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and thicken as we go into their details. It is not now at all certain that those who are opposed to this bill, are agreed, as to what other measure should be adopted. On the contrary, it is certain, that no plan unites them all; and they act together only on the ground of their common dissatisfaction with the proposed bill. That system which seems most favored, is the Circuit system, as provided for in the Senate's bill of 1819. But as to that there is not an entire agreement. One provision in that bill was, to reduce the number of the Judges of the Supreme Court to five. This was a part, too, of the original resolution, on motion of the gentleman from Virginia; but it was afterwards varied; probably to meet the approbation of the gentleman from Pennsylvania, and others who preferred to keep the Court at its present number. But again, other gentlemen, who are in opposition to this bill, have still recommended a reduction of that number. Now, sir, notwithstanding such reduction was one object, or was to be one effect, of the law of 1801, it contemplated, also, in the Senate's bill of 1819, and has been again recommended by the gentleman from Virginia, and other gentlemen, yet I cannot persuade myself, that any ten members of the House, upon mature reflection, would now be in favor of such reduction. It could only be made to take place when vacancies should occur on the bench, by death or resignation. Of the seven Judges of which the Court consists, six are now assigned to Circuits in the Atlantic States—one only is attached to the Western Districts. Now, sir, if we were to provide for a reduction, it might happen that the first vacancy would be in the situation of the single Western Judge. In that event, no appointment could be made until two other vacancies should occur, which might be several years. I suppose that no man would think it just, or wise, or prudent, to make such legal provision, as that it might happen that there should be no Western Judge at all, on the Supreme Bench, for several years to come.' This part of the plan, therefore, was wisely abandoned by the gentleman. The Court cannot be reduced; and the question is only between seven Supreme Judges, with ten Circuit Judges, and ten Supreme Judges, with no Circuit Judges.
I will take notice here of another suggestion, made by the gentleman from Pennsylvania, who is generally so sober-minded and considerate in his observations, that they deserve attention, from respect to the quarter whence they proceeds That gentleman recommends that the Judges of the Supreme Court should be relieved from Circuit duties, as individuals, but proposes, nevertheless, that the whole Court should become migratory, or ambulatory, and that its sessions should be holden, now in New York or Boston, now in Washington or Richmond, and now in Kentucky or Ohio. And it is singular enough that this arrangement is recommended in the same speech, in which the authority of a late President is cited, to prove, that considerations arising from the usually advanced age of some of the Judges, and their reasonable desire for repose, ought to lead us to relieve them from all Circuit duties whatever. Truly, sir, this is a strange plan of relief. Instead of holding Courts in his own State, and perhaps in his own town, and visiting a neighbouring State, every Judge is to join every other judge, and the whole bench to make, together, a sort of Judicial progress. They
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 judga ments 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
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 causes 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, respecting title to land. We hear often in this House of “Judicial Legislation. If any such thing exist in this country, an instance of it, doubtless, is to be found in the 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 Virginia, 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 informed, it appears to me that the Courts, both of the State, and of the United 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 500 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 Circuit, is better enabled to state, to limit, and to modify the general rule, than another Judge, though of equal talents, but who should be 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