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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 aug. menting 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 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 member, 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. VOL. III.
I do not intend, Sir, to go again into the general question of continuing the justices 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 gentleman 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 any thing 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 bearing 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 ap, 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 five hundred others, is it not obvious that a judge, bred to this peculiar system of law, and having ałso 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, 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 judicatures, and their connection with other laws, local or general,- if the question be, whether such a judge is 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 me. It seems to imply that one intelligent man is as fit to be a judge of the Supreme Court as another. The perception of the true rule, and its rightful application, whether of local or general law, are supposed to be entirely easy, because there are many volumes of statutes and of decisions. There can be no doubt, it seems, that a Supreme Court, however constituted, would readily understand, in the instance mentioned, the law of Vermont, because the statutes of Vermont are accessible. Nor need Louisiana fear that her peculiar code will not be thoroughly and practically known, inasmuch as a printed copy will be found in the public libraries.
Sir, I allude to such arguments, certainly not for the purpose of undertaking a refutation of them, but only to express my regret that they should have found place in this discussion. I have not contended, Sir, for any thing like judicial representation. I care not in what terms of reproach such an idea be spoken of. It is none of mine. What I said was, and I still say it, that, with so many States, having various and different systems, with such a variety of local laws and usages and practices, it is highly important that the Supreme Court should be so constituted as to allow a fair prospect, in every case, that these laws and usages should be known; and that I know nothing so naturally conducive to this end, as the knowledge and experience obtained by the judges on the circuits. Let me ask, Sir, the members from New England, if they have ever found any man this side of the North River who thoroughly understood our practice of special attachment, our process of garnishment, or trustee process, or our mode of extending execution upon land? And let me ask, at the same time, whether there be an individual of the profession, between this place and Maine who is, at this moment, competent to the decision of questions arising under the peculiar system of land titles of Kentucky or Tennessee? If there be such a gentleman, I confess I have not the honor of his acquaintance.
On the general question of the utility of constant occupation in perfecting the character of a judge, I do not mean now to enlarge. I am aware that men will differ on that subject, according to their different means or different habits of observation. To me it seems as clear as any moral proposition whatever. And I would ask the honorable member from Rhode Island, since he has referred to the judge of the first circuit, and has spoken of him in terms of respect not undeserved, whether he supposes that that member of the court, if, fifteen years ago, on receiving his commission, he had removed to this city, and had remained here ever since, with no other connection with his profession than an annual session of six weeks in the Supreme Court, would have been the judge he now is? Sir, if this question were proposed to that distinguished person himself, and if he could overcome the reluctance which he would naturally feel to speak at all of his own judicial qualities, I am extremely mistaken if he would not refer to his connection with the Circuit Court, and the frequency and variety of his labors there, as efficient causes in the production of that eminent degree of ability with which he now discharges the duties of his station.
There is not, Sir, an entire revolution wrought in the mind of a professional man, by appointing him a judge. He is still a lawyer; and if he have but little to do as a judge, he is, in effect, a lawyer out of practice. And how is it, Sir, with lawyers who are not judges, and are yet out of practice? Let the opinion and the common practice of mankind decide this. If you require professional assistance in whatever relates to your reputation, your property, or your family, do you go to him who is retired from the bar, and who has uninterrupted leisure to pursue his readings and reflections; or do you address yourself to him, on the contrary, who is in the midst of affairs, busy every day, and every hour in the day, with professional pursuits? But I will not follow this topic farther, nor dwell on this part of the case.
I have already said, that, in my opinion, the present number of the court is more convenient than a larger number, for the hearing of a certain class of causes. This opinion I do not retract; for I believe it to be correct. But the question is, whether this inconvenience be not more than balanced by other advantages. I think it is.