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The Judicial System.

table, the extraordinary extent of travel which the Judge has to perform, and the difficulties of doing so, are fully stated. Upon the second, a few remarks may not be unprofitable. It is said, and upon good authority, that there are now pending in the Kentucky District, 950 causes; in Ohio, about 200 or 250, and in East and West Tennessee, about 300; in all about 1,500 causes. Although these facts are doubtless as stated, still, to many of us the statement, unless explained, would present an exaggerated and deceptive view of the real business in the circuit referred to. By the laws of the United States, and the rules of the Supreme Court, made in pursuance thereof, the practice in the Circuit Courts of the United States has been assimilated to that of the Superior Courts of the States. That of the latter is various. Whilst in some of the States every pending cause, whatever be its nature or condition, is placed upon the docket, in others, such only as are to be tried upon issues either of law or fact: the former appears to be the practice in the seventh Circuit. Of the 950 causes pending in the Kentucky District, there are, therefore, in all probability, not more than 250 which require to be tried; the others pass by default, or are otherwise disposed of; and the same estimate may, with safety, be made of the business in the other districts in the Circuit.

That there is, notwithstanding, a greater amount of business in those districts than the Court can perform, constituted as the Circuit now is, appears from representa tions which have been made from time to time to Congress, coming from sources deserving entire confidence. It may appear strange to gentlemen that a Circuit so little commercial, and of a population inferior in point of numbers to several of the old Circuits, should be so greatly overburthened with business, whilst in the others, the Judges cannot only do all the present business, but might, without much inconvenience, do more. The fact is in part attributable to the great length of time necessarily employed by the Judge in travelling, but chiefly to another cause. By the Constitution of the United States, jurisdiction is given to the Federal Judiciary, among other things, in "all cases between citizens of the same State, claiming lands under grants of different States." A very great proportion of the causes pending in these Courts concern the title to lands thus circumstanced. The United States Court derive from this branch of their Judicial power an incomparably greater access of business in the Circuit in question, than they do in any portion of the old States. Such is briefly the actual condition of things in the seventh Circuit. Of the Courts, its inhabitants do not, nor have they any reason to complain-as much has been done for them as the number of the Judges and the situation of the Judicial system would admit of. From Congress they have had the assistance that has been given to the same, and even larger number of citizens, in other sections of the country, and more than has been given to some. They have, therefore, no ground for any thing like clamorous complaint, nor am I aware that they have made it-to us they certainly have not. But as they clearly suffer inconvenience as the cause of the evil is without their fault and beyond their control, they have a right to ask present redress; and the bill on the table proposes to give it as far as that can be done consistent with the interests of the other States. The remaining ground of complaint is the condition of the six States to which the Circuit system has not been extended. The following is the state of this part of the case:-The other States have District Courts, which are held by District Judges, receiving salaries of from eight to sixteen hundred dollars. They have also Circuit Courts, held by one of the Justices of the Supreme Court, together with the District Judge. In all judgments and decrees in civil suits, for an amount over fifty dollars, a right of appeal is secured from the District to the Circuit Court, and a similar right to appeal from the Circuit to the Supreme Court, where the matter in

[APRIL 7, 1826.

controversy exceeds two thousand dollars. In all cases, civil or criminal, where a difference of opinion exists between the Circuit and District Judge, the matter is certified to the Supreme Court, and decided by them, and such order taken in the Court below, as the Supreme Court shall direct. No imprisonment is allowed, or punishment inflicted, when the Judges are so divided. Such is the provision made for the States which have been admitted to a full participation of the Judicial system of the United States.

In the petitioning States, the situation of things is very different. Instead of the Circuit Courts thus constituted, provision is made by law to vest the District Courts with Circuit Court powers, so far at least as it relates to the original jurisdiction of the Circuit Courts. The appellate jurisdiction of the Circuit Court could not of course be vested in the District Court. An appeal lies from the District Court directly to the Supreme Court, similar to that allowed in other States from the Circuit Court to the Supreme Court, which it has been seen lies only where the matter in controversy exceeds the value of two thousand dollars. The injustice and inconvenience resulting from this system to the States in question, is supposed to con

sist

1st, In depriving them in the first instance of the talents, experience, and learning, of a Judge of the Supreme Court, who, from the higher duties he is expected to perform-from the greater inducement held out to men of talents, by larger salaries, and increased respectability, it is but reasonable to presume, would be far superior in point of capacity and respectability to the District Judge.

2d,

3d,

In cutting them off from an appeal in all matters in controversy between fifty dollars and two thousand dollars-an evil which, they say, cannot be redressed without the establishment of Circuit Courts, as it would not be a relief to suffer causes of a less amount to be carried from remote parts of the Union to the City of Washington.

That, although they have a right of appeal in all cases of over two thousand dollars, they can only have it to the Supreme Court in the first instance, and are thus deprived of the benefit of the first appeal to the Circuit Court, by which justice might be obtained at less expense.

4th. That, in criminal cases, in which no appeal is provided in any case, and which may involve life, character, and liberty, they are deprived of the advantage of a Judge of the Supreme Court, and of the humane provision requiring the assent of two Judges before punishment.

5th.

That they have been admitted into the Union upon equal terms with the Old States-that one of the great advantages secured to them by the condition of their admission is a full participation in the perfect administration of justice, now enjoyed by their sister States, and that the withholding it is an act at once hostile to their best interest, and, what is equally interesting, humiliating to their pride.

This subject has been frequently before the Senate, and the Judiciary Committee. I have bestowed upon it, at different times, that deliberation and dispassionate attention, which the wishes and the interests of so many members of the Confederacy imperiously require. The result is a strong conviction, that there is, at least, some justice in each of the grounds of complaint made by the petitioning States, and enough in all of them, to make it the duty of Congress to make some suitable provision for their relief.

Whilst, however, I concede thus much, I am not willing to be understood as uniting, or even so much as acquiescing in the vehement complaints, which it has of late become fashionable to make, for having, as it is alleged, withheld from those States, rights which ought long since

APRIL 7, 1826.]

The Judicial System.

[SENATE.

to have been granted to them. The petitioning States States, a better plan has not been needed, if the wit of have been treated in this respect (circumstances consider-man could have devised one. It is certain, that existing ed) with as much favor, and have received as full a mea-enactments do not carry the system over the whole sure of justice as has been meted to those of their sister ground. It must be so extended, or a new one establishStates, which have been admitted into the Confederacy ed. The question is, whether that can be done-whether since the adoption of the Constitution. the country has not so far outgrown the system, as to render it necessary that it should be abandoned, and a new one substituted, more capable of extension.

Shall we do as was done in 1807, when Circuit Courts

The right of an ultimate participation of every new State in all the privileges and immunities enjoyed by the other States under the Constitution as far forth as her situation enables her to enjoy them, and from which she is not pre-were provided for Ohio, Kentucky, and Tennessee, or cluded by the condition of her admission, is undoubted. But the immediate and entire extension of those privileges has never been regarded as a matter of imperative duty. The courtesy of the States, and general justice of their citizens, (if other considerations have not,) have, from the beginning, induced an acquiescence in a different rule, viz: that the measure should be a progressive one, to be completed as soon as a due regard to circumstances would admit. On a reference to the history of the Government, in this particular, it will be found, that the States now in question have fared as well, and better, than those admitted before them. Vermont and Maine, it is true, had the benefit of the Circuit system soon extended to them. But it was because their local situation enabled the Judges to hold Circuits there without creating a necessity for increasing the number of the Judges, or unreasonably increasing their duties. But towards States differently situated, a different course has been pursued, without producing any of those acrimonious complaints, of which we have lately heard and seen so much. Kentucky was admitted fifteen years before the Circuit system was extended to her—Ohio four years, and Tennessee eleven. Missouri has been admitted but four years-Alabama but four-Illinois but seven-Mississippi but eight-Indiana but nine-and Louisiana but thirteen.

Nor has the matter been looked upon by the States in question in so grievous and offensive a light. As far as my knowledge extends, the States of Louisiana, Missouri, Illinois, and Alabama, have not, as yet, memorialized us upon the subject, and the representations of Mississippi and Indiana have been precisely such as they should be. I mention these circumstances, not only to vindicate the Government from supposed injustice to so large a part of the Western States, but to allay whatever of censure and contagious excitement the collisions of opinion elsewhere may have produced, and which is always adverse to that calm and dispassionate consideration which this subject, above all others, demands.

The committee are all of opinion that relief of some sort is required, and that it should now be given. The next question is, what should that relief be-what can it be? The States asking our interference, point out no specific mode in which their wrongs should be redressed, but submit themselves to the wisdom of Congress.

It may with great truth be said, that there has not, for many years, been any subject presented to Congress of greater difficulty. It is admitted to be so by all. No less than four different plans have, for the last three years, been submitted to the Senate without success. The present bill was reported at the last session, received the assent of a majority of the Senate, but did not pass for want of time.-The great difficulty arises from the extent of country to which the system must be made to apply. If you do justice to the Circuit Courts, you are unavoidably met by the danger of making the Judges on the Supreme Bench too numerous.

I speak of the system that now exists, a system esta blished by those who formed the Constitution-departed from in 1801, but restored by the act of 1802, and persevered in to the present day. As the subject on which the system was to operate extended, Congress have extended it. Nothing is clearer than that for the old thirteen

shall we strike out a new path? But little reflection can be necessary to convince the most superficial observer, that to do so would be a matter of great delicacy. To change the entire Judicial system of a country, and especially of a country whose form of Government is so complicated as ours, can never be a matter of light import. If there be a case in which, more than any other, the hand of innovation should be watched with lynx-eyed jealousy, this is surely that case. A total change was made in 1801, but the measure met with a total overthrow in one short year. Strong as the feelings then produced were, time and experience have demonstrated the wisdom of the act of 1802, by which the system of 1789 was restored and improved. Men who then saw, or thought they saw, the prostration of the fairest and firmest pillar in the edifice, have been enabled by observation and more dispassionate reflection, to see the error of impressions made by the excitements of the moment, and, what is of equal value, have had the wisdom and the honesty to acknowledge their conversion to better and sounder opinions. But let us, instead of submitting ourselves to the influence of general opinions, examine into, and consider, the substitutes which have, from time to time, been proposed.

The plans proposed at different times have been the following:

1st. To continue the present system, and appoint Circuit Judges for the six new States, with a provision for their ultimate advancement to the Supreme Court, as vacancies occur on the bench.

2d. To revive the old system of 1801, appoint Circuit Judges, and confine the Judges of the Supreme Court to the discharge of term duties.

3d. To direct the Circuits to be held by the District Judges, allotting three to a Circuit.

4th. To increase the number of the Judges of the Sus preme Court, and of the Circuits, according to the provisions of the bill upon the table.

Each of the three first mentioned schemes has advantages, but, upon careful consideration, they have all been found liable to insurmountable objections. I will briefly consider the plan of having Circuit Judges for the six Western States only. A bill to that effect was, a session or two since, reported by the Judiciary Committee of the other House, and has been proposed by way of amendment in this. So far from being received as a measure of favor to the States interested, it produced nothing but excitement of the most unpleasant character. The earnest dissatisfaction manifested by the Western Members was certainly not without cause. They reasoned thus-We have done without the Circuit system until this time, and we have not complained, because it has not been the course of the Government to extend that system at once, but gradually, and according to circumstances. As long as a compliance with our request is found impracticable, or so greatly inconvenient as to amount to an impracticability, we will still wait. But when you make provision, covering the whole ground, and by that provision place us permanently, or nearly so, upon a footing inferior, in point of utility and respectability, to our sister States, who are but our equals, then our State pride is justly alarmed, and we cannot, in justice to the States we represent, submit to what they will regard as a degradation. So, sir, they

reasoned, and it was soon seen that the measure ought not to be persisted in. It has, therefore, been abandoned in both Houses.

[APIL 7, 1826.

By the present Judiciary act it is provided, "that the "laws of the several States, except where the Constitu"tion, treaties, or statutes of the United States, shall I will next notice the Circuit System of 1801. Some "otherwise require or provide, shall be regarded as rules seven or eight years ago, a bill to that effect passed the "of decision in trials at common law, in Courts of the Senate, and was fortunately not acted upon in the other" United States, in cases where they apply." House. Independent of the paramount objections which In many, if not most, of the controverted cases between exist against this and every other plan, which, either di-individuals, of which the Federal Courts derive jurisdicrectly or by probable consequence, separates the Justices tion from the character of the parties, the titles under of the Supreme Court from the Circuits, there are others which they claim, or from other sources, the local or State deserving consideration. A less number of Circuits than law forms the rule of decision. An intimate knowledge ten would not be thought of. There are now, I think, of that is, therefore, an indispensable qualification for a twenty-seven District Judges. They hold their offices Judge of the Supreme Court. The difficulty of acquir during good behavior, and many of them have spent the ing and retaining it is infinitely greater than would, on best portions of their lives in that situation, and become, | first impression, be supposed. of the twenty-four States, more or less, dependent upon their places for their sup- there are not two whose laws, affecting the rights of perport, and that of their families. To remove them, there- sons and property, are, in all respects, the same. Between fore, by abolishing their Courts, if a consolidation of the many the differences are as great as is usual between District and Circuit Courts should be thought desirable, States on different continents. Each has an established could not fail to be regarded as a harsh measure. To keep system, wholly unconnected with its sister States. This them in office, receiving salaries without performing ser- system is composed of portions of the English common vice, is so hostile to the character and genius of our Go- law, adopted with various modifications and alterations, of vernment and the sentiments of the People, that public more or less of the principle of the English Equity sysopinion would not tolerate it. It would, therefore, be tem, of the statutes of the States, and the constructions necessary to appoint ten new Judges at least, which, add- which have, from time to time, been put upon them by ed to the District and Supreme Court Judges, would make the State Judicatories. It is true that these are all to be forty-four Judges of the United States' Courts, indepen- found in books, but we well know how little apt men are, dent of the Territorial Judges. It is certainly true, that when they can avoid it, to study subjects of this descripthe business of the Courts would not furnish employment tion, and men of experience in these things know the for this great number of Judges. The high duties imposed extreme difficulty, not to say impracticability, of making upon them, imperiously require that men of talents of a one's self at all familiar with them in any other way than particular order should be selected for the new appoint- by actual practice in the Courts, either in examining them ments. To obtain them, fair salaries will be indispensable; for argument, or in deciding them from day to day. for men of such character could not, and would not, give up their business without an equivalent. It is, therefore, highly probable, that the expense of this system, the circumstance (always looked upon with much jealousy,) of creating so many offices of so stable and irresponsible a tenure, and the seal of condemnation once placed upon this measure, would excite, indeed could not fail to excite, great dissatisfation. At the same time, it is due to the subject to state, that if there were no other objections to the system, and if the business of the Courts would furnish sufficient employment, the expense ought not to be regarded, as there is nothing more true than that the Judicial Department of the Government is, by far, the least expensive. Upon a reference, it will be found, that the whole expense of the Judiciary, including Marshals, &c. &c. does not exceed the sum of about three hundred thousand dollars per annum.

The importance of a full knowledge of the local law is greater in the Western States, than in the rest of the Union. This arises from the fact of so great a portion of the territory of those States having recently belonged to foreign Governments, and so many of the titles to lands, of consequence, dependent upon the laws, colonial as well as those of the mother country, before their cession to the United States. It arises, also, from other peculiarities in the titles to land in such of the Western States as are not thus situated. The addition of three Justices, therefore, from that portion of the country, would bring to the bench of the Supreme Court a stock of valuable knowledge, of which it would be deprived, if either of the plans spoken of were adopted. Again: by compelling the Judges of the Supreme Court to hold the Circuits, the knowledge they have acquired of the local laws will be retained and improved, and they will thus be enabled, not only the better to arrive at correct results themselves, but to aid their brethren of the Court who belong to dif ferent Circuits, and are, of course, déprived of an opportunity to acquire such information, except in that manner. There is another consideration belonging to this branch of the subject, entitled to great weight_It is impossible, with the best intention on the part of the Executive branch of the Government, to avoid bad appointments. Influence and favoritism sometimes prevail, and to a want of correct information the Government is always exposed. Incompetent men, therefore, will sometimes be appointed. If confined to the discharge of term duties only, the country may be saddled with them during their whole lives. They might assent or dissent at terms, and the kindness of their brethren, and their respect for the character of the Court, would induce them to do the rest. But the case is greatly otherwise, if they are obliged to preside at Circuits, to discharge their high duties in the face of the people, unaided by their brethren of the bench. There is a power in public opinion in this country-and I thank God for it: for it is the most honest and best of all powers to-which will not tolerate an incompetent or unworthy man to hold in his weak or wicked hands the lives and

The remaining scheme is that of directing the Circuit Courts to be held by the District Judges. A plan to this effect was digested, and a bill reported to the Senate two sessions ago. It was explained, considered, and laid over. As far as inferences could be drawn, it did not meet with favor. A leading objection was, the supposed incapacity of the District Judges, arising from the circumstance that they had originally been selected for the performance of duties supposed to be of an inferior grade, and that they were allowed salaries of so limited an amount, that the selection had, of necessity, been more confined than was desirable. I confess, that, if I could consent to any system which separated the Justices of the Supreme Court from the Circuits, I would prefer the one now referred to. Much may be said to obviate the objection raised, but as the Committee have abandoned it, as no such proposition has been, or, as far as I can judge, is likely to be made, and as I am, for the reasons I shall hereafter give, opposed to that, or any other system like it, in the great point I have alluded to, I will not, at this time, detain the Senate by further comment upon it.

But there are objections of a more general character the adoption of either of the plans I have spoken of

fortunes of his fellow-citizens. This power operates alike upon the Government and the incuinbent. The former dare not disregard it, and the latter can have no adequate wish that they should, when he once knows the estimation in which he is hald. This public ordeal, therefore, is of great value; in my opinion, much more so than what has, with some propriety, been called the scare-crow of the Constitution-the power of impeachment.

But there is still another view of the subject, bearing, with irresistible force, against the separation of the Jusices of the Supreme Court, under any circumstances, from the Circuit Courts, and against the adoption of any system, which, though it does not directly, may, ultimately, lead to that result.

By the act of 1792, the Justices were left at liberty to distribute themselves among the different Circuits annually. By the act of 1802, they were attached, by law, with a single exception, (Judge Washington,) to the Circuit in which they resided; and the act of 1807, adding cae Justice to the number, made it his duty to reside in the seventh Circuit. Time and experience, the best of all tests, have shown that this provision, also, of the much abused act of 1802, was a wise and salutary one. The amendment proposed by the committee preserves that feature of the acts of 1802 and 1807, by requiring that the three new Judges shall reside in their respective Circuits. To its propriety, I believe, no serious objection will be made, here or elsewhere.

Hitherto, the Justices of the Supreme Court have resided in the States, and with a single individual exception, within their respective Circuits. Before the act of 1802, because the principal part of thei. business was there; since 1892, because the law made it their duty. If other provision is made for holding the Circuits, the whole business of the Justices of the Supreme Court would be done here, and, sooner or later, they would, in the natural course of things, all move to, and permanently reside at, the seat of Government.

From that result, inferences, of a contrary character, but uniting in deprecating its policy, are drawn. Some think they see in it danger to the Court, others apprehend danger from the Court. In my judgment both are right. It has been justly observed elsewhere, that "there exists not upon earth, and there never did exist, a judicial tribunal clothed with powers so various and so important" as the Supreme Court.

By it, treaties and laws, made pursuant to the Constitution, are declared to be the supreme law of the land. So far, at least, as the acts of Congress depend upon the Courts for their execution, the Supreme Court is the Judge, whether, or no, such acts are pursuant to the Constitution, and from its judgment there is no appeal. Its veto, therefore, may absolutely suspend nine-tenths of the acts of the National Legislature. Although this branch of its jurisdiction is not that which has been most exercised, still instances are not wanting in which it has disregarded acts of Congress, in passing upon the rights of others, and in refusing to perform duties required of it by the Legislature, on the ground that the Legislature had no right to impose them.

[SENATE.

estates had been invested, and the inheritance of the widow and the orphan were suspended. You have seen such statutes abrogated by the decision of this Court, and those who had confided in the wisdom and power of the State authorities, plunged in irremediable ruin. Decisions-final in their effect, and ruinous in their consequences. I speak of the power of the Court, not of the correctness or incorrectness of its decisions. With that we have here nothing to do.

But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country-it not only claims to be the absolute arbiter between the Federal and State Governments-but it exercises the same great power between the respective States forming this great Confederacy, and their own citizens. By the Constitution of the United States, the States are prohibited from passing "any law impairing the obligation of contract." This brief provision has given to the jurisdiction of the Supreme Court a tremendous sweep. Before I proceed to delineate its tendency and character, I will take leave to remark upon some extraordinary circumstances in relation to it. We all know the severe scrutiny to which the Constitution was exposed. Some from their own knowledge-others from different sources. We know with what jealousy-with what watchfulness-with what scrupulous care its minutest provisions were examined, discussed, resisted, and supported, by those who opposed, and those who advocated its ratification. But, of this highly consequential provision-this provision which carries so great a portion of all that is valuable in State legislation to the feet of the Federal Judiciary, no complaints were heard no explanations asked--no remonstrances made. If there were, they have escaped my researches. It is most mysterious, if the Constitution was then understood, as it now is, that this was so. An expla nation of it has been given-how correct I know not.

The difficulties which existed between us and Great Britain relative to the execution of the treaty of peace, are known to all. Upon the avowed ground of retaliation for the refusal of England to comply with the stipulation on her part, laws were passed, between the years 1783 and 1788, by the States of Virginia, South Carolina, Rhode Island, New Jersey, and Georgia, delaying execution, liberating the body from imprisonment on the delivery of property, and admitting executions to be discharged in paper money. Although those laws were general in their terms, applicable as well to natives as to foreigners, their chief operation was upon the British creditors, and such was the leading design of their enactment. England remonstrated against them as infractions of the stipulation in the treaty, that creditors, on either side, should meet with no impediments to the recovery of the full value, in sterling money, of all debts previously contracted, and attempted to justify the glaring violations of the treaty, on her part, on that ground. An animated discussion took place between the Federal Government and Great Britain, and between the former and the States in question, upon the subject of the laws referred to, their character and effect. It was during this time that the Constitution was formed and ratified. It is supposed that the difficulties, thus Not only are the acts of the National Legislature sub-thrown in the way of adjustment with England, through ject to its review, but it stands as the umpire between the conflicting powers of the General and State Governments. That wide field of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. The discharge of this solemn duty has not been unfrequent, and, certainly, If it be true, that such was its object, and such its supnot uninteresting. In virtue of this power, we have seen posed effect, it adds another and a solemn proof to that it holding for naught the statutes of powerful States, which which all experience has testified, of the danger of adopthad received the deliberate sanction, not only of their Leing general provisions for the redress of particular and gislatures, but of their highest Judicatories, composed of men venerable in years, of unsullied purity, and unrival led talents-statutes, on the faith of which immense VOL. II--28

the acts of the State Governments, suggested the inser tion in the Constitution of the provision in question, and that it was under a belief that its chief application would be to the evil then felt, that so little notice was taken of the subject.

partial evils. But, whatever the motive that led to its insertion, or the cause that induced so little observation on its tendency, the fact of its extensive operation is