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33D Cong....2d Sess.

whose placid waters the internal productions of the country are borne, and the railroads which bind every part of the Confederacy together with iron bands, to be given to the laborers who worked upon them? Is nothing due to American enterprise, American skill, and American capital? Was not he who first conceived the idea of a railroad, and was not he who first applied his capital to develop that idea and bring it into practical operation, at least as great as the man who levelled the hills and filled up the valleys with the spade? Was not he who first conceived the idea of a canal, as great as he who dug the ditch and built the locks! Was not Fulton at least as great as he who built the vessel to which his sublime mind first conceived the grand idea of applying steam as a motive power to it! Sir, these foreigners came here to make money, to better their condition in life: and they accomplished their object; for, instead of ten cents a day, they receive from two dollars to two dollars and fifty cents a day for their labor; and as well may it be said that they built our great works of improvement, as that the horses and cattle employed in their construction built them.

But, it is said again, that this Native American movement has its origin in, and is connected with, abolitionism. Mr. Chairman, if this is so, the abolitionists are a much less sagacious and farseeing people than I supposed they were. By whom, I beg to know, are your new States, for the most part, peopled? We know that the moment foreigners arrive here, if they have the means, (and many of them have,) they seek the fertile regions of the far West, where lands are cheap, and the soil is virgin; and, almost to a man, they are opposed to negro slavery, because it comes in direct competition with their own labor. And, sir, it is known that the subject of abolition was ignored in all the recent elections at the North. But it is said that " Know-Nothingism first made its appearance in this House in the person of a gentleman from Massachusetts, [Mr. BANKS,] an abolition State. I apprehend that the gentleman who makes the charge is laboring under a slight mistake in this. It was, sir, the humble individual who now addresses you, that, at the last session, first introduced a proposition to exclude all foreigners from our Army and Navy. I can almost complain of my friend from Massachusetts, in the language of the Latin poet: "Hos ego versiculos feci, tulit alter honores;" which being literally construed, means, he has "stolen my thunder." But, be this as it may, if Know-Nothingism did come from Massachusetts, (and I do not know that it did,) in my judgment, it came from a very good starting point. It was there that the first battles of the Revolution were fought. Within the limits of that glorious old State are Concord, and Lexington, and Bunker's Hill; and the descendants of her old warriors have not forgotten how, on those memorable fields, their sires opposed their breasts to foreign bayonets. No wonder, when thinking of these things, and when listening to these old men, "fighting their battles o'er again," they should, in their heart's core, feel the injustice of permitting foreigners to govern them.

Sir, the gentleman from Mississippi tells us that this new party will have but a brief and transient existence, and that it will pass away like a forgot. ten dream; and in order to enforce the idea of the transitory nature of its existence, he tells us it is like an inverted pyramid. Now, to say the least, this was a strong figure, for I can conceive of no greater degree of physical strength than that which would be required to turn one of the tombs of the Pharaohs from its base, and place it on its apex. And just in proportion to the amount of physical strength required for this, I conceive, was the amount of imagination to make the figure. Well, sir, it is not for me to find fault with it. But this I say to the honorable gentleman, that when next he comes before his people, he will find himself the most beautiful specimen of an inverted pyramid on a small scale, that ever was seen in this world, with his head upon the ground and his feet in the air; he will be a living monument of the rashness of a man opposing his own countrymen in favor of foreigners. [Laughter.]

Does the gentleman from Mississippi imagine that a party with the prestige of victories such as the Native-American party has achieved, can be

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Judicial System-Mr. Bayard.

of short, temporary existence? Why, sir, look at them. In Pennsylvania, it swept over the State like a whirlwind. In New York, if it was not victorious, it was because it knew not its own strength. In New Jersey, the descendants of those who contended against the bloody Hessians, raised aloft its standard in victory. In Massachusetts it was more than victorious-it annihilated all its opponents, Whigs, Democrats, and Abolitionists. And I mention as a fact, truly gratifying to every true conservative in the country, that, at a recent election for mayor in the city of Boston, Mr. Smith, the mayor elect of that town, ran against three opponents, an Abolitionist, a Whig, and a Democrat, and distanced them all, he being the same man who not long since was burned in effigy in the city of Boston for assisting to restore the slave Burns to his master. And in little Delaware, too, always true to the Constitution and the Union, the Native American party was victorious; and at some future day, if any politico-geological explorer, searching for the remains of an extinct race, wishes to find another specimen of a petrified man, he need not go to the Chincha Islands, but in the State of Delaware he will find a beautiful specimen in the person of my friend, [Mr. RIDDLE,] the chairman of the guano committee. [Laughter.]

SENATE.

which could command the vote of the Senate and of Congress.

My opinions coincided with those of the honorable Senator from South Carolina [Mr. BUTLER] in the committee, (and there is no impropriety in adverting to our deliberations to that extent,) that the reduction of the court would be a wise measure, because a court of final resort, composed of many judges, was apt to lead to dissenting opinions, and in that mode derogate from the weight of its own decisions; and that, taking the general position of our country, six judges would enable every section of the Union to be sufficiently represented for the purposes of final decision. But for many reasons (that which he assigned among others) we were led to believe such a reduction impracticable; and, therefore, I agreed, though with great reluctance, to its abandonment. I confess that I had the impression made upon my mind, that the Committee on the Judiciary had come to an understanding that it would be impossible to expect any bill could pass the Senate, unless they resisted all amendments, and suffered it to pass in the form in which it was reported. Sir, I regret that impression was not made upon the honorable Senator from Missouri, [Mr. GETER.] Then we should have been spared the objection which he has made to the bill reported by the committee, an objection which I shall endeavor to show hereafter, is groundless in effect, though if true it would be sufficiently potent.

I have thus, sir, in as concise a manner as I could, endeavored to set forth the principles of the American party, and to defend it against the assaults made upon it. I cannot permit myself, for a mo- Mr. President, for this reason, and this reason ment, to doubt of its triumphant success. Its alone, I shall be compelled, against my own conprinciples are founded on a sentiment long exist- viction of what would be the best system, to vote ing in the public mind, but smothered and sup- against the amendment of the honorable Senator pressed by the contests and struggles of the two from Ohio. I shall vote for the bill as it stands, old parties; but, like the pent up fires of a sleeping because I believe, if that bill cannot pass, you can volcano, they have at last burst forth in resistless agree upon no plan of reorganization whatever; force, and you had as well undertake to stay the and yet I consider a reorganization imperative to rushing waters of the cataract of Niagara, as to. the due administration of justice in the country. arrest their course. And when the day of triumph Sir, conceding, what I presume will be generally of this great party shall come, as come it surely conceded by the Senate, that the judiciary system will, then will be realized the great objects of its requires reorganization, there are but two modes organization-the preservation of the union of in which it can be effected. One is by withdrawthese States, the restoration to its original puritying the Supreme Court Judges from circuit duties, of the administration of the Government, and the establishment of the principle that, in all time to come, none but "Americans shall govern America."

JUDICIAL SYSTEM.

so as to enable them not only to investigate and deliberate upon the cases which come before them in the Supreme Court, but also to dispose of those cases, after deliberation and investigation; and for that purpose to constitute inferior tribunals, or appoint other judges, to take the place in the circuits of those judges who are withdrawn from circuit duties. The other mode is, if you persist

SPEECH OF HON. J. A. BAYARD, in compelling your Supreme Court Judges to per

OF DELAWARE,

IN THE SENATE, January 10, 1855. The Senate having under consideration, as in Committee of the Whole, the bill to modify and amend the Judicial system of the United States Mr. BAYARD said:

Mr. PRESIDENT: The question now before the Senate, as I understand, is the amendment proposed by the honorable Senator from Ohio, [Mr. CHASE, which proposes to reduce, after vacancies shall occur by decease or resignation, the existing Judges of the Supreme Court to six in number. Individually, that would accord with my own opinions-opinions formed upon reflection long anterior to my becoming a member of this body, and very fixed opinions indeed. Sir, in reference to the reorganization of the judiciary, we all admit that the present system is inadequate for the proper performance of the duties which belong to the judiciary of the United States. The country has grown in wealth, in business, and in population, to such an extent that the system imperatively requires to be reorganized in some mode. No member of the Senate can, however, reasonably expect or suppose that all his individual opinions as to what would be the most perfect form of reorganization, can obtain the vote of the Senate. Every one must be prepared to yield some portion of his opinions as to his beau ideal of a judiciary system proper to be applied to this Confederacy. We felt that difficulty in the committee when this measure first came before us; and feeling that difficulty, we all agreed to yield, or at least we all did yield, many of our opinions, in framing the bill which we have reported. We reported it as the only practicable measure, as we supposed,

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form circuit duties, to enlarge that court to an extent which will destroy its efficiency, and ultimately its authority in the country. I presume there is hardly a Senator in this body who would not consider the extension of the Supreme Court to fifteen or sixteen judges as entirely out of the question, viewed only in its effect upon the court, its probable result on its future decisions, and the weight which would attach to those decisions throughout the country at large.

And yet, sir, unless you adopt that alternative, there is no practicable mode in which you can reorganize the judiciary of the United States, retaining the Judges of the Supreme Court in the performance of circuit duties, consistent with the advance of the country in population and the consequent increase of litigation, and in the number of causes brought before them for decision. As matters stand now, you find that these judges are obliged to sit every alternate year between five and six months, and in the intervening year full three months, or rather more; and yet they cannot dispose of the calendar of one in less than two terms; in other words, under the existing organization for several years past, before a case can be reached for hearing, the second year must elapse. If that be so now, what must be the result of the progress of business in the country, and the inevitable increase of appeals, with the enlargement of the Union? I speak not of any particular or local increase of business from one quarter or another; but the necessary general increase of litigation arising out of the increased population and increased business transactions of the country. In a few years this increase, with the consequent increase of litigation, will so utterly block the proceedings of that court, that there will be a denial of justice unless you adopt some system which

33D CONG....2D SESS.

will enable the judges to hold two terms in a year, and thus within that year dispose of all the causes which may come before them. That is justice without delay; and justice without unreasonable delay is just as essential as the administration of justice at all.

I shall notice, before I close my remarks, the project of the honorable Senator from Illinois, in order to show, as I think I can, that it is impracticable in itself that it is dilatory-that it does not even reach the object which the Senator desires to attain in that mode of organization; yet, except the bill of the committee, it is the only plan which has been suggested as a mode of reorganizing the judiciary, unless dependent upon too large an increase in the number of the Judges of the Supreme Court.

Judicial System-Mr. Bayard.

but not the administration of justice. But every court of appeals ought, if possible, to be so organized that the business before the court can, at least, be called up for disposition, if the parties are ready to have it disposed of.

Mr. President, there is another great advantage arising from the withdrawal of the Supreme Court Judges from circuit duties, which, I think, has not been adverted to in this debate; and that is, that it secures you in the court of last resort a tribunal in which there is no room for bias, or the suspicion of bias, in the decision of a cause. As it stands now, will any gentleman, no matter how exalted his opinion may be of the judges of that court, tell me that an appeal from one man to his own decision, though combined with that of his associates, is not objectionable in principle? Take the case of an appeal from one judge to himself alone, and the human reason rejects it at once as a mere mockery. The appeal from the man to the man would be an utterly useless and idle form. On the same principle, must it not be an objection to any judicial system, that the judge who tried a cause in the court below and is committed by a publicly pronounced opinion, is permitted afterwards to sit on the revision of that cause, though it be with others who may overrule his decision? Does it not, on the one hand, where there are men of differently constituted minds, and perhaps of somewhat opposing temperaments, involve the danger that discord may be produced in the court upon the questions under revision; or the still greater danger, on the other hand, that the esprit du corps which exists in all bodies will give too much influence in the affirmance or disaffirmance of that decision to the judge who decided the cause, or who differed from the district judge in the court below? I mean not to intimate that any cause under such circumstances would be decided from impure motives, yet it leaves room for bias; and though that bias may be insensible to the actors, still we are bound, in providing for a court of last resort, to place it in a position which shall counteract those infirmities which are inevitably inci

We have proposed to withdraw those judges from circuit duties as preferable to increasing their number, except that portion which relates to chamber practice, that is, granting injunctions, issuing writs of habeas corpus, and matters of that kind; but they are entirely withdrawn by this bill from the duties of judges of an inferior court. We hold this to be essential from the fact that it is impossible in a country so extensive as ours, that nine judges can travel over the circuits as they are organized, or in any mode in which you may organize them, and yet attend at Washington for a sufficient length of time to perform their duties as judges of the appellate court. It is not in human power to transact such an amount of business. Sir, you would not make your judges slaves, you would not desire to deprive them of time for study. You cannot suppose a judge will acquire knowledge and increase his capacity for the proper decision of causes, by being constantly upon the road. No matter how able he may be, no matter how learned, there is no lawyer who hears me who does not know that if a man means to retain his knowledge of law, it can only be by constant study. The human memory will forget, principles will become mixed in the mind, or distinctions will be lost sight of; and only by constant study can any man remain fit for the performance of judicial functions.dent to our common nature, and which may not Sir, you discard entirely the idea of study if you retain this system of requiring nine judges to travel over the circuits of this Union. You have felt this so far already, that you have been obliged to abandon their attendance at one term of the circuit courts, and only require them to sit in those courts once a year. The impracticability is so felt that, as I understand, in the State of Arkansas the judge cannot attend, although the law authorizes a circuit court to be held there. We are able to have no circuit judge attending in Texas, and in other States of the Union. This has been stated here in the course of this debate. Surely a system which dispenses justice in a Confederacy like ours, differently among different members of that Confederacy, ought to be remedied and ought to be changed on that account, if on no other. It should always be a leading principle of legislation in this country to extend the benefits of this Government alike to every State in the Union, to administer justice similarly in all, and provide the same tribunals in every State for the disposition of causes, so far as the Federal jurisdiction is concerned. Under the present organization of the judiciary, that is utterly impracticable.

Another advantage of the system proposed by this bill is, that it enables you to have two terms of the Supreme Court in a year, instead of one. Of course, that expedites the final decision of causes; and whatever, consistently with due investigation and deliberation, expedites the decision of a cause, is as important for the purposes of justice as the decision itself. It follows inevitably that, if a suitor has the right to his writ of error returnable twice instead of once a year, it will double the speed with which these cases may be disposed of. Semi-annual terms, also, will enable the court, after a full hearing, and with ample time for deliberation, to dispose of all cases which come before it at the term to which the writs are returnable; and that ought to be the course of justice in this, or any other country, wherever it is practicable. The court should have it in their power to go through their calendar at each term. I do not say they should force the argument of a cause, if both parties desire further time for the hearing; such a course might be the dispatch of business, ||

unfrequently lead to erroneous decisions. This opinion is not mine alone, and its truth is so obvious that I presume it will scarcely be doubted by any Senator.

Let me suggest a case for illustration. Suppose an appeal from a circuit court, in which the Supreme Court Judge delivered the opinion of the court below, or dissented in opinion from the district judge. When that cause comes before the Supreme Court of the United States, it must be decided with that judge, as a member of the appellate court, upon the bench. Under such circumstances, the appealing party against whom the decision has been made in the court below, will always feel, even though the decision may be pure, that he has not had an equal chance for justice in the final hearing of his cause.

Sir, the objection was made to this organization of the United States courts in the outset of our Government. As early as the year 1790, the principle which I now state was presented and urged in a report of the Attorney General of the United States, Mr. Edmund Randolph,of Virginia. He stated it as a grave objection to the organization of the then existing system. As then organized, the Supreme Court was composed of six judges, two of whom were required to sit in the circuit court, with the district judge. When the judges differed in opinion, it would necessarily produce opposition, and probably, irritation of feeling in the court above, tending to a disorganization of the court. When they coincided in opinion, it is difficult to suppose a writ of error could have had any probable effect, as one third of the court had already predetermined the case. Such was the state of things in the first instance, and it is in regard to that condition of affairs that the report to which I have alluded was made. Within one year after the system had gone into operation, its inconveniences and defects began to be felt. In 1790, the attention of Congress was called to the judiciary, and the Attorney General, Edmund Randolph, was desired to present, and did present, a detailed and elaborate report on the subject. I purpose now to read a portion of the general reasoning of that report, because it states the principle upon which 1 am touching much

SENATE.

better than I could. I think it will command the attention of the Senate, and show most clearly that, at least we gain one great advantage by withdrawing the Supreme Court Judges from circuit duties, because we then constitute a court which will not only be above bias, but beyond the suspicion of bias, in the mind of the individual suitor. Let me read from the report, which was made before the spirit of party, with its perverting influence, entered into this question:

"A third alteration which the Attorney General cannot fail to suggest is, that the Judges of the Supreme Court shall cease to be judges of the circuit courts. It is obvious that the inferior courts should be distinct bodies from the Supreme Court. But how far it may confound these two species of courts to suffer the Judges of the Supreme to hold seats on the circuit bench, he declines the discussion, and circumscribes his reflections within the pale of expediency only."

He does not touch the constitutional question which has been adverted to by my friend from Connecticut, Mr. ToucEY.]

"1. Those who pronounce the law of the land without appeal, ought to be preeminent in most endowments of the mind. Survey the functions of a Judge of the Supreme Court. He must be master of the common law in all its divisions; a chancellor, a civilian, a Federal jurist, and skilled in the laws of each State. To expect that, in future times, this assemblage of talents will be ready without further study for the national service, is to confide too largely in the public fortune. Most vacancies on the bench will be supplied by professional men, who, perhaps, have been too much animated by the contentions of the bar, deliberately to explore this extensive range of science. In a great measure, then, the Supreme Judges will form themselves, after their nomination. But what leisure remains from their itinerant dispensation of justice? Sum up all the fragments of their time, bold their fatigue at naught, and let them bid adieu to all domestic concerns, still the average term of life, already advanced, will be too short for any important proficiency.

"2. The detaching of the judges to different circuits defeats the benefits of an unprejudiced consultation. The delivery of a solemn opinion in court commits them, and should a judgment rendered by two be erroneous, will they meet their four brethren unbiased? May not human nature, thus trammelled, struggle too long against convictions? And how few would erect a monument to their candor at the expense of their reputation for firmness and discernment?

"3. Jealousy among the members of a court is always an evil, and its malignity would be double should it creep into the Supreme Court, obscure the discovery of right, and weaken the respect which the public welfare seeks for its decrees. But this cannot be affirmed to be beyond the compass of events, to men agitated by the constant scanning of the judicial conduct of each other.

4. If this should not happen, there is fresh danger on the other side, lest they should be restrained by delicacy and mutual tenderness, from probing, without scruple, what had been done in circuit courts. A schism of sentiment before a decision, and after a free conference, is not esteemed harsh; but it is very painful to undertake to sat-" isfy another that, in a public opinion, already uttered, he has been in the wrong.

5. Situated as the United States are, many of the most weighty judiciary questions will be perfectly novel. These must be hurried off on the circuits, where necessary books are not to be had, or relinquished, for argument before the next set of judges, who, on their part, may want books and a calmer season for thought. So that a cause may be suspended until every judge shall have heard it.

6. The Supreme Judges themselves, who ride the circuits, will be soon graduated in the public mind in relation to the circuits; will soon be considered as circuit judges, and will not be often appreciated as Supreme Judges. When a discomfited party looks up to the bighest tribunal for redress, he is told by the report of the world, that in it every quality is centered necessary to justice. But, how would his sanguine hopes be frustrated, if among six judges, two are most probably to repeat their former suffrages, or to vindicate them with strenuous ability; or, if to ayoid this, the wisdom of the third of the number must be laid aside?"

Mr. President, the objections stated in that report are so forcibly urged, that I am unwilling to believe any Senator can hesitate in admitting that at least one evil in the present organization will be remedied by the plan of the committee. I will take the liberty of reading still another argument on the same question, urged in a different manner. The extract, from the report of Mr. Attorney General Randolph, is from a quotation of it, made in the celebrated debate on the judiciary, in the year 1802. I shall, perhaps, have occasion to refer to that debate hereafter. The passage which I now propose to read, is from a speech made on that occasion by my father, in the House of Representatives of the United States. On that branch of the question, no reply was made to his argument; no intimation was given that it was not a defect in the organization of the courts to require the Supreme Judges to sit in an inferior court. In that debate he said:

"In the constitution of this court, as a court of last resort, there was another essential defect. The appeals to this

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court are from the circuit courts. The circuit court consists of the district judge and a Judge of the Supreme Court. In cases where the district judge is interested, where he has been counsel, and where ife has decided in the court below, the Judge of the Supreme Court alone composes the circuit court What, then, is, substantially, the nature of this appellate jurisdiction? In truth and practice, the appeal is from a member of a court to the body of the same court. The circuit courts are but emanations of the Supreme Court. ast your eyes upon the Supreme Court: you see it disappear, and its members afterwards arising in the shape of circuit judges. Behold the circuit judges: they vanish, and immediately you perceive the form of the Supreme Court appearing. There is, sir, a magic in this arrangement, which is not friendly to justice. When the Supreme Court assembles, appeals come from the various circuits of the United States. There are appeals from the decisions of each judge. The judgments of each member pass in succession under the revision of the whole body. Will not a judge, while he is examining the sentence of a brother to day, remember that that brother will sit in judgment upon his proceedings to-morrow? Are the members of a court thus ccnstituted free from all motive, exempt from all bias, which could even remotely influence opinion on the pint of strict right? And yet, let me ask, emphatically, whether this court, being the court of final resort, should not be so constituted that the world should believe, and every suitor be satisfied, that, in weighing the justice of a cause, nothing entered the scales but its true merits?

"Your Supreme Court, sir, I have never considered as anything more than the judges of assize sitting in bank. It is a system with which, perhaps, I should find no fault, if the judges, sitting in bank, did not exercise a final jurisdiction. Political institutions should be so calculated as not to depend upon the virtues, but to guard against the vices and weaknesses of men. It is possible that a Judge of the Supreme Court would not be influenced by the esprit du corps that he would neither be gratified by the affirmance, nor mortified by the reversal, of his opinions. But this.sir, is estimating the strength and purity of human nature upon possible, but not on its ordinary scale."

Sir, it would be difficult to answer that objection, or contend that it was not a potent one then, and is not now a strong reason for altering the present organization of the courts. Let me not be misunderstood, however. I disclaim the slightest imputation upon the purity of motive, or high character of the existing or former Judges of the Supreme Court; but, sir, they are men, and it is not only necessary that you should remove the danger of that bias, which may be imperceptible to the individual himself, but you must give confidence to the suitor, that in an appeal from the decision of the judge below, he will be sure of a hearing before a tribunal whose impartiality he cannot question, on the ground of the predetermination of his cause by one of its members. You have thus another reason for the reorganization of the judiciary, on the plan proposed by the committee.

The advantages of that plan, as I have stated them, may be briefly summed up in a few words. By it we avoid delay in the return of the writ of error; we expedite the determination of causes; we give the judges time for study; for a full hearing of cases, and a disposition of them, at the first term. Besides, we leave to the judges something like that degree of relaxation from the performance of their duties which is necessary for every man, who is called upon to perform duties involving severe mental labor, unless you mean that he shall be broken down in their discharge.

But, Mr. President, what are the objections urged to the removal of the Judges of the Supreme Court from circuit duties? I cannot now recall to mind the different Senators from whom those objections emanated; but if I appreciate them rightly, there are but two. One is, that unless the Supreme Court Judges hold the circuit courts, and thus, through that means, mix with the people, and become acquainted with the bar, and also in that mode acquire a knowledge of practice, and of local usages, it will derogate from the weight of their decisions, and unpopularize the court in the confidence of the country. The other objection is, that the effect of withdrawing the Supreme Court Judges from circuit duties, would be to centralize the Supreme Court. These I understand to be the two principal, if not the only objections, which have been urged to that portion of the bill which is the chief matter in contest.

I will not deny that the circuit duties performed by a Judge of the Supreme Court enable him to acquire some knowledge of local practice, and local usages in the circuit in which he holds his court. If, however, you are to assume the rotatory principle, and send a judge, once in nine years, into each circuit, what will be the result? Taking the ordinary average of judicial tenure, I presume it would be overstated at eighteen years;

Judicial System-Mr. Bayard.

because, though some judges may have remained upon the bench as long as thirty-two years, and, for aught I know, even for forty years, such prolongation of life is rare. I apprehend that if gentlemen will calculate the ordinary duration of life, (and it would apply to judges as well as to other men,) at the period when Judges of the Supreme Court have hitherto been appointed, and will, I trust, continue to be appointed, say not younger than forty-five years, their lives cannot be estimated at more than an average of eighteen years beyond that period. Then, if you apply the rotatory principle, the opportunities of a judge to acquire this knowledge of local practice and local usages, in his performance of circuit duties, would be confined to holding two courts, at intervals of nine years apart, in each circuit. To what extent could a knowledge of local usages and local practice be thus acquired? Sir, it is an inappreciable quantity. If, however, you confine the judge to a particular circuit, I admit, he will keep up his previous knowledge of practice, and perhaps, acquire some knowledge of the practice of the different districts of that circuit in which he holds circuit courts. I admit, by that course, he would become acquainted with the local usages, and be able to impart them to his brethren on the Supreme bench. But, if he holds the circuit courts often enough to acquire that knowledge of practice and of local usages, which is deemed so desirable, he will be unable to sit in the Supreme Court of the United States, if that court is in session long enough to transact its business. It will be physically and absolutely impossible for him to perform both sets of duties; and, therefore, you must dispense with that which is least material. Surely, ultimate jurisdiction being vested in the Supreme Court, if there is oppressive delay in the ultimate decision of a cause, there is a denial of justice, and that far transcends in importance, the personal knowledge of mere local practice, and usages which may be acquired by the appellate judge from the performance of circuit duties.

In truth, a knowledge of the practice of the different portions of the country is entirely useless in the appellate court. Every lawyer knows that a question of practice is not matter of error; if the court below misjudges in a point of practice, it is not ground for a writ of error. To an appellate court of common law, a writ of error carries up the record alone, and such questions as appear upon the face of the record can be assigned as errors, and none other.

As regards local usages, I may be allowed to remark that it is not desirable, in a country like ours, where statutory regulations in every State can be so readily obtained, to allow them much weight in the determination of conflicting rights. If they are well known and established usages they may be made part of the record by a bill of exceptions, and the principles of law which govern the establishment of such usages are the same throughout our whole country. I, therefore, consider the acquisition of such knowledge as of little moment, and slight importance to the appel late court. Independently of that, it is impracticable for the judges generally to acquire knowledge in that mode without an imperfect performance of their duties in the Supreme Court, and onerous delay in the final determination of suits.

But, sir, the argument which seemed to be most relied upon was, that the judges should mingle with the people and become acquainted with the bar, and that thus they would secure a hold on the confidence of the country, which would be lost or endangered if they were constituted into an appellate court alone. Of course, in weighing questions of this kind, there must be diversities of opinion. Even supposing that some weight is attached to that objection, you must take it in connection with the advantages to be gained on the other side, and you must test it, also, as has been done by many honorable Senators on this floor, by the question of practicability. 1 must confess, however, that I, for one, have no faith whatever in that mode of sustaining the Supreme Court of the United States in the confidence of the people of this country. The argument presupposes that the permanent influence of the court must depend upon the manners of the judges and their affability, and not on the ability and the impartiality of the decisions of the court.

SENATE.

Sir, I have more confidence in the intelligence of my countrymen than to believe that the Supreme Court will be weighed in the public estimation by any such standard as the individual manners of the judges. A judge may be a man of reserved, or, if you please, of morose manners; but there is sufficient intelligence among the people to know and to estimate whether his decisions are partial or impartial; and if the public mind is satisfied that he is impartial, able, and learned-I care not what his manners are the public will give to him their esteem and confidence.

As regards the court itself, it is the impartiality and ability of its decisions which must sustain it in this Union, and not the individual manners of the respective judges. I have seen in my own State that effect upon the people; and I take it for granted that, throughout other States, there is the same intelligence, and that the confidence and respect of the people is to be gained in the same mode as in the State of Delaware. A gentleman who preceded me in the Senate, from Delaware, [Mr. THOMAS CLAYTON,] having the same name with my present colleague, was, for many years, a judge in my State. He was a distinguished lawyer, but was not a man of affable manners. He was rather morose, and certainly abrupt in his general intercourse. He mingled little with the people. He sought little converse, except with his immediate friends; yet, sir, I venture to say that, being known to be an able jurist, being perfectly impartial on the bench, he obtained and maintained the confidence of the people of Delaware to an extent that never was exceeded by any man who ever sat upon the bench in the State. There are other instances of the same kind. I believe the people of the United States would estimate their judges in the same way; and I have no idea that the popularity of the Supreme Court is to depend upon its judges either becoming the haunters of taverns, or making stump speeches, or mingling in political questions, and bowing themselves to the mere will or excitement of the hour.

Mr. President, I respect public opinion; but I do not confound public opinion with popular clamor, or local and temporary excitement. I neither fear nor regard the one; I bow most profoundly to the other. Organize your court as you may, no functionary in a Government like ours will ever pretend to stand above the influence of public opinion, rightfully and properly understood. But, sir, how is the confidence arising from public opinion to be attained in this country? Is it by the mere manners of a judge, by his sociability, by his tact, by his disposition to follow the current of prejudice of the hour; or is it to be attained by the faith which men have in his skill, in his knowledge, in his devotion to his duties, in the impartiality of his decisions, in his freedom from sectional or personal excitement in reference to the great questions which he is called upon to decide? Sir, I will not so underrate my countrymen as to suppose that the Supreme Court of the United States, while it continues to be adorned by the ability which has hitherto distinguished it, will not maintain the hold which it now has upon the people of this country; and I declare, without hesitation, that, if ever the time shall arrive when the Judges of the Supreme Court-being able, distinguished, and impartial men-shall fail to command the confidence of the country, then the country will have arrived at a situation in which its people are no longer fit for self-government; and the result will be the same, let our courts be organized as they may.

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It has been said, that if you withdraw your judges from circuit duties, you will make them mere paper judges." "That is the language which has been used. I do not profess to understand the precise import of that phrase, but I cannot understand it in any other sense than this: Do gentlemen mean, by calling a man a paper judge," to tell us that his power to decide causes rightly must depend, not upon investigation and knowledge of the principles of law, and upon the constant study which is requisite for that purpose, but upon studying the mere will of the hour, and watching the current of political and sectional prejudice, and adapting his decisions to the impressions he may have of the existing popular will, whether local or general? The effect of that, Mr. President, would be to turn your Government into a despot

33D CONG....2D Sess.

ism-a popular despotism, I admit; but still a despotism; for a Government of will, whether it is the will of one man or of millions, is not a Government of laws, is not a free Government. I am not denying the sovereignty of the people. I am one of them, and I admit their sovereignty as freely and as fully as any man around me; but I hold that a Government of will is a despotism and that a Government of laws is alone a Government of liberty.

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from time immemorial, no lay member has voted on a case taken there on appeal from a court below. Only the law lords, men who are professionally acquainted with the law, ever vote on appeals. A striking instance of the power and force of usage, and of its controlling and beneficial tendency, was exhibited in the case of O'Connell, in that body. Two law lords, who belonged to the party which stood in a decided majority in the House, supposed his conviction to be legal. Three law lords, who ranked with the minority in the House, thought it was illegal. It was a po

abandon the system recommended by the com-
mittee. But is it true? What grounds, except
the mere assertion of the honorable Senator from
Missouri, [Mr. GEYER,] that, in his opinion, it
would have that effect, have you for supposing
such would be the result? Let us inquire into the
probable effect. Your judges, according to the
Constitution of the United States, may be ap-
pointed from any portion of the Union. At the
origin of your Government, when there were but
six Judges upon the bench of the Supreme Court,
they were much more concentrated than they are
now. I believe and I think I speak correctly-litical question. Excitement ran very high, and
that there were two judges out of the six from a
single State at the same time, while most of the
other States were left without any judge appointed
from them. In the progress of time, the natural
jealousy of the States, if you will, but I think a
higher principle-the natural reflections of those
in authority, and a sense of justice-led to the
adoption of a usage, based upon the principle that
every section of this great country was entitled to
be represented in the court of last resort, which
decided, finally, constitutional questions, as well as
individual rights. We have adhered to that rule,
as you all know, under all circumstances, and it
has become an established usage. Did it arise from
the fact that the judges performed circuit duties?
Not at all. It arose from a sense of justice-from
looking at the true nature of our Confederacy,
and the imperative necessity there was that, to
harmonize and bind its members together, and
prevent sectional jealousy, and, perhaps, sectional
injustice, all parts of the country should, and
ought to be represented in the great final tribunal
in which authority was vested to decide upon the
rights of States, as well as those of individual cit-
izens of different States; and also to expound the
Federal Constitution, and revise and control the
State tribunals in reference to the Constitution
and laws of the Union.

Or is it meant to be suggested, by this appellation of "paper judges," that a judge of a court of last resort, who must always be supposed to be a man of mature mind, at the time of his appointment, educated so as to have a thorough knowledge of the principles which he is to decide, can better retain and amplify that knowledge, and make a beneficial use of it for judicial purposes by traveling over a country as extensive as ours, and imbibing, by popular intercourse, the mere temporary impressions of the hour, than he can by the study of those books from which he must extract, and which must keep fresh in his mind the great principles which are to enable him to decide the particular cases which come before him? I would not have a judge "a case hunter;" but I hold that no man without learning is fit to be a judge. A judge without learning is, in my opinion, as objectionable as a judge without capacity; and, in proportion to the extent of what may be called his talents, the greater would be the danger of his going astray. He would undertake (what no human mind can do judiciously and properly) to establish by his own individual opinion, and reason out with his own unaided intellect, the general principles which should control the different cases that might come before him. There is uncertainty enough in the administration of justice, even under its most perfect forms. The diversity in human organization and human intellect inevitably leads to that result. But what would the uncertainty be if your judges were to throw their books aside, abandon the restraining influence of all precedents, and rely upon their own unaided investigation and reflection while traveling through the different circuits for the purpose of deciding questions which came before them? They would give, at best, what are known as nisi prius decisions-nothing more— hasty decisions made without reading, without a comparison of opinions, and without attempting to elaborate principles from previous decisions of acknowledged authority. The wisdom of their predecessors would be useless to them. The result would be, that decisions in the courts of justice would depend more on counsel's understanding the character and temper of mind of the pre-court, and the usage will remain unshaken, and siding judge, than upon any known principles which any man who studied the law as a science would be able to ascertain. That would be one result. Your bar would degenerate from lawyers into mere advocates. That would be another result. And your judges, relying upon their individual opinions alone, would become so discordant in their decisions as ultimately to lose altogether the confidence of the country.

I hold, therefore, that a judge who has not left to him sufficient time to keep up, by study, that knowledge of the law which he acquired before he was placed upon the bench, and to increase it, is unfit to preside in a court-especially of last resort-and that, by necessary consequence, if he was an able man, and you deprived him of the power of investigation and reference to precedents, and comparison of the various authorities for the purpose of a proper decision, the danger would be that he would make the law instead of administering it. He would decide cases and unsettle principles; and the end would be, that the decision would be looked for more from the talent and capacity of the advocate, than the knowledge and ability of the judge, and each individual case would be determined upon its own facts, without a single general principle to restrain and guide the caprice and uncertainty of individual opinion.

I pass now, Mr. President, to the second objection which is made to the proposition of the Committee on the Judiciary, that the withdrawal of the Supreme Court Judges from circuit duties would centralize that court. If I supposed that such would be the effect, I admit the objection would be with me all potent, and I should at once

some of the lay lords proposed to vote, in order to affirm the decision of the court below, with a view to O'Connell's punishment; but they were checked by the members of their own party. They refrained from the exercise of the power which they might undoubtedly have exercised, because usage had established that such an-exercise of power was not consonant with the character of the court. It was considered that, though the right to vote might exist in one lord as well as another, yet if any but those who were professionally acquainted with the law should exercise the right against an established and wise, if not necessary, usage, and once make political divisions and element in judicial decisions, the character of the court, so far as regarded the confidence of the country, would be utterly lost. The majority, therefore, suffered the judgment of the court below to be reversed, against the opinions of the law lords of their own party, and against their own convictions of the soundness of those opinions.

That, Mr. President, was a striking instance of the power of usage, when that usage was in accordance with benefit to the community at large; and I have entire confidence that, in reference to the Supreme Court of the United States, among the American people, no matter how violent may I am willing to admit that, if we could constitu- be our political divisions, there will always be tionally impose in this bill a restriction that a judge || sufficient intelligence, love of order, and sense of should be appointed from each circuit, such a pro-right to prevent a departure from a usage so essenvision ought to be inserted. If I could reduce the number of judges to six or eight, and divide the Union into six or eight geographical divisions, and require that a judge should be appointed from each of those larger divisions, I should consider it preferable; but that is out of our power, under any organization. My argument, and the conclusion I have arrived at, is, that it is not the performance of duties in the circuit courts which has given rise to this usage, which has become so established as to have the force of a constitutional provision. Remove the judges from the circuit

the Supreme Court will not be centralized whilst
it exists. The objection is one of prejudice, not
of reality. It excites prejudice, if it is believed,
against the plan of the committee; but it has no
substantial foundation in any probable result that
will ensue by discharging the Supreme Court
Jndges from circuit duties. If it shall so happen
that the control of the Government of this coun-
try shall ever pass into the hands of any one sec-
tion of the Union, and that section shall seek to
pervert, either the judiciary or any other portion
of the Government, for its own advantage and the
advancement of its own citizens, at the expense of
the other sections, it would be a matter of little
moment in what mode your judiciary, or any other
branch of the Government was organized, for the
dissolution of our Confederacy would be certain,
if not immediate. I believe, however, there is
good sense enough, there is national feeling enough,
to avoid difficulties of that kind; and I feel confi-
dent that, whether the Supreme Court Judges
travel the circuit, or whether they sit in Wash-
ington alone, as a court of appeal and a court of
original jurisdiction in cases confided to them by
the Constitution, they will equally be selected from
different quarters of the country, and fairly selected,
so that each portion of the country may be repre-
sented, under a usage which has become as pow-
erful as the law itself, or as if embodied in the
Federal Constitution.

The effect of general usage in that respect, when
it is accordant with the human judgment and
sense of right, has been very remarkably shown
in the British Parliament. In Great Britain, the
House of Lords is the court of last resort; but,

tial as that which selects the judges from all parts of the country, as there was in the British House of Lords to restrain the majority from abandoning a usage, equally important and conservative, though strongly tempted by high political excitement. Sir, the fear is vain and groundless, which suggests the idea that the withdrawal of the Supreme Court Judges from circuit duties will have the slightest tendency to centralize that court; and if it is without that tendency, the ob||jection falls to the ground. Yielding, Mr. President, to the objections of honorable Senators all the weight to which they are entitled, the question still remains, can any practicable system be organized equivalent to the wants of the country without withdrawing your Supreme Court Judges from the circuit courts? If it is impracticable under the Constitution, you must resort to that withdrawal and run the hazard of the effect upon the court, which, as I suppose, honorable Senators causelessly anticipate.

If their opinions are correct, the law which you pass may be changed, and the effect upon the court will be so gradual, that you can readily restore the judges to circuit court duties, if the retention of the confidence of the public requires such restoration.

The honorable Senator from Maine, [Mr. FESSENDEN,] in the course of his remarks yesterday, lauded very much the existing system as almost perfect in itself. He stands in that respect, in this position: from the earliest origin of the Government, you will find, if you trace the debates, that constant objections have been made to it. At an early day, it was considered as working badly; efforts were made to remedy its defects; but the repeal of an established system being a very difficult thing, no material change was made for a long time. It was modified in 1794, when the attendance of more than one Supreme Court Judge at a circuit court, was dispensed with. It. was also modified in some other respect in 1797. In 1801, a change was made in the entire organization of the judiciary, which withdrew those judges from circuit court duties. That was founded upon the principles of the opinion of Mr. Randolph in 1790. Unfortunately, however, for the country, the reorganization of 1801, was the

33D CONG....2D SESS.

act of a party just going out of power, when the people of the country at the antecedent election, had declared against them. That their motives were pure, I entertain no doubt; though the act was unwise, or at least, imprudent, at the time. But the still greater mistake-and there I think it amounted to a wrong, under our form of Government-was, that the head of the Federal party being then in power, undertook, immediately antecedent to the advent of his successor, to fill all those offices just created, the tenure of which was during good behavior. It ought to have been left to the succeeding Administration to make the appointments. That principle has often been affirmed since, in the history of this country. There was the error; and I hazard little in saying, that if Mr. Adams had declined to appoint the new judges under the act of 1801, and left their appointment to his successor, that act would never have been repealed.

The honorable Senator from Michigan [Mr. CASS] alluded to the repeal of the act of 1801, in language which corrobates this opinion. The principal question contested in the debates on that repeal, was a question of constitutional law. It was, also, beyond all question, a party struggle for power, connected with the appointment of sixteen judges by an Administration going out of power, whom the Administration coming in desired to remove. No man can read the debates and doubt that. The argument was of unequaled ability on both sides. Every topic connected with judicial organization and judicial tenure was exhausted. But the main point of the whole argument turned on the question of constitutional authority as regarded the tenure of the judges. The objection which came from President Jefferson, and which has no application now, was simply this: He remitted to Congress a message in which he suggested an inquiry as to whether the system was not beyond the wants of the country; and he sent with it a list of the number of cases which were hen pending in the different courts, in order to show that the organization which had been effected was entirely too extensive for the wants of the country. That objection can have no application now. The country had then but a few million inhabitants; now it has from twenty-five to thirty millions. It has now a vast mass of business transactions which did not exist then. It has more than quadrupled in wealth, as well as in population. As a necessary consequence, litigation has increased; and the result is, that instead of the judges disposing of their business in the Supreme Court, as they did then, in from two to four weeks, they are obliged to sit three months in one year, and five or six months the next year to dispose of the writs of error and appeals returnable to one term. The primary objection, therefore, as it existed then, does not exist now; and no man will deny that a reorganization is now absolutely required, to prevent an onerous delay in the administration of justice.

I have no intention, sir, to revive the disputes of those days. We can look at them calmly now. But, beyond all question, I think, as I have already said, a single term used by the honorable Senator from Michigan, shows you what was the real cause of the excitement connected with the repeal of the act of 1801. I allude to the application of the term "midnight judges" to the judges appointed by Mr. Adams. It has become a popular phrase; a phrase suggested for purposes of odium. I admit the act was wrong. I admit that, in a Government like ours, when a party was going out of power, the judges ought not to have been appointed. But the term shows-and if you look at the debates you will be equally statisfiedthat the great difficulty in the case arose from the attempt to continue political power through the appointment of sixteen new judges by a party which the country had just declared against at the primary elections. That should not cause us now to abandon a proper organization when the causes which led to the difference of opinion then, either do not exist in this case, or have passed away with the increase of the population and wealth of the country.

Sir, I hope that sufficient time has elapsed to enable us to look back without excitement to the political contests of our forefathers, and that no prejudice will prevent the adoption of any meas

Judicial System-Mr. Bayard."

ure about which they differed, if experience indicates, that a measure which was not requisite at one time, has become requisite at a subsequent period. I do not make this remark because the bill before the Senate is the same as the bill which was passed then; I advert to it only to show the necessity for a change which then existed, and the fact that, long antecedent to the passage of the bill of 1801, the defects of the system as it now exists, had been repeatedly noticed, and the necessity for a change acknowledged and admitted. If you will read that debate, you will find that the errors and the evils of the system, were pointed out to an extreme extent; but the great objection to the bill of 1801, was, that it was not necessary, because the business of the country did not then require so extended an organization. I admit, that the same argument was used then which is used now, that making the judges ride the circuits would tend to popularize the court. That, however, was only an incidental argument, and not pressed. The principal one was on the constitutional question.

SENATE.

practice by sitting once a year in the appellate court. Will he mingle with the people? It will be a mere court of law, in which the people will not be in attendance. There will be no jury trials, and none of that communion with the people which arises out of jury trials. Then, if he neither mingles with the people, nor obtains a knowledge of practice, in what consists the benefit of his attendance? That he may mingle with the members of the bar in each circuit once in nine years-probably, twice in his whole judicial career. He will not be able to stay more than a month on the circuit, or else he cannot return from distant circuits in time for the performance of his duties here. In what respect, then, is this more than a nominal attempt to connect the Supreme Judges with the circuits, when, in point of fact, it disables them partially from the performance of their more important duties? Is it really attaining the result at which the honorable Senator aims?

According to my observation, it will be a necessary consequence, from the institutions of our country, the organization of a separate bar in Since that time, you have been obliged to alter each State, and the magnitude of the causes which your judiciary system repeatedly. Congress found are litigated in the Supreme Court, that you will as the country expanded, that difficulties grew have a constant increase of barristers there, from upon them. The act of 1801 was repealed, but all quarters of the Union; and that sitting in the they were obliged to alter the organization, par- Supreme Court a judge will become just as well tially, in the subsequent April. Since then they acquainted, and just as familiar with the respecthave been compelled, at two different times, to in-able, the able, the intelligent, and the leading memcrease the number of Judges of the Supreme bers of the bar of each State, as he would if he Court. They were increased from six to seven, presided in the proposed appellate courts. I think, in 1807, and subsequently from seven to nine; and if you adhere to that system, you will be obliged to increase them from nine to sixteen or twenty. With such a number, the court will cease to be a judicial body, and dissensions of opinion will impair both its utility and its weight with the country. I presume no Senator contemplates an increase of the judges of that court, yet there seems no alternative, between such increase and the plan of the committee. Congress was obliged, in consequence of the pressure of business, as early as 1844, to authorize each judge to abandon the performance of circuit court duties during one term in the year. The effect of that is, that appeals from the district to the circuit court can only be heard annually, though the decision is not then final. That operates as a delay of justice in every State in the Union.

I come now, sir, to the plan proposed as a substitute by the Senator from Illinois, [Mr. DoUGLAS,] which I have said I consider impracticable. Allow me to advert to it as briefly as I can, for I am sensible I have taxed the patience of the Senate already, in a speech which I have not been able to prepare and condense to my own satisfaction. Serious indisposition, accompanied with some fever and consequent disinclination to mental exertion, have prevented me from giving my thoughts to the subject to the extent I desired, before addressing the Senate. To avoid delay, badly arranged as my remarks have been, I have felt it my duty to submit them.

The plan of the honorable Senator from Illinois, in order to preserve the feature of the Supreme Court Judges acting as circuit judges mingling among the people and with the bar, to acquire a knowledge of the local practice and usages-for that is the avowed object-is that you shall lessen their labors on the circuits, by giving to the district courts the entire powers which now belong to the circuit courts, and constituting an intermediate appellate court, consisting of the judges of the district courts in each circuit with one of the Judges of the Supreme Court sitting as an associate, and presiding when he is present; and further that the Supreme Court Judges shall be so arranged that they shall, in the progress of nine years, visit each of the circuits. He provides for nine judges, who are to visit each circuit every nine years to acquire this knowledge.

Mr. President, as regards any acquisition of Knowledge of practice, it will be observed that no original jurisdiction is given to this appellate court. The judge will then sit in the appellate court to hear causes upon the record, precisely as he would do in the Supreme Court at Washington. Questions of practice do not come up on the record; questions of pleading may; questions of right do; but questions of practice are not grounds of error. Then he can acquire no knowledge of

It is certainly desirable that the portion of the bar of each State to which I have alluded, should be brought into such connection with all the Judges of the Supreme Court so as to appreciate their impartiality and ability. An able and impartial court elevates the bar, and a bar of high character has an equally beneficial influence upon the bench. You will find, however, that in each succeeding year the natural love of reputation will tempt the better members of the profession, from the different States of the Union, in causes which come from their own States, to appear in the Supreme Court for the purpose of advocating them. That will bring them fully into contact with the court. It will attain the object of the honorable Senator from Illinois quite as effectually, as regards that portion of the profession with which he can desire the court should mingle, without over-working the judges, or interfering with their performance of vastly more important duties.

Again, is not this substitute impracticable on other grounds? It proposes to hold an appellate court, for appeals from all the district courts in a circuit, in but one place in the circuit, and but once a year. Will the honorable Senator tell me that the States in which those districts exist would be satisfied that appeals should be taken from their courts to another local court, situated in another State? Will he tell me that the bar of each of those districts in the respective States would not feel that it was a gross injustice to them that the causes in which they were concerned in the court below should be transferred to another State, to be tried in a local tribunal? When a case comes into the Supreme Court at Washington, it is regarded as the court of the Union. There is no cause for State jealousy, no feeling that the rights of a State are infringed, as there would be if appeals were taken to a local court in one State at the expense of others. Yet such must be the result of the system proposed by the Senator from Illinois. I think the honorable Senator himself will be satisfied, on reflection, that the organization he contemplates would lead to a state of feeling which would inevitably defeat its benefits. For instance, suppose the States of Pennsylvania and New Jersey to be placed in the same circuit. Pennsylvania has two United States district courts. If you establish one appellate court, as the Senator from Illinois proposes, in the circuit composed of those States, all the appeals must go from the district courts in those States to one place, say the city of Philadelphia. Do you imagine there would be no jealousy on the part of the lawyers in the western part of Pennsylvania that their appeals should be carried to another part of the same State? Do you believe that it would not be felt as a grievance in New Jersey that appeals from that State should be carried to a local tribunal in the city of Philadelphia, instead of a national tribunal ?

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