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out of practice. And, how is it, sir, with lawyers who are not Judges, and are 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 the 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 prvo vision for clearing off 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 nine 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 for 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 be 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 which this evil either begins to be felt at all, or to become considerable, still less where it is serious or intolerable. If seven be quite few enough, it may not be easy to show, that ten must necessarily be a great deal too many. But there is another view of the case, connected with what I have said heretofore in 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 immediate 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 to me 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 any 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 its 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 better known than they are, to their country; nor could I either strengthen or shake 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 say 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 Government, 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 are, if I may so call them, the great arbitrators between contending 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, not withstanding they may sometimes act upon opinions which are 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 was 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, in 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 fill the situations belonging to it.
[From the N. A. Review of 1820.)
EXAMINATION OF SOME REMARKS IN THE QUARTERLY REVIEW ON THE
LAWS OF CREDITOR AND DEBTOR IN THE UNITED STATES.
The Quarterly Review for May 1819 contained two articles concerning the United States; one a review of Fearon's * book of travels, and the other a review of Mr. Bristed's book upon the resources of America. The Quarterly Review is, as everybody knows, extensively circulated, and much read in this country; and these articles excited, at the time of their appearance, no small degree of attention. It would be difficult, we imagine, in the same number of pages, to crowd more misrepresentation, or betray more ignorance, than appears in these articles, especially that which we have first mentioned. To the common vaporings of the English presses we pay little attention. These oracles are no more to be regarded, in their vituperations of the government and people of this country, than similar oracles among ourselves, in their abuse of the government and people of England. The leaders of such assemblages as the Manchester mob, and the orators in the palace-yard, find it convenient to inflame the passions of their auditors by declaiming, in terms of high panegyric, of the condition of America; wisely contriving, by a sort of contrast, to breed discontent, and to sharpen the feeling of hatred towards their own government. Other speakers and other writers, finding or thinking it necessary to refute these representations, naturally enough run into opposite extremes, and set off their own condemnation and abuse of America against the extravagant encomiums of their adversaries. All this is in the course of things. It is no more than must always be expected, in a country with such a government, as that of England; and it is of no consequence to us, what is the issue of this little and low strife of temporary politics. We suffer about equally by the commendation of one party and the abuse of the other; and we ought to be regardless of both..
But different, far different, is the case, when a work of established reputation in the literary world professes to discuss our character and condition. When gentlemen and scholars undertake to write about us, we have more interest in what they say, and are
* The last that we have heard of this author is, that some time last winter a criminal information was moved for against him, in the King's Bench, for a conspiracy to produce a riot, at the election of the Lord Mayor.
less disposed to acquiesce in misrepresentation and injustice. The writers of the articles in question seem to have considered themselves as speaking about America, but not lo America. They do not take the United States into the account of those who are to read their works, and judge of them. They do not look at the reading and thinking men on this side the Atlantic, as forming any part of that great tribunal of the PUBLIC, to which they acknowledge a responsibility. In this respect, in our humble judgment, they commit an oversight. English scholars, English editors, and English politicians have heretofore felt an unconquerable reluctance to admit the people of this country to a participation of those honors which belong to the civilized world, and the great family of Christian communities. They have been unwilling to see that North America has ceased to be a colony; and still desire to regard her, so far as respects acquirements, talents, and character, like Jamaica, Malta, or the Cape of Good Hope. This attempt, we may be allowed to say, will not succeed. America is entitled to her place among the nations, and nothing can keep her from it. It is in nature, as it appears to be in the purpose of Providence, that a people shall, within a short period of time, exist on this side the ocean, speaking the English language, springing principally from English origin, adopting English laws, and possessing the blessings of many of the most valuable of English institutions, so numerous, that the amount of British population, added or subtracted, would hardly make a sensible difference. Already the United States contain as many people as England, and among them there is, if not as full, yet as respectable a proportion belonging to the reading class. Whatever appears in England, and attracts attention there, in the departments of science, literature, poetry, or politics, appears here also, thirty days afterwards, with uniform regularity. We receive these reviews, wet from the press, and read and reprint and circulate them. We venture to say, that in no part of the Island of Great Britain, London excepted, is reading so general among the population, as in New England. Having thus, as we believe we have, in the C'nited States, a larger reading community, than either Scotland or Ireland, how is it, that America is not to compose a part, and an important part, of that Public, before which a scientific and literary journal, composed and published in the English language, is to stand in judgment? We would modestly, but firmly, insist on this reasonable participation in the authority and dignity of public opinion. We hold the right, and mean both to exercise and to defend it, of having and of expressing opinions on subjects of science and literature, and respecting those who discuss these subjects.
It is a natural prejudice, that an old country should be unwilling to admit a young one upon any terms of equality, England herself is not thought old enough, nor respectable enough, to assume the port and bearing of an equal in the celestial empire of China; and there are elsewhere, as well as at Pekin, a dislike and scorn for the nori homines. English politicians and English scholars entertain towards us, when we press for admittance into their society and fellowship, something like that feeling, at once scornful and