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The Judicial System.
amendment could not obtain in a bill by itself, but ought to pass in its present shape.]
Mr. WHITE resumed. Congress, after the passage of the bill, will have the same power to legislate on these two principles. That gentleman's argument is, if you do not introduce them into this bill, he has no hope he shall be able to get them passed into a law, because he cannot get the same strength for them in either House, in a separate bill, that he can in the present bill. This forms a most decided objection against putting them in this bill; it shows that all my fears would be realized. Even if I agreed with him in sentiment, as to these principles, I would not hazard the passage of the original bill, by consenting to their introduction into this. I have no hesitation to investigate these principles, and to give my vote on them. There are some features I admire very much. The details of others I might probably wish modified before I would give them my sanction.
[APRIL 10, 1826.
erally with the gentleman from Kentucky. He concurred
If it can be demonstrated that this bill, as it at present stands, ought not to pass, I am willing it should not. If ît is attacked, I am ready to defend it; but it has not been attacked, and it would be a waste of time, and trespassing on the patience of the Senate, to go into the discussion of it, more especially after the lucid explanation which has been given of it by the Chairman of the Committee. Mr. VAN BUREN said he had listened with great attention and profit to the gentleman from Kentucky, on the subject of his proposed amendment; but he could not vote for it in the form in which it now stood. Not that he was opposed to the principle, but he did not think they were properly connected with the bill now under consideration. The general rule, Mr. V. B. said, which would influence his mind on this subject, had already been stated by the gentlemen from Maine and Tennessee; his object in rising was to state one or two facts. With respect to the first branch of the amendment, which reMr. WHITE said he had heard the gentleman from quired a certain number of Judges to unite in the deci- Virginia declare, he had deliberated for the last twelve sion in certain cases, that subject was proposed when this months on this bill, and though not free from exceptions, bill was under consideration in the other House; it was it was, on the whole, better than any other proposition discussed at large, and was resisted there on the same that had been brought forward, and feeling the full force ground on which it is resisted here, and was finally re- of the difficuities of the question, states, he was willing rested. It was in order, and proper, Mr. V. B. said, to to give it his support. Knowing that gentleman's great advert to it. They knew, in all probability, that the adop-correctness, Mr. W. said he had listened with the greatest tion of it here would serve no other purpose than to retard the passage of the bill, which he believed was necessary should soon be passed, that the advantages expected to be derived from it might be realized.
With respect to the second branch of the amendment, that subject also had been referred to the Judiciary Committee, and had received a good deal of their time and attention; and for himself, Mr. V. B. said, he thought the amendment proposed by the gentleman from Kentucky, with some modification, would remedy the existing evil. The proposition was in itself proper and right; and he should be willing to unite in a report of the Judiciary Committee, recommending its adoption, with some alteration of the details. There is a bill now pending in the other House, containing the same provisions, as far as the United States are concerned. When that bill came here, Mr. V. B. said, or when the Judiciary Committee were referred to on the subject, he would lend his aid to carry into effect the views of the gentleman from Kentucky on these two objects. He was certain that some modification would be necessary; it was an object that had but recently been brought before them, and, connected with this bill, he was opposed to it, for the reasons he had stated.
[Mr. MILLS, Mr. TAZEWELL, and Mr. JOHNSON, of Ky. here successively delivered their sentiments on the question. It is a subject of great regret to the Editors, that they have it not in their power to introduce these speeches in their proper places.]
Mr. VAN BUREN said he had stated he concurred gen
attention, to ascertain the ground on which he was about to support the amendment of the gentleman from Kentucky, which, Mr. W. said, he believed endangered the bill. His only reason was, that the act of 1789 had fixed the Judicial Establishment, and he did not even advert to the circumstance of the seventh circuit having been created so long ago as 1807. It was not singular it should have escaped the notice of that gentleman, for, Mr. W. said, though he, himself, lived within the seventh circuit, he had almost forgotten there were any of the benefits of a Circuit Court extended to them. The Judge was overloaded with business, and for some time before his death they had lost his services altogether.
The same result could happen, Mr. W. said, to the system they now had, that would happen if the bill on the table should pass in the shape in which it was now pre sented without the amendment. And what, asked Mr. W. was that? That a minority of Judges might decide a case this way, this term, and the next term, a majority of the whole number being present, those that were absent in the first instance, not concurring with the decision, may overrule the decision of the preceding Court. That which was law for A in one state of facts, should not be law for B on the same state of facts. If gentlemen were desirous of guarding against this evil, and Mr. W. admitted it was one that ought to be guarded against, where was the objection to introducing a bill embracing that object? Why incumber the present bill? Mr. W. then referred to a case in the Supreme Court: the Bank of the United States against an individual, which was very labo
APRIL 10, 1826.]
The Judicial System.
Congress have never provided for extending the Judicial power of the United States to controversies between States: because they have not thought it expedient to do so they might, therefore, have omitted to provide for extending the same power to controversies between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State and citizens thereof, and foreign States, citizens or subjects. If they would have been justifiable in omitting to provide for these cases, they would be justifilishing the Judicial Courts of the United States, as extends able in repealing or modifying so much of our laws estabthe power of those Courts to these subjects, which never The subjects which would then remain for these should have been referred to these Courts. Courts would be, all cases in law and equity arising under the Constitution-the laws of the United States, and treaties made, or to be made, under their authority; to all cases affecting Ambassadors, other public Ministers and Consuls; to all cases of admiralty and maritime jurisdica party; and to controversies between a State and citizens tion; to controversies to which the United States shall be of another State, as regulated by the 11th amendment to the Constitution. This subject ought to be thoroughly investigated, when it can be brought properly before the
riously argued, and when the Judges came to consider it, they divided three and three, the Court being reduced to six by the death of one of the Judges. The counsel said that many other cases were depending on precisely the same principle, and the parties had agreed that the decision of one cause should operate as a decision in all the cases, and they importuned the Court not to enter any judgment whatever till the seventh Judge should be appointed. The Court considered the proposition for some time, and it seemed so reasonable, that he had expected they would not give a decision till the benefit of a full Court could be had, and it knew what decision a majority would be disposed to give; but, on the counsel agreeing to free his adversary from the engagement he had entered into, that the decision of this cause should be a decision of all the causes similarly situated, they went on and gave a judgment in conformity with the judgment of the Circuit Court. When the seventh Judge had taken his seat, it may happen, he will think the judgment of the Circuit Court should be reversed, and, if so, these people will be released from the liability to pay a considerable sum of money, in a case precisely similar to the one first decided. The only object of this bill, Mr. W. said, was to extend to the nine Western States, beneficially, the same provisions of the circuit system, which the rest of the United [MR. TAZEWELL here made a few observations, States, at this moment, enjoy-the present bill ought not to be encumbered: for, if this principle was desirable, it MR. WHITE said he was satisfied his friend from Vircould be incorporated in a separate bill, and the fair sense which it is not in the power of the Reporter to furnish.] of Congress, after a full discussion, would be expressed on it. If this bill should not meet the approbation of the ginia had not heard the decision which had been given Senate, still gentlemen would feel it necessary, at all in the case of the suit of the Bank of the United States. It was not in a events, to bring forward a bill to remedy that evil which I was present, said Mr. W. and I feel satisfied if the gennow exists in the Judicial System of the United States. tleman from Virginia had been present, he would not Mr W. said he was not for going the length which the have made the statement he has done. gentlemen from Kentucky and Virginia were prepared matter of form, as he supposes, that the Court dividedto go on this amendment, but if the matter were before it was on the merits of the cause itself; and it involved him, in such a manner, that he was compelled to give his one of the most important questions as to the doctrine of most ably argued; and the Court itself was, on the main vote, it should be, to make a majority of the whole num-fraud, that has ever been raised in this country: it was ber of Judges necessary in these, if not all other, cases. Mr. W. hoped, on reflection, that the gentlemen would question, divided, three and three. consent to lose sight of this amendment for the moment, and bring it forward in a separate, independent bill.
MR. HOLMES said he was opposed to the amendment, not so much to the principle-it did not go far enough-there were many other subjects which ought to be embraced by it.
Mr. H. said he would so alter the MR. DICKERSON said that he had long been of opinion that it would be found necessary to take from the United States' Courts a large portion of business with which they law as it now stands, as not to permit a citizen of another are now occupied, but which never should have been State to go into the Federal Court, in his State. He would committed to them. He intended, at some time, to bring put him on the same footing as a citizen of that State. the subject before the Senate; and he was gratified to If this amendment prevails, said Mr. H. I shall consider it hear the same opinion expressed by the gentleman from my duty to offer an amendment to the amendment, so Virginia, (Mr. TAZEWELL,) and, also, by the gentleman that a citizen of another State coming into my State, shall from New York, (Mr. VAN BUREN.) The gentleman from fare as well, and no better than a citizen of my own State; New York, however, expressed an opinion, that this can- It would be wise and salutary, and would take much buI would offer a section to repeal the 25th section of the not be done without an amendment to the Constitution.siness from the Supreme Court of the United States. If, however, Congress is justifiable in refusing to give efficiency to that part of the Constitution which extends the act of 1789, authorizing a writ of error to be brought Judicial power of the United States to controversies be- from the Supreme Court of a State, to the Supreme Court tween States-no alteration of the' Constitution is neces- of the United States, in certain cases where the Constitusary to enable Congress to take from the United States' tion of a State, or a law of a State, comes in conflict with Courts a large portion of their business. By the Consti- the Constitution of the United States, or is supposed to tution, the Judicial power shall extend to controversies do so. I would do it on this ground: if the parties see between two or more States. This portion of the Constitution has remained inoperative, from the commencement of the Government, to this day, because Congress have neglected, and frequently refused, to provide for the exercise of the power, by an act to regulate the proIt is not believed there was any ceedings in such cases. obligation on Congress to provide for the exercise of this power, unless they thought that the interest of the country required it; and, it by law they had provided for this case, they would have the right to repeal such law if they found it injurious to the country: in this, they would be precisely as justifiable, as they now are, in never having provided for the case.
fit to take their remedy in a State Court, and pursue that remedy to final adjudication in the highest tribunal in that State, whatever that decision should be, I say the parties ought to be bound by it.
Mr. BERRIEN said that the amendment proposed by the gentleman from Kentucky, as now modified by the gentleman from Virginia, seemed to meet the general The single objection which had concurrence of the majority of those gentlemen who had addressed the Senate. been urged against it, was, that it would be an incumbrance to the bill, and might embarrass its passage. Why was right in itself, if it was right in principle, where was should it be considered an incumbrance? If the thing
the incumbrance. The other branch of the Legislature, Mr. B. said, had sent a bill to the Senate, creating an additional number of judges. The appropriate time to prescribe what number should act on a question brought before the Court, was, when they were increasing the number of Judges on the Bench. It was agreed by those who had addressed the Senate, that the proposed modification was correct in principle; the idea that it was to be considered an incumbrance could not prevail; if it was correct in principle, it was not an incumbrance, but an appropriate part of the bill. What reason was there to suppose that the other House would reject this provision? It had been recommended to abstain from pressing this measure here, and to maintain it in a distinct bill; but, said Mr. B. you give the power, why not qualify it in the grant you create the tribunal, why not regulate the mode of proceeding in that tribunal? What evidence was there to show that such a distinct bill would pass? Why was not a distinct bill reported by the Judiciary Committee, who reported this bill in the other House? The bill for throwing back the time of meeting of the Supreme Court has accompanied this bill, and if it was intended to introduce the principle by which it was now attempted to modify the present bill, why was not such a bill originally reported and made to keep pace with this? The only security Mr. B. thought for this proper modification of the power they were about to give, was to make the qualification of the grant in the bill, by which these additional Judges were provided for.
[APRIL 11, 1826.
sons of less local knowledge concerning the region of country whose grievances the bill is particularly designed to remove.
I am thus exposing myself to become a convert to their opinions, rather than cherishing any vanity of my power to convert others.
It will be seen that the motion presents only a single point of specific instruction, as to the bill which may be prepared for their relief; leaving the committee to adopt, for our future consideration, any efficient scheme whatever, which shall not enlarge the Supreme Court. If the motion should prevail, additional instructions, by other motions, can be proposed by gentlemen who are friendly to particular plans: such as the circuit plan, with the attendance of a Judge of the Supreme Court once a year; or such a plan dispensing with his attendance altogether; or any other, which the observation and reflection of those around me may have satisfied them is most eligible.
But should this motion not prevail, then the consideration of any of these plans would be useless: and hence I desire to put to the Senate the single, unembarrassed, and naked question, whether they believe any exigency now exists which demands and justifies the unprecedented increase of the Supreme Court to ten. Has any thing been exhibited to us which renders such an increase necessary, proper, or safe?
In an attempt to obtain some certainty as to the operation of this increase in the members of that Court, and as to the real reasons which exist for the increase, so that the Senate can act understandingly upon the present motion, we shall not, it is hoped, be misled by the title of the bill. The living principle of any measure lies deeper.
The title is merely "to extend the Judicial system,' and not to alter or amend it: so the title to the act of February 13, 1801, was to "provide for the more convenient organization of the Courts." &c.
Mr. ROWAN said he was not much concerned about the proposed amendment. He regretted the gentleman from Virginia should have thought his excellent argument of so little value. Mr. R. said he understood it to be this: to alter the Constitution, it required three-fourths of the States, and two-thirds of both Houses, and that interpretation and construction by the Judges, give a meaning different from the literal one, that power ought not to be granted without a number corresponding in some degree But as that, under the then condition of the country, to the standard fixed by the Constitution. The argument was not long found by the people to be very "conve Mr. R. said was invincible, and he was sorry the gentle-nient," so this will not be found a mere extension of our man did not seem to feel the weight and value of it. The question was then taken on the amendment and lost.
TUESDAY, APRIL 11, 1826.
judicial system, to places where it never before prevailed. The judicial system now in operation in all the nine States covered by this bill, has been a part of the judicial system of the Union, with the exception of about one year, ever since the first judiciary act of A. D. 1789, to the present moment. Because we all know, that, for local duties, District courts and Circuit courts have ever been this system, with the right of appeal in certain cases to the Supreme Court; and that the only difference in different regions has been simply what now exists in some of these fol-nine States, and in parts of some Atlantic States; namely; that in new and thinly peopled sections of country, the Circuit courts have been held by a District Judge alone. But the proposed bill not only alters this system for
The Senate resumed the unfinished business of yesterlay, on the bill further to amend the Judicial System of the United States.
Mr. WOODBURY, of New Hampshire, offered the lowing motion:
"That the bill to extend the Judicial system be recom"mitted to the Committee on the Judiciary, with instruc"tions to report such amendments as will remove any ex-local purposes, by requiring the attendance of an addi"isting grievance, without an increase of the number of "Judges of the Supreme Court."
Mr. WOODBURY then addressed the Senate, as follows: The gentlemen near me, sir, ask for my views, in submitting the motion on your table. The task is one I undertake with reluctance; but, at the same time, one from which I have no right to shrink, and which shall be discharged with all practicable brevity.
The strong, the prominent feature of the bill is, in my eye, its extraordinary increase of the number of Judges of the Supreme Court. Before yielding my approbation to such an increase, I feel anxious to obtain further facts and principles in illustration of its necessity; and as the particular friends of the bill unquestionably think that abundant reasons exist for so novel a measure, this motion must afford gratification to them, and be received in the spirit of kindness, as it will afford them the opportunity, Foubtless desireable, to spread those reasons before per
tional Judge at the Circuit Court in regions of country not so populous as those where the Judges of the Supreme Court now attend; but it alters the system for general purposes, by enlarging the Supreme Court itself one half its whole original number, by leaving its quorum so that contradictory decisions may constantly be made without any change in the Court itself, and by increasing it to as great an extent as a majority of its present quorum, so that new results may possibly be produced in all its grand supervising powers over each State, and over the whole confederation.
It is thus that a principle lurks in the last effect of this great alteration, which, in the opinion of many, should carry anxiety and dismay into every heart; because, among other objections, hereafter to be noticed, it places. at the mercy of legislative breath, in any moment of overheated excitement, all that is valuable in any constitutionat judgment on its records. We have only, as in this case,
APRIL 11, 1826.
The Judicial System.
to add a number to any court sufficient to balance a majo- I shall not now discuss the abstract and metaphysical rity of its quorum, and, by an union of feeling with the propriety of a call for our legislation by a sovereign State; appointing power, secure judges of certain desirable opi- but I appeal to our knowledge of human nature, and to nions; and any political or constitutional decision can, in human usages, if we should not, probably, see different the next case which arises, be overturned. Every security remonstrances, if the grievances were, in fact, so wideis thus prostrated. The system is not extended; but is, spread and acute as to require for their removal so unusual in principle, destroyed. For thus does this increase open a bill. But, intelligent gentlemen, on this floor, have an avenue to a radical change in the highest functions of stated their impressions as to the character and extent of one great department of our Government; and a depart-those grievances. Their statements are entitled to the ment, too, of all others, the most endangered by any utmost respect and consideration. change, because, in its very nature, designed for permananency, independence, and firmness, amidst those tempests, which, at times, convulse most of the elements of society.
If I understand them, as now and heretofore disclosed, they are all resolvable into a supposed want of equality between those nine States and the rest of the Union in their judiciary.
Gentlemen must perceive that I speak only of the gene- And without tracing all the Protean shapes, which conral tendency and alarming character of such an increase,jecture and argument have assumed, I will frankly admit, without reference to the motives which have now recom-that, if such a want of equality exists there, as is so fatal mended it. They are doubtless pure. But its propriety to the administration of justice as to require for its removal is to be tried by the reasons for it, and not by motives. this large increase of the Supreme Court, I earnestly pray And, without stopping to trouble the House with any de- that my motion may fail. For, without vaporing about my tail as to further inconveniences, injuries, and dangers, regard for the West, which those only can doubt to whom from this extraordinary increase in so important a depart- I am unknown, and without claiming any exclusive merit ment, let me ask, sir, what are its justifications? By whom for broad statesman-like views, I would extend any proper is it called for? Who has stood forth and proclaimed that relief as readily to Missouri, however Western or small, public sentiment throughout the Union has demanded it? | and whether born under a good or an evil star, as to that Whatever may be the jealousies and apprehensions con- Pilgrim State, whose arms, literature, and arts and comcerning the general course of decisions in that court, so merce, have crowded her history with such proud trophies eloquently sketched by the Chairman of the Judiciary since the landing at Plymouth Rock. Committee, who has shown the loss of public confidnce, the errors of opinion, or denial of justice by that court, which this great increase of its numbers is sought and is adapted to correct? No, sir. I undertake to aver, that, so far as this bill alters the Supreme Court itself, by that increase, and thus affects its discharge of all its general duties as the Supreme Constitutional Court for the whole Confederacy, it is a bill entirely uncalled for by the whole Confederacy, or perhaps by any part of it; and, at the same time, it is entirely unfitted to remove any actual grievance which exists in the discharge by that court of those general duties.
The fallacy of the measure consists in this: This bill is to be passed mainly for the removal of local evils, now existing in the West and Southwest Such has been the argument. Thence come the complaints. Why not then remove those evils, as my motion proposes, without touching the Supreme Court? Why not make the remedy coextensive only with the disease? I do not now consider the delay in the Supreme Court itself, for I shall, hereafter, show that this bill will not diminish any delay in the Supreme Court. But, as a cure for a mere local disease, why should you begin to tamper with parts of the system not disordered? You will thus jeopard, if not sacrifice, the primary and most momentous duties of that court, for the relief of some sectional inconvenience; you will make the head and heart tributary to one of the extremities; and for the gratification of two or three millions of people in the inferior duties of our judiciary, you will put in peril, not only the interest of the other seven or eight millions, but the interest of the two or three millions of the whole Union, in all the paramount, original and appellant powers of the great Judicial Tribunal of the whole Union.
Proceeding then to analyze this general want of equality, it must, if true, be found to consist either in a want of an equal representation on the bench of the Supreme Court, or in the want of an equal system of inferior courts, or more comprehensively in the want of an equal attention to their unusual quantity of judicial business. In an examination of their want of an aqual representa tion on the bench of the Supreme Court, I care not whether the increase be asked because it is necessary to give them equality on the ground of comparative populationon the ground of their number of States-on the ground of wealth-on the ground of probable business, as depending on any of those circumstances or on the ground of their diversities of local law-which last the Chairman more particularly and eloquently urged as a reason for three new Judges from the valley of the Mississippi.
Some of these considerations have been suggested by some persons, and others by other persons; but they all are resolvable into some kind of representation.
For the purpose of ascertaining the relative condition of the West on this point, I cast away every shield and panoply as to the principle, and concede to the advocates of the bill, that this representation, based on any of those circumstances, is neither novel nor abominable.
A very easy and just test of their equality, so far as regards population, (and almost every thing connected with the judiciary depends on population, directly or indirectly,) is the representation in Congress. Examine this a single moment: All the States have 213 Representatives, and the present number of Judges, who compose the Supreme Court, being seven, the judicial representation is only one Judge to every thirty Representatives. The nine States included in this bill have one Judge, reckoning the recent vacancy in that quarter as filled, and only forty-scven Representatives. Hence, on this ground, they are not yet entitled to one more Judge, and much less are they en
Is it possible that the local evils which exist in the valley of the Mississippi, can be such as to justify so extraordinary a measure? Where are the petitions and remon-titled to three more, until they have 120 Representatives. strances on this subject from Conventions or Legislatures? Here is a bill, whose local operation reaches nine States; but not more than one of that brilliant galaxy has memorialized us for relief. The bar of a single city in Tennessee, and the bar of some part of Ohio, have petitioned us; but, however respectable these sources of complaint, is it all you would expect, if an actual necessity existed for so important a bill?
The result is the same, if you consider separa ely the six new States now destitute of any Circuit or Supreme Judges; for they all have only twelve Representatives, and, of course, are not yet, on this ground, entitled to a single Judge; while the other three, having only thirty-five Representatives, are now, on the saine hypothesis, fully represented. The great increase of Judges, therefore, contemplated by this bill, so far from being necessary and
The Judicial System.
equal towards the West, on this ground of judicial representation, is grossly partial, unequal, and unjust.
[APRIL 11, 1826.
whole of each of those circuits, than what belongs to the little Spartan State alone-one of whose sentinels, unworthy to be sure, I am, stationed in this citadel. Again: if the judicial representation, in order to justify this increase of Judges, is to be grounded, not on States, nor on "men, high-minded men
"Who know their rights,
"And, knowing, dare maintain,"
There is no escape from this conclusion, by saying that the new Judges may, or should, be selected from other States than those embraced in the bill. For that would be an abandonment of either the principle of representation on every ground, or of the very fact of that want of an equality, which is now under examination. Nor is there any escape by saying that these nine States have increased much in population since the last census. Because the other States have likewise increased, and though in a ratio not probably equal, yet more equal than heretofore, and sufficient to prevent my former conclusion from being shaken. It was admitted on Friday last, by the gentleman from Kentucky, (Mr. Rowan,) that two or three of the oldest of these nine States had now be-destinies. But, if you look to the arts that sustain or come emigrating States; and all of us know that the tide of emigration into them from the East, no longer dashes over the Alleghanies as it once did. The swarms from the Northern hive now alight nearer home. Even in cities like New York and Boston, and in many towns somewhat rural, like Dover and Chelmsford, manufactures, no less than an improved agriculture and commerce, always vigilant, have worked their miracles; and as rapid an increase within the last seven years can be shown as in any vale of the Land of Promise in the West.
But if the population of those nine States had, since the last census, augmented one-half, and all the other States had remained stationary, it would justify, on this hypothesis of judicial representation, an addition of only one Judge and when these nine States are compared with those Northeast of Maryland, it would not justify the addition of even one. Those Northeastern States have now 117 Representatives, and only two Judges of the Supreme Court. Add to the nine Western States twentythree more Representatives for an increased population, and then, with seventy Representatives and one Judge, they are not entitled to even a single Judge more till they have 117 Representatives. The present bill, then, allow ing four Judges, where a right exists to only one, and leaving only two Judges in States where a right exists to four, proceeds on a new kind of equality as regards population-proceeds on a boasted species of legislation on broad national views, which it has been my misfortune not to comprehend.
But it has been suggested by another member of the Judiciary Committee, the ingenious gentleman from Maine -that this great increase of Judges in that region is to favor or represent the small States. If Judges are to be created in analogy to the representation in the Senate rather than the House of Representatives, then the bill should provide at least one Judge for each State; or, if they are to be created to represent State codes of local law, the same necessity exists for a Judge from each State. But this bill neither confers an equal favor in this respect on each State, nor on each class of States. If a class of small States are to have Judges to aid them merely as small States; if the bill is an oblation or peace-offering to them, then why does that gentleman forget the East? Forget our own hearths and altars, and the resting place of our fathers' ashes?
Are Maine, New Hampshire, Vermont, Rhode Island, Connecticut, New Jersey, and Delaware, less deserving than the younger members of the family? And if the small States are to be aided by any measure, are those at the East, who are now destitute of any Judge of the Supreme Court, to be entirely overlooked? A most striking fact on this point is, that the present Eastern Circuit, composed of small States, save Massachusetts, has only one Judge to twenty-seven Representatives-when this bill gives to the small States, in the West and South West, one Judge in one circuit to only four Representatives, and in another circuit to only five. A less number in the
then it must be grounded on wealth or territory. But this part of the inquiry has been sufficiently extended, and if pursued further, may give rise to invidious feelings, which I, on my part, utterly disclaim. I prize no less highly than others, the services and the chivalry of the West, and can see, without envy, in the mist of coming time, their high embellish life, to private affluence or public institutions, to single cities, or the numbers, capital, and power, of States; the region of country embraced by this bill will, surely, at this period of their unrivalled growth, complain of no existing injustice towards them in judicial representation, as based on wealth. Yet, as respects territory, if that, independent of its population, wealth, and other circumstances, is to be the basis, I frankly concede that their present number of Judges is unequal-though, at the same time, a larger number, on this hypothesis, must not be created to represent or benefit men or wealth, the causes of contracts, torts, and courts; but, in some sections, mere earth and vegetation, without any controversy to be settled, unless that of older time between the trees and the bramble.
I know that the friends of the bill cannot desire this increase of Judges on the last ground exclusively; while I do not hesitate to confess that, in connexion with the others, it is not to be lost sight of in the frame and establishment of any judicial system. I have now done, sir, with the consideration of a supposed want of equality, or due balance of power, in the West and Southwest, on the Bench of the Supreme Court, as founded upon any principle of representation, whether called representation or by some other name, imagined to be less exceptiona. ble in respect to a Judiciary; a principle on whose abstract correctness I say nothing, but whose operation I have examined, merely because it has been urged by others, in different shapes and under different titles, as a plausible, and, indeed, unanswerable argument in favor of the proposed increase of the Supreme Court.
Another ground for this increase, and what was styled, by the Chairman of the Judicial Committee, "a leading grievance," is a supposed want of equality between the judicial system now in operation in those nine States, and that in operation elsewhere. To understand the extent of this grievance, it will be indispensable to advert a moment to their present system. It consists of a Circuit Court in the three older and more populous States, and in the other new and thinly settled States, a Court by a District Judge, with circuit powers, and a right in all to revise certain questions of law in the Supreme Court. What is this but the same system which has ever prevailed in similar regions of country, since the organization of our Government? Indeed, as a system, this can be complained of only in the six newest States, and in them the only inherent defect of the system is supposed to be the want of a Judge of the Supreme Court to attend the Circuit, because their District Courts are now held as others throughout the Union, and their appeals, or writs of error, to the Supreme Court, in all cases, are, or might be, made the same, in substance, as elsewhere, without any change of the system itself.
A moment's attention to our judicial history may correct some hasty impressions on this point. The very first judicial act of September, A. D. 1787, included within its established Circuits neither Maine nor Kentucky. But did