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The Judicial System.
[APRIL 11, 1826.
ceed, probably will not equal, the annual increase of the annual docket
we not go further, and make the system what it ought to be, and what we admit it finally must be? Why, I ask again? Is it because some difficulties are to be overcome? Now, what is the remedy for this intrinsic evil of the Some divided opinions to be reconciled? Some prejudices system itself? It is this-to confine the Supreme Court of different kinds to be encountered? Is it then the part to the duties of the Supreme Court. Then the business of statesmen, not to wrestle with difficulties, and over- of every term will be done at every term; then the Court come them, but to evade them by shifts and temporary might hold different terms, annually, at different places, expedients? It is the most short-sighted of all policy in and accommodate, thereby, every part of the Union. This all pursuits, whether by individuals or by the public. would remove the evil of delay entirely-would reduce Difficulties evaded, but not overcome, are sure to return the costs of litigation within reasonable limits-would put upon us again and again, till they either master us, or we the final justice of the country within the reach of the master them. Surely then it is better for us to meet, and country-would remove complaint-would give satisfacto overcome them, if possible, in the first encounter. Ition. No one can say that this plan is not for the interest said that the intrinsic evil of the present system was great, of the private suitors; and why should not that interest and one that called loudly for redress. Now what is that be consulted, even especially consulted? The great mass intrinsic evil? It is this: that the final justice of the coun- of litigation is an individual concern. Why, then, the intry is so obstructed by delay, and encumbered with ex-terest of the private suitors should not be consulted, and pense, that it is in effect denied to the great body of the especially consulted, I cannot understand; but, for some citizens; an evil that is necessary and inherent in the sys- reason, I do not know what, that interest is not regarded. tem itself as at present organized; and is a growing evil. If the Legislature, or any of its members, are jealous of As to the fact of delay, it is too notorious to require the judiciary--(I see no reason for any jealousy)-but, if formal proof; if doubted by any one, that doubt will be they are jealous, is that a reason why the interest of the removed by inspecting the docket of that Court; the de-private suitors should not be consulted? The power of lay of trial by the course of the docket, and in that course the judiciary is what the Constitution makes it, and must is about three years. The delay is gaining ground from be, till the Constitution is altered; and a modification year to year, and it must keep gaining. At the late term of the system that would confine the Supreme Court only thirty-six causes were disposed of in the regular to the duties of the Supreme Court, will not enlarge or course of the docket, and sixty-three new cases were en- diminish that power; but would leave it just what it tered; and of the entries in the vacation, we do not know now is. If the States, or any of them, have their griefs, how many there will be, but probably a considerable num- or their fears, occasioned or alarmed by this Department, ber. The docket now stands at about two hundred. with or without reason, why should that be permitted to And it is nothing but this very great delay, and the serious affect the interests of the private suitors? If the prostraevils attending it, that prevents the entries from being tion of State rights, or if the consolidation of the Union much more numerous, even more than double what they be the danger felt or affected, this danger is independent now are. Nothing, in a word, prevents the delay from of this modification of the system--it is unaffected by this being at this moment altogether intolerable, but the dif- modification-it is neither more nor less on account of this ficulties interposed between the citizen and the final jus-modification. tice of the country.
It is proverbial that the delay of justice is injustice: it is true as most proverbial sayings are. It often happens that there is no difference between the denial of justice and its long delay; it comes too late when the unhappy suitor has become the victim of its delay; a too frequent result.
Again: this separation—(but if what I am now going to say should excite some surprise, let be me heard out without prepossession; let it be considered before it be rejected; let me say, with Themistocles, "strike, but hear me")-I say, then, that this separation of the duties of the two jurisdictions, the original and the appellate, was intended and expected by the Constitution. The Constitution does not make a Judge of the Supreme Court, ex officio, a Judge of the inferior Courts. He may be made so by special appointment and commission; but he is not so ex officio. The contrary construction and practice under it, is one that, one day, may give rise to questions that may involve consequences it were much better to avoid. It may do well enough as long as individuals alone are concerned. But a time may come, (God forbid that it should come,) when combinations of men, under the connivance or countenance of a State or States, shall resist the execution of the laws; and shall defend themselves, or be defended, on the ground, that the inferior is easy to conceive how this might involve the Govern ment in difficulties of the most embarrassing nature; it is not necessary to point them out; they will suggest themselves to every reflecting mind. Is it advisable to leave the country exposed to this possible danger? It may be said that this danger may be prevented by special appointment and commission of the Judges of the Supreme Court as Judges of the inferior Courts.
But the enormous expense and consequential losses caused by the delay, is a still greater evil; many a citizen is thereby shut out, and cut off from all access to the final justice of his country. Men of moderate circumstances, and this is the condition of the great body of the citizens, cannot encounter these expenses and the other evils of this delay; they must compromise in preference, in the best manner they can; if they do not, they incur certain njury, they risk their probable ruin. And what a Judiciary is that, where only the rich can command its final justice, and where the middling classes must take of the rich only such justice as they may voluntarily accord them? I say, the wealthy litigant is enabled by this system to dic-Courts have no constitutional power to enforce them. It tate his own terms of compromise to his antagonist who is not wealthy. He has done it, and may always do it. Now, what is proposed as the remedy of this evil? proposed by this bill, I mean. It is the addition of about twenty days to the annual term of the Supreme Court. Can any one suppose that this will remove the evil? So far as it goes, it palliates the evil; but as a remedy it does not deserve the name. I do not think it will reduce the present delay at all; it may keep down the evil to what it now is, for a time; it may balance the gradual increase of the business of the Court from the gradual increase of the business of the country; but more than this it cannot be expected to do; nor this for any great length of time; then it leaves it to become a growing evil, as it has been. It may enable the Court to dispose of ten or fifteen cases more than they now can at the term. This will not ex
But would this be advisable now? Is it not too late ' would it not tend to throw a doubt over questions that are now considered as at rest, and which ought to be so considered; over the whole train of decision heretofore made by the inferior Courts? Will it be said that this dan ger is built upon an imaginary foundation I put it to every lawyer in the Senate, to say if the Constitution makes a Judge of the Supreme Court, ex officio, a Judge
APRIL 11, 1826.]
The Judicial System.
of the inferior Courts. The Constitution vests the judi-her two courts, the Admiralty, both the vice and the apciary power in one Supreme Court, and in such inferior pellate, the Exchequer and Doctor's Commons; and you Courts as Congress shall establish; it gives to these infe- may add to these the House of Lords, when sitting as a rior Courts the original jurisdiction, and the appellate ju- Court of Errors in the last resort. It will be an impossirisdiction to the Supreme Court; but it does not say that bility, physical as well as moral, that one court should do the Judges of the Supreme Court shall be Judges of the all these duties. The separation, then, must take place inferior Courts, as it would have said, had this been in--why then hesitate or delay to make a change, that, tended; but it does say what amounts to saying the con- whenever made, will be for the better, and which must be trary; it says "that the Judges, both of the Supreme and made, sooner or later? Why, when you are compelled to inferior Courts, shall hold their offices," &c. ; clearly im- make a change, and are about to make it-why not make plying that the Judges are to be different persons. I ask it such as it must be made hereafter, if not now? Why the learned lawyers of this Senate whether the Judges of not provide for the future as well as the present, when, in the Supreme Court are, ex officio, Judges of the District providing for the future, you will provide for the present Courts? Why not, if they are, ex officio, Judges of the in the best possible manner? Why prefer a temporary inferior Courts, of which the District is one? But will any amendment to a permanent one, when the temporary must one pretend this? I presume no one. If, then, the Consti- give way to the permanent; and when, in the mean time, tution intends a separation of the two jurisdictions, and to it is much worse than the permanent? I cannot conceive have them exercised by different persons, why should we of greater want of providence, greater want of wisdom. hesitate to make the separation, when it is required by the Constitution, and recommended by the special interest of every suitor to those jurisdictions.
Now, what are the objections to this plan of the separation of the two jurisdictions, the original and the appellate, to be exercised by different persons? The honorable gentleman from New York has exhausted all his ingenuity in multiplying these upon us; and all his eloquence to enforce them. With all my unfeigned respect for that gentleman, and for his distinguished talents, I cannot profess, as I do not feel, the same respect for his objections. He must permit me, then, to canvass them freely; to prcsent them in the same lights in which they present themselves to me; but I beg him to believe, that, however I may treat his objections, I am incapable of treating him with any personal disrespect.
It appears to me, also, to be wrong in principle, that the two jurisdictions should be blended together, and exercised by the same person. To give an appeal from a Judge to the same Judge, would be a mockery of the suitor; the pride of opinion, the pride of consistency, the pride of reputation, incident to human nature, and inseparable from it, and to be found in the Judge as well as in every other man, would make such an appeal a mere mockery to him. Who, in his senses, would expect a Judge to convict himself of error of opinion? If there are some instances on record, they are few, precious few, in- He began with saying, that it is dangerous to change the deed, of such magnanimity; the very admiration which principle of a judiciary system established by law. I would they excite, is a proof how very little they are to be ex-ask that gentleman, when it was that it became dangerpected. The appeal here, it is true, is to the same Judge, ous to alter that law? Was it the day after the law was conjointly with the other Judges; but he himself sits, or passed if not, and if it is dangerous now, at what interdeclines sitting, according to his own sense of propriety.mediate time did it become dangerous? Up to what I believe, in practice, he declines sitting; but all the time was it safe to repeal that law, or to amend it; and Judges stand in the same relation to him that he stands from what moment did it become unsafe? Did one day to them; their judgments, in turn, are to be reviewed by make the important change, from safety in the repeal, to him. This situation creates a bias, necessarily, unavoid- danger in the repeal? If so, what day was it? If the genably; no doubt unconsciously to the Judge himself; but tleman would pardon me, I would say it was even ridicuit does create this bias. I do not say that it has any deci- lous, to suppose there was more danger in the repeal or sive influence; far from it; but it has an influence; the amendment, at one time than at another; or that there mind does not remain indifferent; it ought to remain indif- was any danger at any time. For danger of what, ferent; that influence ought to be prevented. All human pray? danger to whom, pray? Is there danger in givinstitutions must be predicated upon a reasonable confi-ing to the suitor a more speedy trial in lessening to dence in human virtue; it is equally an error to suppose an him the expense of trial? danger in making the final entire want of virtue, or to suppose that virtue perfect; justice of the country more accessible to him? It would this plan of blending the original and appellate jurisdic-seem, by the gentleman's objection, that the People tions together, to be exercised by the same person, supposes a degree of virtue in human nature that is not to be found in it; at least, that will not ordinarily be found in it. If the suitor is to have the full benefit of an appeal, these jurisdictions ought not to be blended; he has not that benefit if they are not separated; he is denied the privilege intended him by the Constitution.
But, be this as it will, the time must come when these two jurisdictions must be separated; this will become a matter of physical necessity.
Some of your children-perhaps some of you, will live to see the day when the people of this country will be some thirty millions and upwards; when the business and wealth of this people will be in proportion to their numbers; it may be far beyond that proportion. Can any one imagine that one court can do all the duties of both jurisdictions, the original and the appellate, for such an immense nation as this will then be; for such immense concerns as these jurisdictions will then embrace ?-embracing, as they do, every species of jurisprudence, the criminal and the civil, the Chancery and the Admiralty; embracing, as they do, the whole range of jurisprudence that occupies all the different courts of Westminster Hall, the King's Bench, the Common Pleas, the Chancery, with
are so enamored of the law's delay; so enamored of being ruined by it, that, unless they could be indulged in this humor, we should have them rising in rebellion, here, and there, and all over the country; at least, we should have them petitioning for the happinsss of being ruined by the law's delay, and the law's expense. It would be a curious petition; and I should like to see the gentleman rise in his place to present it; and hear him say: "Mr. President, I hold in my hand a petition of sundry citizens of New York, who state that they, in common with their fellow-citizens of the United States, are laboring under the grievance of a judicial system, by which justice is administered too promptly, and with too little expense; they pray to have the system repealed, and the old system restored, by which justice was delayed for the comfortable term of three years; by which there was a reasonable prospect of its being delayed a much longer term, and by which a suitor might be almost certain of being ruined by the expense. I inove, sir, that the peti tion be received; that the reading be dispensed with, and that it be referred to the Committee on Grievances.". By that time, I presume, we shall have such a committee.
So much for the danger of amending a law; a thing we are in the daily habit of doing; and which amend
ment would relieve every one concerned, or to be concerned under it, from a great burthen; and the danger, too, to arise from those very persons. When such a mind as that gentleman's is obliged to rely upon such an objection, who can doubt the soundness of the principle which he is thereby attempting to overthrow?
[APRIL 11, 1826.
tem, and of every modification thereof; for, in every form thereof, the powers will be the same. The gentleman complains that these powers ride over the laws of the several States, in certain cases. They do so; such is the Constitution. There is no help for it so long as the Constitution remains as it is. But these powers have The gentleman tells us it will be dangerous to have the been exercised in derogation of these laws, and the rights Supreme Court stationed and stationary at the seat of Go-acquired under them; and in every instance the Court vernment; that the Court will become dangerous to the have decided against the State in favor of the individual. Government, and the Government dangerous to the Be it so it is singular that this should be complained of Court; but that this danger will not exist at all, if the as a grievance, and yet made an argument for continuing Court go the round of the Circuits, in the recess of Con- the very system under which it has been suffered. gress; and are here only about two months during the session of Congress, if they are here only as boarders, and are not domiciliated here.
There might be some plausibility in it if the Supreme Court had been stationary, and all this had happened, then to apply it as an argument in favor of a change to the itinerant system. It might be speciously said, that the grievance was owing to the Court being stationary, and to the influence created by that circumstance; and that to make the Court itinerant would be to destroy this influence. But when the grievance has happened under the itinerant system, to make the grievance an argument for continuing that system, appears to me (begging the gentleman's pardon) not a little preposterous.
How these important results would be produced by these means, the gentleman left us to find out by our wits. I really wish he had favored us with a short lecture upon this point, and told us the hows, the whys, and the wherefores of all this danger, and of its prevention, the modus operandi. For one, I profess myself in want of instruction; I am in the dark; I am ready to cry out, as some of us did on the Panama question, for light; light, pray give me light; it is all enigma to me; I wish the The gentleman says further, that these Judges, by the gentleman had, and still would unriddle it: say how it is, Constitution, and the laws under it, have to pass upon that this Judge is this harmless being, if he is kept ram-rights growing out of the local law, and depending upon bling about the country a part of his time; but if he is it, and, therefore, that they should be well acquainted kept all the time at Washington, he will set himself to with that law; that this law is more or less peculiar to work at undermining the Constitution, or at some mischief each State, forming a system by itself; that some of the or other to the Government; for the gentleman has not States have passed from foreign jurisdictions to our own, told us precisely what the mischief is to be, and how it is, and brought with them their foreign jurisprudence, and, that the Government, if he is at Washington all the time, therefore, the Judges will find it difficult to become acwill confederate with him in this mischief; but if he is quainted with that law. It is singular that this should be here only a part of the time, will not have a thought of the employed as an argument in favor of the itinerant system, kind; and also, how the "esprit du corps," of which he when it is, in fact, the great, the strong, and the unanspoke-how that is to depend upon the locality of the swerable argument against it, as will be attempted to be corps-how upon its being stationary; and how that is shown in another place, when we come to see what the prevented by its being partly itinerary, and partly sta- system ought to be, to secure the reign and the triumph tionary. All these hows I hope the gentleman will ex- of the local law. But, to examine for a moment, and to plain to us, if it will not give him too much trouble. And look at the absurdities involved in this idea: it supposes another thing I wish the gentleman would tell us, when this local law to be learnt by riding post haste through a and where he made the discovery, that if we found it so country. It supposes that the Judge who goes to decide, dangerous to have the Supreme Court stationed at Wash-goes to learn it at the same time, and to learn and decide ington, we could not station it some where else. I find in the same breath. And it supposes that his learning, by nothing in the Constitution to prevent it; and the law some mysterious process, is imparted to his nine assofor this purpose will be just what we please to make it. ciates, and becomes their learning also. Otherwise, I Let the gentleman, then, give us the distance at which would be glad to know of what use his learning will be to the Supreme Court may be stationed, and be safe to the his nine associates. If they have learnt it, or have it to Government, and from the Government, and there it shall learn, aliunde, I would be glad to know what good his be stationed; that is, when he has proved the fact of post ridings will do them? If they have to decide indedanger. Then, so far as concerns myself, he shall have a pendently of his decision, and if not, an appeal is nugacarte blanche for fixing the place. He may fix it at Balti-tory, they have to decide unaided by this itinerant educamore if he pleases; if that is not far enough, he may fix tion. If nine-tenths of the Court have to decide without it at Philadelphia; and if that is not far enough, he may it, I think the other tenth might as well decide without it. fix it at New York. I am apt to think the gentleman All this itinerant labor thrown upon the Judges, is then would think that a safe distance, and the proper place. thrown away; it answers no purpose. But, as the gentleman has such faith in itinerary Judges as an antidote to this danger, let the Supreme Court be itinerant, and hold their sessions at different places, but within practicable distances. This, I think, ought to be, not on account of the gentleman's danger, whatever that may be, but because it would be an immense accommodation to the country.
As to the very great powers of the Supreme Court, taking the gentleman's statement in this respect for fact, as I do, I would ask him whether these powers would be any greater by the Supreme Court being made stationary at Washington or any less by its Judges being made to itinerate the country? If not, what signifies it what their powers are as to this question? If their powers are too great, so great as to be dang rous, that is the fault of the Constitution, and the remedy is an amendment of the Constitution; the danger is independent of the judicial sys
The gentleman says further, that incompetent Judges may shelter their incompetency from exposure in the Supreme Court; that such a Judge will need only to say yes or no; he may avoid giving any reasons, and so pass in the crowd without exposing himself, and which he could not do alone on the Circuit. But suppose he has to pass the ordeal of delivering the opinion of the Supreme Court in his turn, as is the practice. Why, then, the gentleman admits that he must expose his incapacity, at least to his brethren-must confess to them his incapacity, and get one of them to draw up the opinion which he is to read; but this the public are to know nothing of. They are to suppose, that as he reads so he has drawn up the opinion, and not to have the least suspicion to the contrary; because, if the secret leaks out, his shelter is gone, his incompetency is exposed.
But I would ask that honorable gentleman if he really
APRIL 11, 1826.]
The Judicial System.
not trust to such Judges all questions of local law, in preference, not only to a single itinerant Judge, but to the whole bench of the Supreme Judges? Not one, I venture to say. It is strange to me, that my friends, the Western gentlemen, the pride of the Western country, and of whom the Western country has reason to be proud, should hesitate one moment to prefer this system to the poor diseased system that is offered by the proposed amendment; that must be temporary, and while it lasts will be a miserable one, and not to be compared in use and usefulness to the one they may have.
thinks we ought to legislate upon the presumption, that spects, in one particular, and that one of the greatest imwe ought to predicate a judicial system upon the presump- portance, would be pre-eminently superior. The local tion that the Executive will nominate, and that the Senate law is the law most dear of any to the People of the sevewill ratify, the appointment of incompetent Judges-so in- ral States; and justly so; it is made to them as they are competent that they cannot hold a Court without exposing made to it; their affections are wedded to it; it has betheir incompentency to the public-so incompetent, and come, as it were, "bone of their bone, and flesh of their so conscious of their incompetency, that they will de- flesh." Now these local Judges will be much more comcline if they are to sit alone, or only with the District petent judges of this law, as well as much more tenacious Judge, but will accept if to sit with the other Judges of it, than the itinerant Judge of the Supreme Court. If we are to act upon this distrust of the Executive, and of These local Judges will have been bred to this law, and this borly too, to suppose, because the functionaries of the bred in it; they will be its able expounders and zealous Government have the power to do wrong, that they will defenders; and their decisions will be the best of all indo wrong; to presume, not the proper use of power, but structers to the Supreme Court itself upon questions of the abuse of power, we ought first to consider whether it this law. Their decisions will, in a manner, become auwould not be as well to distrust our distrust a little, thorities upon that law with that Court. It is true, that when ts effect is to forego the probability, the moral certain the itinerant Judge has the District Judge to sit with him, ty, of the proper use of power, and sacrifice that to the and to give him information; but, the objection to this is, possibility of its abuse. I ask the gentleman whether he that it is given transiently, and acted upon suddenly. How would advise to the appointment of an incompetent infinitely preferable must be the judgment of coequal Judge, incompetent to the degree that has been men-Judges deciding from antecedent knowledge, from famitioned-notoriously so incompetent? He would not. liar experience, from mature consideration? Who would Why then presume there will be such appointments? But if there are, what then? Can you remove him from office, or do you suppose that you can make him remove himself by making him an itinerant Judge, instead of a stationary one? Do you ever expect to find a Judge that will think himself incompetent, and act upon that opinion, avow his incompetency, and degrade himself from office, or decline office? I believe it would be a new case under the sun. All our Supreme Judges have been itinerant; I do not say that all have not been competent ; | but this I say, that not one of them ever doubted his own competency, so far as to decline the office on that ground. No, not in the extremities of old age; not all its imbecilities, all its infirmities; not the loss of hearing, not the loss of memory, has induced him to decline; though time had impaired every sense, and every faculty, it did not impair his confidence in his competency; he still would itinerate and hold his Court; and however the bar might perceive the incompetency, the public did not. A man must be very low indeed in his profession, not to be able to go through the forms of a presiding Judge, so as not to ex-sary evil. I hope it is; I think it is more popular with pose his incompetency to public ridicule. A man that makes no distinguished figure at the bar, will make you a tolerable Judge, to appearance, in the public eye. There is a disposition in the public, as the gentleman himself remarked, to overrate the importance of every thing said by a Judge: to submit to it as an oracle of legal wisdom; to revere it as authority. "A Judge is just ;" this is a com-in itself; it is better for the present; it is all better for the mon impression, a common prejudice. No, you never will prevent an incompetent appointment, nor get rid of an incompetent Judge, if you have one, by means of your itinerant system-that you may depend on.
But, the honorable gentleman from New York tells us that the system of local Courts, for the exercise of the original jurisdiction, will be unpopular. He says this on conjecture merely, and against all the probabilities of the thing; it is to be judged of by comparison with the present system: does he mean to say that the present system is so very popular, that any change of it would be unpopular? One would think, from his own account, it was not very popular with him at least-that at best it was but a neces
others, but I do not think it so very popular but that a change for the better would be borne with, and without producing any popular commotion.
It will, as I said, be judged of altogether by comparison; and that must be in favor of separate Courts for the exercise of the original jurisdiction. That plan is better
future; so obviously so, that it speaks its own preference, and speaks it to every mind. I venture to conjecture, (and I have as good a right to conjecture as the gentleman, and better grounds, I think,) that these Courts would become the most popular Courts in this country-the most popu lar with the suitors, the most popular with the bar, the most popular with the People. These Courts would be the means of making the national Judiciary the national favorite, as well as the national pride. The gentleman has
soon after laid aside; and hence infers, that the system itself is unpopular. The inference is incorrect; the men who made that system, made it unpopular, and nothing else. It was not the thing itself, as being bad in itself, that caused it to be laid aside-it was the supposed calculation of the thing; it was the political effect of the thing that was the cause.
But, to return to my object-how would the intrinsic evil of the system supply the defect to be supplied by the proposed amendment? In this way. This separation of these jurisdictions would induce the necessity of establishing separate Courts, for the exercise of the original jurisdiction. A system that is much preferable to the pre-alluded to a similar system, that was once adopted, and sent, for very many reasons; but I shall mention only two, as these appear to me decisive, and to settle the question of preference. These original Courts, as they might be constituted, and probably would be constituted, would supply at once all parts of the Union with a competent Judiciary, and the system will adapt itself to the future wants of the Union, as they may arise from time to time. There will be future calls for additional Courts; but never any call for any amendment of the system. It is a system that looks to the future as well as to the present, and to all future times; and will be equally suitable to all; it will expand itself as the country expands, accommodating equally all parts at all times. Then these Circuits, besides being equally competent with the present in all re
It was made by a party going out of power, in the last moments of power, and to secure in their hands (as was believed by the party coming into power) the whole Judiciary power of the country, to be wielded for their own political purposes; and the system was broken down to frustrate this calculation, and to wrest this power out of their hands. The ostensible objection, it is true, was to
the thing itself, but as it could not be shown to be bad, the thing was stigmatized; it was called by many bad names; among others, by the name of the midnight Judiciary; and the bad name raised a hue and cry against it, and not the demerits of the system itself. It was deemed reason enough by the triumphant party, that it was presented to them by the defeated party, retiring from power. I remember it was said on the occasion, "Timeo Danaos et dona ferentes," the designs, the wiles of the Greeks were feared, and the present was rejected.
But, I speak from knowledge, in a large district of country-from information, as to a much larger, and from belief, as to the whole country, when I say, that these Courts, as Courts, by all the suitors to them, by all the bar connected with them, were esteemed by far the most popular Federal Courts which we have ever had in this country. There is not the least reason to believe that such Courts would now be unpopular.
The gentleman supposes the District Judges would be in the way of this arrangement. It is true, they might be dispensed with; but no one would think of displacing one of them; nor is it necessary. Their jurisdictions might be transferred to the Circuit Courts, to take effect when their offices became vacant, and as they become vacant, and, in the mean time, to be exercised as they now are.
[APRIL 12, 1826.
WEDNESDAY, APRIL 12, 1826.
The Senate resumed the consideration of the bill further to amend the Judicial System of the United Statesthe motion of Mr. WooDBURY, to re-commit, pending.
Mr. WOODBURY again rose and apologized for further troubling the Senate. It had been stated that this bill was an experiment-the gentleman from Mane admitted that; the admission was most alarmingly true. The bill was not, he said, sanctioned by any precedent. Ali the changes that had been made in the Judicial system up to the present time, had been of a character entirely different. The change in 1793, was to relieve the Judges from circuit duties; that in 1801, was to the same effect; that in 1802, did not add to the number on the bench of the Supreme Court: there never had been any addition up to that time. The gentleman from New York had stated the Supreme Court had once consisted of five, instead of six. In the act of 1801, there was a provision to reduce them to five, in case of death or resignation, but the Court was never in fact changed in number till 1807. It would be obvious, Mr. W. said, to every gentleman that the adddition of that one Judge, in A. D. 1807, did not change the quorum, much less put it in the power of the ex-Judges on the Bench, as this bill did, to raze to the foundation every constitutional decision of that Court, if they should choose. Mr. W. said he had stated, in the first instance, that this was doubtless not intended by the friends of the bill. Their object was to remove a local grievance; he had not imputed any motives to any gentleman which were not legitimate. But see, for a moment, what will be the tendency of this change as a precedent in another view. They had gone on eighteen years without one additional Judge; in the next eighteen years they were to add three more. Whither was the system to go? In eighteen years more from this time, it would require nineteen Judges; and in thirty-four years more, one hundred and twenty-seven Judges.
The gentleman very properly admitted, that the pense ought to be no objection, but seemed to apprehend that the People would think it one. There again, I think he is mistaken. The worst of all economy is that which is practised at the expense, and to the prejudice of Judicial establishments; the People so view it. There is no institution which they regard with so much partiality; and the expense of which they so little regret, provided the institution is made as perfect as it may be.
I hope I need make no apology for the time I have taken up on a subject so important as that of improving the National Judiciary. No function of the Government is so interesting to the nation as the administration of the national justice. It touches directly upon every individual; it is felt by him as his own immediate personal concern; it is looked to by him as his shield and his sword, to protect his rights and to redress his wrongs. Other functions of the Government are interesting too; but not so immediately interesting; their effect upon the individual is indirect; they act upon circumstances which, in their turn, act upon him; thus and thereby affecting his condition in life, more or less favorably. But, it is distributive justice, and the hand that makes the distribution, that is watched and regarded by every one; for it is that hand which is to lift this shield for his protection, to wield this sword for his redress.
He had no faith in such a principle of legislation. The true course in any Judicial change, Mr. W. said, was to adapt the system to the condition of the whole country, retaining the system at the centre-at the heart, in its original purity and strength. No particular section was to be relieved in a manner which endangered the whole system: and that, Mr. W. said, was his main objection to the present measure. He had uttered nothing against any expense in any local remedy that was necessary; he had only protested against what was unnecessary and injurious.
The gentleman from Tennessee would, Mr. W. said, find he had committed an error in point of the number of Representatives, and not that Mr. W. had made a mistake. If he would turn to his list, he would find that to make the number forty-nine, he must add the Delegates from the Territories who were the scape goats under this supposed equal system, and were not at all included in the bill.
Let me add, too, that on no function of the Government does the moral estimation of the nation, in the minds of other nations, so much depend. Indeed, it is the great standard of this moral estimation; in truth there can be no other; the moral fame of a country must depend upon the character of its justice. And that character is, of all things, the most important to a nation. National justice, and its well founded reputation, is credit, is wealth, is power. It The gentleman from Maine had admitted the truth of so appeared to the great men who devised and recom- the proposition, that, as a body increased in numbers, its mended the Constitution for adoption; they deemed the responsibility diminished, and had expressed his uncercharacter of the national justice a national concern, as it tainty as to the number at which it would be proper to truly was, and is and hence they gave to the national Ju-stop, without diminishing responsibility. Mr. W. said he diciary the jurisdiction of causes in which the individuals of other nations should be concerned as parties.
could tell him, it would not be possible to go beyond four, in any common law principle, without endangering the When, then, so much depends upon the Judiciary for decisions of the tribunal as a common law tribunal giving satisfaction to our own People, and so much for as a Judicial tribunal, acting only on Judicial principles. drawing to us, and securing to us, the confidence and Beyond that, it was necessary to provide special quorums esteem of all other People; ought we not, each of us, to by special acts-and that was one of the strongest arguendeavor to make the Judiciary as perfect as possiblements against increasing the number of the Supreme At least, will not the merit of an endeavor at this, on my Court; for it could not be done without providing spepart, be an excuse for the trouble which I have given you cial regulations as to quorums, as was shown by the genin making it? tleman from Kentucky yesterday.