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any person ever suppose, that our fathers thus intended to put their inhabitants to the ban of the empire? to exclude them from the pale of our Judiciary or to strip them of their proportionate privileges?

So far from it, that a District Judge, with Circuit powers, was then created for them as a part of our local judicial system best adapted to tracts of country newly and thinly settled, and in similar regions this has constantly been retained as the appropriate system, and indeed as the only one that can be applied in such places, without giving to them more judges, and a greater judicial expenditure, than they are entitled to on any of those principles of equality so strongly urged by the friends of this bill as the basis of all our institutions. Let me entreat the Senate to reflect a moment longer on this consideration. Because, if we trace down our judicial history, it will be seen that this part of our system, now the cause of so severe complaint, was afterwards introduced into all other places beside Maine and Kentucky, where the population and territory were similar, and retained not only during their District and Territorial condition, but, in many of them, long after they became sovereign and independent



square mile nearly a third more population than these six States now do.

When I speak of the present Circuit System, with its present details, as undesigned and unfitted for so sparse a population, I can furnish no stronger illustration of the correctness of my ideas, than the fact, that a Judge cannot possibly attend the Supreme Court here long enough to discharge, with promptitude and fidelity, all the business here, and then travel twice a year over a circuit embracing a proper number of people, in a country thinly populated, without becoming a mere courier or Cossack. Hence, this very bill exhibits the strange anomaly of an attempt to extend this system on what is called equal principles; and yet, giving to a population in the most Eastern circuit, large enough to have twenty-seven repre sentatives in Congress, only one circuit and one Judge, and giving the tenth circuit and one Judge to a population only large enough to have four representatives. What is still more decisive, giving to New York, Connecticut, and Vermont, with forty-five representatives, only one circuit and one Judge; and to Indiana, Illinois and Missouri, with only five representatives, one circuit also, and one Judge. one Judge the business of a population of about two hun How striking the unfitness of a system which assigns to dred thousand, and to another the business of about two

What is still more striking, three of the largest States in the Union in those portions of them in a physical condition similar to the six new States in this bill, have re-million! sorted to this very district system, and have thus, according to the views of some, subjected large portions of their population to ignominy, and placed in unequal jeopardy their property, their liberties, and their lives.

To see how far this "leading grievance," as it has been called, can justify this great increase of Judges, I do not shun a more particular scrutiny, because I am seeking truth, and not victory. If it be such a grievance, it is on the ground that the system is unlike the systems which have existed in similar regions; or unlike the systems which have existed in similar sovereign States; or unlike the systems elsewhere, in its inherent excellence.

But it is not such a grievance on the first ground; because we all know, by the highest written evidence, that the system now in force in these six States, has always prevailed in other parts of the Union similar to those six States in population and territory, that it prevailed in Maine over thirty years, in Kentucky eighteen years, in Tennessee more than twelve years, and without further detail, has, for some years past, prevailed in large sections of New York, Pennsylvania, and Virginia. Nor is it such a grievance on the second ground. For, whether that ground be assumed on the theory of the able Chairman of the Judiciary Committee, that a Circuit Court, and Judges of the Supreme Court, are due to these six States on account of State pride; or, as suggested by others, are due as a badge of State sovereignty, State uniformity; or some other indescribable State prerogative; then will our past history be found at war with this theory. Because this precise system, saying nothing of these six new States, long pervaded other entire independent States, as lofty

in their political opinions as the loftiest.

It was the system of the gallant Tennessee, as a State, from A. D. 1796, to A. D. 1807; of the giant Ohio, from her State birth till the same era; and even of Kentucky, with all her chivalry, and eagle vigilance, from her admission into the Union, in A. D. 1793, till, after fourteen years, she and her immediate neighbors had attained to that population which might, on equal principles, justify their receipt of more Judges and more expenditure, and which might render the Circuit System not altogether inappropriate to their increased density of population-a density of population, however, which, though then perhaps too small for the system, and an extension of it, by altering the numbers of the Supreme Court, not the most eligible remedy; yet holding out no justification to this bill; because those three States then averaged to the

When admitted into the great family of the Union, it was not considered by the three oldest States in this bill, or by the other six States, that the want of a circuit and a Judge of the Supreme Court was derogatory to their independence, or humiliating to their dignity; else, then, if ever, would, and should, the tocsin of remonstrance have been blown, long and loud; because, then, if ever, on this ground of State pride, did their honor and their rights require complaint; then, if ever, on this ground, was it a grievance and an ignominy.

No, sir. The truth then lay, as it now lies, deep in their

physical condition, and in the nature of the circuit system. I would be one of the last to wound their just pride, or to dicious, any proportionate right; but it was always justly withhold from them, in a measure otherwise safe and jusupposed that the primary duties of the Supreme Court consisted in the discharge of its great appellate jurisdiction here; and that the local duties of the Judiciary were subordinate to those, and to be performed by local Judges, aided by the Supreme Court only as much as might be practicable, without any neglect or sacrifice of their higher duties here. Hence, the Judges of the Supreme Court were not then required to go to the extremes of Maine and Kentucky to discharge local duties; hence, they have not since been sent into other territories or new States, the proper despatch of the business of paramount conse which might call them away too distant and too long for quence in the Supreme Court itself. Hence, we should inroad on the numbers, character, and security, of that aunot now, to remove any local grievance, make a hazardous gust tribunal, which is the palladium of all the States; which is consecrated by the Constitution, and all the best duties all now enjoy an equal share, and for the blushing theories of free government, and in whose supervisory honors of whose bench all now stand in equal competition.

The only remaining ground of complaint, concerning the system in these six new States, is, that it is not in itself so excellent as the system which prevails in the other States. But if it be as similar and as good as their physical condition, the proportionate rights of all, and the legitimate application of the circuit system will permitthough not perhaps, the best in the abstract, or not the best for other conditions of society; then the bill is, on this point likewise, unsupported.

That it is thus similar and good, we have already attempted to show. Without a repetition of former remarks,

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The Judicial System.

may I be permitted to suggest one or two additional considerations concerning this position?

[APRIL 11, 1826.

the West-when by the bill they are compelled to reside in the West; when all their local duties are to be performed there, and when we witness around us such splendid specimens of Western and Southwestern talent, that must be overlooked, in order to import into the rich valof the Mississippi, from some Eastern manufactory, a cargo of foreign judges.

Let gentlemen advert to the judicial establishments in their respective States, and tell me, where they possess counties new and thinly settled, whether the terms and structure of their courts, are not in those counties some-ley what different?-not subjecting their Supreme Courts to fluctuation and innovation, to make the system identical in every county; but adapting their local system in some degree to the physical condition of the People? I beseech the House, also, not to take for granted, that, under such a modified system, there is in the mere system itself any obstacle to as good and as equal an administration of justice as the structure of human society, and the relative rights of each portion, will permit. The questions of fact are all settled by similar juries; and the questions of law, though decided in the first instance by Judges inferior in rank or number, are, or may be carried, by appeal, or writ of error, to the same higher tribunal which acts for the whole. There is a difference, I admit; but it is only a difference between the correctness of the District Judge, who is selected on the favorite theory of gentlemen from his own district, with all the lex loci and lex non scripta of his region of country; and the correctness of the Circuit Judge; and which difference, in all cases of any magnitude, can be corrected by some additional expense and cost in appeals or writs of error.

Again if this system is to be extended to the six new States, because most excellent, without regard to the effect of such an extension on the Supreme Court itself, and without regard to population or expense; then why not extend it to every part of the Union now destitute of it? When gentlemen talk of equality and broad American grounds-when they, with indignation and justice, disdain sectional views and favoritism, why create new circuits for the People in these new States, and not, at the same time, create them for more than three times as many people, now destitute of such circuits, in Western New York, Pennsylvania, and Virginia? Is not this straining at a gnat and swallowing a camel? For, if the circuit system of itself be superior, and therefore, without regard to other circumstances, is to be extended to the West and Southwest, for the safety and advantage of about half a million of People, now destitute; then, surely, a million and a half of People in the three great Atlantic States are equally entitled to its securities and blessings. Are not the lives and liberties of any of the constituents of the chairman as much endangered now, by a trial before one filinois to be? Is not this as cogent a reason for a change, a speedy and radical change, in Pennsylvania, as in Alabama? And, though the honorable chairman might recollect, that life is constantly tried in England before one Judge, whose system has been so much eulogized, and also that it can be so tried under our present system, in any part of the Union, in the absence of the circuit Judge; and that the jury in such trials, passing on both the law and the facts, are the great safeguard of the citizen; yet admitting that a change in this respect is indispensable, it should be made in the old as well as the new States; because, reversing his own language, can it be questioned that life, liberty, and property, are as valuable in the old as in the new States? It is no answer to this reasoning, that Circuit Courts now exist in some parts of Pennsylvania or Virginia; for those Courts no more secure and benefit the lives, liberties, and property, of the other parts, than they benefit the People of Missouri. So, if other modes of relief can be suggested for all these old States, other modes can also be suggested for all the new States. So, if the old States have not petitioned for relief on this ground, neither have the new ones.

I concede that this additional expense and cost, though in a few cases only, is still to be avoided, if it can be avoid-Judge, as he feelingly described those of the People in ed on any equal principles, and without danger to the great and general tribunals, which dispense justice to the whole. But, surely, no person can be so unreasonable as to ask its removal in such a manner as to put those tribunals in jeopardy, and to incur disproportionate expense to the whole Union, to remedy inconveniences which all small populations on new and large territories have always been accustomed to endure.

The argument might be pushed with much greater strength to the removal of every other inconvenience arising from the physical condition of any part of our country. As the fewness of mechanics, badness of reads, small number of schools, and distance from markets. Because these would only require a disproportionate share of our joint funds, without, perhaps, putting at hazard any of our important institutions like that of the Supreme Court. So, as a more badge of State uniformity or State pride, it might more safely and forcibly be argued, that as many Light Houses and Custom House officers should be provided for each State, without regard to its commerce; and, as respects the wisdom of the bill on the ground of mere equality in system, what planter with two hundred acres of land, and ten workmen, would insist upon only using the spade system of husbandry, because in and of itself most excellent, and because that system had been found appropriate where a planter with two hundred acres of land had one hundred workmen ?

Push the argument one step further.-Why not, on this ground, extend the circuits to the Territories? Are not their inhabitants flesh of our flesh? Are they not Americans? Are not their properties, lives, and liberties, as valuable to them, to use again the words of the chairman, All legislation is only an approximation to the theories as ours are to us? Have they not men as competent for of abstract right and equality. It must be modified by an Judges of the Supreme Court, when one of them is now infinite number of circumstances. Every wise man, in spoken of as a prominent candidate? Shall they not enjoy common life, acts invariably according to the diversity of equal protection, and a judicial system of equal excelmeans, interests, and condition of himself and those around lence Thus, pursuing an abstract theory to all its legitihim, and any different system of equality in legislation is mate consequences, its fallacy, when applied, without any only the levelling, indiscriminate equality of church-regard to the different conditions, rights, and duties of all, yard.

becomes most manifest.

But if such an equality is to be pushed at every sacri- One more ground was mentioned by the chairman as a fice and danger in respect to a judicial system, this bill is justification for this increase of the Judges of the Supreme a perfect fel de se on that hypothesis, because, as before Court, which, since the debate on Friday last, as to the shown, it violates such an equality in judicial representa-union of Ohio and Kentucky in one circuit, will probably tion, as much as it enforces such an equality i system. not be much relied on. Nor is it any answer to this view of the subject, that the executive may select the new Judges from the North and East, when in the same breath gentlemen argue, that they are wanted on account of their knowledge of local law in

It was, that these Judges were wanted on account of the peculiar and extraordinary mass of judicial business in the West and Southwest. If this mass of business, in fact, existed, it might be answered that we have, as al

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ready shown, devoted an equal and proportionate number of Judges and judicial expenditure, to its discharge. But, as I am one of the last persons to withhold relief, where actual grievances exist, or to begrudge to any quarter of the confederacy any expense, any number of judges, or any kind of system, safe to the whole confederacy, and necessary to perform the business, properly and permanently devolving on our Courts, I will detain the House a moment, to ascertain how the truth is as to this supposed mass of business, and to ascertain how necessary and safe for its discharge may be this proposed increase of Judges on the bench of the Supreme Court. Here I confide implicitly in the local knowledge of gentlemen from those nine States, as to the character and amount of the business. I will stand on the utmost verge of courtesy, and take the highest estimate of one of the warmest friends of the bill.


The Western gentlemen also admitted, with their usual frankness and manliness, that most of this business was that where our Courts have concurrent, and not exclusive jurisdiction; where suitors might enter the State Courts with it, but prefer the United States Courts.

Reasoning, a priori, every lawyer would have arrived at the same conclusion; because the business of exclusive jurisdiction, such as relates to Custom-house bonds, salvage, seizures for breaches of the Revenue laws, libels for seamen's wages, &c. must, on account of our commerce, exist in a greater proportion on the Eastern, than the Western side of the Alleganies. And yet the Courts of the former seldom exhibit a docket of more than one or two hundred actions.

The cases of concurrent jurisdiction, though less numerous in the extreme East than in the West, are still frequent on account of disputes as to land owned by non-reThat estimate gives to Louisiana and Illinois eighty ac- sidents, and on account of numerous debts due to the nontions each per year; to Alabama, sixty; to Indiana and resident merchant-Kings of the New England metropolis. Mississippi, forty each ; and to Missouri, thirty. These are But almost every action of this kind there, enters the State the six States without the circuit system, and will first be Courts. It will doubtless enter the State Courts in the considered.—The largest of them, on the highest suppo- West more frequently as their institutions grow older; sition, brings but eighty actions a year into our Courts, and it could not be asked, without an ill grace, that we and this, at the liberal portion of one-third for trial, which should make great and permanent changes in our Judiciais as many as the chairman himself supposed last Friday ry to transact a description of business not wisely conin the other States, would leave, on the most crowded fided to it in the first instance, as most forcibly shown by dockets, nearly two weeks for each trial. If this be an the Chairman of that committee-not in analogy to the extraordinary mass of business, it surely is an extraor- correlative powers of the other Departments of our Genedinary small mass for any one Court, in any section of ral Government, and not connected with those maritime the Union; and so far from rendering necessary more questions, those disputes between States, those controJudges to despatch it, would hardly keep the mould and versies under the acts of Congress, those difficulties in recobwebs from gathering over the present Judges. As re-spect to the agents of foreign nations, and those supervi gards, then, the whole six States, all who have not now a sory powers over Constitutional constructions, which circuit, and the attendance of a Judge of the Supreme would seem to form the only legitimate employment of a Court, the increase of Judges, on account of the mass of Federal Judiciary. business, is entirely useless. The bill, as respects them, on this account, rests upon sand.

Mark then, sir, the conclusion as to the other three States. Though they now have a circuit, and the attendance of a Judge of the Supreme Court; yet we are to create three more circuits, and three more Judges, on count of a mass of business, which, if it exist at all, must exist in those three States alone.

When we reflect for a moment, and find, also, that this accumulation of business is confined to only two or three States, is artificial and transient in its character, and that even now the plaintiffs, who are always shrewd enough concerning their own interests, select our Courts in preac-ference to the State Courts, for business which they might prosecute in either-we surely canhot be justified in still greater comity, at a large increase of expense, and in a manner producing a radical and alarming change in the quorum, members, and operations of the Supreme Court itself. I forbear to dwell longer on these general grounds, which have at different times, and by different persons, been adduced for this great increase of Judges.

After a consideration of them with that care and impar

Again: we are to create some of these Circuits and Judges in Alabama or Missouri, for example, when the business itself exists only in Kentucky, Ohio, and Tennessee. Or, to show distinctly the character of the bill on this hypothesis, we are, on account of a pressure of business, solely in the present seventh circuit, to create three new Judges and new circuits, and yet, by this very bill, not as-tiality which the importance of the subject demands, will sign to the States within that circuit the whole labors of one additional Judge. I appeal to the bill itself on this point as conclusive. Ohio and Kentucky now form one circuit, and one additional judge is to do the business, not only of Tennessee, but Alabama. it was settled here no longer since than last Friday, and by almost an unanimous vote, and on the statements of the very friends of the bill, that no pressure of business existed there, which required any more additional labor.

any person avow that they exhibit a grievance which requires for its removal this extraordinary remedy? Whatever may he the disorder, is this the safest specific? A few other circumstances connected with this proposed remedy must not be overlooked. It can conduce but little to the despatch of business in the seventh Circuit. That despatch, after all which has or can be said, is probably the desideratum there now most urgent and momentous. But now, whether the business be concurrent and The business, though nominally large, was said to be of transient, or otherwise-be it better performed than in the such a character, that the decision of one cause frequently State Courts or not-be the call for this bill from credigoverned the disposition of fifty more. Much of the actors and great land-owners, or from the debtor and hardy cumulation on the dockets, had, in some of the States, pioneer, who, by its operation, will be dragged into Courts arisen from transient causes--such as the illness of a Judge more distant and expensive than their own tribunals-yet -the sudden operation of some statute of limitation-the all its new Circuits and Judges are insufficient materially enactment of some relief system-the difficulties between to promote despatch, without a division of some of the rival Courts-the suits growing out of the United States' Western Districts. Another bill on your table, reported Bank controversy and various other causes which need by the Judiciary Committee, to establish another District not be enumerated, and on the merits of which I offer no in Kentucky, is, on this point, perfect demonstration. opinion whatever-but all of which established beyond Every lawyer knows, that the creation of twenty new Cirdoubt, that the accumulation of business was temporary,cuits can in no degree affect the District docket, and it and that their dockets would soon diminish to one or two can only indirectly affect the Circi ut docket, because even hundred cases each. now the Circuit Court at each ter can continue apy de

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sirable length of time, as the District Judge can hold it after the necessary departure of the Circuit Judge. Without dividing a District, then, no greater despatch is obtained, except indirectly, unless two Judges, present the whole term, can transact more business than one Judge. This is neither true in theory or practice.

[APRIL 11, 1826.

nine-affecting the Supreme Court, not in some of its local duties, but in the exercise of its high original and appellate powers-powers more peculiarly devolved on it by the Constitution, than any Circuit ones, and powers of infinitely more consequence to this whole Confederacy, than those ever before devolved upon any Judicial tribunal in the annals of history. If the Judges are not allowed leisure for these duties, the head and heart of the system are palsied, and objects only secondary are made paramount to primary ones.

If the last bill, creating a new District and new District Judge in Kentucky, should alone pass, and that Judge be clothed with Circuit powers, it seems to me that the great root of every actual grievance from the accumulation of business would be removed. Nor would it seem altogether But, notwithstanding the Chairman calls the delay here decorous for either of the States in that Circuit to insist"a great and growing evil," and deserving speedy rethat such a remedy was oppressive or mortifying, to taunt moval, and justifies this bill, as tending to effect that obsuch a Judge with the title of Land Commissioner, and ject: yet, a little consideration must convince every perbrand such a system as derogatory to their State pride, son, that his expectations are delusive. He observed that when it is the identical system now in force in three the new Circuits will enable the Judges to attend here of the oldest and largest members of the Union; and earlier, and thus a longer session can be held. But the is not deemed derogatory to the pride of such States as new Circuits manifestly cannot affect, in this respect, only the ancient dominion, as the rich inheritance of Penn, and a single Judge of the present Court; and his attendance as what may be, for aught I know, both the Rome and here earlier could just as easily be caused by altering the Carthage of our Confederacy. session in his Circuit, and without this great addition to the Supreme Court, as with this addition. Again: the carlier session of a month is not provided for in this bill, but in another; and the passage of that bill alone will produce all the effect which this earlier session of a month can produce. Indeed, it will produce more effect on the delay, without the present bill, than with it; because the Chairman, in another part of his remarks, has properly argued that the Circuit system in the six new States will, doubtless, occasion many more appeals to the Supreme Court, than are now taken, on account of the division in opinion between the Judges. Thus, of course, must it increase the docket of the Supreme Court.

Under these circumstances, a little calculation upon admitted facts must show the total inefficacy of a session only a month longer in the year to discharge all the business which will occupy the docket of the Supreme Court under the present bill. The number of actions on that docket has lately ranged from one hundred and eighty to one hundred and ninety. Only from forty to sixty are annually disposed of. This, in the present sessions of about six weeks, makes the inevitable delay about three years.

It appears to me to have been an error in opinion, or in facts, for the Chairman of the committee, in the history of our various Judicial changes, painted by him in such glowing colors, to suppose that some precedent existed for this great increase of the Supreme Court. The first change in our Judiciary, in A. D. 1793, when the attendance of two Judges of the Supreme Court twice a year in each of the then existing Circuits, was found too laborious, lessened their Circuit duties, rather than increased the number of Judges. Nor was the remedy adopted in A. D. 1801, like the present bill. That, he himself disclaims with abhorrence. Nor, in the great Judicial revolution of A. D. 1802, was the number of Judges increased; and though, in A. D. 1897, one was added to the Bench, and, as I think, incautiously, yet the addition did not, like this, either alter the quorum of the Court, or double its original numbers; and thus did not, in, and of itself, jeopard all its important decisions, and lay the axe at the root of all its boasted independence. I wish to be distinctly understood on this point. In A. D. 1807, the old quorum was four. If three Judges agreed in a decision, it was final; because if one of the four dissented, and both his If the business of that Court was stationary, an addition absent brethren agreed with him in opinion, they were of four weeks to the term would not remove the delay unnot a majority, so as to be able to reverse the decision in der four or five years. But if, increasing in the natural any like case. This reversal could happen in only one increase of population, wealth, and territory; or if increaevent after the addition of one Judge in A. D. 1807. Buted by only three causes per year, from each of the six new now, if four of the new quorum agree in a decision, it has States, by means of the change of system as before mena double, yea, more than quadruple chance of reversal; tioned, more than the whole four weeks will be consumed because, if any two, who agreed in the first decision, be in the additional business. And what is called by the absent, and their places be supplied by any two of those Chairman, even now, a great and growing evil, and by the absent, the decision can be overruled. This great addi- celebrated memorial of the Nashville bar, even now, “a tion, also, of a number equal to a majority of the old quo- great delay," will become, by this increase of Circuits rum, is an addition of just enough to reverse any past de- and Judges, a still greater delay-a still greater evil.cision, if in ordinary contingencies only a quorum attend- "A great delay," sir, not in the business of a single Cired, and the appointing and legislative power now wished cuit, like the seventh; but in the business of the whole to reverse the principle of any such decision. But such federation:-" a great delay,"-a violation of magna charcould not be the effect or tendency of the addition in A. D. ta, not in litigations of subordinate interest, but in contro1807. Where, then, is the precedent? And how danger-versies large enough to come up hither from the extremes ous, and, indeed, fatal, may be the operation of the present increase!-of the present contagious example! But, something more of this hereafter.

The Chairman of the committee undertook to vindicate this great increase on another ground, which is by no means to be overlooked-a ground connected with the general duties of the Supreme Court itself, by insisting, that it would tend to remove the great delay which now attends their administration of justice in the apartment below us. This would be an object worthy of some great and general change, if it could not otherwise be accomplished. Dignus vindice nodus. Because it would mitigate or remove an evil riot sectional, but national-an evil affecting the whole twenty-four States, as well as these

of the Union, and momentous to individual rights, or controlling, in their destined orbits, States otherwise sovereign:-"a great delay," peradventure, at times, to deform the moral sublimity of one of the grandest scenes in a government of laws and not of men; by producing the entire ruin of some humble suitor,

"Some village Hampden, who, with dauntless breast, "The little tyrant of his fields withstood,"

or who, in a just reliance on his contract or his vested rights, has dared to hold at bay not merely private oppression, or the mightiest member of our Confederacy, but the Confederacy itself.

Again, sir: this increase of Judges will, on another

APRIL 11, 1826.]

The Judicial System.


principle, tend to inflame, rather than lessen, this "grow-treme number, in the courts of common law in that couning evil." Because, on the true theory of a single Judi- try whence we derive most of our institutions. When you cial body, during a single session, it will not be pretended exceed four, you must require express legislation as to the that five of the Judges can examine one cause while the quorum or the unanimity of more than a majority in any other five examine another: or that ten can hear more decision; else a door is opened to contradictory decisions causes, read more cases, or be oftener convinced, within in the same court, without any change in the members of a term, than seven can. On the contrary, all theory and it, or in the opinions of any member. Thus in five, the experience so conclusively show that a larger body of this quorum being three, two of them may decide one way tokind will act slower, I shall not stop to fatigue the Senate day, and to-morrow the two absentees attending and unitwith further illustrations upon this point. ing with the dissentient, may decide directly the other ten-way; and every addition to the numbers of the court, as ably shown by the gentleman from Virginia, (Mr. TazeWELL,) increases in a most alarming progression this danager, and also diminishes the general responsibility of each judge. If you cannot by legislation require as a quorum more than a majority of any court, as contended by the gentleman from Massachusetts, (Mr. MILLS,) or if you refuse to do it, as on Friday last, either circumstance furnishes a most conclusive argument against any further increase of the judges.

Another objection to this increase of Judges is, its dency to lessen the ability of their decisions.

On this subject I am not disposed to be captious, and to disagree from the Chairman, in his position, that greater number of Judges might introduce upon the Bench a more thorough knowledge of a greater number of our codes of State law. But I do deny that any remedy comports with this ground of increase, unless one Judge is selected from each State in the Union, so that the peculiarities of each may be thus understood: or, unless the peculiarities of local law in the East and North are as fully represented and understood on the Bench as those of the West and Southwest.

But as to the knowledge of general jurisprudence, which is alone brought to the decision of three-fourths of the causes, and is a sine qua non in the examination and decision of all, it surely is not likely to be increased on any Bench, after a selection of four or five persons most distinguished for legal attainments. Such is the structure of different minds: such their habits, associates, and exertions, that in any given circle, whether embracing a county, State, or Confederacy of States, the very highest in intellectual power, in any profession, are few in number, and a marked discrimination, after selecting a very few, can be drawn by all.

After such a selection for any Bench, every additional member is an injury rather than an aid to the mass of professional science; because a portion of the time of those more highly gifted must be diverted to the instruction and conviction of those who are inferior.

While I am willing to admit, that on this reasoning no precise number for a Court can be fixed, as unerringly the best, under all circumstances, yet it will, on reference to our own recollection of different Judicial bodies, satisfy us that an increase of them beyond three or four is not likely, in most cases, to increase the intellectual strength of the whole body.

But the increase operates in a still different manner on the members of a court, so as, I trust, to convince all of its injurious tendency upon the general ability of each of the members; and is, therefore, not to be made beyond the most usual, approved, and safe number for a Judicial body, unless some separate extraordinary advantage is to be obtained by it sufficient to counterbalance all the incidental and obvious evils from such an increase.

Gentlemen have talked of the court of Exchequer chamber as a precedent for as large a number as ten without incurring danger. But almost all the duties of that court are consultatory and advisory on questions adjourned from other courts, and on which the judgments are entered by those other courts. Moreover, the judges of that court are not commissioned as ten judges of that court with the esprit de corps, but still continue as judges of distinct courts of only four in number, and acting in the Exchequer Chamber together but seldom, and with no leaning or dependence on each other as a whole body, so as to weaken their responsibility as members of their separate courts.

Concerning the House of Lords, also, so often cited as a precedent for a large number without danger, the analogy entirely fails; because that House acts by legislative rules in the making and the reversal of its decisions-is a body legislative in the tenure of its office-legislative in its accountability, and altogether aristocratical in its whole organization. Are we to be urged to create a similar body in this Republic? And to believe, as Lord Anglesey once argued, that because "the Lords were judices nati,” and not " under salary," they were "therefore in reason the freer judges?" "At this inimitable piece of lordly reasoning, it is said the Commons were weak enough to be vexed beyond measure." So of the New York Court of Errors, referred to by the Chairman so emphatically as a precedent. That court also acts by legislative rules, and thus is not exposed to the difficulties, as to a quorum and fluctuating decisions, which are incident to a large body solely judicial. The tenure of its office is also legislative, so as to give a different hold over their responsibility; and at the same time their salaries are small and subject to reduction.

I shall dwell but a moment on the analysis of the injurious effect upon each member, of a large increase of The operation of which I now speak, is upon the in- the number of any collective body. One of the Commitdustry, fidelity, and, if I may be pardoned a more compre-tee (Mr. HOLMES) has partially admitted this effect. Any hensive word the responsibility of each judge. A single judge, undoubtedly, like a single Executive, insures the highest exertions on his part, and gives to the public over him the strongest control. But, if the number be increased to only two, so as to remedy a failure of justice in his absence, from illness or accident, they may disagree, and thus cause a still farther failure-and hence three is often preferred, or even four, on account of its requiring a greater proportion of the whole to form a quorum, and on account of its ensuring a decision when only a quorum is present and one disagrees, which cannot happen with a quorum of three. To attain objects so important, and not on account of any quaintness as to any particular number, responsibility has been in some degree diminished by increasing the court beyond one member, but still taking care not to go beyond those objects, and to make four judges the ex

single labor to be performed jointly by ten, (and so must be performed Judicial duties in the Supreme Court,) naturally appears to impose less upon each, than if it was to be performed by seven. Each one, also, in his conduct, stands out in less bold relief to the public eye. Each is, from the well known frailty of man, inclined to think he may nod with greater safety while so many others watch. Do we not daily witness this in some degree in every large legislative body Subjects from particular quarters of country-subjects connected with particular professions and tastes-entrusted almost exclusively to particular members? This is human nature; and we can as easily escape from ourselves as escape from its influence, though under much greater checks and responsibilities as legislators than as judges.

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