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cana judge at nisi prius, &c. By this new arrangement, the suej preme judges have held no circuits, but have confined themselves exclusively to the business of the Terms. It was stated the by Mr. Justice Spencer, in the convention," that it had been his opinion, and the opinion of his associates, that with the addition of one or two circuit judges, the present court would be able to do all the business that would be required for many 1 years."* Most certainly the supreme court was the best judge of what aid would have enabled it to transact the public business, with a proper regard to promptitude and reflection. The convention and the legislature, however, thought that an addition of no less than six new judges was necessary, notwithstanding this declaration of the supreme court.

We maintain that the new organization of the supreme court is not only more expensive, but more inefficient, than the old one, and that the facts which have transpired within the short period of its existence, are sufficient to condemn it in the opinion of all those who can appreciate them, and have no friends to be retained as judges, or any to be appointed hereafter to fill vacancies. If any other motives than those connected with the general weal, influenced the change, it is a matter of deep regret, that its authors were not satisfied by some smaller or more remote sacrifice, than that of an establishment which had existed from the foundation of our independence. We apprehend that no judicial system can be considered as approaching a tolerable perfection, where the judges are not obliged to hold courts of nisi prius. The legal faculties, the judicial inind, are sharpened and improved by presiding at the trial of issues in fact, where questions of evidence most novel and important are constantly recurring, and requiring prompt and immediate decision; where new points of law are first mooted and discussed, and where the facts on which they arise are placed more vividly by oral examination before the judge, than they can ever be by a case on paper. A judge at nisi prius sees too the operation of principles, and observes the effect of their application to the complicated relations of society, and when he returns to his brethren on the bench, he can state a thousand incidents in regard to the character of testimony, and the general complexion of the case, with which the court otherwise must for ever remain ignorant. Other things being equal, the judge who attends the circuit will be a better and more accomplished judge, than he who only attends the term. We have stated shortly our views on this subject, and we believe that if distinctions were not invidious, the experience of the

* Clarke's Reports of Debates in Convention, 323.

other states would bear us out in our remarks. But let us look at that country from which we derive almost all our notions regarding the department of government now, under consideration; and well may we turn our attention to England, for her judiciary, in all that belongs to civil rights, and the administration of equal justice between man and man, is, perhaps, as good as that of any other country on earth. It has been her salvation, amid all the corruptions which proceeds from privileged orders, and a long established system of legalized abuses. In England the institution of judges itinerant dates at least as far back as the reign of Henry the First, more than six centuries ago; they were then considered as members of the king's great court. But the propriety of a more immediate connection with the judges of the court, doubtless on the general grounds we have shortly stated, induced parliament to pass the Stat. Westm. 2. 13 Edw. 1. c. 30. which directs these justices in eyre to be assigned out of the king's sworn justices.* Subsequent statutes passed at various times have carried out this leading point of judicial policy; and it has contributed not a little to the fame and happiness of the English people, by the formation and ripening of such minds as those of Buller and Mansfield, of Kenyon and Dunning. This question has therefore been distinctly settled in England, for we find that anciently it was considered too great a burthen on the justices of the benches to attend the assizes,† but parliament found it to their advantage to impose that duty, inasmuch as it contributed most powerfully to the enlightened and proper administration of justice.

Such being the opinions which we entertain on this subject, we give our most cordial assent to the views expressed in the latter part of the report of the committee of the bar; and as we have designedly not entered minutely into this subject, we will make no apology for presenting it to our readers:

"Your committee, it will be observed. have recommended as a part of their proposed system, that the judges of the supreme and superior courts should participate in presiding at jury trials through the state. This, we beg leave to insist upon, as being in our judgment essentially important. The minds of all men are sharpened and improved by active exertionand in no department of the administration of justice are the judicial faculties put into such prompt requisition as at nisi prius There all new points are first raised, discussed and decided; recent adjudications in other states, courts, and places, are there, for the most part, first presented to the notice of even the most learned judges. And we think it may be confidently asserted, that they return from the labours of a circuit, better fitted for the arguments of a term; but then their numbers must be proportioned to the performance of their duties. The burthen of nisi

* 3 Black. Comm. 58 + Reeves' Hist. of Eng. Law, 492.

prius trials should be divided among so many, that each should have ample opportunities for study, and for considering the causes argued in Such an arrangement would, as we firmly believe, greatly advance the due administration of justice."

term.

By a fortunate coincidence, at the very time we are writing, the judiciary act of the United States is about to undergo some important amendments; indeed, this very policy of obliging the justices of the supreme court to hold circuit courts, has been frequently the subject of remark. It has been warmly supported by several most distinguished members of congress, and we imagine it will not be thought irrelevant, if we cite the language of an eloquent lawyer and profound jurist on the occasion. In the course of debate, Mr. Webster is reported to have spoken in the following terms:

"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 information 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 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.".

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But we have a practical commentary on the value of the principle we have lately adopted, in the history of the supreme court of the United States. By the act of February, 1801, the judges of that court were relieved from the necessity of holding circuits, and other judges were appointed to hold them. This ricketty bantling survived little more than a twelvemonth, and the acts of March and April, 1802, and finally the act of 1807, completely changed the system, and required the judges of the supreme court to hold circuits, in addition to their duties during term. We have now shown, that both in England and in our general government, the principle requiring the judges of the superior courts of law to hold circuit courts, has been sanctioned by the deliberative wisdom of both countries, and that it is supported by arguments appealing most strongly to our reason, and to the republican habits of our people: we trust, therefore, that we shall not be considered as presumptuous, in preferring the former constitution of the judiciary to the new one.

The salaries of the eight new circuit judges was, of course, left to the discretion of the legislature, and the ill-timed parsimony of that body, and its effects, were anticipated and deprecated in the convention. An independent and valuable member of that body said, in the course of the debate, "it will be urged, that under the contemplated system, you may have as intelligent judges upon the circuits as you would ordinarily have under the present arrangement. But will this be the case? If this power is delegated to the legislature, they will be passed upon from time to time by two-penny lawyers, who will confederate to secure those places. The legislature never can be induced to give adequate salaries to ten or a dozen cireuit judges to command the services of suitable men, and the consequence will be that those places will be usurped by ignorance." The circuit judges now receive $1,250 per annum ; and, we would ask, what would induce any respectable professional man, except motives of most unusual but most laudable public spirit, to leave his practice and assume this office.

Talent, like every thing else, has its value and its gradations; and we may be assured, that, in general, the better it is paid, the rarer is the quality of the article. The justices of the peace of the city of New-York receive $1,750 per annum. What sort of a judge, then, will you in general procure for so meagre and so miserable a pittance as $1,250? We pretend not to say how far the predictions we have recorded above have been fulfilled-exceptions we certainly are acquainted with-but perhaps we may not always be doomed to witness the excessive patriotism of the present day!

But let us suppose that our present circuit judges are among our best read lawyers and most accomplished jurists; we ask, is the division of the state into eight districts, likely to produce any uniformity in our legal decisions, and to maintain the same law "modo Romæ, modo Athenis ?" It must necessarily happen, that different views of the law will be taken by these circuit judges; it must occupy a long time, before the supreme court can set them right; and of course, we shall have the singular incongruity of a legal question decided one way in one circuit, when an entirely different doctrine prevails in the next. Decisions were formerly made at nisi prius, according to the known opinion of the judges, who freely, at their meetings, interchanged sentiments, and canvassed every new doctrine. From this community of opinion, the circuit judges are now entirely excluded, and they have probably no better idea of the probable views of the supreme court on any given subject, than a member of the bar of equal legal standing. To this source, we humbly apprehend, may be attributed some share of the business of the new supreme court. But there is yet another fruitful source (which was entirely unknown to the old system) of the present difficulties. From the perfect separation of the circuit courts from the supreme court, the former are considered inferior courts; from the probable professional character of their incumbents, on account of the smallness of their salaries, they have not the entire confidence of the bar in their legal opinions, and appeals are made to the supreme court, either from an entire distrust in their decisions, or from a wish to speculate on the opinion of more competent judges, whom the profession will in general never see, and whose views therefore they cannot properly estimate. In connexion with this part of our inquiry, we would quote the following passage of the report of the committee of the bar:

"Under the continuance of the present system, the bar would soon only know the circuit judges; those of the supreme court would be enVOL. II.

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