« AnteriorContinuar »
jealous, with which the Earl of Wharton addressed the twelve new peers in the reign of Queen Anne. Yet this prejudice and this reluctance must give way; this scorn must be subdued, and this jealousy, if it be not, as it ought to be, eradicated, must become silent.
We, of the United States, have numbers and power and wealth, and a growing commerce, and a most extensive country, and, as we may think without vanity, some portion of that intelligence and spirit, which belongs to our more cultivated neighbours. Once for all, then, if we can express ourselves in such a manner as not to incur the imputation of arrogance, we wish to say, that we consider ourselves as forming a part, and a respectable part, of the great public of civilized and Christian nations; having an interest in such subjects discussed before that public, as are not in themselves local or peculiar; with a good right of contribution, as far as our ability admits, to those discussions ourselves; and above all a right to fair dealing and gentlemanly treatment from all who profess to write for the good of this public, and to be answerable to its judgment.
We put forth this claim in behalf of our country; and in behalf of the informed and reading class of its citizens. It is for the English writers to say, not whether it shall be admitted; that question we do not refer to their arbitrament: but whether, on their part, it shall be admitted freely, and with courtesy; or with hesitation, reluctance, ill nature, and ill manners.
We have space at present to take notice of one only of the topics, discussed in these articles. It relates to the American law of creditor and debtor; about which the reviewer has published extracts from Mr. Bristed's book, with comments. Mr. Bristed is an Englishman, by birth and education. He has lived, as it appears, for sometime in the city of New York, and has published a book upon the resources of this country. Some observations were made on that work in a former number of this journal. Referring to these observations, we have now only to say of Mr. Bristed's general character, as an authority, that he is beyond ordinary measure destitute of all accuracy and precision. There are, of course, many important facts collected in this book, and a mass of extracts from public documents, in some degree useful, perhaps, to those who do not possess the same matter in a better form ; but his own opinions, and inferences, and observations upon manners, are not to be received but with great allowance. Mr. Bristed never speaks with any qualification. He has little general, and no intimate knowledge of the state of things in this country, and he speaks only from what lies within his own immediate and confined observation. With him all peculiarities are general truths, and all exceptions become rules. We have hardly patience with a man, who could write such a paragraph, as the first quoted from his book, in the article in the Quarterly Review, which we beg leave to transcribe again, and to proceed to make some remarks upon it.
“ The laws of this country generally favor the debtor at the expense of the creditor, and so far encourage dishonesty. The number of insolvents in every state is prodigious, and continually increasing. They very seldom pay any part of their debts, but get discharged by the state insolvent acts with great facility, secrete what property they please for their own use, without the creditor's being able to touch a single stiver. There is no bankrupt law in the United States, and no appeal, in these matters, to the Federal courts; whence in every state the insolvent acts operate as a general jail delivery of all debtors, and a permanent scheme, by which creditors are defrauded of their property. The British merchants and manufacturers, who have trusted our [our ?] people, doubtless understand this."
He adds, “that in a single city, New York, more than six thousand of its inhabitants were declared insolvent in one year."
Now in the first place, almost every matter of fact, asserted in this paragraph, is stated incorrectly and untruly. It is not true, that in every state the insolvent laws operate as a general jail delivery of all debtors ; there being, in a majority of the states, no insolvent law at all.
It is not true, that there is no appeal in these matters, to the Federal courts: on the contrary, there is an appeal, in all cases, from decisions in the state courts, on the insolvent laws of the state, to the Supreme Court of the United States ; an appeal, which exists not only theoretically, but practically, and has been resorted to often, and with effect.
It is not true, that the number of insolvents, meaning such as have been discharged under statute provisions, is prodigious in every state, and increasing. In most of the states, as we have observed, there are no such laws, and of course no prodigious numbers, who have been, or who can be discharged under such laws. Having now shown how destitute of all correctness and all truth is the foregoing paragraph from Mr. Bristed's book, we proceed to describe the real state of the case.
At the formation of the present government in 1787, it was provided by the national constitution, that Congress should have power to establish uniform rules on the subject of Bankruptcy throughout the United States. This power was not exercised until 1798, when a uniform system of Bankruptcy was established by act of Congress. It met with great opposition, arising in a great variety of motives, and was repealed four or five years afterwards. It is, no doubt, to be lamented that a fair experiment was not given to this law. It is a subject on which it seems necessary that there should be some legislative provision; and notwithstanding the frauds which will be, and are committed under bankrupt laws, even well administered, and which have led such men as Lord Eldon, and Sir Samuel Romily to express doubts of their general utility, yet we know not any other mode of providing for the cases continually arising in commercial societies, and which call loudly for some provision. After the repeal of the law, however, individual states, acting upon the supposition that as Congress had not exercised the power, or had discontinued its exercise, of establishing a general law, for the whole country, they had a right to provide insolvent laws as a part of their own local legislation, enacted such laws, and gave them operation. Among others, the state of New York passed an insolvent law, in the year 1811, and, as was to be expected in the first year of its operation, many discharges were obtained under it. It was found that this law not only gave too great facilities in obtaining discharges, but that it led also to fraudulent applications from debtors coming from other states. The law was are to visit the North, and the South, and to ascend and descend the Alleghany. Sir, it is impossible to talk seriously against such a proposition. To state it, is to refute it. Let me merely ask, whether, in this peregrination of the Court, it is proposed that they take all their records of pending suits, and the whole calendar of causes, with them? If so, then the Kentucky client, with his counsel, is to follow the Court to Boston; and the Boston client to pursue it back to Kentucky. Or is it, on the contrary, proposed, that there shall be grand Judicial divisions in the country, and that, while at the North, for example, none but northern appeals shall be heard? If this be intended, then I ask how often could the Court sit, in each of these divisions? Certainly, not oftener than once in two years; probably, not oftener than once in three. An appeal, therefore, might be brought before the Appellate Court, in two or three years from the time of rendering the first judgment; and supposing judgment to be pronounced, in the Appellate Court, at the second term, it would be decided in two or three years more. But it is not necessary to examine this suggestion further. Sir, everything conspires to prove, that, with respect to the great duties of the Supreme Court, they must be discharged at one annual session, and that session must be holden at the seat of Government. If such provision be made as that the business of the year, in that Court, may be despatched, within the year, reasonable promptitude in the administration of justice will be attained: and such provision, I believe, may be made.
Another objection advanced by the member from Pennsylvania, applies as well to the system as it now exists, as to what it will be if this bill shall pass. The honorable member thinks, that the Appellate Court and the Court from which the appeal comes, should, in all cases, be kept entirely distinct and separate. True principle requires, in his judgment, that the Circuit Judge should be excluded from any participation in the revision of his own judgments. I believe, sir, that in the early history of the Court, the practice was, that the Judge, whose opinion was under revision, did not partake in the deliberations of the Court. This practice, however, was afterwards altered, and the Court resolved that it could not discharge the Judge from the duty of assisting in the decision of the appeal. Whether the two Courts ought to be kept so absolutely distinct and separate as the member from Pennsylvania recommends, is not so clear a question as that competent Judges may not differ upon it. On the one hand, it may very well be said, that, if the judgment appealed from has been rendered by one of the Judges of the Appellate Court, courtesy, kindness, or sympathy, may inspire some disposition in the members of the same bench to affirm that judgment; and that the general habit of the Court may thus become unfriendly to a free and unbiassed revision. On the other hand, it may be contended, that, if there be no medium of communication between the Court of the first instance, and the Court of Appellate jurisdiction, there may be danger that the reasons of the first may not be always well understood, and its judgments consequently liable, sometimes, to be erroneously reversed. It certainly is not true, that the chance of justice, in an Appellate Court, is always precisely equal to the chance of reversing the judgment below; although it is necessary for the peace of society and the termination of litigation, to take it
for granted, as a general rule, that that is decided right which is decided by the ultimate tribunal. To guard against too great a tendency to reversals in Appellate Courts, it has often been thought expedient to furnish a full opportunity at least, of setting forth the grounds and reasons of the original judgment. Thus, in the British House of Lords, a judgment of the King's Bench is not ordinarily reversed until the judges have been called in, and the reason of their several opinions stated by themselves. And thus, too, in the Court of Errors of New York, the Chancellor and the Judges are members of the Court; and, although they do not vote upon the revision of their own judgments or decrees, they are expected, nevertheless, to assign and explain their reasons. In the modern practice of the Courts of Common Law, causes are constantly and daily revised on motions for new trials founded on the supposed misdirection of the Judge in matter of law. In these cases, the Judge himself is a component member of the Court, and constantly takes part in its proceedings. It certainly may happen in such cases, that some bias of preconceived opinion may influence the individual Judge, or that some undue portion of respect for the judgment already pronounced, may unconsciously mingle itself with the judgments of others. But the universality of the practice sufficiently shows, that no great practical evil is experienced from this cause. It has been said in England, that the practice of revising the opinions of Judges, by motions for new trial, instead of filing bills of exception, and suing out writs of error, has greatly diminished the practical extent of the appellate jurisdiction of the House of Lords. This shows, that suitors are not advised that they have no hope to prevail against the first opinions of individual Judges, or the sympathy of their brethren. Indeed, sir, Judges of the highest rank of intellect have always been distinguished for the candor with which they reconsider their own judgments. A man who should commend himself for never having altered his opinion, might be praised for firmness of purpose; but men would think of him, either that he was a good deal above all other mortals, or somewhat below the most enlightened of them. He who is not wise enough to be always right, should be wise enough to change his opinion when he finds it wrong. The consistency of a truly great man is proved by his uniform attachment to truth and principle, and his devotion to the better reason; not by obstinate attachment to first formed notions. Whoever has not candor enough, for good cause, to change his own opinions, is not safe authority to change the opinions of other men. But at least, sir, the member from Pennsylvania will admit, that, if an evil in this respect exist under the present law, this bill will afford some mitigation of that evil; by augmenting the number of the Judges, it diminishes the influence of the individual whose judgment may be under revision: and so far, I hope, the honorable member may himself think the measure productive of good.
But, sir, before we postpone to another year the consideration of this bill, I beg, again, to remind the House that the measure is not new. It is not new in its general character; it is not entirely new in its particular provisions. The necessity of some reform in the Judicial establishment of the country, has been presented to every Congress, and every session of Congress, since the peace of
1815. What has been recommended, at different times, has been already frequently stated. It is enough, now, to say, that the very measure of extending the system by increasing the number of the Judges of the Supreme Court, was presented to the House, among other measures in 1823, by the Judiciary Committee; and that so late as the last session, it received a distinct expression of approbation in the other branch of the Legislature. Gentlemen have referred to the bill introduced into this House two years ago. That bill had my approbation; I so declared at the commencement of this debate. It proposed to effect the object of retaining the Judges upon their Circuits, without increasing their number. But it was complex. It was thought to be unequal, and it was unsatisfactory. There appeared no disposition in the House to adopt it; and when the same measure in substance was afterwards proposed in the other branch of the Legislature, it received the approbation of no more than a half dozen voices. This led me to make a remark, at the opening of the debate, which I have already repeated, that, in my opinion, we are brought to the narrow ground of deciding between the system of Circuit Courts and the provisions of this bill. Shall we keep the Judges upon the Circuits and augment their number, or shall we relieve them from Circuit duties, and appoint special Circuit Judges in their places? • This, as it seems to me, is the only practical question remaining for our decision.
I do not intend, sir, to go again into the general question, of continuing the Judges of the Supreme Court in the discharge of Circuit duties. My opinion has been already expressed, and I have heard nothing to alter it. The honorable gentlemen from Virginia does me more than justice in explaining any expression of his own which might refer this opinion to a recent origin, or to any new circumstances. I confess, sir, that four-and-twenty years ago, when this matter was discussed in Congress, my opinion, as far as I can be supposed to have had any opinion then on such subjects, inclined to the argument that recommended the separation of the Judges from the Circuits. But, if I may be pardoned for referring to anything so little worthy the regard of the House, as my own experience, I will say that that experience early led me to doubt the correctness of the first impression, and that I became satisfied that it was desirable, in itself, that the Judges of the Supreme Court should remain in the active discharge of the duties of the Circuits. I have acted in conformity to this sentiment, so often as this subject has been before Congress, in the short periods that I have been a member. I still feel the same conviction; and though I shall certainly yield the point, rather than that no provision for the existing exigency should be made; yet I should feel no inconsiderable pain in submitting to such necessity. I do not doubt, indeed, sir, that, if the Judges were separated from Circuit duties, we should go on very well for some years to come. But, looking to it as a permanent system, I view it with distrust and anxiety. My reasons are already before the House. I am not about to repeat them. I beg to take this occasion, however, to correct one or two misapprehensions of my meaning into which gentlemen have fallen. I did not say, sir, that I wished the Judges of the Supreme Courts to go upon the Circuits, to the end that they might see, in the country, the impression