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which their opinions made upon the public sentiment. Nothing like it. What I did say, was, that it was useful that the Judge of the Supreme Court should be able to perceive the application and bearings of the opinions of that Court, upon the variety of onuses coming before him at the Circuit. And is not this useful? Is it not probable that the Judge will lay down a general rule with the greatest wisdom and precision, who comprehends, in his view, the greatest number of instances to which that rule is to be applied? As far as I can now recall the train of my own ideas, the expression was suggested by a reflection upon the laws of the Western States, respectmg title to land. We hear often in this House of "Judicial legislation." If any such thing exist in this country, an instanco of it, doubtless, is to he found in tho Land Laws of some of the Western States. In Kentucky, for example, titles to the soil appear to depend, to a very great extent, upon a series of Judicial decisions, growing out of an act of the Legislature of Virgmia, passed in 1779, for the sale and disposition of her public domain. The Legislative provision was very short and general; and as rights were immediately acquired under it, the want of Legislative detail could only be supplied by Judicial construction and determination. Hence, a system has grown up, which is complex, artificial, and argumentative. I do not impute blame to the Courts; they had no option but to decide cases as they arose, upon the best reasons. And, although I am a very incompetent judge in the case, yet, as far as I am mformed, it appears to me that the Courts, both of the State, and of the I'nited States, have applied just principles to the state of things which they found existing. But, sir, as a rule laid down at Washington, in one of these cases, may be expected to affect ~a00 others, is it not obvious that a Judge, bred to this peculiar system of law, and having also many of these cases in judgment before him, in his own Circint, is better enabled to state, to limit, and to modify the general rule, than another Judge, though of equal talents, but who should he a stranger to the decisions of the State tribunals, a stranger to the opinions and practice of the profession, and a stranger to all cases except the single one before him for judgment? The honorable member from Pennsylvania asks, sir, whether a statute of Vermont cannot be as well understood at Washington, as at Windsor or Rutland. Why, sir, put in that shape, the question has very little meaning. But, if the gentleman intends to ask, whether a Judge, who has been, for years, in the constant discharge of the duties incumbent upon him as the head of the Circuit Court in Vermont, and who, therefore, has had the statutes of that State frequently before him, has learned their interpretation by the State judications, and their connexion with other laws, local or general? if the question be, whether such a Judge be not, probably, more competent to understand that statute than another, who, with no knowledge of its local interpretation, or local application, shall look at its letter, for the first time, in the Hall of the Supreme Court? If this be the question, sir, which the honorable gentleman means to propound, I cheerfully refer him to the judgment of this House, and to his own good understanding for an answer. Sir, we have heard a tone of observation upon this subject which quite surprises me. It seems to implv that one intelligent man is as fit to be a Judge of the Supreme Court as another. The perception of the true rule of law, and its true application, whether of local or general law, is supposed to be entirely easy, because there are many banks of statutes, and many books of decisions. There can be no doubt, it seems, that a Supreme Court, however constituted, would readily understand, in the instance mentioned, the law of Vermont, because the Statutes of Vermont are accessible. Nor need Louisiana fear, that her peculiar code will not be thoroughly and practically known, inasmuch as a printed copy will be found in the public libraries.
Sir, I allude to such arguments, certainly not for the purpose of undertaking a refutation of them, but only to express my regret that they should have found place in this discussion.—I have not contended, sir, for anything like Judicial representation. I care not in what terms of reproach such an idea be spoken of. It is none of mine. What I said was, and I still say it, that, with so many States, having various and different systems, with such a variety of local laws, and usages, and practices, it is highly important that the Supreme Court should be so constituted as to allow a fair prospect, in every case, that these laws and usages should be known; and that I know nothing, so naturally conducive to this end, as the knowledge and experience obtained by the Judges on the Circuits. Let me ask, sir, the members from New England, if they have ever found any man this side of the North River, who thoroughly understood our practice of special attachment, our process of garnishment, or trustee process, or our mode of extending execution upon land? And let me ask, at the same time, whether there be an individual of the profession, between this place and Maine, who is, at this moment, competent to the decisions of questions arising under the'peculiar system of land titles of Kentucky or Tennessee? If there be such a gentleman, I confess I have not the honor of his acquaintance.
On the general question of the utility of constant occupation in perfecting the character of a Judge, I do not mean now to enlarge. I am aware that men will differ on that subject, according to their different means, or different habits of observation. To me it seems as clear as any moral proposition whatever. And I would ask the honorable member from Rhode Island, since he has referred to the Judge of the first Circuit, and has spoken of him in terms of respect, not undeserved, whether he supposes that that member of the Court, if, fifteen years ago, on receiving his commission, he had removed to this City, had remained here always since, with no other connexion with his profession than an annual session of six weeks in the Supreme Court, would have been the Judge he now is? Sir, if this question were proposed to that distinguished person himself, and if he could overcome the reluctance which he would naturally feel to speak at all of his own Judicial qualities, I am extremely mistaken if he would not refer to his connexion with the Circuit Court, and the frequency and variety of his labors there, as efficient causes in the production of that degree of ability, whatever it may be supposed to be, with which he now discharges the duties of his station.
There is not, sir, an entire revolution wrought in the mind of a professional man, by appointing him a Judge. He is still a lawyer; and if he have but little to do as a Judge, he is, in effect, a lawyer oat of practice. And, how is it, sir, with lawyers who are not Judges, and arc yet out of practice? Let the opinion, and the common practice of mankind decide this. If you require professional assistance, in whatever relates to your reputation, your property, or your family, do you go to him who is retired from tho bar, and who has this uninterrupted leisure to pursue his readings and reflections; or do you address yourself to him, on the contrary, who is in the midst of affairs, busy every day, and every hour in the day, with professional pursuits? But I will not follow this topic farther, nor dwell on this part of the case.
I have already said, that, in my opinion, the present number of the Court is more convenient than a larger number, for the hearing of a certain class of causes. This opinion I do not retract; for I believe it to be true. But the question is, whether this inconvenience be not more than balanced by other advantages? I think it is
It has been again and again urged, that this bill makes no provision for clearing oil'the term business of the Supreme Court; and strange mistakes, as it appears to me, are committed, as to the amount of arrears, in that Court. I believe that the bill intended to remedy that evil, will remedy it. I believe there is time enough for the Court to go through its list of causes here, without interfering with the sessions of the Circuit Courts; and, notwithstanding the mathematical calculations by which it has been proved that the proposed addition to the length of the term, would enable the Court to decide precisely uinc additional causes and no more, yet I have authority to say, that those who have the best means of knowing, were of opinion, two years ago, that the proposed alteration of the term, would enable the Court, in two years, to go through all the causes before it, ready lor hearing.
It has been said, sir, that this measure will injure the character of the Supreme Court; because, as we increase numbers, we lessen responsibility in the same proportion. Doubtless, as a general proposition, there is great truth in this remark. A Court, so numerous as to become a popular body, would he unfit for the exercise of Judicial functions. This is certain. But then this general truth, although admitted, does not enable us to fix, with precision, the point at winch this evil either begins to be felt tit all, or to become considerable, still less where it is serious or intolerable. If seven be quite few enough, it may nut be easy to show, that ten must necessarily be a great deal too mony. But there is another view of the case, connected with what I have said heretofore iu this discussion, and which furnishes, in my mind, a complete answer to this part of the argument; and that is, that a Judge who has various important individual duties to perform, in the Circuit Court, and who sits in the Appellate Court with nine others, acts, in the whole, in a more conspicuous character, and under the pressure of more unmediate and weighty responsibility, than if he performed no individual Circuit duty, and sat on the appellate bench with six others only.
But again, it has been argued, that to increase the number of the Supreme Court, is dangerous; because, with such a precedent, Congress may hereafter effect any purpose of its own, in regard to Judicial decisions, by changing, essentially, the whole constitution of the Court, and overthrowing its settled decisions, through the means of augmenting the number of Judges. Whenever Congress, it is said, may dislike the constitutional opinions and decisions of the Court, it may mould it to its own views, upon the authority of the present example. But these abuses of power are not to be anticipated or supposed; and, therefore, no argument results from them.
If we were to be allowed to imagine that the Legislature would act in entire disregard of its duty, there are ways enough, certainly, beside that supposed, in which it might destroy the Judiciary, as well as any other branch of the Government. The Judiciary power is conferred, and the Supreme Court established, by the Constitution; but then Legislative acts are necessary to confer jurisdiction on inferior Courts, and to regulate proceedings in all Courts. If Congress should neglect the duty of passing such laws, the Judicial power could not be efficiently exercised. If, for example, Congress were to repeal the 25th section of the Judicial act of 1789, and make no substitute, there would be no mode by which the decisions of State tribunals, on questions arising under the Constitution and laws of the United States, could be revised in the Supreme Court. Or, if they were to repeal the 11th section of that act, the power of trying causes between citizens of different States, in the tribunals of this Government, could not be exercised. All other branches of the Government depend, in like manner, for their continuance in life and being, and for the proper exercise of their powers, on the presumption that the Legislature will discharge its constitutional duties. If it were possible to adopt the opposite supposition, doubtless there are modes enough to which we may look, to see the subversion, both of the Courts, and the whole Constitution.
Mr. Speaker, I will not detain you by further reply to the various objections which have been made to this bill. What has occurred tome as most important, I have noticed either now or heretofore; and I refer the whole to the dispassionate judgment of the House. Allow me, however, sir, before I sit down, to disavow, on my own behalf, and on behalf of the Committee, all connexion between this measure and any opinions or decisions, given or expected, in anv causes, or classes of causes, by the Supreme Court. Of the merits of the case, of which early mention was made in the debate, I know nothing. I presume it was rightly decided, because it was decided by sworn Judges, composing a tribunal in which the Constitution and the laws have lodged the power of ultimate judgment. It would be unworthy, indeed, of the magnitude of this occasion, to bend our course a hair's breadth on the one side or the other, either to favor or to oppose what we might like, or dislike, in regard to particular questions. Surely we are not fit for this great work, if motives of that sort can possibly come near us. I have forborne, throughout this discussion, from all expression of opinion on the manner in which the members of the Supreme Court have heretofore discharged, and still discharge, the responsible duties of their station. I should feel restraint and embarrassment, were I to make the attempt to express my sentiments on that point. Professional habits and pursuits connect me with the Court, and I feel that it is not proper that I should speak here, of the personal qualities of it« members, either generally or individually. They shall not suffer, at least, from any ill-timed or clumsy eulogy of mine. I could not, if I would, make them hotter known than they arc, to their country; nor could I cither strengthen or shuke the foundation of character and talent upon which they stand. But of the Judicial branch of the Government, and of the institution of the Supreme Court, as the head of that branch, I beg to a ay that no man can regard it with more respect and attachment than myself. It may have friends more able—it has none more sincere. No conviction is deeper in my mind, than that the maintenance of the Judicial power is essential and indispensable to the very being of this Government. The Constitution, without it, would be no Constitution—the tJovernnient, no Government. I am deeply sensible, too, and, as I think, every man must be whose eyes have been open to what has passed around him for the last twenty years, that the Judicial power is the protecting power of the whole Government. Its position is upon the outer wall. From the very nature of things, and the frame of the Constitution, it forms the point at which our different systems of Government meet in collision, when collision unhappily exists. By the absolute necessity of the case, the members of the Supreme Court become Judges of the extent of constitutional powers. They arc, if I may so call them, the great arbitrators between contendmg sovereignties. Every man is able to see, how delicate and how critical must be the exercise of such powers, in free and popular Governments. Suspicion and jealousy are easily excited, under such circumstances, against a body, necessarily few in number, and possessing, by the Constitution, a permanent tenure of office. While public men, in more popular parts of the Government, may escape without rebuke, notwithstanding they may sometimes act upon opinions which arc not acceptable, that impunity is not to be expected in behalf of Judicial tribunals. It cannot but have attracted observation, that, in the history of our Government, the Courts have not been able to avoid severe, and sometimes angry complaint, for giving their sanction to those public measures, which the Representatives of the people had adopted, without exciting particular disquietude. Members of this and the other House of Congress, acting voluntarily, and in the exercise of their general discretion, have enacted laws, without incurring an uncommon degree of dislike or resentment; and yet, when those very laws have been brought before the Court, and the question of their validity distinctly raised, and necessary to be determined, the Judges, affirming the constitutional validity of such acts, although the occasion wan forced upon them, and they were absolutely bound to express the one opinion or the other, have, nevertheless, not escaped a severity of reproach, bordering upon the very verge of denunciation. This experience, while it teaches us the dangers which environ this Department, instructs us most persuasively, m its importance. For its own security, and the security of the other branches of the Government, it requires such an extraordinary union of discretion and firmness, of ability and moderation, that nothing in the country is too distinguished for sober sense, too gifted with powerful talent, to till the situations belonging to it.