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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 suggested, 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 the present 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, and 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 clearly 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 nine hundred and fifty causes. As this is not a maritime district, most of these causes, doubtless, are in the Circuit Court. This accumulation has not arisen from any want of diligence in the judges themselves, for the same paper states, that two thousand causes have been disposed of within the last three years. The Memorial of the Bar of Nashville in.




forms us that one hundred and sixty 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 authorized to state that two hundred or two hundred and fifty 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 the courts in the other Western and Southwestern States, I am not so particularly acquainted. Gentlemen from those States will make it known to the committee. I know enough, however, to be satisfied that the whole case calls for attention. It grows no better by delay, and, whatever difficulties embarrass it, we may as well meet them at once,

and 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 serve as a 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, they will be shown to be so, 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 produces a reciprocal communication of information through all the branches of the judicial department. This leads to a harmony of opinion and of action. The Supreme Court, by itself, is 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 rule, they do not find that those judges 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 power 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

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