The Supreme Court of Kansas. are not at liberty to presume Congress intended to. leave them in. as they could neither make the arrest themselves, nor execute the proper power of attorney. To this it is a sufficient answer to say, that adults would not have had the sanction and benefit of this law if Congress had not given it to them; and it was discretionary with the law making power to confer it on, and withhold it from, whomsoever it saw fit. . . . But I can see that Congress may have thought that there was a very good reason for conferring this power upon an adult, or a person of his selection and appoint ment; and for withholding it from the rashness and indiscretion of youth, and such persons as may have been appointed by courts, and who may have no interest in, or kind feelings for the negro, which is almost the certain and necessary conse quence of the long existence of the relation of master and slave. Whatever may have been the motive, it is clear to my mind that Congress had not conferred the power on the guardian, as he is neither the owner nor the agent or attorney ap pointed in the manner prescribed by the act of 1850. "In thus disposing of the first objection to the indictment, the whole question is disposed of, and this opinion might end here; but as other points of objection have been raised, I shall lightly notice them, and give my conclusions without much elaboration. . . . ■'This opinion has been hastily written in the midst of turmoil, interruption, and confusion, in the absence of a library to consult, and without time to correct or pay much attention to legal dic tion; but I am confident that in its main features it will stand the test of the most searching and rigid legal and judicial criticism." The amount of business of appellate courts depends upon the growth of the community. The first litigation in a territory is over mat ters of small import, or cases that are based upon a few simple facts. No long and com plicated litigation had as yet taken place while Kansas was a Territory, because per sonal property was limited in value, commu nities averaged but few individuals, and the title to real estate had not been vested in many persons. Settlers on the public lands had not accumulated enough wealth to be pursued by creditors, nor had they become
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well enough acquainted with each other to have that confidence which inspires lawsuits. For these reasons the early litigation of every Territory is always of a very simple charac ter. Kansas was no exception to the rule, notwithstanding the terrible political troubles which disturbed her peace. Kansas was admitted into the Union as a State by Act of Congress, Jan. 29, 1861. Its Constitution vests the judicial power of the State in a Supreme Court, District Courts, Probate Courts, Justices of the Peace, and such other courts, inferior to the Supreme Court, as might be provided for by law. It was provided that the Supreme Court should consist of one Chief-Justice and two Associate Justices, to be chosen by the Electors of the State at large. The Supreme Court of Kansas first met in Topeka, the capital of the State, as the Con stitution requires, on the 28th of October, 1 86 1. The term of office for each member of the court is six years. The first three judges were Hon. Thomas Ewing, ChiefJustice; Hon. Samuel A. Kingman and Hon. Lawrence D. Bailey, Associates. Chief-Jus tice Ewing held the office by election from the organization of the court, until his res ignation in October, 1862, when he accepted the Colonelcy of the Eleventh Kansas Regi ment of Volunteers, for service in the Civil War. Hon. Nelson Cobb was appointed by Gov. Charles Robinson to fill the vacancy, on the 23d of December, 1862. Chief-Jus tice Cobb continued in office one year, and was followed by Hon. Robert Crozier, who was elected at the general election in No vember, 1863. He held the office for about three years, and was succeeded by Hon. Samuel A. Kingman, who was elected ChiefJustice on the 6th of November, 1866. He continued to preside over the deliberations of the Court until December, ten years later, when he was compelled to resign in conse quence of failing health. Associate Justice Kingman was succeeded, in January, 1865, by Hon. Jacob Safford; Associate Justice Bailey by Hon. D. M. Valentine, in 1869, and
