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him that as much as two years had elapsed at a during the limitation of the gentleman’s bill? This time without the appearańce of the circuit judge was a poser to the honorable gentleman, with ali

there. Louisiana presented, says the honorable chairman, the next largest docket of any State in the Union. What was the cause there :

his vast store of legal learning; and the House

must have perceived in his answer how much it

First, fortified his (Mr. B.’s) position. He was com

from her commercial position, she created a large pelled to rally upon his proviso, which was a saving amount of business; and, secondly, she was a

little like her neighbor Mississippi, not too frequently blessed with the pleasant duty of welcoming the appearance of her circuit judge. She was the second State in the amount of her appeals, and he believed the second on the score of neglect. Could an argument be made stronger, than the gentleman’s own details had made this, on the position he (Mr. B.) assumed His position was, that the withdrawal of the chief judge from the court would naturally tend to increase the number of appeals, and the honorable chairman had furnished him facts to demonstrate it conclusively. But the honorable chairman had furnished another fact to strengthen this branch of the argument. He had told the House that the great State of New York had not half as many appeals as either of the States mentioned before. It would be an insult to

clause in the bill, to allow the judges to go on their circuits, if they thought proper. When he (Mr. B.) first saw that proviso, he could scarcely restrain himself from laughing over it—at the very idea of legislating to exempt the judges from the performance of a duty, at their own desire, and then providing they should not be compelled to be exempt. ed from their labors, if they preferred to work : He had looked upon it as a useless appendage, to amuse them whilst obtaining this second invasion of the rights of the people for the benefit of the Judiciary; and certainly never dreamed of the uses to be made of it, to get the honorable gentleman out of this dilemma. Who ever heard of the judges performing voluntarily duties from which they were exempted by law Who within the sound of his voice was credulous enough to believe that the judges would ever hold courts when it was left

the intelligence of the House to undertake to prove entirely to their discretion ?, The great difficulty

that New York, with the great commercial emporium of the Union within her borders, furnished twice the amount of legal business that both the States alluded to produced. Then, why was her appeal docket so small He could inform the gentleman that it was simply because the judge attended his circuit and held his courts. Could demonstration be stronger than the honorable chairman’s own details have made it, that the absence of the circuit judge was the promoter of appeals? If, then, two States, with a population less than a million, gave nearly one-third of the present fashionably-complained-of docket, on account of the absence of judges, what would the other States furnish, with a population of nineteen millions, when the gentleman’s bill should have withdrawn the judges from them all By the

same ratio of increase, it could be swelled to eight

hundred or a thousand by the time the judges, on the same plea, would wish to make the bill perpetual. Ask for no other reasons from the judges than a large docket to stimulate legislative interposition in their behalf, and give them the benefit of this bill for two years to create it in, and you will find it in all abundance. There lies the danger of this bill; and it ought to be styled a bill to provide grounds for overthrowing the judicial system of this country. Another objection to this bill, which he had raised before, was, that during the pendency of this law, a large class of cases not provided for must be entirely neglected. The honorable chairman, ini meeting that position this morning, assumed under the law, that the district judge holding the circuit court could discharge all the duties of the circuit court. he (Mr. B.) had interrupted him, and, with his permission, submitted to him the following interrogatories: First, What becomes of that class of appeals allowed from the district to the circuit court, where the amount exceeds fifty dollars? Secondly, What was to become of the maritime and admiralty cases, where the appeal was allowed from the district to the circuit court, when the sum in controversy exceeded three hundred dollars? Were these two large classes of cases to sleep

At that point of his argument,

was, to get them to hold their courts when the law imposed it as a solemn and obligatory duty upon them; and when the law relieved them, who so. weak as to suppose they would not avail themselves of all its benefits? Had they manifested heretofore such a zeal for the public good, the honorable gentleman would have been left without the argument founded upon an overgrown docket. But he put it to the House, in all seriousness, what was to become of the two numerous classes of cases to which he had directed their attention, when this bill should have become a law? It made no provision for them. They could not be tried, unless the House was prepared to witness the ridiculous farce of the district judge sitting in judgment upon appeals from his own decisions. Was the House ready for this farce? The appellant, he was sure, would not be. If this system of separation was carried out, three prominent evils, in his opinion, would result from it—the last of which would amount to a curse upon the distant States from this central huminary of jurisprudence. First, it would lessen the justly high character and dignity of the Supreme Court; secondly, it would tend to disqualify the judges for the proper discharge of their high functions; and, thirdly, it would enhance the expense of justice to the distant States. In the first place, when this plan of judicial centralization was carried out into anything like a system, the district courts would have to be given a jurisdiction embracing all classes of cases that might arise in the country. The judges of these districts were moderately paid, and the courts could not always command the first talents in the country. From the very character of the subordinate tribumal, appeals and writs of error must be allowed, almost without restriction, in every case that might arise, if public justice was to be regarded as of any importance. From the great valley of the Mississippi, and the States of the North and the South distant from the metropolis, lawyers could not follow up their cases; the people would not be able, in such a class of cases, to employ the lawyers who might concentrate around this central system; and the consequence must be, that the home lawyers must intrust their cases, nine times out of ten, upon a written or printed argument, sent up here by mail. In this condition of things, who could shut his eyes to the fact, that the district courts would retain no rank or station in public estimation, and be merely considered as preparatory tribunals to make up cases for this court? and this court would sink from its now high and elevated position to a mere board of revisers of the records from the districts. All force and dignity would be lost in the Federal courts in the States, and the Supreme Court would be engaged, not in trying great questions and great titles, but in reality in the adjustment of misi prius trifles, and unimportant questions, not worth following up by the bar, and that could not be followed up from the West and other distant States. If this picture was correctly drawn, what was the position of the Supreme Court under it? about equal in dignity and character to a mixed board of commissioners to try land claims, or a board of commerce to adjust petty matters between merchants and traders. In the progress of our free institutions much depended upon maintaining, in its proper sphere, each of the great coördinate branches of this Government. The Judiciary was one of those great branches, and, like the rest, must depend upon public opinion for its dignity and character. The Supreme Court was at the head of that coördinate branch, and whilst confined to the adjustment of great questions, would maintain its dignity and cogency in that public opinion; but when its members, consulting their ease more than a laudable ambition for honorable distinction, would degenerate its business, public opinion would level the court to the same standard. Make it the arbiter of petty trifles, and its dignity was gone—gone forever. But, again, such a system would entirely unfit the judges for an emergetic and enlightened discharge of their official duties. Make your Supreme Court a fixture here, with no associations but the corrupt and the corrupting influences of the metropolis; make them the drones of the great hive of American industry and American enterprise, and you would destroy (what was as essential in a judge as legal learning) good old-fashioned common sense. No mere legal knowledge—he cared not how exalted it might be—could supply the homely information which country life taught, and upon which most decisions operating simply upon rights of property must depend in a great degree. Books, merely, never yet made a great man, nor aroused the energies of a great mind into action; but mingling with men, with free and independent men, catching the fire of a laudable ambition, from the hum of the multitude, was what gave life to his energies, and glory to his actions. Who would seek the cloisters of the colleges—who would search amongst mere book-worms of a profession for men of enterprise and action, in any department of the Government * No one, he supposed, who entertained a due appreciation of the intelligence of the people. But there was another consideration arising upon this branch of the subject from the nature of our institutions and the character of their jurisprudence. He had said that making the court a fixture here, disqualified them for the same enlightened discharge of their official duties, which they now enjoyed from an intercourse with the people, the States, and their systems of laws. Gentlemen must recollect that this was a confederative republic,

made up of numerous sovereign States, all varying in their laws, customs, usages, and systems of jurisprudence. Diversified as these various systems were, and as they must forever continue to be, yet this court, amongst its vast and mighty powers, and almost unlimited jurisdiction, had to execute the laws of the several systems, in Conformity to their respective principles. They had a civil law and a common law jurisdiction, to be applied in the States where they respectively ex; isted. And could they comprehend these diversified systems, and administer them ably, whilst they shut themselves up from their practical operations : No, it was not in the genius or power of man to do it. That beautiful system of the common law, which had been built up upon the concentrated wisdom of ages, and which had demanded from the civilized world the homage of their admiration, was not the work of cloistered judges, but was the result of practical operations amongst the people. It was the misi priws system of the English courts that laid the firm foundation of that vast and mighty system of legal science—the common law of England. And whatever antipathies might be entertained to the political institutions of their English ancestors, even they could not blind them to the beauty, grandeur, and moral teachings of that magnificent collection of legal lore. And what was the origin of that mighty system which had been claimed upon this continent as a rich heritage from the mother country, and which had now ripened to its present perfection? Not from judges in chambers pouring over their musty volumes, and philosophizing upon systems; not from judges who were shut out from the world, and only making themselves felt through their despotic decrees; no—it had a nobler, a diviner origin—it sprung from the people, from the habits, customs, and usages of the people, matured under the influence of that very misi prints system which they were now endeavoring to undermine and destroy. What better system for administering the laws would gentlemen devise, than the system which brought them into existence and preserved them through ages, whilst they were maturing to their present state of perfection ? Our ancestors thought none, when they established that beautiful system in 1789, upon which the House was about to lay its sacrilegious hands. It was a sacred principle with our Anglo-Saxon ancestors, that nothing but slaves would bow the neck to the yoke of judicial decrees, emanating from some dark recess unseen by the people. And were we to be less tenacious of our rights, of our liberties, than they? Were we, who had so far outstripped them in the principles of civil liberty, to be the first to erect that secret tribunal, which was only to be known to the people through its decrees In England—the country from which we have borrowed so much of our motions of jurisprudence—the sentiment has almost ripened into a proverb, that the judge who did not perform circuit duties, and try causes before the juries of the country, was unfit to decide in the last resort. Lord Brougham has reiterated this sentiment, in his struggles for the reformation in the administration of the laws of England. And he (Mr. B.) would, for a moment, invite gentlemen’s attention to the present system of administering the laws in that country; for, with all our prejudices to her political systems, no lawyer would fail to acknowledge the beauty of her system of jurisprudence. There the

in the profession—the most learned in the law— all performed misi prius duties—rode their circuits and presided overjury trials in the country. For the investigation of all legal matters within the realm, they had three high courts, with appellate juris

judges of the highest courts—the most # |


system of jurisprudence for the United States: They wisely surveyed the whole ground, and me! every difficulty and overcame every obstacle in that system of circuit courts by which the judges would become familiar with the several State systems of jurisprudence, and which we were now about to abolish, from no higher motive, he feared, than

diction—the King’s Bench, the Common Pleas, favoritism to individuals. Our ancestors, deemed and the Exchequer. The judges of these several it necessary to the faithful and enlightened admin

courts performed the circuit duties for the whole kingdom, and then, returning from their circuits, held their appellate courts, for the trial of appeals arising under the respective jurisdiction of their several tribunals. They not only did all this, but, on important questions, combined two of these tribunals, to review the decisions of the third—and so alternating through the whole system. The heads of these courts were also members of the Committee of the Privy Council—a court not in name, but in practice, of the most unlimited jurisdiction over all matters arising beyond the realm. This brief picture might serve to give some idea of the elaborate duties of the English bench; and yet such was their attachment to the nisi prius system, that they performed them without a murmur. Mr. B. had no data by which to estimate the labors of the Chief Justice of the King’s Bench; but, judging from population, and the immense amount of business in their courts, he thought it would be hazarding but little to assume that he presided, at nisi privs, over more causes than the whole of our circuit judges together; and then presided over infinitely more appeals than our Supreme Court. This, of course, was a mere matter of speculation, but he had given details from which the House could draw its own inference. But, to accomplish this mighty task, they had to sit in small chambers, with no extraordinary displays of forensic eloquence to amuse a gaping multitude. Day after day was not wasted in useless speeches for public applause. But what was the picture in our court? Why, they were literally invited, through the press, when one of the distingushed members of the bar was to speak, and even ladies attended, in crowds, to witness the displays of elocution; and that, too, in a case which, if rightly argued upon the plain, stern principles of the law, could afford no kind of amusement—no kind of interest to the idle spectator. Whenever the press invited them to one of these displays, he had but one sentiment on the subject, and that was sympathy for the client. There was no room for ornamental elocution in an argument upon appeals and writs of error, embracing merely principles of law, which were to be settled upon the force of precedents and authorities. If, then, this circuit system was so valuable in a consolidated Government like England, with how much more force did it recommend itself to our diversified systems of laws? Every State had its own systems, and it was made the duty of the court to regard the laws of the States as “rules of decision in trials of common law,” where they did not conflict with the laws of the United States, with treaties, or with the Constitution. How, then, was the Supreme Court to execute wisely the laws of the several States of this extensive Union if they were to be shut out from the readiest source of intelligence as to what those laws were? That was a difficulty which doubtless suggested itself at once to our ancestors when they were about to enter upon the task of framing a

istration of justice in free, sovereign, and independent States, that the judges who had to pass upon their systems of jurisprudence should be placed in a situation to become familiar with their respective institutions. And in conformity with the system, judges had usually been appointed from the circuit, and required to reside in it, so that mutual knowledge of the practical effects of the varied systems might be brought together in their deliberations. But we, wiser in our own conceit, or perhaps more reckless of the people’s interest, were about to lay our hands upon that beautiful system and destroy it forever. The very object of the circuit court was to make the judges familiar with the systems of laws which it became their duty to execute. They might acquire abstract principles from the books, it was true, but it required more than that for the judges, upon whose decisions hung their rights of property and persons, and even the validity of State and general legislation. It required a practical knowledge of the operations of systems, which could only be obtained where they prevailed. Books could do much, but they could not do everything. Theorists had speculated in books centuries ago that the time would come when the ingenuity of man would make carriages roll over the earth by a motive power, and means devised to scatter news with the velocity of the wind, yet with all their philosophy they could not produce the result. It remained for practical men, who perhaps never heard of their speculations, to harness the iron horse to the car, and to annihilate space and distance by the lightning line of news. There must be practical knowledge as well as book learning to make men efficient in anything, and particularly in the administration of the laws. But another position he assumed was, that it enhanced the cost of justice, particularly to the distant States from this centre luminary of judicial light. His remarks upon the increased number of appeals were peculiarly appropriate to this branch of the sysbject. That that would be the result, he entertained no kind of doubt, and that an increase of appeals would increase the costs, was an axiom too clear for demonstration. But it would not only increase the costs, but operate peculiarly unfavorable to the distant States, particularly the West. A large class of cases, which could be very satisfactorily disposed of under the present system at home, would necessarily have to come up here; when the expenses of attending them would be more than the amount involved. Thus, to those States, it would amount to almost a denial of justice. And what he had said of the western States applied to the outer circle or distant States in every part of the Confederacy. Let gentlemen of the distant States look to it, before they bound themselves to the car of centralism and consolidation. Another reason assigned for this separation was the assumed physical impossibility of the judges attending their circuits upon such a widely-extended empire. Gentlemen who used this argument certainly must have shut their eyes to that spirit of enterprise and improvement which had so much distinguished their countrymen in the present age. New Orleans and St. Louis were the most distant points at present, and either was now much more easy of access, than the capital of South Carolina, when Judge Marshall commenced his circuit. As the empire spread, the genius of our countrymen would provide facilities for its approach. So this argument had no force now; and whether it ever could have, was a matter enveloped in the future. But again : . It required no spirit of prophecy to contemplate, in the future, the effect of this new system upon appointments. The circuits would be entirely lost sight of in appointments, as soon as the court became a fixture; and they would be made without any regard to location. When that came to be the case, who was so blind as not to foresee that the Supreme Court would be the place for the retirement of antiquated politicians, who might desire to spend the remnant of their days at the metropolis’ That this would be the effect upon appointments, he entertained no kind of doubt; and he, for one, was for nipping the evil in the bud. He said he had thus thrown out briefly his grounds of opposition to the consolidation of this court—and to them he invoked the kind consideration of the House. This court was a vast and mighty structure under the Constitution; clothed

with powers more omnipotent and more unlimited than any other similar tribunal upon the globe. Even Congress, the highest legislative body in the land, stood in awe of this mighty power, that could nullify their acts at its will and pleasure. The States and their legislation were embraced in its varied range of powers; and instances were by no means few in which they stood humiliated and rebuked by its mighty decrees. It claimed to be the great arbiter between the State and Federal Governments, and exercised authority between the States and their respective citizens. He did not complain of the powers conferred upon the court under the Constitution, but cited them as a warming against innovation, which tended to strengthen that power against the States. Alienate the judges from the States, consolidate the court in the metropolis, and the day was not far distant, when the sovereign rights of the free States of this Confederacy would be swallowed up in this mighty voytex of power. But if, in dispite of all these high considerations, the hand of innovation must be put to work; if that beautiful system of jurisprudence, established by our ancestors, must be sacrilegiously torn to pieces; then he invited the attention of the House to his substitute, as the best remedy for the repudiated system. Here the hammer fell, cutting Mr. B. off from

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explaining his substitute.]

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