H. of R.] Judiciary System. injudicious organization of the inferior tribunals of the United States. [JAN. 17, 1826. State, imperiously demanded legislative interference. But a remedy had been proposed by the gentleman who made But, Mr. Chairman, we are told, that no complaints the acknowledgment (Mr. POWELL.) He was willing that have been heard from any other parts of the United States, a Judge should be appointed, with a competent salary, except from Ohio, Kentucky and Tennessee. I have my-equal even to that of a Judge of the Supreme Court, but self heard the opinion of some of the gentlemen from other that he should not be allowed to take a seat on the bench Western States, in favor of this bill; and I have no doubt of the Supreme Court. I cannot believe that there was that they will, unanimously, join those three States in de- an intention to cast any reflection upon the West, because manding, as a matter of right, that their States, respective- the gentleman remarked, that he had no doubt, men of ly, shall be embraced within the arrangement of the Cir- great talents, and every way adequate to the discharge of cuit Court system: a demand, not made in a supercilious so important and arduous a duty, might be found in the and arrogant spirit, but with an unhesitating confidence in States of Ohio, Kentucky and Tennessee. But, sir, a mothe intelligence and sense of justice of this honorable com- ment's reflection ought to be sufficient to satisfy the Committee. mittee, that a proposition to send us a mere land commissioner, would be rejected unhesitatingly and indignantly. The People of the West will not rest satisfied with one single mark of respect less than that which is bestowed on any other portion of the United States. I come now, sir, to speak a few words of the claims of Tennessee, Ohio and Kentucky; but, more particularly, of the latter. We find on the docket of the Federal Court in Kentucky, nine hundred and fifty suits, many of them of the most complicated character, requiring attention and But, Mr. Chairman, it has been objected, said Mr. B. patient investigation. Those acquainted with the nature that, should the bill pass, the number of the Judges, for of litigation in that court, are aware that there is no rea- the discharge of ordinary business, would be inconvenientsonable hope of any considerable diminution of it for many ly large. Such, if I recollect aright, was the opinion adyears. On this point, the remark of the gentleman from vanced by the gentleman from Massachusetts, in whose Illinois, (Mr. Cook) as to the Northwestern States, were judgment, and particularly, in any matter relating to the alike applicable to Kentucky. The titles to real estate, Judiciary, I have very great confidence indeed-but, on through the largest and most fertile part of the State, in- this point, I must beg leave to differ from him. I regret deed in all that part of it subjected to location under that he did not assign the reasons on which he founded Treasury warrant claims, issued by the State of Virginia, that opinion. No complaint has been made, that the prewere derived from that State; and, of course, in every sent number of Judges is inconveniently large. If ten controversy respecting those titles, when coming in con- would be too many, on what point shall we determine to flict with a title derived from the State of Kentucky, the settle, as the precise maximum? The proposed increase jurisdiction of the Federal Court attaches. The titles to may not, indeed it is very certain that it will not, be cal real estate in Ohio and Tennessee, constituted a source culated to expedite the determination of business in the of litigation but little, if at all, inferior to those of Ken- Supreme Court-but expedition is at best a matter of setucky. He would not detain the Committee by speaking condary consequence-correctness is always of primary either of the Occupying Claimant Laws of Kentucky, or importance. The supposition, that, by the introduction the apprehension which Virginia appeared to feel, that of three additional Judges, a faction may be created on the this bill was designed by Kentucky, as a prelude to a re- bench, is utterly visionary-it is any thing short of ridicuversal of the decision of the Supreme Court in the case of lous. The history of the world presents no example of Green and Biddle, upon the constitutionality of these laws. such a result. If, indeed, they were an assembly of leThe gentlemen from that State need not fear any such re- gislators, chosen for short periods, and of a number as great sult. The validity of those laws had, to be sure, been as that of which Congress is composed, anxiously anticitested in the crucible of judicial investigation, in both the pating the result of an approaching election, willing to inferior and superior courts of that State, and had been uni- flatter popular prejudices to procure a short-lived popu formly supported, both by the Judges of that State, and larity, faction might rear its head among them; but a by a very large majority of its ablest lawyers; and, when Judge, who receives a salary of four thousand five hundecided upon in the Supreme Court of the United States, dred dollars per annum-not more secure in the tenure of of the four Judges on the bench, one was in favor of them. his office, which he is to hold during good behavior, than But the opinion of the three determined the principle, in the amount of his salary, cannot be suspected of a disand Kentucky was thus bound to abandon a policy which position to faction: he is above the atmosphere of popular she regarded as essential to the improvement of the State, prejudice, or popular excitement:-Vox Populi vox Dei is and the security and repose of her citizens. Judge Mar- not the motto of his creed-he is satisfied with the exist shall, as we were informed by the gentleman from Viring state of things: for he could scarcely calculate on a ginia, through motives of delicacy, omitted to take his change which would better his condition. seat on the bench, when that case was decided; but yet, But, Mr. Chairman, comparisons have been instituted the same gentleman tells us, that his opinion coincided between our Judiciary system and that of England; and with a majority of the Court. The whole difficulty in re- it was insisted that a smaller number of Judges had there lation to that subject, had, to be sure, originated in the been found sufficient to determine all the legal controverLegislature of Virginia. That State, through her Legis-sies of that unequalled People. Mr. B. said he was willing lature, had issued warrants for the location of at least three times the number of acres which were contained in the territorial limits of Kentucky; and had made it necessary, by the law on that subject, to make the entry so special, that subsequent locators might be enabled to locate with certainty the adjacent residuum; a degree of precision, which, in many cases, was absolutely impracticable. But this was irrelevant in the discussion of the principles of the present bill. It is sufficient for my purpose to shew, that, such is the number of suits, however they may have originated, now pending in the Federal Court of Kentucky, and such the difficulty of their determination, that there exists an absolute necessity of some redress. It had, indeed, been admitted, that the situation of business in the Federal Court of that to leave gentlemen to enjoy their opinions, and to pronounce their eulogiums upon the Judiciary, and if they please, the Government, of England: for his part, he considered neither the one nor the other as presenting fit models for the United States. Yet even there, on appeal, in the last resort, (although he wished to be understood as protesting against the comparison) causes are decided by the House of Lords, aided by their twelve Judges. We have also been told, that in all England, there is but one Lord High Chancellor. But if the gentleman will turn his attention to the Judicial history of England, he will find that such have been the vexatious delays in Chancery, under the English system, that they have amounted to a denial of justice. It has very often happened that one generation witnesses the commencement of a cause, and another, its end. But, sir, it appears that we are not only to regard the English judiciary system as worthy of imitation, but that we are also to admire even its anomalies. Our attention has been called to Wales, by the gentleman from Virginia, (Mr. PowELL) who informs us that the courts in Wales are as distinct from those of England, as from the courts of the United States. This is, I believe, an error. An appeal lies to the courts of England. But a slight attention to the history of that country will shew us, that this anomaly as to the courts of Wales, was not the result of the choice of the English Parliament, but rather of necessity. Wales remained, for several centuries after the Saxon invasion, unconquered, and independent of England. The son of Edward the First, became the first titular Prince of Wales. A statute in the reign of Henry the Eighth, placed them on the footing of English subjects, in most respects, except that they were permitted, as a matter of favor, as we are told by the English writers, to retain their courts independent of process from Westminster Hall. And six States of the Union are now to be permitted, I suppose, as a matter of sheer favor, to retain District Courts with Circuit Court powers, in which a Judge, with a salary of $ 800 or $1000, presides, while the remaining States are to have Circuit Courts with a Judge of the Supreme Court. [H. o R. to guard against them as cautiously as possible. A blind confidence is unwise. The gentleman from Virginia (Mr. POWELL) told us that he thought he could see the point beyond which all was danger. I too, believe, Mr. Chairman, that I can see that point; but in a very different direction from that alluded to by that gentleman. I fear no evil from the Judges mixing with the People. I fear much more from confining them to the performance of duties within the District of Columbia. If the system of 1801 be adopted, and persevered in for half a century, the principles of this Government, at the end of that time, will, in my opinion, be very little more like that which prevailed in 1798, than the present Government of England is like that which existed in the reign of William the Conqueror. In the decision of all constitutional questions, I wish to see at least ten Judges on the bench of the Supreme Court, and the concurrence of seven required to declare a State law invalid, or to determine upon the implied powers of this Government. Whoever has noticed the decisions of the Supreme Court, even under the present arrangement of compelling the Judges of that Court to perform Circuit Court duties, cannot have failed to observe that, in the most important cases, involving the powers of the General Government, depending on doubtful construction, and its restrictive power over the States, they have set with a strong and It has also been urged, that an increase of the number bold current, like the Gulph stream, sweeping every obof the Judges would be calculated to weaken the respon- stacle before them, in an undeviating course, to the Federsibility of each, and render the Executive careless in his al Ocean. We have already had an exposition of the powselection of them. The argument is utterly untenable. ers of Congress, under the last clause of section 8th, and Will not the Judges be compelled to give their opinions 1st article. In time to come, we might be favored with in writing as at present, subject to the inspection of the that of the 1st clause of the same article; and might we world: and can it be supposed that a Judge, occupying so not, to a certain extent, have looked for such a state of exalted and conspicuous a station, will be willing to haz- things? Can we not trace it to the frailties of human naard his reputation for legal learning, under the hope that ture; to an universal predilection for the source from which his brother Judges will share with him the disgrace? As we derive our authority? The Sun-flower does not more little is it to be expected, that the Executive will select certainly and naturally turn her face to the genial and vivicarelessly, or if even he did, that the Senate would con-fying rays of that luminary, in whose presence she delights firm the nomination, because there would be ten instead to bow, as if in homage, than does a Judge to the founof seven Judges. tain from which he derives all his consequence and auBut, Mr. Chairman, continued Mr. B. it is principally thority. The greatest security against such a tendency, with an eye to decisions on Constitutional questions, that is to extend the present system, and to require the conI believe an increase in the number of the Judges is most currence mentioned in the cases alluded to, so that a smalt to be desired; and in this point of view, there is not the number may never decide in cases of such momentous. slightest analogy between our Government and that of import. Mr. B. said, he was disposed to repose as much England, or any of which I have any knowledge. The confidence as any gentleman on the floor of this House, in English Government is composed of two branches only- the learning and integrity of the Judges of the Supreme the Legislative, composed of the King, the Lords and Court: but he would not render to them a blind and idolaCommons; and the Executive, of the King only, who, trous adulation, like those, in ancient days, who apthrough his Judges, administers justice, and by the proper proached the Oracles which they deemed infallible. He officers, executes their judgments. The Parliament is, of regarded Judges merely as men, and was disposed to course, supreme. The English courts have no great con- guard against any improper tendency in their course. stitutional questions to settle; no power of the Government He was sorry, with these views, to hear, from some of the to extend by construction; no will of sovereign States to advocates of the bill, that, when this particular proposition control. They have nothing to do but to administer jus- to require the concurrence in opinion of a certain number tice according to the principles of meum et tuum. But, of Judges, to decide on Constitutional questions, should Mr Chairman, we have, in my opinion, arrived at a point, be brought forward, they would not sustain it. He trustat which we are bound either to extend the present sys-ed that gentlemen would not prejudge the proposition. tem, or to adopt the plan of 1801. Shall we hesitate which It should be laid before the House in due time, and its to do; when not only reason, but experience, the safest of final decision would be urged. The principles of the proall guides, points out the path so plainly? Are there not position would be discussed, and it would be then time alarming evils to be apprehended by confining the Judges enough to decide upon it. Kentucky is not the only to the bench of the Supreme Court only? Let it not be State in this Union which has cause to be dissatisfied with forgotten, that there is an extent of jurisdiction confided some of the decisions of that Court. None, he would adto them, unequalled by that of any other court in the mit, had greater cause to be dissatisfied than Kentucky. world. From the nature of our Government, it is neces- But he would submit it to Virginia herself, if she had not sary that it should be so. There must be some tribunal, even cause of alarm, at a decision of the Supreme Court, upon whose decisions those matters must depend, and that, under a rule entered up by the Court itself, property, there can be none more safely relied on than the Supreme not subject to execution by any law of Congress, might Court, as it is at present constituted, composed of venera-be sold in satisfaction of a judgment of the Federal Court. ble and learned men, selected from the whole nation for their talents and integrity. I feel no alarm at the encroachments of the Federal Government, yet it is proper and safe The whole policy of Virginia, respecting her titles to real estate, may, under that decision, be made to undergo a radical change. There might be some whose confidence in the decisions of that Court was such, that they might be inclined to smile at the manner in which he spoke of its decisions; but, in doing it, he only exercised a right which belonged to him in common with every citizen of the Union, and, on this particular occasion, he spoke with, he hoped, the honest confidence of a Representative of a certain portion of the People of the United States. other States. [JAN. 17, 1826. which is required to secure the free intercourse between nations. 3. To give uniformity to the decision of all questions of international law, and to punish offences against it. 4. To provide a proper tribunal for the decision of all questions arising under the admiralty jurisdiction. 5. To guard the rights of the United States against State prejudices, in the decision of cases in which those rights come in conflict with the interests of a State, or of its citizens. 6. To secure aliens, and citizens of other States, against the operation of unjust laws, or illegal constructions of them. This important object must have been impressed on the minds of the Convention, by the just complaints of Great Britain, for injustice to her subjects, by confiscation and tender laws, and other impediments to the execution of the treaty of peace, as well as by the operation of some of those laws on the citizens of other States. 7. The remaining objects to be effected by the estab lishment of a Federal Judiciary, which occur to me, were the punishment of all offences against the laws of the U. States, and the collection of its revenue. Mr. Chairman, said Mr. B. it is asked whether the plan can be made to suit future exigencies, and whether, when the present Territories shall become States, and new Territories shall be added, we are prepared to see twenty Judges on the Supreme bench; and whether we wish to have a limb of the law in every section? I answer, that I believe the plan can be made to suit all future exigencies, and that there will never be such an increase in the number of the States, as to render necessary that increase in the number of the Judges which some gentlemen appear to apprehend. We have been told by the gentleman from North Carolina, that, in his State, the Supreme Judge is not required, by the business, to remain above two or three days at a term. In Kentucky, when the present mass of business shall be expunged from the docket, she may not require the attendance of a Supreme Judge This enumeration may appear inapplicable to the subfor half the time which she now does. Such may be the ject, or useless, to those who must have a perfect recol case with the other new States, and the circuits may be lection of the objects for which the Federal Judiciary was increased by taking into them the new States which may estabtablished, and the reasons on which it was founded ; be admitted into the Union. I do not wish to see a limb but it was necessary to detail to the committee all these of the law in every section, but a Circuit Court in every objects; to desire the members to supply, by their more State in which a Judge of the Supreme Court shall pre-perfect knowledge of the subject, any omission I may side. As much, however, as he admired the present sys- have made; and then to ask them, whether, of all these tem, he would willingly abandon it, rather than, by a con- functions of the Federal Judiciary, there is one that has for tinuance of it in its present circumscribed, and too narrow its object any advantage to the State in which it is to be limits, the People of any of the States should be made to exercised? Whether, on the contrary, they are not all cherish feelings of jealousy and bitterness against those of either of a general nature, for the benefit of the Union collectively, or restrictions of State rights, and intended to Mr LIVINGSTON said, he did not know that he protect the General Government again,t State encroachshould have troubled the committee with any remarks on ments; to give execution to its laws and treaties; to force a subject already so well discussed, if frequent allusion the State and its citizens to do justice to the alien and the had not, in the course of debate, have been made to the inhabitant of other States; and to make the local laws bend State he represented, and if his support of the bill were to the dictates of justice, whenever they contravened the not founded on somewhat different reasons from any he rights of such parties? Should this be the result of the inhad heard expressed. I do not, said Mr. L. conceive my.vestigation-should it be found that all the advantages self bound by Congressional usage-I do not say Parlia- proposed by this branch of our Government, and consementary (for of that I know very little)-to advocate this quently all those to be expected from its extension, are on measure because i had the honor to be a member of the the side of the States collectively and their citizens; that committee which reported it. I am not the counsel for no one exclusive benefit is to be derived to the State withthe bill, but one of the judges who are to determine on its in which it is established—what must be the conclusion ' merits or faults on the advantages or evils attending its That the States who ask for the extension of the system adoption. In order to perform the task with propriety, can have no improper or selfish views in making the dewe must inquiremand; that, if any other be imputed to them, or charged as resulting from the measure they advocate, it should be clerly proved. In order to carry these great objects of the Federal Judiciary into effect, the First Congress, in which were many of the framers of the Constitution, passed the act of 1789, by which the Circuit System was adopted, nearly in the form in which it now exists, but on the principle of complete extension to every State in the Union. Maine and Kentucky have been mentioned as exceptions ; but they form none. They were then, respectively, portions of Massachusetts and of Virginia, desirous of being considered separate Governments, but not acknowledged as such by the States of which they originally formed parts. Hence, Circuit Courts could not be established in them, without, in some sort, acknowledging them to be States, which would have injured the interests and pride, perhaps the rights, of Virginia and Massachusetts. Nor could they be subjected to the jurisdiction of the circuits in those States, without deciding the questions pending be tween them and their parent States. A middle course was pursued. They were erected into separate districts, and District Courts, with circuit powers, were given them The same course was pursued with respect to the Territories; and when, in process of time, they came to be First. What are the evils of the present state of things which it is intended to remove ? Secondly. Does this bill apply a complete remedy to the evil, or, if not complete, is it the best that circumstances permit us to apply > To determine what are the defects in the present state of the judiciary system, it will be necessary to inquire whether, in every part of the Union, the objects for which it was instituted are carried into effect. These objects werc: 1. To secure the execution of the laws and treaties of the United States. The Convention wisely thought that, if the tribunals of the different States were alone relied on for this end, not only would the provisions of these laws and treaties, under various pretences, be evaded, and remain unexecuted, in many instances, but that, when effect was given to them, there would be as many different constructions as there were States in the Union; the law would remain a dead letter, and the country be involved in disputes with foreign nations, for misconstruction or the non-execution of treaties. 2. To give to Ambassadors and others foreign Ministers that prompt relief, for any infraction of their privileges, JAN. 17, 1826.] Judiciary System. States, the system was not changed with respect to any of them, except Tennessee, Kentucky and Ohio, for whom a new circuit was made, and an additional Judge of the Supreme Court appointed. The other six Western States, as they successively assumed their places in the Union, did not, in the infancy of their political existence, press to be placed on a footing, in this respect, with the other States. The first moments of a State are generally devoted to the interesting task of internal organization. The energies and talents of the new State are directed to mat- | ters of immediate interest, and it is, therefore, not astonishing that this anomaly should not earlier have attracted attention. Nor can the neglect be considered as a reproach, far less urged as an abandonment of the right. The time, however, has at length arrived, when the six States, in which District Courts only are now established, demand that they should be placed on an equality with the other members of the Union, and the three other Western States desire such a modification of the system as will enable the Judges of the Circuit Court to despatch the accumulation of business which obstructs the administration of justice. Why do the six new States require this? In the answer to this question will be found the statement of the first point of our inquiry-the evils to be remedied by this bill. Why do we desire to be placed on a footing with the other States? We desire it, sir, because we are States! entitled to equality! the most perfect equality with the oldest, the most populous, the most influential, the best represented State among the first thirteen of the Union! Rights, privileges, honors, burthens, duties, every thing, by the structure of our Government, must be participated by every member of it, on the broadest principle of equality. I would not, coming as I do from one of the smallest | States, in point of population-I could not, without betraying its honor and dignity—receive, in its behalf, even an exemption from any duty, however burthensome, if borne by the other States, if it were conceded as a badge of inferiority; I should be disavowed by those who sent me, and justly disavowed. They ask no exemptions; but they demand! yes, sir, that is the word—they demand an equality of rights. Inattentive to this right when it was not disputed, they are feelingly alive to it when their claim is contested; and, in their behalf, I say with Hotspur, for a disputed right, "I will (do ye mark me) cavil on the ninth part of a hair." (H of R. lege of being covered during the debates of this House, is one which, of all others, I hold to be the most worthless : it is one of which I do not frequently avail myself, and which, if it were not sanctioned by such high authority, I should think somewhat indecorous; yet, sir, make a dis. crimination in this paltry privilege-declare that none but the Representatives from the Atlantic States shall be covered; but that those from beyond the mountains shall enter bareheaded-do this, I will not ask how long we shall stay here-how many hats will be seen in this hall-but how many heads will be found to wear them? No, sir; pride, founded on a sense of dignity; feeling, originating in a sense of wrong, ought to be cherished in Governments, as in individuals: lose them, and patriotism is at an end, and the motive to glorious actions is destroyed: for the pure virtue that does not need their aid, has either never appeared upon earth, or is lost in the degeneracy of modern times. Direct them to proper objects, but do not reduce or endeavor to annihilate them. But is this a matter of mere pride? Important as its gratification is, when properly directed-is that the object' There are real disadvantages attending the present state of things, indepen dent of the injury to pride of opinion, or to wounded feelings of dignity. There is risque of fortune, of life, of reputation, to the inhabitants of six of the Western States, which is not incurred by those of the others. We have seen to what objects the powers of the Federal Judiciary extend; that all suits in which an alien or a citizen of other States is plaintiff, comes within its scope, and that accusations for crimes against the United States, are to be decided there. Under these two heads, every judicial question that can affect property, life, liberty, or reputa. tion, may be comprehended. Now, I ask gentlemen, said Mr. L. who oppose this bill, to give a deliberate answer. If they deign to give any, I am sure it will be a candid one, to this question: whether a defendant, who has these all important concerns depending on the decision of a single District Judge—not always a man of high legal talents, (for your paltry salaries will not command them) without the fear of any revision of his sentence, and remote from any superintending control-whether a defendant so circumstanced, can be said to enjoy equal rights with him who cannot suffer either punishment or loss of property, unless the decision of his District Judge is concurred in by a man, selected from But, again, why do we desire the establishment of a Cir- among the highest talents, and distinguished for his intecuit, instead of a District Court? What advantage is to be grity and learning, and who, in every case of a doubtful derived from it? I answer, the first effect will be uni- nature, even when they concur, may, by a pro forma disformity. But what are the advantages, says the gentle- sent, have the benefit of a recurrence to the assembled man from Virginia, (Mr. PowELL) of uniformity? We wisdom and justice of the Supreme Court? Are these desire it, simply because it is uniformity. If the circuit two parties on the same footing? Can it be said, with the system be an advantage to the States in which it is estab- semblance of reason, that they enjoy the same rights? lished, it ought to be extended to us: for we are entitled And can it be said, that a State, all of whose citizens are to every political advantage resulting from the Union subjected to these disadvantages, is placed on an equal which they enjoy. If it be, on the contrary, a burthen, it footing with other States, whose inhabitants enjoy the is one of which we ought to support our share. If the sys-privileges I have enumerated? If it cannot, the question tem be good, extend it; if it be bad, abolish it; and give is at an end: for the terms of our admission are express. us one that shall be equal in its operation. We cannot ex- Each of the new States is declared "to be one of the Unittricate ourselves from this dilemma, while we acknow- ed States, and admitted into the Union on an equal footing ledge what nobody has yet ventured to deny, in words with the original States, in all respects whatever." Now, the perfect equality of political rights, in the several States. sir, how is this stipulation fulfilled, if the property, lives, Uniformity, says the same honorable member, can only, and liberty of our citizens, are subject to the will of a sinon this subject, be desired as a matter of State pride and gle man, while yours can suffer in neither, without the reState feeling. Yes, sir, it is a question of pride and feel- vision of a wise and enlightened tribunal? But we have ing-of honest pride, and dignified feeling-a pride that an appeal from the decision of the District Judge, thereennobles; a feeling that will not permit us to suffer wrong; fore, we have no right to complain! Error, sir! palpable and which, when we disregard, we lose the best charac-error in fact, as well as fallacy in argument! This right teristics of freemen. If this bill had no one object of pro- of appeal is limited in cases of property, to those above fit, convenience, or utility, in the ordinary acceptation of two thousand dollars in value. But in many instances, the those terms-if its only end were to place us on an equali- whole fortune of an individual does not exceed that sum. ty with the other States, in a circumstance the most insig-In criminal cases, there is no appeal. It is not only pronificant; if the right to it were denied, 1 should contend perty that is concerned, but liberty and life. Both may for that right with the same pertinacity. Sir, the privi- depend on the construction of law. No innocence can VOL. II.-65 H. of R.] protect a man from accusation. All are liable to be drag-will, he is nothing else. The advocates for the bill ask, ged before a Court. My life may depend on a correct or whether this is wise legislation? whether it is just? whether false interpretation of a statute of the United States. It is it is uniform? and gives equal rights to all the States? submitted to a District Judge. He decides incorrectly against me, and my life is lost. There is no appeal from ledges the existence of an evil: others have been shewn This offer supposes some change necessary; it acknowhis decision, although he may be the man the least qualified, to exist in all the new States. The next question is, does in the district, to pronounce. What would happen if the present bill apply a remedy to those which have been the case were tried in a Circuit, not in a District Court enumerated? In my opinion it offers a complete one to First: the concurrence of a Judge of the Supreme Court, all. in the opinion of the District Judge, would be necessary. offered to the rights, to the honest pride and feelings of It gives uniformity; heals the wounds that have been Secondly if they did concur, if the case were one of first our sister States; it satisfies public opinion, destroys preimpression, a pro forma dissent would be entered, and judices, and removes the obstructions to the administration final judgment could not be passed, until the question of justice. Is it the best remedy? The best, in my opinion, had been solemnly debated, and the sentence had received that can now be applied. I have already hinted my prefer the sanction of the Supreme Court. Now, I again ask ence for another system; if this were not now established, gentlemen to say, whether this is no disadvantage? Let or could not, with convenience, admit of extension, it may them meet this question fairly, and either give a satisfac-hereafter be necessary to recur to it, but now I do not tory answer, or agree to remove the evil by according to think it is. The objections that have been urged against us a uniform administration of justice. for they have more than once been already brought under it, come next to be considered. I shall do this very briefly, the consideration of the committee. Judges will be too numerous. The most prominent is, that a court consisting of ten This has always been urg A third disadvantage of the want of this extension, is that arising from the knowledge of our laws being less accurate, on the bench of the Supreme Court, than it would be, did one of the Judges hold a circuit in the State. I do not enlarge on this head: it has been sufficiently en-ed, as if the mere statement of the fact were sufficient to forced by gentlemen who have preceded me. bound in candor to allow, that if the Judicial system was vincing, if some reasons had been stated to shew why a But I am enforce the objection; but it would have been more connow to be first established, I do not think this advantage bench thus composed would be less competent to the adwould induce me to prefer the circuit system to that of a ninistration of justice than one consisting of half the numstationary appellate court. But it is unnecessary now to ber. The final decision of a cause on an appeal, is made balance the advantages of the two systems, because the on a cool consideration of the facts contained in the record, present courts cannot be abolished without counteracting and the law applicable to them. Whether the Judges be public opinion; because no such proposition is before the many or few, the arguments at the Bar are the same; each House; and because, however favorably I may think of of the ten Justices hears and considers them at the same the system, I am bound to yield to the decided opinion time; and each forms his own opinion of the fact and the that now exists against it. The sole question now is, law; which is corrected or confirmed by a free communiShall we extend the circuit system unto the States that cation with his brethren, when they meet. This is done in are deprived of it? And on this question there can be no private; there are no long speeches-no warm debate— doubt that the measure would bring to the bench of the no pride of opinion to be supported in the presence of a Supreme Court, a more perfect knowledge of the laws numerous audience. The publicity is as it ought to be in necessary for the decision of questions, in the State I re- the result. The operation by which it has been produced, present, than the Judges can now possibly possess. It is carried on in the calm retirement of the cabinet; and so has been governed successively by the French and Spanish far from considering the number as an evil, I regard it as law, and although it has now a written civil code, and one that in time may be extended to commercial and penal whose decisions are to be revised, were governed by the one of the best features of the bill. If all the tribunals, cases, yet cases arising before the adoption of those codes, same laws, a less numerous court of appeals might answer must be decided by the prior laws, and the knowledge of the purpose: but when we consider the questions arising them would undoubtedly be facilitated by the appoint- on the civil law, and the local laws of France and Spain, in ment of a person versed in them, to the Supreme Court the five States, and the two Territories, that were once bench. The weight of public opinion against the restriction sider the vast variety of modifications which have been wholly or in part governed by those codes; when we conimposed on the Western States, is also a disadvantage at- made by the statutes of the other States, whose jurisprutending the present system, which it is desirable to re-dence is based on that of England; we can scarcely fail to move. It is powerful, and wherever not unreasonable, arrive at the conclusion, that such a knowledge of this hemust have its effect. Originating in well-founded com- terogeneous mass as will be necessary to correct the fallaplaints of the system, it attaches itself at last to the Court; cies of ingenious counsel in expounding it, will be much its decisions become suspected of partiality; political views more probably found divided among ten men of learning are imputed to it; and the most unfounded suspicions are and experience, taken, as for this purpose they undoubt fostered and propagated by the ignorant or designing. edly will be, from different parts of the Union, than united Public opinion must, therefore, be consulted. Not, I pray in five men of the same description. The instances which to be understood, in the decision of causes, but in the con- have been cited of small judiciary bodies in England, and stitution of courts; and, in proportion as this is consulted, in the different States, afford no applicable examples; bein the formation of any system, will be its efficacy in the cause the law is the same throughout each State, and reaadministration of justice, and the preservation of union and sons of economy may have, in many instances, operated to peace, Another evil is peculiar to the States of Kentucky, Ohio, I need not repeat the exceptions, which have been shewn reduce the number; but that practice is not uniform, and and Tennessee-the only three States to which the sys-in the debate. There is, however, a striking one, which tem has been extended. The press of business, it appears, has not been adverted to; and yet it comes under our daily is so great in those districts, that one Circuit Judge cannot observation: an instance in which questions of fact, intriget through it. This is not denied; but the remedy offer- cate points of law, combined in every mode that can make ed by the opposers of the bill, is a Circuit Judge, having them difficult of solution, land titles, contracts, descents, no seat on the bench of the Supreme Court. To the other founded on law, on equity, on usage, are heard and decidsix States they offer nothing; or, if nothing else will satisfy, ed by more than two hundred Judges: aye, sir, and decidwe shall have a commissioner too: for, call him what you ed in our opinion so wisely, that we will never perant |