circuit judge and the district judge, the case is certified to the Supreme Court, and thus you multiply the causes on the docket of the Supreme Court without having accomplished any benefit by the appeal through the intermediate court. But, according to my plan, instead of appealing from the judge below to himself and one other, you appeal to himself and probably six others, and one of those six a judge of the Supreme Court of the United States. If they should reverse a decision unanimously, the chances are that the matter would stop there. If they should be nearly equally divided on a question involving a new or intricate principle of law, or a vast amount of property, the case would probably be appealed. I think, then, that in the practical operation of this system, there would be very few appeals to the Supreme Court of the United States in comparison to the number there is now. Again, sir, the system I have submitted will diminish the duties of the judges of the Supreme Court in another respect. Judge M*Lean, for example, is the judge assigned to the Northwestern Circuit, in which I reside. He is expected to attend to his duties in the Supreme Court here at Washington, and also to preside twice a year in the Circuit Court in Ohio; twice in Indiana; four times in Illinois, there being two districts there, and twice in Michigan. There are, then, ten terms which he is expected to hold in the courts below in one year, besides attending to his duties in the Supreme Court. I propose, instead of his holding ten terms of the Circuit Courts in each year, he shall attend but one term of the Court of Appeals of a particular circuit. It strikes me that this would materially diminish his duties. If the term of the Court of Appeals should last for three months—and certainly it could hardly be expected to take up that much time—he would still have nine months for attendance on the Supreme Court here. My substitute requires the Court of Appeals to be held in the nine circuits on the same day—say the first Monday in June or the first Monday in May. That being the case, the judges of the Supreme Court would arrange their terms so as to allow them to disperse to their respective circuits at the same time, finish their circuits, and get back here at the same time. I take it for granted, therefore, that, instead of being limited, as they now are, to two or three months every year for their duties here, the judges of the Supreme Court, under my plan, would have at least nine months to be at Washington, after performing all their duties in the different circuits. In this way, by giving them eight, or nine, or ten months to be here, instead of three or four months, for their duties in the Supreme Court, and by diminishing the amount of their circuit labors in the mode I have mentioned, they would be enabled to perform all their duties, and have probably one half the year to themselves.
The bill was debated several days; but there was such a diversity of opinion in the Senate as to the principle of the original bill—to exempt the judges of the Supreme Court from circuit duty—that the friends of the bill abandoned it. Before it was disposed of, however, a vote was taken on Mr. Douglas's amendment, and it was rejected—yeas 19, nays 26. Those voting for it were Atchison, Benjamin, Bright, Cass, Clay, Clayton, Dodge of Wisconsin, Dodge of Iowa, Douglas, Fessenden, Foot, Geyer, Gwin, Jones of Iowa, Sebastian, Shields, Stuart, Thomson of New Jersey, and Wade. The subject has never been acted upon definitely since then.
Perhaps no public man in the Union has labored more earnestly and indefatigably in the Senate, in his written papers, and in his addresses before the people, than Mr. Douglas, to sustain and defend the supreme judicial authority of the federal judiciary. He has had to meet and encounter the misrepresentations of the Dred Scott decision, and has had to labor hard, yet willingly and successfully, to defend that decision to its fullest extent before the people of the Northwest. One of the charges made against him in 1858 was that he had conspired with Judge Taney in having that decision made. While he defended the venerable chief justice from the accusation of conspiracy, Mr. Douglas endorsed and approved that decision without equivocation or reservation. Throughout all his speeches will be found a broad emphatic approval of that decision, and of a purpose on all occasions to submit to and abide by whatever decision that court may make upon questions of construction of the Constitution.
In a speech delivered at Springfield June 12, 1857, Mr. Douglas thus referred to the Supreme Court and the Dred Scott decision:
“That we are steadily and rapidly approaching that result I can not doubt, for the slavery issue has already dwindled down into the narrow limits covered by the decision of the Supreme Court of the United States in the Dred Scott case. The moment that decision was pronounced, and before the opinions of the court could be published and read by the people, the newspaper press, in the interest of a powerful political party in this country, began to pour forth torrents of abuse and misrepresentations not only upon the decision, but upon the character and motives of the venerable chief justice and his illustrious associates on the bench. The character of Chief Justice Taney, and his associate judges who concurred with him, require no eulogy—no windication from me. They are endeared to the people of the United States by their eminent public services—venerated for their great learning, wisdom, and experience—and beloved for the spotless purity of their characters and
their exemplary lives. The poisonous shafts of partisan malice will fall harmless at their feet, while their judicial decisions will stand in all future time, a proud monument to their greatness, the admiration of the good and wise, and a rebuke to the partisans of faction and lawless violence. If, unfortunately, any considerable portion of the people of the United States shall so far forget their obligations to society as to allow partisan leaders to array them in violent resistance to the final decision of the highest judicial tribunal on earth, it will become the duty of all the friends of order and constitutional government, without reference to past political differences, to organize themselves and marshal their forces under the glorious banner of the Union, in vindication of the Constitution and the supremacy of the laws over the advocates of faction and the champions of violence. To preserve the Constitution inviolate, and vindicate the supremacy of the laws, is the first and highest duty of every citizen of a free republic. The peculiar merit of our form of government over all others consists in the fact that the law, instead of the arbitrary will of a hereditary prince, prescribes, defines, and protects all our rights. In this country the law is the will of the people, embodied and expressed according to the forms of the Constitution. The courts are the tribunals prescribed by the Constitution, and created by the authority of the people, to determine, expound, and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal aims a deadly blow at our whole republican system of government—a blow which, if successful, would place all our rights and liberties at the mercy of passion, anarchy, and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States—in a matter, like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution— shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution— the friends and the enemies of the supremacy of the laws.”
UNDER the operation of the Kansas-Nebraska Act, the governments provided for the two Territories were in due time erected. That established in Nebraska was put in operation, and has been conducted ever since with as little trouble, as little excitement, as little distraction at home or throughout the Union as would be expected from the organization of a new county in Virginia or Illinois. Not so with Kansas. From the first day of its establishment down to the present Kansas has been the theatre of fearful strife, involving bloodshed upon her plains, the formation of treasonable operations there and in other places, and to some extent, at times, the substitution of irresponsible anarchy for legal and constitutional government.
The entire history of Kansas difficulties formed a leading
question during the session of Congress commencing in December, 1855, and Mr. Douglas took an active and leading part in the eventful chapter of Congressional action upon her affairs. His reports and speeches at that session contain of themselves the best as well as the most concise written narrative not only of what took place in Congress, but of what happened in the unfortunate Territory. The House of Representatives having been unable to elect a speaker, the President of the United States, without waiting for the usual notice of the organization of the houses, and their readiness to receive any communication from him, on the 31st of December sent in his usual message. He thus referred to affairs in Kansas: “In the Territory of Kansas there have been acts prejudicial to good order, but as yet none have occurred under circumstances to justify the interposition of the federal executive. That could only be in case of obstruction to federal law, or of organized resistance to Territorial law, assuming the character of insurrection, which, if it should occur, it would be my duty promptly to overcome and suppress. I cherish the hope, however, that the occurrence of any such untoward event will be prevented by the sound sense of the people of the Territory, who, by its organic law, possessing the right to determine their own domestic institutions, are entitled, while deporting themselves peacefully, to the free exercise of that right, and must be protected in the enjoyment of it, without interference on the part of the citizens of any of the states.” On the 24th of January President Pierce sent a special message to Congress upon Kansas affairs. He thus expressed and defined his construction of the purposes, intents, and effect of the Kansas-Nebraska Act. He said: . “The act to organize the Territories of Nebraska and Kansas was a manifestation of the legislative opinion of Congress on two great points of constitutional construction: one, that the designation of the boundaries of a new Territory, and provision for its political organization, and administration as a Territory, are measures which of right fall within the powers of the general government; and the other, that the inhabitants of any such Territory, considered as an inchoate state, are entitled, in the exercise of self-government, to determine for themselves what shall be their own domestic institutions, subject only to the Constitution and the laws duly enacted by Congress under it, and to the power of the existing states to decide, according to the provisions and principles of the Constitution, at what time the Territory shall be received as a state into the Union. Such are the great political rights which are solemnly declared and affirmed by that act.” The President called attention to the various difficulties that had occurred in Kansas, and also the attempt to put the Topeka state government in operation as the government of Kansas—to override and exclude the existing Territorial government. He recommended the passage of a law authorizing the
people of Kansas, whenever they might desire it, and were suf. ficiently numerous to constitute a state, to elect delegates to a convention for the formation of a state government, preparatory to their admission into the Union as a state. The message was referred to the Committee on Territories. Mr. Douglas, in the mean time, was detained at Cleveland, where, and at Terre Haute, he had been suffering intensely with a bronchial affection. So protracted was his illness that he was not able to proceed to Washington until February, on the 11th of which month he appeared in the Senate. On the 18th a large number of documents, called for by a resolution of the Senate, were received and referred to the Territorial Committee. On the 12th of March Mr. Douglas made his elaborate and celebrated report upon Kansas matters, and upon the powers of Congress over the Territories as political communities. The report, and the speech which he delivered a few days later, are in themselves the most complete and concise history of Kansas affairs up to that time. The report was ordered to be printed, and a motion to print extra copies was referred to the Committee on Printing, it being stated and understood that the debate should take place on the bills when reported during the following week. However, when the Committee on Printing made their report a day or two after, Mr.Trumbull availed himself of the occasion to deliver a speech in review of the report. Mr. Douglas was absent at the time, but, hearing that his colleague was making a speech, went to the Senate, and at its conclusion a sharp personal debate took place respecting this proceeding by Mr. Trumbull. Mr. Douglas likened it to the proceedings on the part of Messrs. Chase and Sumner in 1854, when a delay was asked in the consideration of the Nebraska Bill, during which those who had asked the delay issued an address misrepresenting the character of the bill and the motives of its authors. On Monday, March 17th, Mr. Douglas reported “a bill to authorize the people of the Territory of Kansas to form a Constitution and state government preparatory to their admission into the Union when they have the requisite population.” On the 20th he addressed the Senate in support of the bill, and upon the general questions embraced in the report. We