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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 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 jurisdiction. 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. 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 for 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.
As to the present bill, Mr. Chairman, it will doubtless be objected, that it makes the Supreme Court too numerous. In regard to that, I am bound to say that my own opinion was, that the present exigency of the country could have been answered by the addition of two members to the court. I believe the three Northwestern States might well enough go on for some time longer, and form a circuit of themselves, perhaps, hereafter, as the population shall increase, and the state of their affairs require it. The addition of the third judge is what I assent to, rather than what I recommend. It is what I would gladly avoid, if I could with propriety. I admit that, for some causes, the court as constituted by the bill will be inconveniently large; for such, especially, as require investigation into matters of fact, such as those of equity and admiralty, and perhaps for all private causes generally. But the great and leading character of the Supreme Court, its most important duties, and its highest functions, have not yet been alluded to. It is its peculiar relation to this government and the State governments, it is the power which it rightfully holds and exercises, of revising the opinions of other tribunals on constitutional questions, as the great practical expounder of the powers of the government, which attaches to this tribunal the greatest attention, and makes it worthy of the most deliberate consideration. Duties at once so important and so delicate impose no common responsibility, and require no common talent and weight of character. A very small court seems unfit for these high functions. These duties, though essentially judicial, partake something of a political character. The judges are called on to sit in judgment on the acts of independent States; they control the will of sovereigns; they are liable to be exposed, therefore, to the resentment of wounded sovereign pride; and from the very nature of our system, they are sometimes called on, also, to decide whether Congress has not exceeded its constitutional limits. Sir, there exists not upon the earth, and there never did exist, a judicial tribunal clothed with powers so various, and so important. I doubt the safety of rendering it small in number. My own opinion is, that, if we were to establish Circuit Courts, and to confine their judges to their duties on the bench, their number should not be at all reduced; and if, by some moderate addition to it, other important objects may well be answered, I am prepared to vote for such addition. In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done. The opinions of mankind naturally attach more respect and confidence to the decisions of a court somewhat numerous, than to those of one composed of a less number. And, for myself, I acknowledge my fear, that, if the number of the court were reduced, and its members wholly withdrawn from the circuits, it might become an object of unpleasant jealousy and great distrust.
Mr. Chairman, I suppose I need not assure the committee that, if I saw any thing in this bill which would lessen the respectability or shake the independence of the Supreme Court, I should be the last man to favor it. I look upon the judicial department of this government as its main support. I am persuaded that the Union could not exist without it. I shall oppose whatever I think calculated to disturb the fabric of government, to unsettle what is settled, or to shake the faith of honest men in the stability of the laws, or the purity of their administration. If any gentleman shall show me that any of these consequences is like to follow the adoption of this measure, I shall hasten to withdraw from it my support. But I think we are bound to do something; and shall be most happy if the wisdom of the House shall suggest a course more free from difficulties than that which is now proposed to it.
FURTHER REMARKS MADE ON THE SAME SUBJECT, ON THE 25TH OF JANUARY, 1826, IN REPLY TO THE ARGUMENTS USED AGAINST THE BILL, AND IN FAVOR OF ITS POSTPONEMENT.
* I had not intended, Sir, to avail myself of the indulgence which is generally allowed, under circumstances like the present, of making a reply. But the House has been invited with such earnestness to postpone this measure to another year, it has been pressed, with so much apparent alarm, to give no further countenance or support now to the bill, that I reluctantly depart from my purpose, and ask leave to offer a few brief remarks upon the leading topics of the discussion.
This, Sir, must be allowed, and is, on all hands allowed, to be a measure of great and general interest. It respects that important branch of government, the judiciary; and something of a judicial tone of discussion is not unsuitable to the occasion. We cannot treat the question too calmly, or too dispassionately. For myself, I feel that I have no pride of opinion to gratify, no eagerness of debate to be indulged, no competition to be pursued. I hope I may say, without impropriety, that I am not insensible to the responsibility of my own situation as a member of the House, and a member of the committee.* aware of no prejudice which should draw my mind from the single and solicitous contemplation of what may be best; and I have listened attentively, through the whole course of this debate, not with the feelings of one who is meditating the means of replying to objections, or escaping from their force, but with an unaffected anxiety to give every argument its just weight, and with a perfect readiness to abandon this measure, at any moment, in favor of any other which should appear to have solid grounds of preference. But I cannot say that my opinion is altered. The measure appears to my mind in the same light as when it was first presented to the House. I then saw some inconveniences attending it, and admitted them. I see them now; but while the effect of this discussion on my own mind has not been to do away entirely the sense of these inconveniences, it has not been, on the other hand, to remove the greater objections which exist to any other plan. I remain fully con
Mr. Webster was Chairman of the Judiciary Committee of the House of Representatives, at this session of Congress.
vinced, that this course is, on the whole, that which is freest from difficulties. However plausible other systems may seem in their general outline, objections arise, and thicken as we go into their details. It is not now at all certain that those who are opposed to this bill are agreed as to what other measure should be preferred. On the contrary, it is certain that no plan unites them all; and they act together only on the ground of their common dissatisfaction with the proposed bill. That system which seems most favored is the circuit system, as provided for in the Senate's bill of 1819. But as to that there is not an entire agreement. One provision in that bill was, to reduce the number of the judges of the Supreme Court to five. This was a part, too, of the original resolution of amendment moved by the gentleman from Virginia ;* but it was afterwards varied; probably to meet the approbation of the gentleman from Pennsylvania,t and others who preferred to keep the court at its present number. But other gentlemen who are in opposition to this bill have still recommended a reduction of that number. Now, Sir, notwithstanding such reduction was one object, or was to be one effect, of the law of 1801, was contemplated, also, in the Senate's bill of 1819, and has been again recommended by the gentleman from Virginia, and other gentlemen, yet I cannot persuade myself that any ten members of the House, upon mature reflection, would now be in favor of such reduction. It could only be made to take place when vacancies should occur on the bench, by death or resignation. Of the seven judges of which the court consists, six are now assigned to circuits in the Atlantic States; one only is attached to the Western Districts. Now, Sir, if we were to provide for a reduction, it might happen that the first vacancy would be in the situation of the single Western judge. In that event, no appointment could be made until two other vacancies should occur, which might be several years. I suppose that no man would think it just, or wise, or prudent, to make a legal provision, in consequence of which it might happen that there should be no Western judge at all on the supreme bench for several years to come. This part of the plan, therefore, was wisely abandoned by the gentleman. The court cannot be reduced; and the question is only between
* Mr. Powell.
| Mr. Buchanan.