MVB Senate speech on the judiciary, 7 April 1826
FRIDAY, APRIL 7, 1826.
On the question of agreeing to this amendment, Mr. VAN BUREN rose, and addressed the Senate as follows:
In noticing the proposed amendments, I shall give my own views, and, as far as I understand them, the views of the majority of the committee, in relation to the bill under consideration. The ample discussion which the subject has so recently undergone elsewhere, and which, though not heard, has been seen, by the Senate, will induce me to omit many observations which I might otherwise have felt it my duty to make.
The committee propose two amendments to the bill from the House of Representatives. They consist of an alteration of the seventh and eight Circuits, and a provision requiring the new Judges, as is now required of the present Judges, to reside in their respective circuits. In the bill as it stands, Kentucky and Missouri form one circuit, and Ohio, Illinois, and Indiana, another. The amendment connects Kentucky with Ohio, and forms the other circuit out of the districts of Missouri, Illinois, and Indiana. The amendment relative to the residence of the Judges shall be noticed in the course of my remarks on the general subject. Of the other amendment I shall say but little. I was absent, on account of indisposition, when that amendment was discussed and decided in the committee. The explanation of its reasons will therefore be left to those by whom it was made, and who are more conversant with its merits. A bill was reported by me, in behalf of the committee, early in the session, by which the circuits were arranged as they are in the bill from the House. Subsequent to the report, it was ascertained that, out of the ten Senators representing the States included in the two circuits, seven were dissatisfied with that arrangement. They contend that it is unnatural, with reference to localities, unnecessary as it respects the state of the business, and will be inconvenient in its operation.
The question is exclusively of a local character, and the reasons for the opinion sustained by the amendment will be given by those particularly interested.
The bill proposes an alteration of the existing legislative provision on the subject of the Judicial system, by adding three additional Judges to the Supreme Court, and to increase the number of circuits from seven to ten. It is admitted that the change is important, and ought not to be made except upon the most urgent inducements. It is my object to state briefly and distinctly, the nature and extent of those inducements.
The grounds of complaint are:—
1st, The unavoidable accumulation of business in the Supreme Court:
2d, The great amount of unfinished business in the Seventh Circuit, composed of the States of Ohio, Kentucky, and Tennessee, which cannot, it is alleged, be disposed of under the present arrangement:
3d, The exclusion of the six States last admitted into the Confederacy, viz: Illinois, Missouri, Indiana, Alabama, Mississippi, and Louisiana, from the benefit of the Circuit System.
Our first inquiries should be directed to the facts upon which these complaints are founded, and the character and extent of the alleged evils.
I obtained, last year, a certificate from the clerk of the Supreme Court, which has been mislaid, but the amount of which, as far as my recollection serves me, was, that of the causes on the calendar for the last ten years, one-half were left undisposed of at each term.
This is an evil that is every where felt and complained of. Its existence is universally admitted, and in many cases it amounts to a denial of justice.
The seventh circuit, as I have already stated, is composed of the Districts of Ohio, Kentucky, and East and West Tennessee. The mischief complained of arises partly from the great extent of country embraced in the circuit, the immense distance from court to court, and partly from the great amount of litigation in that portion of the Union. Upon the first branch of the subject—the great extent of the circuit, remarks are unnecessary; the facts are open to the observation of all. In one of the memorials on the table, the extraordinary extent of travel which the Judge has to perform, and the difficulties of doing so, are fully stated. Upon the second, a few remarks may not be unprofitable. It is said, and upon good authority, that there are now pending in the Kentucky District, 950 causes; in Ohio, about 200 or 250, and in East and West Tennessee, about 300; in all about 1,500 causes. Although these facts are doubtless as stated, still, to many of us the statement, unless explained, would present an exaggerated and deceptive view of the real business in the circuit referred to.
By the laws of the United States, and the rules of the Supreme Court, made in pursuance thereof, the practice in the Circuit Courts of the United States has been assimilated to that of the Superior Courts of the States. That of the latter is various. Whilst in some of the States every pending cause, whatever be its nature or condition, is placed upon the docket, in others, such only as are to be tried upon issues either of law or fact: the former appears to be the practice in the seventh Circuit. Of the 950 causes pending in the Kentucky District, there are, therefore, in all probability, not more than 250 which require to be tried: the others pass by default, or are otherwise disposed of; and the same estimate may, with safety, be made of the business in the other districts in the Circuit.
That there is, notwithstanding, a greater amount of business in those districts than the Court can perform, constituted as the Circuit now is, appears from representations which have been made from time to time to Congress, coming from sources deserving entire confidence. It may appear strange to gentlemen that a Circuit so little commercial, and of a population inferior in point of numbers to several of the old Circuits, should be so greatly overburthened with business, whilst in the others, the Judges cannot only do all the present business, but might, without much inconvenience, do more. The fact is in part attributable to the great length of time necessarily employed by the Judge in travelling, but chiefly to another cause. By the Constitution of the United States, jurisdiction is given to the Federal Judiciary, among other things, in “all cases between citizens of the same State, claiming lands under grants of different States.” A very great proportion of the causes pending in these Courts concern the title to lands thus circumstanced. The United States Court derive from this branch of their Judicial power an incomparably greater access of business in the Circuit in question, than they do in any portion of the old States. Such is briefly the actual condition of things in the seventh Circuit. Of the Courts, its inhabitants do not, nor have they any reason to complain–as much has been done for them as the number of the Judges and the situation of the Judicial system would admit of. From Congress they have had the assistance that has been given to the same, and even larger number of citizens, in other sections of the country, and more than has been given to some. They have, therefore, no ground for any thing like clamorous complaint, nor am I aware that they have made it—to us they certainly have not. But as they clearly suffer inconvenience—as the cause of the evil is without their fault and beyond control, they have a right to ask present redress: and the bill on the table proposes to give it as far as that can be done consistent with the interests of the other States. The remaining ground of complaint is the condition of the six States to which the Circuit system has not been extended. The following is the state of this part of the case:–The other States have District Courts, which are held by District Judges, receiving salaries of from eight to sixteen hundred dollars. They have also Circuit Courts, held by one of the Justices of the Supreme Court, together with the District Judge. In all judgments and decrees in civil suits, for an amount over fifty dollars, a right of appeal is secured from the District to the Circuit Court, and a similar right to appeal from the Circuit to the Supreme Court, where the matter in controversy exceeds two thousand dollars. In all cases, civil or criminal, where a difference of opinion exists between the Circuit and District Judge, the matter is certified to the Supreme Court, and decided by them, and such order taken in the Court below, as the Supreme Court shall direct. No imprisonment is allowed, or punishment inflicted, when the Judges are so divided. Such is the provision made for the States which have been admitted to a full participation of the Judicial system of the United States.
In the petitioning States, the situation of things is very different. Instead of the Circuit Courts thus constituted, provision is made by law to vest the District Courts with Circuit Court powers, so far at least as it relates to the original jurisdiction of the Circuit Courts. The appellate jurisdiction of the Circuit Court could not of course be vested in the District Court. An appeal lies from the District Court directly to the Supreme Court, similar to the allowed in other States from the Circuit Court to the Supreme Court, which it has been seen lies only where the matter in controversy exceeds the value of two thousand dollars. The injustice and inconvenience resulting from this system to the States in question, is supposed to consist—
1st, In depriving them in the first instance of the talents, experience, and learning, of a Judge of the Supreme Court, who, from the higher duties he is expected to perform—from the greater inducement held out to men of talents, by larger salaries, and increased respectability, it is but reasonable to presume, would be far superior in point of capacity and respectability to the District Judge.
2d, In cutting them off from an appeal in all matters in controversy between fifty dollars and two thousand dollars—an evil which, they say, cannot be redressed without the establishment of Circuit Courts, as it would not be a relief to suffer causes of a less amount to be carried from remote parts of the Union to the City of Washington.
3d, That, although they have a right of appeal in all cases of over two thousand dollars, they can only have it to the Supreme Court in the first instance, and are thus deprived of the benefit of the first appeal to the Circuit Court, by which justice might be obtained at less expense.
4th. That, in criminal cases, in which no appeal is provided in any case, and which may involve life, character, and liberty, they are deprived of the advantage of a Judge of the Supreme Court, and of the humane provision requiring the assent of two Judges before punishment.
5th. That they have been admitted into the Union upon equal terms with the Old States—that one of the great advantages secured to them by the condition of their admission is a full participation in the perfect administration of justice, now enjoyed by their sister States, and that the withholding it by any act at once hostile to their best interest, and, what is equally interesting, humiliating to their pride.
This subject has been frequently before the Senate, and the Judiciary Committee. I have bestowed upon it, at different times, that deliberation and dispassionate attention, which the wishes and the interests of so many members of the Confederacy imperiously require. The result is a strong conviction, that there is, at least, some justice in each of the grounds of complaint made by the petitioning States, and enough in all of them, to make it the duty of Congress to make some suitable provisions for their relief.
Whilst, however, I concede thus much, I am not willing to be understood as uniting, or even so much as acquiescing in the vehement complaints, which it has of late become fashionable to make, for having, as it is alleged, withheld from those States, rights which ought to long since to have been granted to them. The petitioning States have been treated in this respect (circumstances considered) with as much favor, and have received as full a measure of justice as has been meted to those of their sister States, which have been admitted into the Confederacy since the adoption of the Constitution.
The right of an ultimate participation of every new State in all the privileges and immunities enjoyed by the other States under the Constitution as far forth as her situation enables her to enjoy them, and from which she is not precluded by the condition of her admission, is undoubted. But the immediate and entire extension of those privileges has never been regarded as a matter of imperative duty. The courtesy of the States, and general justice of their citizens, (if other considerations have not,) have, from the beginning, induced an acquiescence in a different rule, viz: that the measure should be a progressive one, to be completed as soon as a due regard to circumstances would admit. On a reference to the history of the Government, in this particular, it will be found, that the States now in question have fared as well, and better, than those admitted before them. Vermont and Maine, it is true, had the benefit of the Circuit system soon extended to them. But it was because their local situation enabled the Judges to hold Circuits there without creating a necessity for increasing the number of the Judges, or unreasonably increasing their duties. But towards States differently situated, a different course has been pursued, without producing any of those acrimonious complaints, of which we have lately heard and seen so much. Kentucky was admitted fifteen years before the Circuit system was extended to her–Ohio four years, and Tennessee eleven. Missouri has been admitted but four years—Alabama but four—Illinois but seven—Mississippi but eight—Indiana but nine—and Louisiana but thirteen.
Nor has the matter been looked upon by the States in question in so grievous and offensive a light. As far as my knowledge extends, the States of Louisiana, Missouri, Illinois, and Alabama, have not, as yet, memorialized us upon the subject, and the representations of Mississippi and Indiana have been precisely such as they should be.
I mention these circumstances, not only to vindicate the Government from supposed injustice to so large a part of the Western States, but to allay whatever of censure and contagious excitement the collisions of opinion elsewhere may have produced, and which is always adverse to that calm and dispassionate consideration which this subject, above all others, demands.
The committee are all of opinion that relief of some sort is required, and that it should now be given. The next question is, what should that relief be—what can it be? The States asking our interference, point out no specific mode in which their wrongs should be redressed, but submit themselves to the wisdom of Congress.
It may with great truth be said, that there has not, for many years, been any subject presented to Congress of greater difficulty. It is admitted to be so by all. No less than four different plans have, for the last three years, been submitted to the Senate without success. The present bill was reported at the last session, received the assent of a majority of the Senate, but did not pass for want of time.—The great difficulty arises from the extent of country to which the system must be made to apply. If you do justice to the Circuit Courts, you are unavoidably met by the danger of making the Judges on the Supreme Bench too numerous.
I speak of the system that now exists, a system established by those who formed the Constitution—departed from in 1801, but restored by the act of 1802, and persevered in to the present day. As the subject on which the system was to operate extended, Congress have extended it. Nothing is clearer than that for the old thirteen States, a better plan has not been needed, if the wit of man could have devised one. It is certain, that existing enactments do not carry the system over the whole ground. It must be so extended, or a new one established. The question is, whether that can be done—whether the country has not so far outgrown the system, as to render it necessary that it should be abandoned, and a new one submitted, more capable of extension.
Shall we do as was done in 1807, when Circuit Courts were provided for Ohio, Kentucky, and Tennessee, or shall we strike out a new path? But little reflection can be necessary to convince the most superficial observer, that to do so would be a matter of great delicacy. To change the entire Judicial system of a country, and especially of a country whose form of Government is so complicated as ours, can never be a matter of light import. If there be a case in which, more than any other, the hand of innovation should be watched with lynx-eyed jealousy, this is surely that case. A total change was made in 1801, but the measure met with a total overthrow in one short year. Strong as the feelings then produced were, time and experience have demonstrated the wisdom of the act of 1802, by which the system of 1789 was restored and improved. Men who then saw, or thought they saw, the prostration of the fairest and firmest pillar in the edifice, have been enabled by observation and more dispassionate reflection, to see the error of impressions made by the excitements of the moment, and, what is of equal value, have had the wisdom and the honesty to acknowledge their conversion to better and sounder opinions. But let us, instead of submitting ourselves to the influence of general opinions, examine into, and consider, the substitutes which have, from time to time, been proposed.
The plans proposed at different times have been the following:
1st. To continue the present system, and appoint Circuit Judges for the six new States, with a provision for their ultimate advancement to the Supreme Court, as vacancies occur on the bench.
2d. To revive the old system of 1801, appoint Circuit Judges, and confine the Judges of the Supreme Court to the discharge of term duties.
3d. To direct the Circuits to be held by the District Judges, allotting three to a Circuit.
4th. To increase the number of the Judges of the Supreme Court, and of the Circuits, according to the provisions of the bill upon the table.
Each of the three first mentioned schemes has advantages, but, upon careful consideration, they have all been found liable to insurmountable objections. I will briefly consider the plan of having the Circuit Judges for the six Western States only. A bill to that effect was, a session or two since, reported by the Judiciary Committee of the other House, and has been proposed by way of amendment in this. So far from being received as a measure of favor to the States interested, it produced nothing but excitement of the most unpleasant character. The earnest dissatisfaction manifested by the Western Members was certainly not without cause. They reasoned thus—We have done without the Circuit system until this time, and we have not complained, because it has not been the course of the Governments to extend that system at once, but gradually, and according to circumstances. As long as a compliance with our request is found impracticable, or so greatly inconvenient as to amount to an impracticability, we will still wait. But when you make provision, covering the whole ground, and by the that provision place us permanently, or nearly so, upon a footing inferior, in point of utility and respectability, to our sister States, who are but our equals, then our State pride is justly alarmed, and we cannot, in justice to the States we represent, submit to what they will regard as a degradation. So, sir, they reasoned, and it was soon seen that the measure ought not to be persisted in. It has, therefore, been abandoned in both Houses.
I will next notice the Circuit System of 1801. Some seven or eight years ago, a bill to that effect passed the Senate, and was fortunately not acted upon in the other House. Independent of the paramount objections which exist against this and every other plan, which, either directly or by probable consequence, separates the Justices of the Supreme Court from the Circuits, there are others deserving consideration. A less number of Circuits than ten would not be thought of. There are now, I think, twenty-seven District Judges. They hold their offices during good behavior, and many of them have spent the best portions of their lives in that situation, and become, more or less, dependent upon their places for their support, and that of their families. To remove them, therefore, by abolishing their Courts, if a consolidation of the District and Circuit Courts should be thought desirable, could not fail to be regarded as a harsh measure. To keep them in office, receiving salaries without performing service, is so hostile to the character and genius of our Government and the sentiments of the People, that public opinion would not tolerate it. It would, therefore, be necessary to appoint ten new Judges at least, which, added to the District and Supreme Court Judges, would make forty-four Judges of the United States' Courts, independent of the Territorial Judges. It is certainly true, that the business of the Courts would not furnish employment for this great number of Judges. The high duties imposed upon them, imperiously require that men of talents of a particular order should be selected for the new appointments. To obtain them, fair salaries will be indispensable; for men of such character could not, and would not, give up their business without an equivalent. It is, therefore, highly probable, that the expense of this system, the circumstance (always looked upon with much jealousy,) of creating so many offices of so stable and irresponsible a tenure, and the seal of condemnation once placed upon this measure, would excite, indeed could not fail to excite, great dissatisfaction. At the same time, it is due to the subject to state, that if there were no other objections to the system, and if the business of the Courts would furnish sufficient employment, the expense ought not to be regarded, as there is nothing more true than that the Judicial Department of the Government is, by far, the least expensive. Upon a reference, it will be found, that the whole expense of the Judiciary, including Marshals, &c. &c. does not exceed the sum of about three hundred thousand dollars per annum.
The remaining scheme is that of directing the Circuit Courts to be held by the District Judges. A plan to this effect was digested, and a bill reported to the Senate two sessions ago. It was explained, considered, and laid over. As far as inferences could be drawn, it did not meet with favor. A leading objection was, the supposed incapacity of the District Judges, arising from the circumstance that they had originally been selected for the performance of duties supposed to be of an inferior grade, and that they were allowed salaries of so limited an amount, that the selection had, of necessity, been more confined than was desirable. I confess, that, if I could consent to any system which separated the Justices of the Supreme Court from the Circuits, I would prefer the one now referred to. Much may be said to obviate the objection raised, but as the Committee have abandoned it, as no such proposition has been, or, as far as I can judge, is likely to be made, and as I am, for the reasons I shall hereafter give, opposed to that, or any other system like it, in the great point I have alluded to, I will not, at this time, detain the Senate by further comment upon it.
But there are objection of a more general character to the adoption of either of the plans I have spoken of.
By the present Judiciary act is provided, "that the laws of the several States, except where the Constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in Courts of the United States, in cases where they apply."
In many, if not most, of the controverted cases between individuals, of which the Federal Courts derive jurisdiction from the character of the parties, the titles under which they claim, or from other sources, the local or State law forms the rule of decision. An intimate knowledge of that is, therefore, an indispensable qualification for a Judge of the Supreme Court. The difficulty of acquiring and retaining it is infinitely greater than would, on first impression, be supposed. Of the twenty-four States, there are not two whose laws, affecting the rights of persons and property, are, in all respects, the same. Between many the differences are as great as is usual between States on different continents. Each has an established system, wholly unconnected with its sister States. This system is composed of portions of the English common law, adopted with various modifications and alterations, of more or less of the principle of the English Equity system, of the statutes of the States, and the constructions which have, from time to time, been put upon them by the State Judicatories. It is true that these are all to be found in books, but we well know how little apt men are, when they can avoid it, to study subjects of this description, and men of experience in these things know the extreme difficulty, not to say impracticability, of making one's self at all familiar with them in any other way than by actual practice in the Courts, either in examining them, for argument, or in deciding them from day to day.
The importance of a full knowledge of the local law is greater in the Western States, than in the rest of the Union. This arises from the fact of so great a portion of the territory of those States having recently belonged to foreign Governments, and so many of the titles to lands, of consequence, dependent upon the laws, colonial as well as those of the mother country, before their cession to the United States. It arises, also, from other peculiarities in the titles to land in such of the Western States as are not thus situated. The addition of three Justices, therefore, from that portion of the country, would bring to the bench of the Supreme Court a stock of valuable knowledge, of which it would be deprived, if either of the plans spoken of were adopted. Again: by compelling the Judges of the Supreme Court to hold the Circuits, the knowledge they have acquired of the local laws will be retained and improved, and they will thus be enabled, not only the better to arrive at correct results themselves, but to aid their brethren of the Court who belong to different Circuits, and are, of course, deprived of an opportunity to acquire such information, except in that manner. There is another consideration belonging to this branch of the subject, entitled to great weight. It is impossible, with the best intention on the part of the Executive branch of the Government, to avoid bad appointments. Influence and favoritism sometimes prevail, and to a want of correct information the Government is always exposed. Incompetent men, therefore, will sometimes be appointed. If confined to the discharge of term duties only, the country may be saddled with them during their whole lives. They might assent or dissent at terms, and the kindness of their brethren, and their respect for the character of the Court, would induce them to do the rest. But the case is greatly otherwise, if they are obliged to preside at Circuits, to discharge their high duties in the face of the people, unaided by their brethren of the bench. There is a power in public opinion in this country—and I thank God for it: for it is the most honest and best of all powers—which will not tolerate an incompetent or unworthy man to hold in his weak or wicked hands the lives and fortunes of his fellow-citizens. This power operates alike upon the Government and the incumbent. The former dare not disregard it, and the latter can have no adequate wish that they should, when he once knows the estimation in which he is held. This public ordeal, therefore, is of great value; in my opinion, much more so than what has, with some propriety, been called the scare-crow of the Constitution—the power of impeachment.
But there is still another view of the subject, bearing, with irresistible force, against the separation of the Justices of the Supreme Court, under any circumstances, from the Circuit Courts, and against the adoption of any system, which, though it does not directly, may, ultimately, lead to that result.
By the act of 1792, the Justices were left at liberty to distribute themselves among the different Circuits annually. By the act of 1802, they were attached, by law, with a single exception, (Judge Washington,) to the Circuit in which they resided; and the act of 1807, adding one Justice to the number, made it his duty to reside in the seventh Circuit. Time and experience, the best of all tests, have shown that this provision, also, of the much abused act of 1802, was a wise and salutary one. The amendment proposed by the committee preserves that feature of the acts of 1802 and 1807, by requiring that the three new Judges shall reside in their respective Circuits. To its propriety, I believe, no serious objection will be made, here or elsewhere.
Hitherto, the Justices of the Supreme Court have resided in the States, and with a single individual exception, within their respective Circuits. Before the act of 1802, because the principal part of their business was there; since 1802, because the law made it their duty. If other provision is made for holding the Circuits, the whole business of the Justices of the Supreme Court would be done here, and, sooner or later, they would, in the natural course of things, all move to, and permanently reside at, the seat of Government.
From that result, inferences, of a contrary character, but uniting in deprecating its policy, are drawn. Some think they see in it danger to the Court, others apprehend danger from the Court. In my judgment both are right.
It has been justly observed elsewhere, that "there exists not upon earth, and there never did exist, a judicial tribunal clothed with powers so various and so important" as the Supreme Court.
By it, treaties and laws, made pursuant to the Constitution, are declared to be the supreme law of the land. So far, at least, as the acts of Congress depend upon the Courts for their execution, the Supreme Court is the Judge, whether, or no, such acts are pursuant to the Constitution, and from its judgment there is no appeal. Its veto, therefore, may absolutely suspend nine-tenths of the acts of the National Legislature. Although this branch of its jurisdiction is not that which has been most exercised, still instances are not wanting in which it has disregarded acts of Congress, in passing upon the rights of others, and in refusing to perform duties required of it by the Legislature, on the ground that the Legislature had no right to impose them.
Not only are the acts of the National Legislature subject to its review, but it stands as the umpire between the conflicting powers of the General and State Governments. That wide field of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. The discharge of this solemn duty has not been unfrequent, and, certainly, not uninteresting. In virtue of this power, we have seen it holding for naught the statutes of powerful States, which had received the deliberate sanction, not only of their Legislatures, but of their highest Judicatories, composed of men venerable in years, of unsullied purity, and unrivalled talents—statutes, on the faith of which immense estates had been invested, and the inheritance of the window and the orphan were suspended. You have seen such statutes abrogated by the decision of this Court, and those who had confided in the wisdom and power of the State authorities, plunged in irremediable ruin. Decisions—final in their effect, and ruinous in their consequences. I speak of the power of the Court, not of the correctness or incorrectness of its decisions. With that we have here nothing to do.
But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country—it not only claims to be the absolute arbiter between the Federal and State Governments—but it exercises the same great power between the respective States forming this great Confederacy, and their own citizens. By the Constitution of the United States, the States are prohibited from passing "any law impairing the obligation of contract." This brief provision has given to the jurisdiction of the Supreme Court a tremendous sweep. Before I proceed to delineate its tendency and character, I will take leave to remark upon some extraordinary circumstances in relation to it. We all know the severe scrutiny to which the Constitution was exposed. Some from their own knowledge—others from different sources. We know with what jealousy—with what watchfulness—with what scrupulous care its minutest provisions were examined, discussed, resisted, and supported, by those who opposed, and those who advocated its ratification. But, of this highly consequential provision—this provision which carries so great a portion of all that is valuable in State legislation to the feet of the Federal Judiciary, no complaints were heard—no explanations asked—no remonstrances made. If there were, they have escaped my researches. It is most mysterious, if the Constitution was then understood, as it now is, that this was so. An explanation of it has been given—how correct I know not.
The difficulties which existed between us and Great Britain relative to the execution of the treaty of peace, are known to all. Upon the avowed ground of retaliation for the refusal of England to comply with the stipulation on her part, laws were passed, between the years 1783 and 1788, by the States of Virginia, South Carolina, Rhode Island, New Jersey, and Georgia, delaying execution, liberating the body from imprisonment on the delivery of property, and admitting executions to be discharged in paper money. Although those laws were general in their terms, applicable as well to natives as to foreigners, their chief operation was upon the British creditors, and such was the leading design of their enactment. England remonstrated against them as infractions of the stipulation in the treaty, that creditors, on either side, should meet with no impediments to the recovery of the full value, in sterling money, of all debts previously contracted, and attempted to justify the glaring violations of the treaty, on her part, on that ground. An animated discussion took place between the Federal Government and Great Britain, and between the former and the States in question, upon the subject of the laws referred to, their character and effect. It was during this time that the Constitution was formed and ratified. It is supposed that the difficulties, thus thrown in the way of adjustment with England, through the acts of the State Governments, suggested the insertion in the Constitution of the provision in question, and that it was under a belief that its chief application would be to the evil then felt, that so little notice was taken of the subject.
If it be true, that such was its object, and such its supposed effect, it adds another and a solemn proof to that which all experience has testified, of the danger of adopting general provisions for the redress of particular and partial evils. But, whatever the motive that led to its insertion, or the cause that induced so little observation on its tendency, the fact of its extensive operation is known and acknowledged. The prohibition is not confined to express contracts, but included such as are implied by law, from the nature of the transaction. Any one, conversant with the usual range of State Legislation, will, at once, see how small a portion of it is exempt, under this provision, from the supervision of the seven Judges of the Supreme Court. The practice under it has been in accordance with what should have been anticipated.
There are few States in the Union, upon whose acts the seal of condemnation has not, from time to time, been placed by the Supreme Court. The sovereign authorities of Vermont, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Kentucky, and Ohio, have, in turn, been rebuked and silenced, by the over-ruling authority of this Court. I must not be understood, sir, as complaining of the exercise of this jurisdiction by the Supreme Court, or to pass upon the correctness of their decisions. The authority has been given to them, and this is not the place to question its exercise. But this I will say, that, if the question of conferring it was now presented for the first time, I should unhesitatingly say, that the People of the States might, with safety, be left to their own Legislatures, and the protection of their own Courts.
Add to the immense powers of which I have spoken, those of expounding treaties, so far, at least, as they bear upon individuals, citizens, or aliens, of deciding controversies between the States of the Confederacy themselves, and between the citizens of the different States, and the justice of the remark will not be questioned, that there is no known judicial power so transcendently omnipotent as that of the Supreme Court of the United States!
Let us now, for a few moments, consider the influence which this ought to have upon our legislation. It would not be in accordance with the common course of nature to expect that such mighty powers can long continue to be exercised, without accumulating a weight of prejudice that may, one day, become dangerous to an Institution which all admit to be of inestimable value. It is true, as has elsewhere been said, with apparent triumph, that the States, whose legislative acts have successively fallen under the interdiction of the Court, have excited little or no sympathy on the part of their sister States, and, after struggling with the giant strength of the Court, have submitted to their fate. But, sir, it is feared that this will not always be the case. Those who are most ardent in their devotion to this branch of the Government, knowing the feelings produced by these decisions in the States affected by them—sensible that those feelings are rather smothered than abandoned, upon conviction of their injustice, fear that, by adding another and another State to the ranks of those who think they have reason to complain, an accumulation of prejudice may be produced, that will threaten, if not endanger, the safety of the Institution.
Seeing, and feeling, and fearing this, they, with wise and patriotic foresight, wish to adopt every measure which will retain and increase, as far as practicable, the general confidence in the Court, and to avoid such as may, by possibility, have a tendency to weaken it. No reflecting man can doubt, that the residence of the Judges of the Supreme Court in the States, being subject in their persons, family, and estates, to the laws of the State—portions of their families, as is frequently the case, members of the State Governments, and themselves only temporarily absent—going in and out before the People of the States, and commanding their confidence by the purity of their lives, and the modesty of their demeanor—enforcing and expounding their own decisions in the face of the different classes of the community at the Circuits, and in free and familiar intercourse with those who have such great influence in giving a proper direction to public opinion on legal subjects—must have an infinitely greater tendency to enable the judges to sustain themselves in the honest discharge of their high duties, than if they were cut off from all connection with the States. Greater than if they were settled in this metropolis, and to the great mass of the People of the States unheard and unseen, but felt in their power, through the remotest borders of the Union—and how felt, sir? Not as is the case with the other branches of the Government—in extending favors, in munificent grants, and all the various measures of relief—no, sir, always on one side, and not unfrequently on all sides, their measures are regarded as harsh and vindictive. Their business is to punish the guilty, to restrain the vicious, to curb power, and to correct its excesses. Such acts are necessary to the well-being, to the very existence of society, but are not those which have the strongest tendency to conciliate popular favor. It is to effect this object, in part, that the friends of the bill, as I cannot but think wisely so, zealously resist every measure which will or may separate the Justices of the Supreme Court from the Circuits, and bring them to this city.
But this is not the only, or the most interesting view, which may be taken of the subject. The political character of the Court, so far as it becomes its duty to pass on the laws of the respective States, affecting personal rights, has already been referred to. A few cursory observations upon the character and tendency of its jurisdiction, so far as it relates to the powers of the General and State Governments, considered as independent, and, in many respects, rival States, will conclude my remarks on this branch of the subject.
The unfortunate extent of the grounds of collision between the respective Governments, has already been referred to. It was beyond the wit of man, in the constitution of a Government like ours, to have wholly avoided it, and it can only be lessened by mutual forbearance and explanatory amendments. He must be but a superficial observer of events, who is not sensible that it is a subject which is every day attracting more of public attention and solicitude. There are those, sir, and they are neither small in number, nor light in character, who think that the uniform tendency of the political decisions of the Supreme Court has been to strengthen the arm of the General Government, and to weaken those of the States. Such men think that danger to the State Governments is to be apprehended from permanently fixing the Judges of the Supreme Court at the seat of the Federal Government. They fear (to use an expression, though not literally applicable here, still so well conveys the idea) that it would be "establishing a power behind the throne stronger than the throne itself." Thus thinking, they commenced, as far back as the now vindicated, but formerly much abused, act of 1802, to confine the Justices of Supreme Court to their respective Circuits, and that course has been persevered in to the present day. They think the inevitable tendency of a change would be for the worse—that, if the Judges come here under the eye of the Government, prominent parties as they always must be to all collisions between the respective Governments, they could not fail to embark more strongly in the feelings of men in power here, than they now do.
Sir, this has become a subject on which it is difficult for one to speak without unpleasantly encountering the strong opinions entertained on different sides of the question. On the one hand, expressions of distrust and dissatisfaction are heard, of a character so strongly marked, as to defeat their object and recoil upon their authors. On the other, a sentiment, I had almost said, of idolatry for the Supreme Court, has grown up, which claims for its members an almost entire exemption from the fallibilities of our nature, and arraigns with unsparing bitterness the motives of all who have the temerity to look with inquisitive eyes into this consecrated sanctuary of the law. So powerful has this sentiment become—such strong hold has it taken upon the press of this country, that it requires not a little share of firmness in a public man, however imperious may be his duty, to express sentiments that conflict with it. It is nevertheless correct, sir, that in this, as in almost every other case, the truth is to be found in a just medium of the subject. To so much of the high-wrought eulogies (which the fashion of the times has recently produced in such great abundance) as allows to the distinguished men who now hold in their hands that portion of the administration of public affairs, talents of the highest order and spotless integrity, I cheerfully add the very humble testimony of my unqualified assent. That this uncommon man who now presides over the Court, and who I hope may long continue to do so, is, in all human probability, the ablest Judge now sitting upon any judicial bench in the world, I sincerely believe. But to the sentiment, which claims for the Judges so great a share of exemption from the feelings that govern the conduct of other men, and for the Court the character of being safest depository of political power, I do not subscribe. I have been brought up in an opposite faith, and all my experience has confirmed me in its correctness. In my legislation upon this subject, I will act in conformity to those opinions. I believe the Judges of the Supreme Court, (great and good men as I cheerfully concede them to be) are subject to the same infirmities, influenced by the same passions, and operated upon by the same causes that good and great men are in other situations. I believe they have as much of the esprit du corps as other men: those who act otherwise, form an erroneous estimate of human nature; and if they act upon that estimate, will, soon or late, become sensible of their delusion.
I conscientiously believe, that, to bring the Judges of the Supreme Court to the Seat of the General Government, and making them, as it were, a part of the Administration—for such, it is to be feared, would soon be its effect—would bode no good to the State Governments. With feelings for the General Government, as I humbly hope, purely catholic, I firmly believe, and my daily experience confirms that conviction, that much, very much of the present prosperity of the country and its institutions, depends upon the successful action of the State Governments, and that the preservation of their rightful powers is the sine qua non of our future welfare. I will not, therefore, give my assent to any measure which may still further disqualify the States to sustain themselves in those collisions of power which are unavoidable, and in which the situation of the parties is already so unequal. I believe a different disposition of the Judges of the Supreme Court from that provided by this bill, would have such effect, and I am, therefore, most decidedly opposed to it. Sir, it would be strange if the tendencies of this high tribunal were not such as I have supposed; unless, indeed, they were more or less than men. It is not only made by this Government, and sustained by this Government—its members not only owe to it all they have and are to be, but they are the only portion of it that is permanent, that is beyond the reach of any power known to the Constitution. The billows of faction may run mountain high, and yet reach not them. The indignant voice of an abused People may, at stated periods, sweep by the board every other portion of the men in power—may take from them the little brief authority under which they have strutted their busy hour upon the stage, and cause them to be seen no more—but the Supreme Court alone, "can never be palsied by the will of its Constituents." And, sir, all things considered, it is best that it is so.
I know well, that the opinion that the tenure of the office of the Justices of the Supreme Court is the rotten part of the Constitution, is entertained by men who have established for themselves imperishable claims to the characters of saviors of their country, and benefactors of the human race. Of men, whose opinions on other subjects must save this Government, if it be saved at all. I am not of the sentiment—my pursuits in life, and early and constant connection with the Courts, may have given an undue bias to my opinions: but, from whatever cause it may proceed, such are my views. Whether it might not have been wise, so far to have imitated the example of the country from which we have derived so much of our jurisprudence, as provides for the removal of the Judges on the application of a certain and great portion of the Legislature, is another question; but I have no hesitation in saying, that rather than adopt the sentiments I have referred to, and which have sometimes been broached upon this floor, I greatly prefer that things should be as they are. But whilst I do so, I cannot forget what the experience of all ages has demonstrated, the tendency of power to its abuse, and the consequent duty of those entrusted with its investment, to keep its possessors as far as practicable from temptation.
I have done with this branch of the subject. My argument leads to the conclusion, if it be correct, that no bill which separates the Judges from the circuit duties can be correct; the bill under consideration avoids that supposed evil, and the question is—does it effect what is desired? and is it, or is it not, obnoxious to objection of an insurmountable character?
By lessening the duties of the Judge in the seventh Circuit, he will be enabled to do what he cannot now do, attend at Washington one month sooner, and unite with his brethren in holding the Supreme Court one month longer. The duties of the other Judges, old and new, will be such as to enable them to do the same. The consequence cannot, therefore, I think, fail to be, that, if this bill, and the other bill on your table, pass, all delay in the Supreme Court will soon be removed. As to the Circuit system, there exists not to my knowledge any complain against it in the Atlantic States. I am sure there is no good ground for any. If additional circuits should be necessary in the Western districts of New York and Pennsylvania, the present Justices of those circuits can easily hold them. All that the Western States want is, to have the circuit system extended to them as we have it. No one doubts that, with the addition of these additional Judges, a sufficient number of Circuit Courts can be held in all the Districts in the Union to do all the business.
It has been supposed, that at some future day the exigencies of the country will require a different system. I see no good reason for such an opinion. I do not understand why this system may not well be looked upon as calculated to secure the purposes of its institution in all time. At all events, it will for our day; and for what is to come after, "sufficient unto the day is the evil thereof." There is, in my judgment, but one objection to the system or the Bill, and that is the number of the Judges. I wish they could be less, but they cannot. If the number is an objection, it is an unavoidable one. But I confess that this objection does not loom half so large to my eyes as it once did. Perhaps it is because I have made myself more familiar with its observation than before. Perhaps from more accurate reflection. For some purposes, such as the decision of constitutional questions, and the acquisition on the bench, of a perfect knowledge of local law, the number will certainly be a positive advantage. For others, possibly an objection, but we are consoled with the reflection that we have safe precedents, entitled to great weight, that should serve to allay our apprehension.
In England, whose judicial system and jurisprudence is supposed by many to be the best in the world, the twelve Judges have, for time out of mind, met in the Exchequer Chamber for the decision of cases and questions of law; and their number has never, to my knowledge, been complained of as an inconvenience. In Scotland, whose judicial character also stands high, the Court of Dernier Resort is composed of fifteen judges. England allows appeals and writs of error to the House of Lords; and to come nearer home, my own State has for its court of final resort, the Senate of the State, composed of thirty-two members, its President, the Chancellor and Judges of the Supreme Court. It might not do so well for me to speak of the character of the administration of justice in that State under its old and present system, which, in this respect, are alike; others will judge of that—our light has not been hid; but this much I will say, that our citizens are now well satisfied with it, and that, in a Convention held a few years since, no attempt was even made to change that feature of the system—the Court of Errors as it now exists, and has from the foundation of the Government. I have, therefore, made myself easy upon this point. I believe the bill will not only do well, but will do all that is desired from it, and I sincerely hope it may pass.