THE JUDICIARY.*

Ar the first session of the Nineteenth Congress a bill was introduced into the House of Representatives, by Mr. Webster, from the Committee on the Judiciary, which proposed that the Supreme Court of the United States should thenceforth consist of a chief justice and nine associate justices, and provided for the appointment of three additional associate justices of said court, and that the seventh Judicial Circuit Court of the United States should consist of the districts of Ohio, Indiana, and Illinois; the eighth circuit, of the districts of Kentucky and Missouri; the ninth circuit, of the districts of Tennessee and Alabama; and the tenth circuit, of the districts of Louisiana and Mississippi.

It repealed so much of any act or acts of Congress as vested in the District Courts of the United States in the districts of Indiana, Illinois, Missouri, Mississippi, Alabama, and Louisiana, the powers and jurisdiction of Circuit Courts, and provided that there should be thenceforth Circuit Courts for said districts, to be composed of the justice of the Supreme Court assigned or allotted to the circuit to which such districts might respectively belong, and of the district judge of such districts.

On this bill Mr. Webster spoke as follows:

THE bill which is under the consideration of the committee is so simple in its provisions, and so unembarrassed with detail, that little or nothing in the way of explanation merely is probably expected from the committee. But the general importance of the subject, and the material change which the proposed measure embraces, demands some exposition of the reasons which have led the Committee on the Judiciary to submit it to the consideration of the House.

The occasion naturally presents two inquiries: first, whether any evils exist in the administration of justice in the courts of

* Remarks made in the House of Representatives of the United States, on the 4th of January, 1826, on the Bill to amend the Judiciary System.

the United States; and secondly, whether, if there be such evils, the proposed bill is a proper and suitable remedy. On both these points it is my duty to express the sentiments which the Committee on the Judiciary entertain. Perhaps, however, Mr. Chairman, before entering into a discussion of these two questions, I may be allowed to state something of the history of this department of the government, and to advert to the several laws which have been, from time to time, enacted respecting its organization.

The judicial power, which, by the Constitution, was to be exercised by the present government, necessarily engaged the attention of the first Congress. The subject fell into the hands of very able men, and it may well excite astonishment that the system which they prepared and recommended, and which was adopted in the hurried session of the summer of 1789, has thus far been found to fulfil, so well and for so long a time, the great purposes which it was designed to accomplish. The general success of the general system, so far, may well inspire some degree of caution in the minds of those who are called on to alter or amend it.

By the original act of September, 1789, there was to be a Supreme Court, according to the Constitution, which was to consist of six judges, and to hold two sessions a year at the seat of government. The United States, or such of them as had then adopted the Constitution, were to be divided into circuits and districts, and there was to be a District Court in each district, holden by a district judge. The districts were divided into three circuits, the Eastern, the Middle, and the Southern; and there was to be a Circuit Court in each district, to be composed of two of the justices of the Supreme Court, and the district judge for the district. This Circuit Court was to hold two sessions a year in each district, and I need not inform the committee, that the great mass of business, excepting only that of admiralty and maritime jurisdiction, belonged to the Circuit Court as a court of original jurisdiction. It entertained appeals, or writs of error, also, from the decisions of the District Courts, in all cases.

By this arrangement, then, the justices of the Supreme Court were required to hold two sessions of that court annually, at the seat of government, to hear appeals and causes removed by

writs of error; and it was required of them also, that two of them should attend in each district twice a year, to hold, with the district judge, a Circuit Court.

It was found that these duties were so burdensome, that they could not be performed. In November, 1792, the judges addressed the President on the subject, (who laid their communication before Congress,) setting forth their inability to perform the services imposed on them by law, without exertions and sacrifices too great to be expected from any men. It was, doubtless, this communication which produced the law of March, 1793, by which it was provided that one judge of the Supreme Court, with the district judge, should constitute the Circuit Court. And, inasmuch as the courts would now consist of two judges, provision was made, perhaps sufficiently awkward and inconvenient, for the case of difference of opinion. It will be observed, Mr. Chairman, that by these laws, thus far, particular justices are not assigned to particular circuits. Any two judges of the Supreme Court, under the first law, and any one, under that of 1793, with the district judge, constituted a Circuit Court. A change, or alternation, of the judges was contemplated by the law. It was accordingly provided by the act of 1793, that, in case of division of opinion, as the court consisted of but two judges, the question should be continued to the next session, and, if a different judge then appeared, and his opinion coincided with that of his predecessor, judgment should go accordingly.

And here, Mr. Chairman, I wish to observe, that, in my opinion, the original plan of holding the Circuit Courts by different judges, from time to time, was ill-judged and founded on a false analogy. It seems to have been borrowed from the English Courts of Assize and Nisi Prius; but the difference in the powers and jurisdiction of the judges in the two cases rendered what was proper for one not a fit model for the other. The English judges at Nisi Prius, so far as civil causes are concerned, have nothing to do but try questions of fact by the aid of a jury, on issues or pleadings already settled in the court from which the record proceeds. They give no final judgments; nor do they make interlocutory orders respecting the proceeding and progress of the cause. They take a verdict of the jury on the issues already joined between the parties, and give no other

directions in matters of law, than such as become necessary in the course of this trial by jury. Every case begun, therefore, is ordinarily finished. Nothing of that case remains for the judge's successor. If it be tried, the record is taken back with the verdict to Westminster Hall; if it be not tried, the whole case remains for a subsequent occasion. It is, perhaps, surprising, that the very able men who framed the first judicial act did not see the great difference between this manner of proceeding at the English Assizes, and the necessary course of proceeding in our Circuit Courts, with the powers and jurisdictions conferred on those courts. These are courts of final jurisdiction; they not only take verdicts, but give judgments. Here suits are brought, proceeded with through all their stages, tried, and finally determined. And as, in the progress of suits, especially those of equity jurisdiction, it necessarily happens that there are different stages, and successive orders become necessary from term to term, it happened, of course, that the judge was often changed before the cause was decided; he who heard the end had not heard the beginning. When to this is added, that these judges were bred in different schools, and, as to matters of practice, especially, accustomed to different usages, it will be easy to perceive that no small difficulties were to be encountered in the ordinary despatch of business. So, in cases reserved for advisement and further consideration, the judge reserving the question was not the judge to decide it. He who heard the argument was not to make the decision. Without pursuing this part of the case farther, it is quite obvious that such a system could not answer the ends of justice. The courts, indeed, were called Circuit Courts, which seemed to imply an itinerant character; but, in truth, they resembled much more, in their power and jurisdiction, the English courts sitting in bench, than the Assizes, to which they appear to have been likened.

The act of 1793, by requiring the attendance of only one, instead of two, of the judges of the Supreme Court on the circuits, of course diminished by one half the circuit labors of those judges.

We then come to the law of February, 1801. By this act, the judges of the Supreme Court were relieved from all circuit duties. Provision was made that their number should be reduced, on the first vacancy, from six to five. They were still to

hold two sessions annually of the Supreme Court, and circuit judges were appointed to hold the Circuit Court in each district. The provisions of this law are generally known, and it is not necessary to recite them particularly. It is enough to say, that, in five of the six circuits, the Circuit Court was to consist of three judges, specially appointed to constitute such court; and in the sixth, of one judge, specially appointed, and the district judge of the district.

It

We all know, Sir, that this law lasted but a twelvemonth. was repealed in toto by the act of the 8th of March, 1802; and a new organization of the Circuit Courts was provided for by the act of the 29th of April of that year. It must be admitted, I think, Sir, that this act made considerable improvements upon the system, as it existed before the act of February, 1801. It took away the itinerary character of the Circuit Courts, by assigning particular justices to particular circuits. This, in my opinion, was a great improvement. It conformed the constitution of the court to the nature of the powers which it exercised. The same judges now heard the cause through all the stages of its progress, and the court became, what its duties properly made it, a court of record, with permanent judges, exercising a various jurisdiction, trying causes at its bar by jury, in cases proper for the intervention of a jury, and rendering final judgments. This act also provided another mode of proceeding with cases in which the two judges composing the Circuit Court should differ in opinion. It prescribed, that such difference should be stated, certified to the Supreme Court, and that that court should decide the question, and certify its decision to the Circuit Court.

In this state of things, the judicial system remained, without material change, until the year 1807, when a law was passed for the appointment of an additional judge of the Supreme Court, and a circuit allotted to him in the Western States.

It may be here observed, that, from the commencement, the system has not been uniform. From the first, there was an anomaly in it. By the original act of September, 1789, a District Court was established for Kentucky (then part of Virginia) and for Maine (then part of Massachusetts), and, in addition to the powers of District Courts, there was conferred on these all the jurisdiction which elsewhere belongs to Circuit Courts, and, in other cases, as new States were added to the Union, District