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time for the discharge of the high duties of their appellate jurisdiction. This, no doubt, is true; but then, whether it be desirable, upon the whole, to withdraw the judges of the Supreme Court from the circuits, and to confine their labors entirely to the sessions at Washington, is a question which has most deeply occupied my reflections, and in regard to which I am free to confess some change has been wrought in my opinions. With entire respect for the better judgment of others, and doubting, therefore, when I find myself differing from those who are wiser and more experienced, I am still constrained to say, that my judgment is against withdrawing the judges of the Supreme Court from the circuits, if it can be avoided. The reasons which influence this sentiment are general, and perhaps may be thought too indefinite and uncertain to serve as a guide in measures of public importance; they nevertheless appear to me to have weight, and I will state them with frankness, in the hope that, if they are without reasonable foundation, they will be shown to be so, when certainly I shall cheerfully relinquish them.
In the first place, it appears to me that such an intercourse as the judges of the Supreme Court are enabled to have with the profession, and with the people, in their respective circuits, is itself an object of no inconsiderable importance. It naturally inspires respect and confidence, and it produces a reciprocal communication of information through all the branches of the judicial department. This leads to a harmony of opinion and of action. The Supreme Court, by itself, is in some measure insulated; it has not frequent occasions of contact with the community. The bar that attends it is neither numerous nor regular in its attendance. The gentlemen who appear before it, in the character of counsel, come for the occasion, and depart with the occasion. The profession is occupied mainly in the objects which engage it in its own domestic forums; it belongs to the States, and their tribunals furnish its constant and principal theatre. If the judges of the Supreme Court, therefore, are wholly withdrawn from the circuits, it appears to me there is danger of leaving them without the means of useful intercourse with other judicial characters, with the profession of which they are members, and with the public. But, without pursuing these general reflections, I would say, in the second place, that I think it useful that judges should see in practice
the operation and effect of their own decisions. This will prevent theory from running too far, or refining too much. We find, in legislation, that general provisions of law, however cautiously expressed, often require limitation and modification. Something of the same sort takes place in judicature. However beautiful may be the theory of general principles, such is the infinite variety of human affairs, that those most practised in them and conversant with them see at every turn a necessity of imposing restraints and qualifications on such principles. The daily application of their own doctrines will necessarily inspire courts with caution; and, by a knowledge of what takes place upon the circuits and occurs in constant practice, they will be able to decide finally, without the imputation of having overlooked, or not understood, any of the important elements and ingredients of a just decision.
But further, Sir, I must take the liberty of saying, that, in regard to the judicial office, constancy of employment is of itself, in my judgment, a good, and a great good. I appeal to the conviction of the whole profession, if, as a general rule, they do not find that those judges who decide most causes decide them best. Exercise strengthens and sharpens the faculties in this more than in almost any other employment. I would have the judicial office filled by him who is wholly a judge, always a judge, and nothing but a judge. With proper seasons, of course, for recreation and repose, his serious thoughts should all be turned to his official duties; he should be omnis in hoc. I think, Sir, there is hardly a greater mistake than has prevailed occasionally in some of the States, of creating many judges, assigning them duties which occupy but a small part of their time, and then making this the ground for allowing them a small compensation. The judicial power is incompatible with any other pursuit in life; and all the faculties of every man who takes it ought to be constantly exercised, and exercised to one end. Now, Sir, it is natural, that, in reasoning on this subject, I should take my facts from what passes within my own means of observation. If I am mistaken in my premises, the conclusion, of course, ought to be rejected. But I suppose it will be safe to say, that a session of eight weeks in the year will probably be sufficient for the decision of causes in the Supreme Court; and, reasoning from what exists in one of the most considerable circuits in the Atlantic States, I suppose that eight, ten, or at most twelve weeks, may be the average of the time requisite to be spent by a circuit judge in his court in those circuits. If this be so, then, if the courts be separated, we have supreme judges occupied two months out of twelve, and circuit judges occupied three months out of twelve. In my opinion, this is not a system either to make or to keep good judges. The Supreme Court exercises a great variety of jurisdiction. It reverses decisions at common law, in equity, and in admiralty; and with the theory and the practice of all these systems it is indispensable that the judges should be accurately and intimately acquainted. It is for the committee to judge how far the withdrawing them from the circuits, and confining them to the exercise of an appellate jurisdiction, may increase or diminish this information. But, again, Sir, we have a great variety of local laws existing in this country, which are the standard of decision where they prevail. The laws of New England, Maryland, Louisiana, and Kentucky are almost so many different codes. These laws are to be construed and administered, in many cases, in the courts of the United States. Is there any doubt that a judge coming on the bench of the Supreme Court with a familiar acquaintance with these laws, derived from daily practice and decisions, must be more able both to form his own judgment correctly, and to assist that of his brethren, than a stranger who only looks at the theory ? This is a point too plain to be argued. Of the weight of the suggestion the committee will judge. It appears to me, I confess, that a court remotely situated, a stranger to these local laws in their application and practice, with whatever diligence or with whatever ability, must be liable to fall into great mistakes.
May I ask your indulgence, Mr. Chairman, to suggest one other idea. With no disposition whatever to entertain doubts as to the manner in which the executive duty of appointments shall at any time hereafter be performed, the Supreme Court is so important, that, in whatever relates to it, I am willing to make assurance doubly sure, and to adopt, therefore, whatever fairly comes in my way likely to increase the probability that able and efficient men will be placed upon that bench. Now I confess that I know nothing which I think more conducive to that end than the assigning to the members of that court important, responsible, individual duties. Whatsoever makes the individual prominent, conspicuous, and responsible increases the probability that he will be some one possessing the proper requisites for a judge. It is one thing to give a vote upon a bench (especially if it be a numerous bench) for plaintiff or defendant, and quite another thing to act as the head of a court of various jurisdiction, civil and criminal, to conduct trials by jury, and render judgments in law, equity, and admiralty. While these duties belong to the condition of a judge on the bench, that place will not be a sinecure, nor likely to be conferred without proofs of proper qualifications. For these reasons, I am inclined to wish that the judges of the Supreme Court may not be separated from the circuits, if any other suitable provision can be made.
As to the present bill, Mr. Chairman, it will doubtless be objected, that it makes the Supreme Court too numerous. In regard to that, I am bound to say that my own opinion was, that the present exigency of the country could have been answered by the addition of two members to the court. I believe the three Northwestern States might well enough go on for some time longer, and form a circuit of themselves, perhaps, hereafter, as the population shall increase, and the state of their affairs require it. The addition of the third judge is what I assent to, rather than what I recommend. It is what I would gladly avoid, if I could with propriety. I admit that, for some causes, the court as constituted by the bill will be inconveniently large; for such, especially, as require investigation into matters of fact, such as those of equity and admiralty, and perhaps for all private causes generally. But the great and leading character of the Supreme Court, its most important duties, and its highest functions, have not yet been alluded to. It is its peculiar relation to this government and the State governments, it is the power which it rightfully holds and exercises, of revising the opinions of other tribunals on constitutional questions, as the great practical expounder of the powers of the government, which attaches to this tribunal the greatest attention, and makes it worthy of the most deliberate consideration. Duties at once so important and so delicate impose no common responsibility, and require no common talent and weight of character. A very small court seems unfit for these high functions. These duties, though essentially judicial, partake something of a political character. The judges are called on to sit in judgment on the acts of independent States; they control the will of sovereigns; they are liable to be exposed, therefore, to the resentment of wounded sovereign pride; and from the very nature of our system, they are sometimes called on, also, to decide whether Congress has not exceeded its constitutional limits. Sir, there exists not upon the earth, and there never did exist, a judicial tribunal clothed with powers so various, and so important. I doubt the safety of rendering it small in number. My own opinion is, that, if we were to establish Circuit Courts, and to confine their judges to their duties on the bench, their number should not be at all reduced; and if, by some moderate addition to it, other important objects may well be answered, I am prepared to vote for such addition. In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done. The opinions of mankind naturally attach more respect and confidence to the decisions of a court somewhat numerous, than to those of one composed of a less number. And, for myself, I acknowledge my fear, that, if the number of the court were reduced, and its members wholly withdrawn from the circuits, it might become an object of unpleasant jealousy and great distrust.
Mr. Chairman, I suppose I need not assure the committee that, if I saw any thing in this bill which would lessen the respectability or shake the independence of the Supreme Court, I should be the last man to favor it. I look upon the judicial department of this government as its main support. I am persuaded that the Union could not exist without it. I shall
oppose whatever I think calculated to disturb the fabric of government, to unsettle what is settled, or to shake the faith of honest men in the stability of the laws, or the purity of their administration. If any gentleman shall show me that any of these consequences is like to follow the adoption of this measure, I shall hasten to withdraw from it my support. But I think we are bound to do something; and shall be most happy if the wisdom of the House shall suggest a course more free from difficulties than that which is now proposed to it.