FEB. 16, 1830.]

The Judiciary Bill.

[H. of R.

must stop where we are. If the Supreme Court is perfect, ing the character of the nation abroad, and of every poras it now is, let us leave it to fulfil its high destinics, and tion of it at home. I declare, they are the last men to not tamper with it, until we rob it of public confidence, whom we should deny time. That jurisdiction, which in and are compelled to abandon it as tumultuous and ineffi- other countries is divided, is all placed in our Supreme cient. I will never consent to a measure of temporary Court; and without more time to devote to the business of relief which jeopardizes the structure of the judiciary. that court, than they are likely to have should this bill We are now called upon to choose the true system; nor pass to a law, the judges will not sustain themselves, nor need we delay one moment. finish business as it should be done in an appellate court, which convenes only once a year. Besides, sir, I should think that the noble ambition of the judges to answer the just expectations of the country, and sustain the high character they must have acquired to obtain the enviable seats they fill, are a sufficient guaranty that time will not be squandered by them.

Let it be remembered that the judges of the Supreme Court hold an annual session at Washington of about twelve weeks. They need at least four weeks more, to come to and return from Washington. Will these men be able, by increasing their number, as is now proposed, to discharge their duties in the Supreme Court, and on the numerous circuits? Let us for a moment cast our eve over

I have thus far contended that the system proposed in this bill must and will be abandoned, and perhaps much sooner than we are aware of, if we attempt to impose upon the same men the duties of the Circuit and Supreme Courts.

the people and extent of territory, for which it is said we ought, and must, and which we profess to attempt to provide with circuit courts. There is at present but one judge of this court in the Western States; and, as his circuit is to be altered, I will speak of the whole territory The second objection I have to urge against this bill is, together. These are Ohio, Indiana, Illinois, Missouri, Ken- the accumulation of judges in the court. tucky, Tennessee, Alabama, Mississippi, and Louisiana. I have no belief that the court can be made better by We leave by this bill unprovided for the western districts increasing the number of judges. Seven is enough, if not of New York, Pennsylvania, Louisiana, and the eastern too many. I will not, on this part of the subject, detain district of Alabama. The system, as it is, cannot be stretch- the committee by examining minutely the reasons of the ed so as to do these parts of the country justice. They must consequences which must inevitaby follow incumbering therefore wait until the eleventh and twelfth judges shall the Supreme Court. I appeal to the observation and exbe added to the court. And let us not forget, that so perience of all who hear me, for the truth of what I now great is the population in the three western districts of say. The court will become unwieldy, dilatory, less uni New York, Pennsylvania, and Virginia, that they have form, less efficient; the judges will feel less personal renearly as great a representation in this House as all the sponsibility, and they will often be divided in opinion. I Western States; and that there are, at this time, more beg gentlemen to weigh these considerations, and give cases on the docket of the Supreme Court brought up them their due influence. Lord Mansfield, after he had from the western district of Virginia, than have been been the chief justice of King's bench thirteen years, in brought from the State which I have the honor, in part, to giving his opinion in a case in which one of the judges represent, from the origin of the Government to the pre- differed from the other three, expressed his regret that sent time. There are likewise Florida, Arkansas, and the court were not united, and said that it was the first Michigan, pressing on for admission into this Union; and instance of a difference among the judges since he had what is to be done for them? The business in Florida is been on the bench. What has been the effect of such very considerable at present, and will soon be much great-unanimity in the English courts? The great commercial er. This whole territory, which I have thus enumerated, principles of that people have been settled once, for ever. constitutes more than two-thirds of the United States. Are Place nine or ten judges upon the King's bench, and what we from time to time to give them circuit judges who shall think you would be the unanimity or effect of its decisions. sit in the Supreme Court? The extent of travel and busi- Is it not a subject of regret, that the appellate tribunals ness forbids it. But let us look at the amount and charac- of the country so often present jarring opinions and dister of the business of the Supreme Court at Washington, cordant views, the result of a numerous bench? There even as it now is; and should it increase, as it certainly cannot be ordinarily mature consultation where there will, there must be two terms of the Supreme court esta- is a multitude of judges. Where do the friends of this blished. There are on the docket of that court one hun-bill find any examples to sustain their views? I stop not dred and thirty cases. It does not ordinarily dispose of to speak of the House of Lords, nor of the Senate of the more than sixty each year, with a protracted and laborious State of New York. Neither of them, in point of judicial session of ten or twelve weeks. The labors of the judges character, are worthy of imitation or praise. They are while on the bench of the Supreme Court are incessant no more competent to decide questions of law, than is this and exhausting. They cannot possibly endure more. And House, in which there is as much judicial talent as in either are they to be denied all time and leisure for reading and of them. But I fear we should make a sorry figure with study? Is there really any danger that they will become the abstruse and complicated principles which undergo an the victims of "indolence and sloth," as has been said re-examination in the other part of this capitol. The highpeatedly during this debate? What men on earth have est courts of law and equity in England consist of from more need of time to become qualified to discharge the one to four judges. There are four on the King's bench, responsible duties of the highest judicatory of this country four in the common pleas, four in exchequer, one in How vast, how overwhelming, is the jurisdiction of that the court of equity, and one in the court of admiralty. court? The world has never seen the like. History does Who has not heard of the wisdom and the fame of her not inform us of any such. Consider what deep and lord chancellors, whose jurisdiction and power are imintricate questions are weekly and daily discussed there, mense? Of the enlightened administration of her admiralty growing out of our national compact; out of State legisla- and other courts? What would be thought of a proposition tion; national law, commercial law; the numerous titles in Parliament to encumber those courts with ten judges? to real estate under the laws of the States; the great code And, sir, what do we find in our own country to recomof equity which prevails there. What consummate wis-mend this bill? Massachusetts has but four judges, New dom; what profound talents; what historical and diversified York three, Pennsylvania five; and these are among the reading; what professional knowledge; what study, re-largest and most commercial States in the Union. search, and deliberation, must they bring to their consult- idea has been gaining ground in this country for a few ations? And then, what amount of responsibility lies upon years past, that our supreme judicatories should consist their minds, while they are thus settling principles involv- of a few, but able men.

VOL. VI.-72

The

H. of R.]

The Judiciary Bill.

[FEB. 16, 1830.

Some have said that the Supreme Court should be en-will become the tools of corrupt influence in this capitol. larged for its own sake, in order that every part of the He says, they will come to reside here, and will breathe country may be represented. If by representation is the tainted atmosphere of Washington. This is altoge meant that the sectional feelings of the country should ther imaginary. The judges will not come to reside in Washbe in the court, I protest against such a notion. Nothing ington. Will it be believed that the judges now on the but downright corruption would be worse. But if gen- bench would, did they not ride on the circuit, leave those tlemen mean only that the court should be possessed of parts of the country where they have been born and edu local statutes and usages, so as to be fully possessed of cated; where live their friends and connexions; where whatever is material to the merits of cases, I agree with they have established themselves in the affections of the them. And I say they always have this from the record, public; have contracted family alliances, and perhaps made which brings up from the circuit court every thing which pecuniary investments--and come and live in this vortex pertains to the case, whether it be local or general. If this of fashion, extravagance, and dissipation? Let the queswere not so, how could the judges, who do not try the [tion be put to the judges severally, I will abide the ancase below, ever understand it above? Do they depend swer of any one, or all of them. But what if they should upon the judge who sat at the circuit, for the facts or law establish themselves here? How are they to be tainted? upon which they are to decide? Not at all. The whole The Executive, for the time being, is not ordinarily the case is on the record. Let the question be put to the person who has raised to the bench more than one or two judges, if they do not gain their knowledge from the re- of the judges. And how, if he be corrupt himself, cord and argument of counsel, and I will most cheerfully (which I will never suppose of any man whom the people abide the answer. Besides, if I am wrong, then each of this country select as their Chief Magistrate,) can he State wants a representative in the court. It cannot be address the judges? What has he to present to seduce contended that a judge, by holding a circuit court twelve them? They hold, by an independent tenure for life, the days in a year, and often less, in a sister State, can acquire best offices in the Government; with a salary equal to any local knowledge or practice which is peculiar, upon their utmost wishes. No, sir, if danger there be, it is on which he would venture to rely himself, or communicate the other side; that these men will feel their indepento others. dence too much, if it were possible. Nothing will gain

The third objection I shall urge against the adoption of independence and integrity to men, so much as a comthis bill, is, that an appellate court should not be compos- mission in the Supreme Court. There is not the most ed of judges whose decision is to be reviewed, and, if remote danger of surveillance there. I repeat it, the necessary, reversed. Judges are but men, and they are danger is rather on the other side.

I

subject to like passions and infirmities with them. There It has further been said, that, if we do not send the are but few judges who, after forming and publicly pro- judges out upon the circuits, the people will withdraw nouncing an opinion below, can review it with entire im- from them their confidence; they will know nothing partiality above. I appeal to the observation and experi- of them but the "decrees issuing from their dark and ence of every gentleman who hears me, if this is not so. vaulted chambers." I was, indeed, sorry that the honorSuch perfection is not to be expected from imperfect man. able gentleman who opened this debate, should have lent There is a pride of opinion, as well as an ambition to be his name in any way to such an objection, and to those right, which, in spite of the efforts of the most upright weak or wicked persons who talk of the "decrees,” and mind, will influence it in reviewing its conclusions. "dark and vaulted chambers from whence they issue." would not abandon a tried system for this defect only; for Such things should not be said, or imagined. Like a diviperhaps we cannot hit upon any system not obnoxious to sion of the Union, we should reprobate the very mention objections; but it is a defect, and one often of a serious of them. Sir, what is intended by this objection? That magnitude. It sometimes happens that the judge be- the judges of the court sit in secret, and fulminate low gives the casting vote above. I have known this to their edicts, regardless of the vows which are upon them' happen in the State which I have the honor to represent, Do they not sit in open day? in this capitol? before us, the and yet the judges of that court are among the most dis representatives of all this nation and the innumerable tinguished and virtuous men who ever adorned any court. distinguished advocates and strangers who crowd their If it be necessary to have different grades of courts, that room to listen to their wisdom, and the thrilling eloquence important questions may be thoroughly examined and there to be heard from week to week? Are there any re-examined, so that error shall not lurk in any hidden secrecies there? any appalling "decrees?" "any dark and place, is it not equally necessary to fill those courts with vaulted chambers"" The Supreme Court is the noblest different judges? and most august tribunal in the land; most worthy of the

These are some of the considerations which induce me confidence and affection of the people. I am sorry to see to oppose the passage of this bill. The system proposed such sly and hurtful insinuations. I acquit the honorable is not adapted to this country, and is becoming less so eve- chairman of all opposition to the court himself. No man, ry year. It is not, and cannot be uniform, and will spee-I trust, more highly appreciates it, and few can do more dily give way to the introduction of the better and true to defend and sustain it. But the friends of the country system. The Supreme Court will be loaded with judges, must not forget that the judicial power is the palladium of until it is broken down; when, alas, we shall find it too late the constitution; without which, it would not live a twelveto retrieve our affairs. I will not, after the extensive remonth. marks of my honorable colleague, who has just taken his seat, detain the committee, to urge other objections to the bill. I do not concur in one position laid down by my colleague, viz. that there is no necessity for doing any thing. I think something must be done. There is nothing like an equal participation of our judicial power, by the Western States, and some portions of the Eastern. We are bound to do something; the best we can. If we will not hear the complaints now, they will become uneasy; and we may be found to adopt, at last, a system under unpropitious circumstances.

The honorable chairman of the committee has told us that if we separate the judges from circuit duties, they

It is further said, that, if the judges are not sent on the circuit, they will lose their knowledge, their acuteness, and their habits of attention and business. There may be something in this objection, but much less than is suppos ed. Will the judges lose their professional knowledge while they are listening, for three months, to the most profound and erudite counsellors, on the most intricate and important subject? What learning, thought, research, and wisdom, do they need to bring to their deliberations? What will they forget? What do they not need to acquire? And is it really true, that, after having spent their lives in the practice and detail of the law, they must travel, and try cases on the circuit, to keep their faculties alive

FEB. 17, 1830.]

The Hornet, Sloop of War. The Judiciary.

--

[H. of R.

and efficient? Can it be necessary that these learned men a part of the settled policy of the country. Of the well foundshould mix with all sorts of people to retain their know-ed objections to the establishment of a pension system he was ledge, their tact, or their integrity? "To ride in coaches, well aware. But they would not apply in any manner to wagons, solas, gigs, carryalls, or in steamboats, and ferry-this bill, which must be considered rather in the light of an boats, to receive the full benefit, in eating houses, tav-expression of national sympathy, and of condolence with erns, boarding houses, and bar rooms, of the conversa- the bereaved, than in any other; for it could not enter tions of learned tapsters, stewards, and stage coach drivers?"

I have thus briefly, but I hope satisfactorily, considered the objections urged to a system which separates the duties of the circuit courts from the judges of the Supreme Court; they are more imaginary than real.

into the mind of any man, that the provision contained in this bill was to be considered as any thing like a compensation for the afflicting bereavement sustained by the relatives of those who had thus unfortunately perished.

The motion of Mr. SPEIGHT was then decided in the negative; and the committee rose, and reported the bill; and it was ordered to be engrossed, and read a third time

THE JUDICIARY.

The House then resolved itself into a Committee of the Whole, Mr. CAMBRELENG in the chair, and resumed the consideration of the bill to extend the judiciary system. Mr. BOULDIN, of Virginia, spoke at length in support of the bill.

The amendment more immediately under the consideration of the committee proposes to abolish the present cir- to-morrow. cuit courts, and divide the States into new circuits, and create a new circuit court to consist of the three contiguous district judges. I do not know that I should object to this system; although I fear that all the present district judges would not give satisfaction in this higher tribunal. They were not selected for it, nor are their salaries such as would command the first talents hereafter. This may not, however, be the fact. In the State which I have the Mr. CRAWFORD said, if my view of the question unhonor in part to represent, I know it is not the fact. The der discussion was the same with that of any gentleman district judge of that State is distinguished for his talents who has addressed the committee, prudence would, perand professional attainments, and would do honor to the haps, dictate that silence, and a careful consideration of Supreme Court itself. the remarks of others, would best become my legislative

Sir, the subject before us involves the substantial inte- inexperience. But some examination of the subject havrests and glory of this country. Let us pause, and consi- ing produced a conviction on my own mind that it would der well what we are doing. Let us approach the organ be inexpedient to make any alteration in the judicial sysof judicial power with jealous vigilance and circumspec-tem of the United States, without the most urgent reasons, tion; lest unawares we strike from under us the pillar of nay, without an absolute and imperious necessity, which our constitution, and the foundation of national existence. would overrule all arguments resting in opinion merely, Mr. BOULDIN, of Virginia, next took the floor, but and that at present the contemplated change, or any yielded it for a motion to rise.

WEDNESDAY, FEBRUARY 17, 1830. THE HORNET, SLOOP OF WAR. The House then proceeded to the consideration of the following bill, which was the special order of the day for this day:

change, is unnecessary, I feel constrained to say to the committee how and why I have reached these conclusions

It will be conceded that the subject is one of extreme delicacy and difficulty. In all countries, it occupies the anxious thoughts of those who are charged with the public interests. When, therefore, a plan has been happily laid in our own land, which, in its execution, commands the public confidence, and so ensures obedience to its de"Be it enacted, &c. That the widows, if any such there crees, will prudence, will the careful watchfulness that be, and, in case there be no widow, the child or children; belongs to our stations, allow us to leave the road we have and, if there be no child, then the parent or parents; and, found so smooth, and fragrant from the flowers that if there be no parent, then the brothers and sisters of the bloomed upon its sides, and to enter upon an unbeaten officers, seamen, and marines who were in the service of way that may lead us into miry and swampy grounds? the United States, and lost in the United States' sloop of This tribunal, like every constituted authority of these war Hornet, shall be entitled to, and receive, out of any United States, finds its strongest, its enduring foundation money in the treasury not otherwise appropriated, a sum in the belief that it is enlightened and of the purest inteequal to six months' pay of their respective deceased re-grity--it is armed with power to enforce its mandates, but latives, aforesaid, in addition to the pay due to the said its best authority is the regard I have mentioned; and, if deceased on the first day of January, one thousand eight it shall ever happen that a different estimate will be made hundred and thirty, up to which day the arrears of pay of its decisions from that which now prevails, it and our due the deceased shall be allowed and paid by the ac- other institutions will soon sink together. counting officers of the Navy Department."

On motion of Mr. DORSEY, the bill was amended so as to conform to the date of the supposed loss of the Hornet, (10th September.)

Let us not then put to hazard this rich fruit of our noble form of government-it has all the raciness of the soil on which it grew, and all the mellowness that the brightest and strongest intellectual rays, steadily beaming Mr. SPEIGHT, of North Carolina, was not opposed to upon it, could produce. The Supreme Court is ripe in the main object of the bill, as far as concerned the widows its fame and in its usefulness--it will never be greater and children of the officers and crew of the Hornet; but than it is. I beseech the committee to take no step that he was opposed to going beyond that line, to their parents may, by possibility, relax its present hold upon public esand brothers and sisters. This, he thought, was extend- teem, founded on the best and strongest reasons. The ing the principle further than was justifiable. Supreme Court is known as it is now constituted--as such, Mr. DORSEY spoke in support of the bill, showing it it is regarded to be wise, learned, and honest. It should to be sustained by precedents in like cases, and especially not be lightly changed--it should be looked on as so far in the case of the Epervier, from the act passed in which permanent, that while the individuals enjoying its honors case, with the exception of the name of the vessel, this come and go, the system remains the same, at least so long bill had been literally copied. Mr. D. expatiated on the as it may be found to answer the end designated at its forfavor which the navy had won for itself in the glorious mation--make it not, by an augmentation of its memresults of the late war, in which it had fought itself into bers, less responsible, or less effective. the affections of the American people, under which influence the sort of provision proposed in this bill had become

I do not like an increase of the judges for many other reasons; among the most important of which is the con

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The Judiciary.

[FEB. 17, 1830.

sideration that it will have a tendency to destroy the con- commercial pursuits-from her manufacturing and agriculfederate character of the court. This was deemed a most tural transactions, and the varied intercourse of a large material quality by those who framed the constitution; for and very dense population, is done, and well done, by we find that, by the law of 1789, in enacting which many fewer judges than we have now; if you embrace your Suof those who were in the constitution-convention took a preme Court and all the district judges, by fewer than part, the judges of the Supreme Court were appointed one-half, exclusive of our State judicial magistratesindifferently from every quarter of the country, and were amounting to some hundreds, many of them possessing strictly circuit judges, that is, itinerant, and holding courts the deepest learning, and the most enviable reputations as might be arranged by themselves--indeed, I think the for talents and probity. The fact is they labor more; an act contemplated alteration. The reasons for my prefer- English judge will go into court in the morning, and, inence of this plan I will submit hereafter; at present I wish stead of returning home to dine, will, perhaps, in a press to contrast it with the representative system-representa- of business, eat a few mouthfuls on the bench to sustain tive not, says my honorable colleague and friend, [Mr. him. Our State judges devote a much larger share of BUCHANAN] of local partialities, sectional feelings, and in-time to judicial duty, than is done in the United States' terests, but of local intelligence. Sir, the purpose is fair; courts. In Pennsylvania not less than nine, perhaps ten, but if the end be obtained, it will not be obtained singly, months are employed annually and assiduously in public The book of human nature tells us on every page that business, by her Supreme Court judges. Great labor, man, how pure soever his integrity, however clear and greater responsibility, and an abstraction from social pleastrong his mental endowment, how elevated soever his sta-sures and domestic joys, are the price that every kind of tion or responsible his duties, if we except some rare be- distinction costs. Look at your Chief Magistracy; it is the ings, whom surpassing excellence (if it may be said with-highest office in the world--desired by many--attained by out irreverence) brings into some slight resemblance to few--and rarely by those who desire it most; although the Divinity, is imbued with the prejudices and passions and distinguished individuals who have filled it, the illustrious frailties of his abode. If from every part of this wide em-man who now graces it, and those who shall hereafter ocpire you bring a judge, or make it an indispensable offi-cupy it, are and will be identified with our country; will cial qualification that he shall reside within designated live in her history, and be regarded as the most fortunate limits, he will carry with him into court all the peculiari- of men; yet I do not hesitate to say, that however fortu ties, not only of character and learning, which are desira-nate it may have been, or will be, for the country, that ble, but of jealousy and feeling, that naturally arise out some of them have reached, or may hereafter reach, her of State pride and State doctrine. Necd I go out of this highest honors, to themselves it brought no happiness-hall for the truth of what I assert? Every gentleman on that it never will bring any in the discharge of its duties: this floor is, I doubt not, as pure as any judge--on many the highest rewards may soothe their retirement; the good points as learned--perhaps on all as wise-cach no doubt opinion and gratitude of their fellow-citizens, and the conacts upon his own convictions; and yet is it not easily per-sciousness of having performed well the highest duties,, ceived that we come from different quarters? We have, will belong to such as deserve them, when they have ceas as we ought to have, representation in its best shape ined to be public functionaries--but while they direct or this House-we have it in another aspect in the co-ordi- shape the destinies of the country, they must look for nate branch of the Legislature--but the court of the last labor and anxiety without cessation or stint. Shall the resort should be the court of the nation; and, in making most elevated judicial stations be exempt from the com these remarks, I trust it will not be supposed that I am for mon rule? Shall citizens ascend the political ladder, and consolidation--far from it; but I am in favor of a court not be measured by the scale which regulates responsibili which, perched, as the Supreme Court is, upon a lofty emi-ty and toil, and which assigns an increased portion of both nence, shall be surrounded by the country's honor and to increased dignity and honor? By no means. confidence, and leave far below the passions and feelings your plan? Simply to model the circuits so as to spread which would push it from this elevated point. them over a greater surface, and to require of the judges

What is

The honorable chairman of the Judiciary Committee the discharge of extended duty. Show us, I think I hear has referred to the consideration of economy. It is well gentlemen say, that the required duties can be performed, worthy of attention. I mean that liberal economy which on any reasonable modification of them, by the present judg leads, in public and private affairs, to the best consequen-es, and we will yield. I do think that the present circuits, alces-a principle that, while it freely appropriates or ex-though greatly enlarged so as to be co-extensive with the pends money where a correspondent benefit may be rea-provisions of the bill, may be so modified that seven judges sonably calculated on, steadfastly refuses the application can discharge the dutics readily and with ease. I hold in my of its means to any purpose that does not promise an ade-hand a statement from the Treasury Department, showing quate return. He spoke of it as furnishing a good reason the exact number of days that each United States' circuit for preferring his bill to the circuit court system, which court has been in session in the years 1827, 1828. That gensome honorable gentlemen advocate; but, as I do not intend tlemen may give to this document its due weight, I beg to recommend either the one or the other to the adoption leave to state that, by the fourth section of the act of Conof the committee, regard to proper economy comes to me gress of 8th May, 1792, there shall be paid to the marshal in aid of other considerations, for retaining the present of each district, the compensations to the jurors, to the judges without addition, under certain modifications of clerks of the district and circuit courts for their attendtheir duties. ance, &c., to the attorney for his attendance, &c., to the But the reason which, in my judgment, is decisive, is, marshal for his attendance at court, &c., which, with many that the proposed change is not necessary. How? Has other charges, must be included in an account to be drawn not a different idea prevailed for years past? Was not a out by the marshal, and the same having been examined bill very much, if not altogether, like the one under con-and certified by the court, or one of the judges of it, in sideration, reported four sessions since, and debated at which the services shall have been rendered, shall be pass length, and yet this opinion not advocated--nor has it now ed in the usual manner at, and the amount thereof paid been brought into view? True-and perhaps temerity out of, the Treasury of the United States, &c. From these may be thought to mark my conduct, while I attempt to accounts, so settled and paid, the information I rely upon show the committee that the ground I have taken is one is compiled. upon which I can stand.

The business of England, multifarious as it is, and various as it must be, from the complexity of her extended

This paper, I presume, shows incontestibly how long these several courts were employed in each of the years mentioned. The accounts for 1829, I suppose, are not