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H. of R.]

The Judiciary.

[Jan. 20, 1830,

quences which might flow from withdrawing the justices governed. But when the justices of our Supreme Court from the circuits.

are in consultation, is it so with them? It is riot--because I freely admit that I feel great difficulty on this point. the local constitutions and laws and practice are not the This difficulty, however, does not arise from a conviction same in any two of their circuits. Now, according to the of the soundness of the objections; for, on the contrary, argument, the justice allotted to one circuit is supposed I am convinced that they are unsound. But it arises from to rely upon his brother justice for information as to what the strong prejudices, which, I am aware, are entertained the law, or the practice, in each particular case, is in anby many against separating the two courts---from the fact, other circuit. But, if each justice possesses a thorough that we are quick to perceive present good, and slow to knowledge of the whole law of the case, then such inforapprehend future evil

; and from the known propensity mation will not be sought or required, and the decision of men have, of being thought economical and prudent to- the case will be the judgment of the court. Whereas, if day, at whatever expense to-morrow; and of contenting this sort of information be material and necessary, then themselves with partial remedies for growing and invete- the decision of the case is no longer the judgment of the rate evils; which, being thus tolerated, sometimes end in court, but of a single member of the court. the destruction of property and liberty and life.

But permit me to give another view of the matter. The existing prejudices upon this subject cannot be the Take this new court of nine, as it is proposed to be or fruits of experience. This plan, in regard to the Supreme ganized. After it has been in operation a sufficient length Court of the United States, has never been fairly tried. of time, suppose the justices to be assembled in consultaAnd the experience of State courts, in this respect, will tion. Nine causes, one from each circuit, are before them be found to have little application to the case before us. 1 for examination and decision. The cause from the ninth readily admit that the justices of the Supreme Court circuit (of which Louisiana is a part) is taken up, and is will derive some advantages from attending the circuits. to be decided according to the civil law of Louisiana. But I cannot admit that those advantages, be they what Now, if the whole nine have acquired a full knowledge of they may, will countervail the evils of increasing the num- so much of the civil law as is applicable to the cause, then ber of justices on the bench, or that they will be such as it cannot be necessary for one of the number to go into the honorable gentleman supposed. It is true, that riding that circuit to acquire and impart to his brethren on the the circuits will keep them from idleness. So will travel bench a knowledge of the law which they already posling for any other purpose. So the time thus employed, sess. If, however, they do not possess this knowledge, if applicd in examining the laws of the country, will not but eight of them are obliged to rely upon the ninth for only keep them from growing idle and rusty, but will information respecting any portion of the law or the prac. make them abler lawyers and better judges.

tice material to a correct decision of the cause, then it is The same advantages, moreover, will result from at- plain that the judgment in the cause is that of a single tending the different terins of the Supreme Court, if my judge, and not the judgment of an intelligent court. The amendment be adopted. But they are to learn the laws same may be said respecting each circuit. And is this and practice of the States, by holding the circuit courts! among the advantages contended for? Sir, it seems to me How is this to be done? Is it by traversing the States in that the argument, which proves that the plan proposed stage coaches or steamboats? Or is this knowledge to be by the bill may be a very good one for a State, is a strong acquired from the contradictions of lawyers during the argument to prove that it is a very bad one for the United trial of a cause? To what extent? Is the circuit judge to States. And will not increasing the justices of the Suattain a profound knowledge of all the laws, customs, and preme Court rather aggravate than lessen the mischief? I practice of the States in which he holds, and while he is do not mean to intimate that the learned justices of that holding his court? This will not be pretended. It appears bigh tribunal do not understand fully the law applicable to me, therefore, that, to sustain this argument, it must be to every case that comes before them. Far be it from me shown that the knowledge of the law or the practice thus to impute such wrong to them. But it is said, that, if they acquired at the circuits, be it much or little, cannot be ob- are detached from their circuit duties, they will not have tained in any other way, and that, without it, the Supreme the means of obtaining all the necessary books of law and Court cannot come to a just decision upon causes brought practice, from which to acquire a competent knowledge up from the circuit courts. The honorable gentleman, of the laws of the several States. Then let Congress furin support of his argument, referred to the Supreme nish a library at each place where a term of the court is to Court of England, and seemed to conclude that, as the be bolden-for it cannot be more necessary for the United justices of tirat court were benefited by performing nisi States to provide courts, than to provide able judges. prius duties, so ours would be alike benefited by perform- And if the necessary knowledge be beyond the reach of ing circuit cout duties. Sir, to judge of this matter individual means, the Government should furnish the rightly, we must attend to the facts in the two cases. means, that the laws may be executed, and justice be What are they? The Supreme Court of England has no done. jurisdiction of equity or of admiralty causes. The Su The honorable chairman apprehended that the justices, preme Court of the United States has jurisdiction of mat- if withdrawn from the circuits, would probably come 10 ters at law and in equity, and of admiralty and maritime the city of Washington to reside, where they might possi

In England, there is but one constitution of Go- bly, in future time, become corrupt. Sir, if I thought the vernment. In the United States, there are twenty-five dis- political influences of the day would act more strongly tinct constiuitions of Government. There, one code of upon them, than upon other men here, I should agree statute law prevails. Here, there are twenty-five differ- with him. But is there danger that corruption will insient codes of statute law. There, we find, with trifling ex- nuate its way into the bosom of the court? If so, where is ceptions, but one system of common law. Here, we find it most likely to effect its purpose? Is it here, when the twenty-four systems of the common law, each varying eye of the nation is continually upon them, and where the from the other. There, the rules of practice and the law concurrence of three or four, at least, is necessary to deof eviderce are the same in all her courts of nisi prius. cide a cause; or at the circuits, where they may be taken Here, the rules of practice and the law of evidence are in detail, one by one, and where, too, botir the property different in every circuit court in the Union. What next? and the life of the citizen may depend upon the decision Why, the justices of the Supreme Court of England, of a single circuit judge? when in consultation, compare the knowledge which each I very much regretted one remark which fell from the has acqu red, of the same constitution and laws and prac- honorable gentleman. I was sorry to hear him invoke, in tice, and by which each lias been always and every where advance, the public indignation upon the court, by cha

causes.

JAX. 20, 1830.]

The Judiciary.

(H. of R.

It would pre

racterizing it as fulminating its decrees from a dark and any one place. They would naturally reside at different vaulted chamber, declaring State laws unconstitutional. places about the country, as they now do. Wherefore utter a doubt as to the exercise of powers |vent delay, and make justice more prompt, by the fre. which are clearly constitutional? Wherefore seem to im- quency of the terms. It would be a great accommodation pugn the members of a court justly distinguished, as well to suitors, by the great saving of time and expense to for their learning and integrity, as for their republican them. It would carry the court home to the people, and meekness and simplicity? And wherefore cast the dark among the people. Sir, I agree that judges, to be good shades of suspicion over this high tribunal? It is the only judges, should be employed, and constantly employed. strong barrier between armed power and the unarmed ci- But it is the employment of the mind that makes the judge. tizen. It should be cautiously touched. Sir, much hand. It is the time spent in the study, in the acquisition of ling soils the whiteness of the ermine, as it dims the lustre legal science, and not in stages, in traversing the country, of fine gold. And though it do not destroy, it deeply in. that makes the profound jurist. I have not been able to jures.

ascertain the quantity of business the court now has to do. The honorable gentleman gives me to understand that The honorable gentleman seemed to think it might all be he did not deny this high power to the court, of deciding done in six weeks or two months. This appears to me to upon the constitutionality of laws. I know, sir, he did not. be too low an estimate. But, whatever the fact may be, But his language implied that the exercise of it was odious. it is very easy to give the court enough to do. By simply It is of that I complain. What is doubted, soon comes to extending the right of appeal, there would soon be enough be denied. Is not this great power indispensable to our for the court to do. safety? And if so, ought it to be impaired? Suppose Con There is another evil, of no small magnitude, growing gress should suspend the writ of habeas corpus, when there out of this circuit court system; and which the plan prowas no war, nor insurrection, nor rebellion--in a time of posed by the bill will, in my judgment, go very far to perprofound peace, and when every man would admit the petuate. The law requires the judge of the seventh cirsuspension to be unconstitutional? An innocent citizen is cuit to reside within that circuit. The practice is, in fillarbitrarily seized and imprisoned; what redress has he?ing a vacancy upon the bench of the Supreme Court, to Will he come to Congress for it? Congress is his oppres- make the selection within the particular circuit in which sor. Where then must he go? He must go to this same the vacancy happened. Pass this bill, and the law and “dark and vaulted chamber.” There is no other power the practice will soon come to be, that each justice must that can open his prison doors and set him free. Again- reside within the circuit allotted to him; and when he dies suppose a State Legislature should revive the old law of or resigns, some one must be selected within the same cir. attainder, or make bank bills, for example, a legal tender, cu't, and not elsewhere, to supply his place. Does any instead of “gold or silverps Where else than to this one doubt that none but the ablest and fittest men and court can the citizen go, for the protection of his proper- best jurists should be put upon the bench of the Supreme ty and his blood? But if the war be carried further, as it Court? And ought not the whole field to be left open for might be, and a State Government should wantonly attaint the selection of such men? Will not this system often prefederal officers--and the Federal Government should ar- scribe the fittest men for that high trust? Does it not bitrarily imprison State officers, who could stay the strife, make the chances of getting the fittest men as one to the and redress the wrong, but the Supreme Court? It is the whole number of circuits Thus its practical effect constitutional judge, and there is none else. The court will be to limit the discretion, and control the cor.stitumay sometimes err. But what then? Shall we destroy tional power of the Executive. It may do more. all respect for it, by direct or implied charges of usurpa- suppose, hereafter, great questions should arise, deeply tion? Sir, it appears to me that the fear which leads affecting the property and industry of the country. Sup. some to think that the court may wantonly abuse or usurp pose one of these questions should respect the constitupower, rests upon no good foundation. The justices are tional powers of the Federal Government to protect this liable to impeachment. If they wantonly abuse their high property and industry. Opposite opinions will be entertrust, they may be impeached, and turned out of office. tained by the people among the different circuits. Some

This is a strong security. But there is still a stronger. of the circuits will be for the power—others against it. If Congress can at any time diminish, or wholly take away, need be, the circuits may be multiplied. Parties will arise. their appellate jurisdiction; and thus leave them nearly If one judge can be secured here, and another there, a powerless. Suppose, however, that we had not this secu- majority of the court may be procured, who will deny or rity. Will adding to their number increase their respon- affirm the power, according to the prevalence of their sibility, or diminish their power, or prevent error in judg- local feelings. To this end may not partisan influence and ment Directly the contrary.

power be exerted? And will not the court be moulded Should my annendment be adopted, the permanent re- of bad materials, and for sinister purposes? And may not sidence of the justices of the Supreme Court at the city it become a great political regency? What, then, are the of Washington would not be a thing of course. There real benefits which this system of a political court will would be no necessity for it. But suppose they should produce, compared with its real evils? Are they not as come to this city to reside, could they not acquire as the gentle breeze to the fierce tempest that uproots the much valuable information from the lawyers, and judges, forest, and prostrates men and temples in its progress? and other citizens, who resort to this place, from the se. There is no safety in this troubled sea. Why then urge veral States, as they could obtain while on their circuits? this young, and healthful, and vigorous republic to plunge Besides, if it requires any eye to watch over them, would into the angry flood, and vainly buffet the surge? Is it they not be subjected here to the severe scrutiny of the that she may founder and perish upon the breakers? President, the Senate, and the immediate representatives Sir, if the people want what is simple, cheap, and uniof the people? If, however, the residence of the justices form, the amendment which I have offered gives a simple, at Washington be objectionable, it affords an additional and cheap, and uniform system for the administration of reason for having two or three terms a year of the Supreme justice throughout the Union. I have before referred to Court, instead of one. If one term of the court be held the five large districts which are not embraced by the bill. at the city of Washington, and one or two other terms be These are told to be content with their district courts. held at one or two of the following places, namely, Cin. And yet, sir, the northern district of New York contains cinnati, Philadelphia, or New York, some of the advanta- nearly one million of inhabitants; and I suppose the other ges would be obvious. It would remove the objection, if four districts as many more. Thus it will be found that there be any thing in it, against the justices residing at the five districts which are left without the benefits, real

Vol. VI.--69

Sir,

H. of R.)

The Judiciary.

(Jar. 20, 1830.

or imaginary, of circuit courts, contain as great a popula- point of dignity and of rights. The principles of this bill tion as that portion of the six new States to which the bill I prefer to the amendment, though I am not entirely satisextends the circuit court system. My amendment does fied with either. The bill proposes no new system, but no such injustice. It puts all upon the same footing. an extension of the old one, long enjoyed by the Atlantic

The members of the Supreme Court should not be too States, to the Western country. I could have wished that few for the requisite efficiency and weight of character, its provisions had not only extended the system, but have nor too many for convenience and promptness in the de- made it the same in all the States. The West asks this; spatch of business. Perhaps the court is now too large. and is her request unreasonable? In the Atlantic States In my opinion it is not. Five would inspire less confidence, there is no complaint. There should be none in the nine and more than seven probably still less. I have always Western States. Your judiciary ought to expand itself looked, and still look, to this court as the guardian of the with the growth and population of the country. The sys. oppressed, as the bulwark of freedom. I can do nothing tem which has been tested by the experience of forty which, in my judgment, will impair its independence or years in the Atlantic States, and which was aclapted to our stability, its virtue or intelligence. When and in what condition in our infancy, has not been enlarged so as to country was the law triumphant, or liberty or life safe, suit us in our manhood. We have outgrown the garment where there was not an intelligent, sound, independent ju- that then fitted us, and it is now too small. Six of the diciary? The Old World furnishes but few examples. Western States are wholly without the benefit of the preEngland furnishes some, both for evil and for good. Her sent circuit court system, (having only district courts,) star chamber court was the offspring of oppression, and and it has been but imperfectly extended to the seventh cirsoon degenerated into a regency of tyrants. The days cuit, composed of Ohio, Kentucky, and Tennessee, as I of Jefferies exhibit, in strong colors, the bloodshed and shall presently endeavor to show. ruin which flow from a dependant, servile court. Not so In order to show more distinctly the inequality of the the days of Coke. Then the sword and sceptre were present system as regards the Western States, compared forced to yield to an intelligent, sound, independent ju- with those east of the Alleghany mountains, it may be well diciary, and the innocent and oppressed were protected. to look, for a moment, to the judicial history of the United But there is an example nearer home. The old supreme States, and to ask of gentlemen here representing the court of New York existed at a time when party spirit East, why this inequality should have been permitted so ran high, was most embittered and unrelenting, dividing long to remain, and what sensible reason there can be now neighborhoods and families. It was composed of men to refuse the remedy. equal to the perils of the hour. It interposed its shield When the judiciary act of September, 1789, was passbetween martial and municipal law, and rescued and saved ed, there were but ten States in the Union: North Carolithe citizen. The angry passions of the time have subsid- na, Rhode Island, and Vermont came into the Union subed. The value of such a court, in a time like this, is rea- sequently to the passing of that act; and the system which dily appreciated; and the memory of the distinguished men it provided was extended to the former in June, 1790, and composing it will be revered as long as the science of law to the latter in March, 1791. At the date of that act, with or the principles of civil liberty shall have an advocate. only ten States in the Union, and with a population not

My conviction is thorough, that the justices of the Su- exceeding one-third of the present population of the twen. preme Court ought to be withdrawn from the circuits. Ity-four States, it was deemed necessary to appoint six see no other way to maintain the integrity of the court, judges of the Supreme Court. The States were divided which I deem not more essential to its safety than to its into three circuits, the Eastern, Middle, and Southern. usefulness. Think of it as we may, still this high tribunal North Carolina was attached to the Southern, and Rhode occupies the neutral ground between the twenty-five go- Island and Vermont to the Eastern circuits, as they respec. vernments and the people. No matter whether the op- tively came into the Union. Two judges of the Supreme pression or the wrong proceed from the federal or from Court were required to preside in each circuit with the re

a State government. Uncontrolled power is the enemy spective district judges, and constituted the circuit court, • of liberty, and the people's tyrant. It is, therefore, be- until the act of March, 1793, when one judge of the Su

tween the governments and the governed, between the preme Court and the district judge composed the circuit powers and duties of the people's agents, and the rights court, who were required to alternate or interchange cirand privileges of the people themselves; that this court is cuits with each other.

It is not my purpose to detain the the constitutional judge, and the sole judge. And he as- committee by a minute account of the judicial history, sumes a fearful responsibility who impairs this last and further than to show the inequality of the system as it ope strongest citadel, to which man can fee for the protection rates in the different States. The chairman of the Judiof liberty or life.

ciary Committee, in his opening argument, has relieved Mr. POLK next rose. He said that, in consider. me from the necessity of doing so. Thus the system coning the bill now before the committee, and the amend-tinued until the famous act of the 13th February, 1801, fament offered as a substitute for it by the gentleman from miliarly know to the country as the midnight system. By New York, who had just resumed his seat, he perfectly that act, the Supreme Court judges were relieved from agreed both with the chairman of the Committee on the circuit court duties, and were to constitute an appellate Judiciary and with the gentleman from New York, that, court alone. Many additional circuit judges were created whatever the judicial system of the United States be, it and commissioned, two of whom, with the district judge, should be uniform; that the inferior judicial tribunals, how- constituted a court termed a circuit court. This system is ever organized, and with whatever jurisdiction and pow. not precisely the same with that proposed by the gentle: ers it was deemed wise to invest them, as well as the mode man from New York, but differs from it only in this, that of administering justice, should be the same in every por- the gentleman's amendment does not propose the appointtion of the Union. If [said Mr. P.] “ the citizens of each ment of circuit judges, but to invest the district judges State shall be entitled to all privileges and inmunities of with circuit court powers. At the first session of Coni citizens in the several States, and if the States are enti- gress after Mr. Jefferson came into office, the system of tled to be governed (as far as this Government can legiti- 1801 was repealed, and the new judges legislated out of mately extend its authority) by equal and uniform laws, office; and, at the same session, the former system was te operating alike upon every portion of the country, it is organized, with slight and immaterial alterations from difficult to perceive upon what principle it is that the ju- that of 1793, not important here to mention, and the sys dicial system extended to one portion of the Union should tem which we now have was established. At the reci be withheld from another. All the States are equal in ganization of the system in 1802, Kentucky and Teries

JAX. 20, 1830.)

The Judiciary.

[H, of R.

see had been admitted into the Union. Ohio came in short-courts, is more extensive, and the cases more numerous ly afterwards. They were left with only district courts--than in all the Eastern States together. Many of the lands being at that time unimportant districts, with a sparse and in Tennessee were patented by the State of North Carocomparatively small population, with but little judicial busi- lina more than forty years ago, when the territory belongness to transact, falling within the jurisdiction conferred/ed to that State, and when the lands were subject to the upon the federal courts. In 1807, they had grown in num- Indian possession; and many of the lands have been pa. bers, in business, and importancé, to such an extent, that tented by Tennessee since she has been a member of the a law was passed constituting them into a circuit, and ap- Union. It is a fact that cannot be controverted, and need pointing a seventh judge of the Supreme Court, who was not be concealed, that such is the intricacy and complexiallotted to that circuit; and who, with the respective dis- ty of the land laws of North Carolina and Tennessee, contrict judges in those three States, constitute circuit courts. stituting almost a volume of themselves, and certainly Louisiana was admitted into the Union in 1812, Indiana in forming a distinet code different from any other I have 1816, Mississippi in 1817, Illinois in 1818, Alabama in 1819, ever seen, that but few men of the profession of law in. Maine in 1820, and Missouri in 1821. The circuit court that State, with years of study and constant practice in the system was extended to Maine at the same session of Con-courts, have ever acquired the reputation of being sound gress that she was admitted into the Union as a free and land lawyers. Such was the peculiar system of acquiring independent State. The other six States, although ad-titles to Lands, and such the looseness and uncertainty which mitted into the Union upon equal oting with the ori- prevailed in practice, both in North Carolina, and afterginal States, have, to this lour, only district courts. Nowards practised upon in Tennessee, that one of the greatjudge from that quarter of the Union bas a place upon est scourges that has ever visited the people of that State the bench of the Supreme Court. No judge of the Supreme is the uncertainty of their land titles, and the vast amount Court ever aids the district judge in the trial of causes in of litigation that has grown out of this state of things. that quarter of the Union. The constitution, the treaties, Much the greater portion of this description of litigation, and laws of the United States, the constitution and laws of I hope, indeed I know, has been disposed of: but, at the the States, which may be drawn in question in this court, same time, much, I fear, yet remains to be settled. This affecting these junior members of the confederacy, in com- description of litigation, added to the other business, over mon with the older States, are now expounded by a court which the court has jurisdiction, is one great cause of the of the last resort, composed of six judges east of the Alle- great delay of justice in the federal court at Nashville. ghany, and but one west of it, and that one having no con- The chairman of the committee has already stated the fact, nexion with these six States. They have no participation, as represented by the bar of that place, to this House, sedirect or indirect, in this high tribunal

, in protecting or veral years ago, that such was the delay of justice in that defending the lives, the liberties, or the property of their court, that some of the causes on the docket were older citizens. Sir, the population of these six Western States than the professional career of almost every member of is already great, and is rapidly increasing. It is already that bar, some of whom had been in practice a dozen near two millions of inhabitants. More than twenty-two and more years. In Kentucky and Ohio, but more espeTears have elapsed since the system was extended, imper-cially in the former, much litigation of the same character fectly as it is, to the seventh circuit. Within that period has existed. Kentucky, when a part of Virginia, was, in the thick forests of the valley of the Mississippi have been great part, patented by that State; and many of the lands filled by your enterprising and adventurous citizens; and in some portions of ohio were patented by Virginia and the vast region, then an uninhabited waste, but recently other States. "The Representatives from both these States reclaimed from its savage possessors, now swarms with a inform us, that the courts there have not the time nor the abidense, a free, and a happy population of civilized free-lity to dispose of the causes upon their respective dockets.

The judicial business has increased to such an ex- If this be the fact, and it cannot be controverted, of what tent, that they feel the inconvenience of their exclusion consequence is it, that, upon your statute books, you exfrom the benefits of the circuit court system, and they cla- tend the circuit court system to those three States; but so mor for its extension. So great has the judicial business overburden the judge that is allotted to that circuit, that become, that you have already found it necessary, in two he has neither the merits nor the physical ability to do the of these States, (Louisiana and Alabama,) to establish two business? When those three States were constituted into district courts in cach of them. And let me say, sir, that a circuit in 1807, their population did not exceed half á the district courts at New Orleans and Mobile--whether million of souls. It amounts now to more than two milregarded from the quantity of business which they do, or lions. Then the litigation was comparatively small; now from the great importance of the legal questions which it it is great. often becomes their duty to decide--are second in import I have thus attempted to present to the committee the ance to but few courts in the Union. Are these new true present condition of the nine Western and SouthwestStates, let me ask, always to remain in their present con- ern States, in reference to the operation of the federal dition--as judicial provinces? If they are not, has not the judiciary within their limits. That condition presents matime come to extend to them the benefits of the system ny evils and inconveniences that require a remedy. What which you enjoy east of the Alleghany ridge?

that remedy should be, it will be proper that I should next I come now to speak more particularly of the seventh consider. circuit; of the inadequacy of the system as at present ex

And first, will this bill afford the remedy which the extended there, and of the utter inability, the physical as isting evils require? It will unquestionably in part, and well as mental inability, of any one man to perform, as he but in part, remedy some of the existing inconveniences of should, the various duties that devolve upon him in that the present organization of the courts; but I regard it as a extensive circuit. In addition to the large territorial ex- misfortune that the Judiciary Committee who reported tent of that circúit, and the great distance of travel which it had not gone further, and afforded a complete remedy. the judge has annually to perform, in attending the courts Three additional judges, instead of two, would have ena. at Columbus, at Frankfort, at Nashville, at Knoxville, and bled us so to arrange the circuits as to extend equal justhe Supreme Court in this city, and in addition to the cases tice to the West, and to afford a system that will require within the jurisdiction of that court, common to all the no alteration or extension in all time. This bill makes no States, there is a very large mass of litigation there, in re provision for the western district of Louisiana, or the gard to land titles, which is scarcely known in the East-northern district of Alabama. The courts at Opelousas ern States. The land litigation in that circuit, over which and at Huntsville are still to be left with only district this court has concurrent jurisdiction with the State courts. The four States of Ohio, Indiana, Illinois, and

men.

H. of R.]

The Judiciary.

(Jan. 20, 1830.

Missouri, are crowded into one circuit; Kentucky and Ten- of the system which that bill proposed to extend to her. nessee are united in one circuit; and the southern district Let, then, additional judges be appointed in the West, of Alabama, Mississippi, and the eastern district of Louis- and let the circuits be properly arranged, and the system ana are thrown in one circuit. Sir, the chairman of the will last for all time. When Florida, Arkansas, and MichiJudiciary Committee has stated that Tennessee and Ken- gan come into the Union, (and the period is not very distucky must be united in one circuit, however reluctant tant when we may expect their accession to the Union, the Union may be. That, he says, is the only arrange they can be very naturally attached to the adjacent cirment by which nine judges can be made to answer for the cuits, without much increasing the duties of the judges. present. That gentleman), when this subject was last be- To make the system entirely uniform, I would attach the fore Congress, in 1826, voted with a large majority of this northern district of New York, the western district of House to separate Kentucky and Tennessee, and throw Pennsylvania, and the western district of Virginia, if the them into different circuits, because of the undue propor gentlemen from those quarters of the Union desire it, to tion of judicial business in those two States; that gentle the respective circuits alrcady established east of the Alman, at that time, voted for ten judges instead of nine. leghany, which they adjoin. Your system would then posHe then thought less than ten jndges would not do. If itsess no anomalies, it would have symmetry in all its parts. If was then proper to separate Tennessee and Kentucky, the amendment of the gentleman from New York should what has since occurred to render it so peculiarly neces- be rejected, and no other gentleman does, I will, myself, sary to unite them now? If the state of the Western coun- propose an amendment to make the system such as I have try was in such a condition then, that, in the opinion of the indicated. If the House shall decide to appoint only two gentleman, ten judges were required to do the business, additional judges, then justice will require that the eastwhat has since occurred to change that opinion? Has notern circuits should be enlarged, so as to give the services the Western country been advancing rather than receding of one, at least, of the judges now east of the mountains in populatiou, since that time? Has the judicial business to the West. decreased, or, rather, has not the gentleman himself labor. Gentlemen representing the East can best determine ed to prove to us that it has increased since that time? At whether they can without inconvenience enlarge their cir. that time, I believe, it was admitted by all who advocated cuits, so as to transfer to the West one of their judges. If the extension of that system, that less than ten judges this enlargement can be made, and the business of the would not afford a remedy for the evils of which the West East can be done with one judge less than they now have, complained. The then chairman of the Judiciary Com- then the location of the judges of the third circuit-his mittee in this House, (now a Senator from Massachusetts,) residence at Pittsburg, in western Pennsylvania, is favora. in reporting the bill with ten judges, I well remember, ble to this transfer to a western circuit. The third circuit stated that he rather assented to ten judges, than recom- is now composed of Pennsylvania and New Jersey; and mended their appointment at that time. He rather inclin. the fourth circuit of Maryland and Delaware. If gentle ed to prefer nine to ten judges, but ultimately voted for men are unwilling to give us their established judges, and ten. I see gentlemen around me, noting this. They will retain their circuits in the East, as at present arranged, be pleased to note, too, the ground upon which that opinion then I submit to them, whether the third and fourth cirwas expressed by the then chairman of the Judiciary Coin-cuits may not be consolidated into one, by attaching a part mittee. It was that, in his opinion, the three Northwest of the one or the other either to the New York or the ern States (Indiana, Illinois, and Missouri) “might well Virginia circuits

, so as not too much to increase the duties enough go on for some time longer, and form a circuit of of the judges of these circuits. If this can be done, so themselves, perhaps, hereafter, as the population shall in- as to give four judges to the West, then the wants of the crease, and the state of affairs require it."

West will be supplied, and the Supreme Cout will conThis was the only plan by which the then chairman of sist of nine judges. This is the only plan by which, as I the committee thought it practicable to make two addi- conceive, a less number than ten can be made to answer. tional justices of the Supreme Court answer the demands I come next to consider the amendment offered by the -the just demands of the West. It was to leave Missouri, gentleman from New York, as a substitute for this bill

. I Indiana, and Illinois, with only district courts for the time have already said that the system, whatever it be, should being, and constitute them into a circuit at some future be uniform. But that is not all that it should be. It should period. The bill in 1826, after a protracted discussion of be equal and just in its operations upon all the States, and many weeks, passed this House, adding three additional it should be etficient; and, for myself, I am free to declare judges to the Supreme Court, making the whole number that I would infinitely prefer an extension of the system

The same bill passed the Senate with the same num-long established, and sanctioned by experience in the oldber of judges, but was amended in that body so as to change er States, to the untried experiments proposed by this the two northwestern circuits in their arrangement. The amendment. The plan proposed by the amendment, it is bill, as it passed this House, placed Ohio and Kentucky in true, would possess uniformity; but, in my opinion, would the seventh circuit, in which there was already a judge wholly fuil to remedy the evils complained of, and would residing, and constituted Indiana, Illinois, and Missouri create others much more dangerous in their tendency into a separate circuit. The Senate passed the bill with than those that already exist. But, before I call the attenout alteration in its material parts; but proposed to change tion of the committee to this amendment, permit me to those two circuits, so as to make Kentucky and Missouri say a word in reply to a portion of the argument of the the seventh circuit, and to constitute Ohio, Indiana, and gentleman from New York. That gentleman has patheIllinois into a circuit. The bill, as it passed both in the tically informed us that he will not open the tomb of the Senate and in the House, placed Tennessce and Alabama system of 1801, and disturb its ashes that have been so in one circuit, and Mississippi and Louisiana in another. long interred. The gentleman at the same time told us in consequence of this immaterial difference of opinion that that system was not put down because it was wrong, between the two Houses in the arrangement of the two because it was not wise, or because it was not the best sys. northwestern circuits, the bill unfortunately failed be- tem, for (said he] the single year that it lived did not give tween the two Houses. Although the two Houses then time to test its advantages by a fair experiment; but it was agreed in opinion that it was proper to extend the system, repealed because of the unnecessary multiplication of the and to add three additional judges to the bench of the judges; and he intimated that the party fury of the times Supreme Court, yet, in consequence of this unimportant had much agency in effecting its destruction. Sir, I am as difference of opinion about these two districts, the West- much averse as the gentleman can be, to revive, unnecesern country remans to this hour without the enjoyinent sarily, unpleasant recollections of events that are past,

ten.

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