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It has been again and again urged, that this bill makes no provision for clearing off the term business of the Supreme Court; and strange mistakes, as it appears to me, are committed, as to the amount of arrears in that court. I believe that the bill intended to remedy that evil will remedy it. I believe there is time enough for the court to go through its lists of causes here, without interfering with the sessions of the Circuit Courts; and, notwithstanding the mathematical calculations by which it has been proved that the proposed addition to the length of the term would enable the court to decide precisely nine additional causes, and no more, yet I have authority to say, that those who have the best means of knowing were of opinion, two years ago, that the proposed alteration of the term would enable the court, in two years, to go through all the causes before it ready for hearing.
It has been said, Sir, that this measure will injure the character of the Supreme Court; because, as we increase numbers, we lessen responsibility in the same proportion. Doubtless, as a general proposition, there is great truth in this remark. A court so numerous as to become a popular body would be unfit for the exercise of judicial functions. This is certain. But then this general truth, although admitted, does not enable us to fix with precision the point at which this evil either begins to be felt at all, or to become considerable; still less, where it is serious or intolerable. If seven be quite few enough, it may not be easy to show that ten must necessarily be a great deal too many. But there is another view of the case, connected with what I have said heretofore in this discussion, and which furnishes, in my mind, a complete answer to this part of the argument; and that is, that a judge who has various important individual duties to perform in the Circuit Court, and who sits in the appellate court with nine others, acts, on the whole, in a more conspicuous character, and under the pressure of more immediate and weighty responsibility, than if he performed no individual circuit duty, and sat on the appellate bench with six others only.
But again, it has been argued, that to increase the number of the Supreme Court is dangerous; because, with such a precedent, Congress may hereafter effect any purpose of its own, in regard to judicial decisions, by changing essentially the whole
constitution of the court, and overthrowing its settled decisions, by augmenting the number of judges. Whenever Congress, it is said, may dislike the constitutional opinions and decisions of the court, it may mould it to its own views, upon the authority of the present example. But these abuses of power are not to be anticipated or supposed ; and therefore no argument results from them.
If we were to be allowed to imagine that the legislature would act in entire disregard of its duty, there are ways enough, certainly, beside that supposed, in which it might destroy the judiciary, as well as any other branch of the government. The judiciary power is conferred, and the Supreme Court established, by the Constitution; but then legislative acts are necessary to confer jurisdiction on inferior courts, and to regulate proceedings in all courts. If Congress should neglect the duty of passing such laws, the judicial power could not be efficiently exercised. If, for example, Congress were to repeal the twenty-fifth section of the judicial act of 1789, and make no substitute, there would be no mode by which the decisions of State tribunals, on questions arising under the Constitution and laws of the United States, could be revised in the Supreme Court.
Or if they were to repeal the eleventh section of that act, the power of trying causes between citizens of different States, in the tribunals of this government, could not be exercised. All other branches of the government depend, in like manner, for their continuance in life and being, and for the proper exercise of their powers, on the presumption that the legislature will discharge its constitutional duties. If it were possible to adopt the opposite supposition, doubtless there are modes enough to which we may look, to see the subversion both of the courts and the whole Constitution.
Mr. Speaker, I will not detain you by further reply to the various objections which have been made to this bill. What has occurred to me as most important, I have noticed either now or heretofore; and I refer the whole to the dispassionate judgment of the House. Allow me, however, Sir, before I sit down, to disavow, on my own behalf and on behalf of the committee, all connection between this measure and any opinions or decisions, given or expected, in any causes, or classes of causes, by the Supreme Court. Of the merits of the case of which early mention was made in the debate, I know nothing. I presume it was rightly decided, because it was decided by sworn judges, composing a tribunal in which the Constitution and the laws have lodged the power of ultimate judgment. It would be unworthy, indeed, of the magnitude of this occasion, to bend our course a hair's breadth on the one side or the other, either to favor or to oppose what we might like, or dislike, in regard to particular questions. Surely we are not fit for this great work, if motives of that sort can possibly come near us. I have forborne, throughout this discussion, all expression of opinion on the manner in which the members of the Supreme Court have heretofore discharged, and still discharge, the responsible duties of their station. I should feel restraint and embarrassment, were I to make the attempt to express my sentiments on that point. Professional habits and pursuits connect me with the court, and I feel that it is not proper that I should speak here of the personal qualities of its members, either generally or individually. They shall not suffer, at least, from any ill-timed or clumsy eulogy of mine. I could not, if I would, make them better known than they are to their country; nor could I either strengthen or shake the foundation of character and talent upon which they stand.
But of the judicial branch of the government, and of the institution of the Supreme Court, as the head of that branch, I beg to say that no man can regard it with more respect and attachment than myself. It may have friends more able, it has none more sincere. No conviction is deeper in my mind, than that the maintenance of the judicial power is essential and indispensable to the very being of this government. The Constitution without it would be no constitution; the government, no government. I am deeply sensible, too, and, as I think, every man must be whose eyes have been open to what has passed around him for the last twenty years, that the judicial power is the protecting power of the whole government. Its position is upon the outer wall. From the very nature of things and the frame of the Constitution, it forms the point at which our different systems of government meet in collision, when collision unhappily exists. By the absolute necessity of the case, the members of the Supreme Court become judges of the extent of constitutional powers. They are, if I may so call them, the great arbitrators between contending sovereignties. Every man is able to see how delicate and how critical must be the exercise of such powers in free and popular governments. Suspicion and jealousy are easily excited, under such circumstances, against a body, necessarily few in number, and possessing by the Constitution a permanent tenure of office. While public men in more popular parts of the government may escape without rebuke, notwithstanding they may sometimes act upon opinions which are not acceptable, that impunity is not to be expected in behalf of judicial tribunals. It cannot but have attracted observation, that, in the history of our government, the courts have not been able to avoid severe, and sometimes angry complaint, for giving their sanction to those public measures which the representatives of the people had adopted without exciting particular disquietude. Members of this and the other house of Congress, acting voluntarily, and in the exercise of their general discretion, have enacted laws without incurring an uncommon degree of dislike or resentment; and yet, when those very laws have been brought before the court, and the question of their validity has been distinctly raised, and is necessarily to be determined, the judges affirming the constitutional validity of such acts, although the occasion was forced ụpon them, and they were absolutely bound to express the one ' opinion or the other, have, nevertheless, not escaped a severity of reproach bordering upon the very - verge of denunciation. This experience, while it teaches us the dangers which environ this department, instructs us most persuasively in its importance. For its own security, and the security of the other branches of the government, it requires such an extraordinary union of discretion and firmness, of ability and moderation, that nothing in the country is too distinguished for sober sense or too gifted with powerful talent, to fill the situations belonging to it.
The following resolution being under consideration, in committee of the whole House upon the state of the Union, viz. :
“ Resolved, That in the opinion of the House it is expedient to appropriate the funds necessary to enable the President of the United States to send ministers to the Congress of Panama”;
Mr. McLane of Delaware submitted the following amendment thereto, viz. :
“It being understood as the opinion of this House, that, as it has always been the settled policy of this government, in extending our commercial relations with foreign nations, to have with them as little politi. cal connection as possible, to preserve peace, commerce, and friendship with all nations, and to form entangling alliances with none; the ministers who may be sent shall attend at the said Congress in a diplomatic character merely, and ought not to be authorized to discuss, consider, or consult, upon any proposition of alliance, offensive or defensive, between this country and any of the Spanish American governments, or any stipulation, compact, or declaration, binding the United States in any way, or to any extent, to resist interference from abroad with the domestic concerns of the aforesaid governments ; or any measure which shall commit the present or future neutral rights or duties of these United States, either as may regard European nations, or between the several states of Mexico and South America ; leaving the United States free to adopt, in any event which may happen, affecting the relations of the South American governments with each other, or with foreign nations, such measures as the friendly disposition cherished by the American people towards the people of those states, and the honor and interest of this nation, may require";
To which Mr. Rives of Virginia proposed to add, after the words " aforesaid governments," the following:
* A Speech delivered in the House of Representatives of the United States, on the 14th of April, 1826.