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Judge assigned to this Circuit should get through the duties of his station. With the state of business in the other western and southwestern States, I am not so particularly acquainted. Gentlemen from those States will expose it to the Committee. I know enough, however, to be satisfied that the whole case calls for attention. It grows no better by delay, and, whatever difficulties embarrass it, we may as well meet them at once, and agree upon such remedy as shall, upon the whole, seem most expedient.
And this, sir, brings me to the most difficult part of our inquiry; that is to say, whether such a measure as this bill proposes, be the proper remedy. I beg to say, sir, that I feel this difficulty as deeply as it can be felt by any member of the Committee; and while I express my own opinions, such as they are, I shall be most happy to derive light from the greater experience, or the better intelligence, of any gentleman. To me it appears, that we are brought to the alternative of deciding between something like what this bill proposes, and the Circuit Court system, as provided in the bill of the Senate, in 1819. As a practical question, I think it has come to this point: Shall we extend the present system, by increasing the number of the Judges? or, shall we recur to the system of Circuit Courts? I invoke the attention of the Committee to this question; because, thinking the one or the other inevitable, I wish for the mature judgment of the House on both.
In favor of the Circuit Court system, it may be said, that it is uniform, and may be made to apply to all the States equally: so that if new States come into the Union, Circuit Courts may be provided for them without derangement to the general organization. This, doubtless, is a consideration entitled to much weight. It is said, also, that, by separating the Judges of the Supreme Court from the Circuits, we shall leave them ample time for the discharge of the high duties of their appellate jurisdiction. This, no doubt, is true: but then, whether it be desirable, upon the whole, to withdraw the Judges of the Supreme Court from the Circuits, and to confine their labors entirely to the sessions at Washington, is a question which has most deeply occupied my reflections, and in regard to which I am free to confess, some change has been wrought in my opinions. With entire respect for the better judgment of others, and doubting, therefore, when I find myself differing from those who are wiser and more experienced, I am still constrained to say, that my judgment is against withdrawing the Judges of the Supreme Court from the Circuits, if it can be avoided. The reasons which influence this sentiment are general, and perhaps may be thought too indefinite and uncertain to guide in measures of public importance; they nevertheless appear to me to have weight, and I will state them with frankness, in the hope that, if they are without reasonable foundation, I shall be shown it, when certainly I shall cheerfully relinquish them.
In the first place, it appears to me that such an intercourse as the Judges of the Supreme Court are enabled to have with the profession, and with the people, in their respective Circuits, is itself an object of no inconsiderable importance. It naturally inspires respect and confidence, and it communicates and reciprocates infor
mation through all the branches of the Judicial Department. This leads to a harmony of opinion and of action. The Supreme Court is, itself, in some measure, insulated; it has not frequent occasions of contact with the community. The Bar that attends it is neither numerous, nor regular in its attendance. The gentlemen who appear before it, in the character of counsel, come for the occasion, and depart with the occasion. The profession is occupied mainly in the objects which engage it in its own domestic forums; it belongs to the States; and their tribunals furnish its constant and principal theatre. If the Judges of the Supreme Court, therefore, are wholly withdrawn from the Circuits, it appears to me there is danger of leaving them without the means of useful intercourse with other judicial characters, with the profession of which they are members, and with the public. But, without pursuing these general reflections, I would say, in the second place, that I think it useful that Judges should see in practice the operation and effect of their own decisions. This will prevent theory from running too far, or refining too much. We-find, in legislation, that general provisions of law, however cautiously expressed, often require limitation and modification; something of the same sort takes place in judicature: however beautiful may be the theory of general principles, such is the infinite variety of human affairs, that those most practised in them, and conversant with them, see at every turn a necessity of imposing restraints and qualifications on such principles. The daily application of their own doctrines will necessarily inspire Courts with caution; and, by a knowledge of what takes place upon the Circuits, and occurs in constant practice, they will be able to decide finally, without the imputation of having overlooked, or not understood, any of the important elements and ingredients of a just decision.
But further, sir, I must take the liberty of saying, that, in regard to the judicial office, constancy of employment is, of itself, in my judgment, a good, and a great good. I appeal to the conviction of the whole profession, if, as a general observation, they do not find that those who decide most causes, decide them best. Exercise strengthens and sharpens the faculties, in this, more than in almost any other employment. I would have the judicial office filled by him who is wholly a judge, always a judge, and nothing but a judge. With proper seasons, of course, for recreation and repose, his serious thoughts should all be turned to his official duties—he should be omnis in hoc. I think, sir, there is hardly a greater mistake than has prevailed occasionally in some of the States, of creating many Judges, assigning them duties which occupy but a small part of their time, and then making this the ground for allowing them a small compensation. The judicial office is incompatible with any other pursuit in life: and all the faculties of every man who takes it, ought to be constantly exercised, and exercised to one end. Now, sir, it is natural, that, in reasoning on this subject, I should také my facts from what passes within my own means of observation: if I am mistaken in my premises, the conclusion, of course, ought to be rejected. But I suppose it will be safe to say, that a session of eight weeks in the year, will probably be sufficient for the decision
of causes in the Supreme Court: and, reasoning from what exists in one of the most considerable Circuits in the Atlantic States, I suppose that eight, ten, or at most, twelve weeks, may be the average of the time requisite to be spent by a Circuit Judge in his Circuit Court in those Circuits. If this be so, then, if the Courts be separated, we have Supreme Judges occupied two months out of twelve, and Circuit Judges occupied three months out of twelve. In my opinion, this is not a system either to make, or to keep good Judges. The Supreme Court exercises a great variety of jurisdictions; it reverses decisions at common law, in equity, and in admiralty; and with the theory and the practice of all these systems, it is indispensable that the Judges should be accurately and intimately acquainted. It is for the Committee to judge how far the withdrawing them from the Circuits, and confining them to the exercise of an appellate jurisdiction, may increase or diminish this information. But, again, sir, we have a great variety of local laws existing in this country, which are the standard of decision where they prevail. The laws of New England, Maryland, Louisiana, and Kentucky, are almost so many different codes. These laws are to be construed and administered, in many cases, in the Courts of the United States. Now, is there any doubt, that a Judge, coming on the bench of the Supreme Court, with a familiar acquaintance with these laws, derived from daily practice and decisions, must be more able, both to form his own judgment correctly, and to assist that of his brethren, than a stranger who only looks at the theory? This is a point too plain to be argued. Of the weight of the suggestion the Committee will judge. It appears to me, I confess, that a Court remotely situated, a stranger to these local laws in their application and practice, with whatever diligence, or with whatever ability, must be liable to fall into great mistakes.
May I ask your indulgence, Mr. Chairman, to suggest one other idea: With no disposition, whatever, to entertain doubts as to the manner in which the Executive duty of appointments shall at any time hereafter be performed, the Supreme Court is so important, that, in whatever relates to it, I am willing to make assurance doubly sure, and to adopt, therefore, whatever fairly comes in my way, likely to increase the probability that able and efficient men will be placed upon that bench. Now, I confess, that I know nothing which I think more conducive to that end, than the assigning to the members of that Court, important, responsible, individual duties. Whatsoever makes the individual prominent, conspicuous, and responsible, increases the probability that he will be some one possessing the proper requisites to be a Judge. It is one thing to give a vote upon a bench, (especially if it be a numerous bench,) for plaintiff or defendant, and quite another thing to act as the head of a Court, of various jurisdiction, civil and criminal—to conduct trials by Jury, and render judgments in law, equity, and admiralty. While these duties belong to the condition of a Judge on the bench, that place will not be a sinecure, nor likely to be conferred without proofs of proper qualifications. For these reasons I am inclined to wish that the Judges of the Supreme Court may not be separated from the Circuits, if any other suitable provision can be made.
As to the present bill, Mr. Chairman, it will doubtless be objected that it makes the Supreme Court too numerous. In regard to that, I am bound to say, that my own opinion was, that the present exigency of the country could have been answered by the addition of two members to the Court. I believe the three northwestern States might well enough go on for some time longer; and form a Circuit of themselves, perhaps, hereafter, as the population shall increase, and the state of their affairs require it. The addition of the third Judge is what I assent to, rather than what I recommend. It is what I would gladly avoid, if I could with propriety. But, on the subject of the number of Judges, I admit that, for some causes, it will be inconveniently large: for such, especially, as require investigation into matters of fact, such as those of Equity and Admiralty; and, perhaps, for all private causes, generally. But the great and leading character of the Supreme Court, its most important duties, and its highest functions, have not yet been alluded to. It is its peculiar relation to this Government, and the State Governments: It is the power which it rightfully holds and exercises, of revising the opinions of other tribunals on Constitutional questions, as the great practical expounder of the powers of the Government; which attaches to this tribunal the greatest attention, and makes it worthy of the most deliberate consideration. Duties at once so important and so delicate, impose no common responsibility, and require no common talent and weight of character. A very small Court seems unfit for these high functions. These duties, though essentially judicial, partake something of a political character. The Judges are called on to sit in judgment on the acts of independent States: they control the will of sovereigns: they are liable to be exposed, therefore, to the resentment of wounded sovereign pride; and from the very nature of our system, they are called on, also, sometimes, to decide whether Congress has not exceeded its constitutional limits. Sir, there exists not upon the earth, and there never did exist, a judicial tribunal clothed with powers so various, and so important. i doubt the safety of rendering it small in number My own opinion is, that, if we were to establish Circuit Courts, and to confine their Judges to their duties on the bench, their number should not at all be reduced: and if, by some moderate addition to it, other important objects may well be answered, I am prepared to vote for such addition. In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done. The opinions of mankind naturally attach more respect and confidence to the decisions of a Court somewhat numerous, than to those of one composed of a less number. And, for myself, I acknowledge my fear, that, if the number of the Court were reduced, and its members wholly withdrawn from the Circuits, it might become an object of unpleasant jealousy, and great distrust.
Mr. Chairman, I suppose I need not assure the Committee that, if I saw any thing in this bill which would lessen the respectability, or shake the independence of the Supreme Court, I am the last man to be in favor of it. I look upon the Judicial Department of this government, as its main support. I am persuaded that it could not
exist without it. I shall oppose whatever I think calculated to disturb the fabric of government; to unsettle what is settled; or to shake the faith of honest men in the stability of the laws, or the purity of their administration. If any gentleman shall show me that any of these consequences is like to follow the adoption of this measure, I shall hasten to withdraw from it my support. But I think we are bound to do something: and shall be most happy if the wisdom of the House shall suggest a course more free of difficulties than that which is now proposed to it.
FURTHER REMARKS ON THE SAME SUBJECT, IN REPLY TO THE
ARGUMENTS USED AGAINST THE BILL, AND IN FAVOR OF ITS POSTPONEMENT. JAN. 25, 1826.
I had not intended, sir, to avail myself of the indulgence which is generally allowed, under circumstances like the present, of making a reply. But the House has been invited, with such earnestness, to postpone this measure to another year; it has been pressed, with so much apparent alarm, to give no further countenance or support now to the bill, that I reluctantly depart from my purpose, and ask leave to offer a few brief remarks upon the leading topics of the discussion.
This, sir, must be allowed, and is, on all hands allowed, to be a measure of great and general interest. It respects that important branch of Government, the Judiciary; and something of a Judicial tone of discussion is not unsuitable to the occasion. We cannot treat the question too calmly, or too dispassionately. For myself, I feel that I have no pride of opinion to gratify, no eagerness of debate to be indulged, no competition to be pursued. I hope I may say, without impropriety, that I am not insensible to the responsibility of my own situation as a member of the House, and a member of the Committee. I'am aware of no prejudice which should draw
my mind from the single and solicitous contemplation of what may be best; and I have listened attentively, through the whole course of this debate, not with the feelings' of one who is meditating the means of replying to objections, or escaping from their force, but with an unaffected anxiety to give every argument its just weight, and with a perfect readiness to abandon this measure, at any moment, in favor of any other, which should appear to hare solid grounds of preference. But I cannot say that my opinion is altered. The measure appears to my mind in the same light as when it was first presented to the House. I then saw some inconveniences attending it, and admitted them: I see them now; but while the effect of this discussion, in my own mind, has not been to do away entirely the sense of these inconveniences, it has not been, on the other hand, to remove the greater objections which exists to any other plan. I remain fully convinced, that this course, is, on the whole, that which is freest of difficulties. However plausible other systems may seem in their general outline, objections arise,