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are concerned, that any improvement can be made. In my opinion, none is needed. But it is not so in the Western States. Here exists great deficiency. The country has outgrown the system. This is no man's fault nor does it impute want of usual foresight to any one. It would have seemed chimerical in the framers of the law of 1789, if they had struck out a plan which should have been adequate to the exigencies of the country, as it actually exists in 1826. From a period as far back as the close of the late war, the people of the West have applied to Congress on the subject of the Courts. No session of Congress has passed without an attempt, in one or the other House, to produce some change: and although various projects have been presented, the inherent difficulties of the subject have prevented any efficient action of the Legislature. I will state, shortly, sir, and as nearly as I remember, what has been at different times proposed.
In the first place, it has been proposed to recur to the system of Circuit Courts, upon the principle, although not exactly after the model, of the act of February, 1801. A bill of this character passed the Senate in 1819, dividing the country into nine Circuits, and providing for the appointment of one Circuit Judge to each Circuit, who, with the District Judge of the District, should constitute the Circuit Court. It also provided, that the Supreme Court, as vacancies should occur, should be reduced to five members. This bill, I believe, was not acted upon in this House. Again it has been proposed, to constitute Circuit Courts by the union of the District Judges in the Circuit. It has been proposed, also, to extend the existing system somewhat in conformity to the object of the present bill, by adding to the number of the Judges in the Supreme Court. And a different arrangement still has been presented, which contemplates the appointment of Circuit Judges for some Districts, and the continued performance of Circuit duties by the Supreme Judges in others, with such legal provision as shall not attach the Judges of the Supreme Court, in the performance of their Circuit duties, unequally, to any part of the country, but allow them to be distributed equally and fairly, over the whole. This system, though somewhat complex, and perhaps liable to be misunderstood, is, I confess, what appears to me best of all suited to our condition. It would not make the Supreme Court too numerous; and it would still require from its members the performance of Circuit duties; it would allow a proper distribution of these members to every part of the country; and, finally, it would furnish an adequate provision for the despatch of business in the Circuit Courts. Upon this plan, a bill was presented to the House of Representatives at the first session of the last Congress, but it did not meet with general favor; and the fate of a similar proposition elsewhere, at a subsequent period, discourages any revival of it.
I now come, sir, to consider whether any, and what, evils exist; and then, whether this bill be a suitable remedy. And in the first place, it is said, perhaps with some justice, that the business of the Supreme Court itself, is not gone through with sufficient promptitude: that it is accumulating: that great delays are experienced, and greater delays feared. As to this, I would observe, that the annual
session of the Court cannot last above six or seven weeks, because it commences in February, and the Circuit duties of the Judges require them to leave this place the latter part of March. But I know no reason why the Judges should not assemble earlier. I believe it would not materially interfere with their Circuit duties, to commence the session here in the early part of January; and if that were the case, I have little doubt that, in two years, they would clear the docket. A bill to make this change, passed this House two years ago; I regret to say, it was not acted upon in the Senate.
As to returning to the original practice of having two sessions of the Supreme Court within the year, I incline to think it wholly inexpedient. The inconvenience arising from the distance of suitors and counsel from the seat of government, forms a decisive objection to that proposition.
The great evil, however, sir, at present experienced, that which calls most loudly and imperatively for a remedy, is, the state of business in the Circuit Courts in the Western States. The seventh Circuit consists of Kentucky, Ohio, and Tennessee. All the other Western States have District Courts, with the powers of Circuit Courts. I am fully of opinion, that some further provision is required of us, for the administration of justice in these States. The existing means are not equal to the end. The judicial organization is not competent to exercise the jurisdiction which the laws confer upon it. There is a want of men, and a want of time. In this respect, it appears to me, that our constitutional duty is very plain. The Constitution confers certain judicial powers on the Government of the United States: we undertake to provide for the exercise of these powers; but the provision is inadequate, and the powers are not exercised. By the Constitution, the judicial power of this Government extends, as well as to other things, to causes between citizens of different States. We open Courts professedly to exercise that jurisdiction: but they are not competent to it; it is not exercised with reasonable promptitude; the suitor is delayed, and the end of the constitutional provision, in some measure, defeated. Now, it appears to me very plain, that we should either refuse to confer this jurisdiction on the Courts, or that we should so constitute them, that it may be efficiently exercised.
I hold, sir, the certificate of the Clerk for the District and Circuit Court of the District of Kentucky, that there are now pending, in those Courts, 950 causes. As this is not a maritime district, most of these causes, doubtless, are in the Circuit Court; nor has this accumulation arisen from any want of diligence in the Judges themselves: for, the same paper states, that 2,000 causes have been disposed of within the last three years. The Memorial of the Bar of Nashville informs us that 160 cases are pending in the Circuit Court for the Western District of Tennessee; a number, perhaps not much less, is on the docket of the Court for the Eastern District of Tennessee; and, I am authorised to state, that 200, or 250, may be taken as the number of suits pending in the Circuit Court of Ohio. These three States, sir, constitute one Circuit: they extend over a wide region; the places for holding the Courts are at vast distances from one another; and it is not within the power of man, that the
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. 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 take 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.