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hold two sessions annually of the Supreme Court, and circuit judges were appointed to hold the Circuit Court in each district. The provisions of this law are generally known, and it is not necessary to recite them particularly. It is enough to say, that, in five of the six circuits, the Circuit Court was to consist of "three judges, specially appointed to constitute such court; and in the sixth, of one judge, specially appointed, and the district judge of the district.
We all know, Sir, that this law lasted but a twelvemonth. It was repealed in toto by the act of the 8th of March, 1802; and a new organization of the Circuit Courts was provided for by the act of the 29th of April of that year. It must be admitted, I think, Sir, that this act made considerable improvements upon the system, as it existed before the act of February, 1801. It took away the itinerary character of the Circuit Courts, by assigning particular justices to particular circuits. This, in my opinion, was a great improvement. It conformed the constitution of the court to the nature of the powers which it exercised. The same judges now heard the cause through all the stages of its progress, and the court became, what its duties properly made it, a court of record, with permanent judges, exercising a various jurisdiction, trying causes at its bar by jury, in cases proper for the intervention of a jury, and rendering final judgments. This act also provided another mode of proceeding with cases in which the two judges composing the Circuit Court should differ in opinion. It prescribed, that such difference should be stated, certified to the Supreme Court, and that that court should decide the question, and certify its decision to the Circuit Court.
In this state of things, the judicial system remained, without material change, until the year 1807, when a law was passed for the appointment of an additional judge of the Supreme Court, and a circuit allotted to him in the Western States.
It may be here observed, that, from the commencement, the system has not been uniform. From the first, there was an anomaly in it. By the original act of September, 1789, a District Court was established for Kentucky (then part of Virginia) and for Maine (then part of Massachusetts), and, in addition to the powers of District Courts, there was conferred on these all the jurisdiction which elsewhere belongs to Circuit Courts, and, in other cases, as new States were added to the Union, District Courts were established with the powers of Circuit Courts. The same thing has happened, too, when States have been divided into two districts. There are, at present, several States which have no Circuit Court except the District Court, and there are other States which are divided into more than one district, and in some of which Districts there is but a District Court with Circuit Court jurisdiction; so that it cannot be said that the system has been at any time entirely uniform.
So much, Mr. Chairman, for the history of our legislation on the judicial department.
I am not aware, Mr. Chairman, that there is any public complaint of the operation of the present system, so far as it applies to the Atlantic States. So far as I know, justice has been administered efficiently, promptly, and satisfactorily, in all those circuits. The judges, perhaps, have a good deal of employment: but they have been able to go through their arduous duties in such manner as to leave no cause of complaint, as far as I am informed. For my own part, I am not sanguine enough to expect, as far as those circuits are concerned, that any improvement can be made. In my opinion, none is needed. But it is not so in the Western States. Here exists a great deficiency. The country has outgrown the system. This is no man's fault, nor does it impute want of usual foresight to any one. It would have seemed chimerical in the framers of the law of 1789, if they had professed to strike out a plan which should have been adequate to the exigencies of the country, as it actually exists in 1826. From a period as far back as the close of the late war, the people of the West have applied to Congress on the subject of the courts. No session of Congress has passed without an attempt, in one or the other house, to produce some change; and although various projects have been presented, the inherent difficulties of the subject have prevented any efficient action of the legislature. I will state shortly, Sir, and as nearly as I remember, what has been at different times proposed.
In the first place, it has been proposed to recur to the system of Circuit Courts, upon the principle, although not exactly after the model, of the act of February, 1801. A bill of this character passed the Senate in 1819, dividing the country into nine circuits, and providing for the appointment of one circuit judge to each circuit, who with the district judge of the district should
constitute the Circuit Court. It also provided, that the Supreme Court, as vacancies should occur, should be reduced to five members. This bill, I believe, was not acted upon in this House. Again, it has been proposed to constitute Circuit Courts by the union of the district judges in the circuit. It has been proposed, also, to extend the existing system somewhat in conformity to the object of the present bill, by adding to the number of the judges in the Supreme Court. And a different arrangement still has been suggested, which contemplates the appointment of circuit judges for some districts, and the continued performance of circuit duties by the supreme judges in others, with such legal provision as shall not attach the judges of the Supreme Court, in the performance of their circuit duties, unequally to any part of the country, but allow them to be distributed equally and fairly over the whole. This system, though somewhat complex, and perhaps liable to be misunderstood, is, I confess, what appears to me best of all suited to our condition. It would not make the Supreme Court too numerous; and it would still require from its members the performance of circuit duties; it would allow a proper distribution of these members to every part of the country; and, finally, it would furnish an adequate provision for the despatch of business in the Circuit Courts. Upon this plan, a bill was presented to the House of Representatives at the first session of the last Congress, but it did not meet with general favor; and the fate of a similar proposition elsewhere, at a subsequent period, discourages any revival of it.
I now come, Sir, to consider whether any, and what, evils exist; and then, whether the present bill be a suitable remedy. And in the first place, it is said, perhaps with some justice, that the business of the Supreme Court itself is not gone through with sufficient promptitude; that it is accumulating; that great delays are experienced, and greater delays feared. As to this, I would observe, that the annual session of the court cannot last above six or seven weeks, because it commences in February, and the circuit duties of the judges require them to leave this. place the latter part of March. But I know no reason why the judges should not assemble earlier. I believe it would not materially interfere with their circuit duties, to commence the session here in the early part of January; and if that were the case,
I have little doubt that, in two years, they would clear the docket. A bill to make this change passed this House two years ago; I regret to say, it was not acted upon in the Senate.
As to returning to the original practice of having two sessions of the Supreme Court within the year, I incline to think it wholly inexpedient. The inconvenience arising from the distance of suitors and counsel from the seat of government forms a decisive objection to that proposition.
The great evil, however, Sir, at present experienced, and that which calls most loudly and imperatively for a remedy, is the state of business in the Circuit Courts in the Western States. The seventh circuit consists of Kentucky, Ohio, and Tennessee. All the other Western States have District Courts, with the powers of Circuit Courts. I am clearly of opinion, that some further provision is required of us for the administration of justice in these States. The existing means are not equal to the end. The judicial organization is not competent to exercise the jurisdiction which the laws confer
it. There is a want of men, and a want of time. In this respect, it appears to me that our constitutional duty is very plain. The Constitution confers certain judicial powers on the government of the United States; we undertake to provide for the exercise of these powers; but the provision is inadequate, and the powers are not exercised. By the Constitution, the judicial power of this government extends, as well as to other things, to causes between citizens of different States. · We open courts professedly to exercise that jurisdiction; but they are not competent to it; it is not exercised with reasonable promptitude; the suitor is delayed, and the end of the constitutional provision, in some measure, defeated. Now, it appears to me very plain, that we should either refuse to confer this jurisdiction on the courts, or that we should so constitute them that it may be efficiently exercised.
I hold, Sir, the certificate of the clerk for the District and Circuit Court of the District of Kentucky, that there are now pending in those courts nine hundred and fifty causes. As this is not a maritime district, most of these causes, doubtless, are in the Circuit Court. This accumulation has not arisen from any want of diligence in the judges themselves, for the same paper states, that two thousand causes have been disposed of within the last three years. The Memorial of the Bar of Nashville in
forms us that one hundred and sixty cases are pending in the Circuit Court for the Western District of Tennessee; a number, perhaps, not much less, is on the docket of the court for the Eastern District of Tennessee; and I am authorized to state that two hundred or two hundred and fifty may be taken as the number of suits pending in the Circuit Court of Ohio. These three States, Sir, constitute one circuit; they extend over a wide region; the places for holding the courts are at vast distances from one another; and it is not within the power of man, that the judge assigned to this circuit should get through the duties of his station. With the state of the courts in the other Western and Southwestern States, I am not so particularly acquainted. Gentlemen from those States will make it known to the committee. I know enough, however, to be satisfied that the whole case calls for attention. It grows no better by delay, and, whatever difficulties embarrass it, we may as well meet them at once,
agree upon such remedy as shall, upon the whole, seem most expedient.
And this, Sir, brings me to the most difficult part of our inquiry; that is to say, whether such a measure as this bill proposes be the proper remedy. I beg to say, Sir, that I feel this difficulty as deeply as it can be felt by any member of the committee; and while I express my own opinions, such as they are, I shall be most happy to derive light from the greater experience, or the better intelligence, of any gentleman. To me it appears, that we are brought to the alternative of deciding between something like what this bill proposes, and the Circuit Court system, as provided in the bill of the Senate in 1819. As a practical question, I think it has come to this point: Shall we extend the present system, by increasing the number of the judges, or shall we recur to the system of Circuit Courts? I invoke the attention of the committee to this question, because, thinking the one or the other inevitable, I wish for the mature judgment of the House on both.
In favor of the Circuit Court system, it may be said, that it is uniform, and may be made to apply to all the States equally; so that if new States come into the Union, Circuit Courts may be provided for them without derangement to the general organization. This, doubtless, is a consideration entitled to much weight. It is said, also, that by separating the judges of the Supreme Court from the circuits, we shall leave them ample