FURTHER REMARKS MADE ON THE SAME SUBJECT, ON THE 25TH OF JANUARY, 1826, IN REPLY TO THE ARGUMENTS USED AGAINST THE BILL, AND IN FAVOR OF ITS POSTPONEMENT.

I HAD not intended, Sir, to avail myself of the indulgence which is generally allowed, under circumstances like the present, of making a reply. But the House has been invited with such earnestness to postpone this measure to another year, it has been pressed, with so much apparent alarm, to give no further countenance or support now to the bill, that I reluctantly depart from my purpose, and ask leave to offer a few brief remarks upon the leading topics of the discussion.

This, Sir, must be allowed, and is, on all hands allowed, to be a measure of great and general interest. It respects that important branch of government, the judiciary; and something of a judicial tone of discussion is not unsuitable to the occasion. We cannot treat the question too calmly, or too dispassionately. For myself, I feel that I have no pride of opinion to gratify, no eagerness of debate to be indulged, no competition to be pursued. I hope I may say, without impropriety, that I am not insensible to the responsibility of my own situation as a member of the House, and a member of the committee.* I am aware of no prejudice which should draw my mind from the single and solicitous contemplation of what may be best; and I have listened attentively, through the whole course of this debate, not with the feelings of one who is meditating the means of replying to objections, or escaping from their force, but with an unaffected anxiety to give every argument its just weight, and with a perfect readiness to abandon this measure, at any moment, in favor of any other which should appear to have solid grounds of preference. But I cannot say that my opinion is altered. The measure appears to my mind in the same light as when it was first presented to the House. I then saw some inconveniences attending it, and admitted them. I see them now; but while the effect of this discussion on my own mind has not been to do away entirely the sense of these inconveniences, it has not been, on the other hand, to remove the greater objections which exist to any other plan. I remain fully con

* Mr. Webster was Chairman of the Judiciary Committee of the House of Representatives, at this session of Congress.

vinced, that this course is, on the whole, that which is freest from difficulties. However plausible other systems may seem in their general outline, objections arise, 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 preferred. 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 of amendment moved by 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 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, was 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 a legal provision, in consequence of which 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

* Mr. Powell.

† Mr. Buchanan.

seven justices of the Supreme Court, with ten circuit judges, and ten justices of the Supreme Court, 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 proceed. That gentleman recommends that the justices 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 neighboring State, every judge on this plan 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 Alleghanies. 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 one 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,

every thing 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, is practicable.

Another objection advanced by the member from Pennsylvania applies as well to the system as it now exists, as to that which will be substituted 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 for the judge whose opinion was under revision not to 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 that persons competent to form an opinion 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 unbiased 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 what is decided by the ultimate tribunal is decided rightly.

To guard against too great a tendency to reversals in appellate courts, it has often been thought expedient to furnish a good 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. 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 to assign and explain the reasons of the original judgment. 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 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.