United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives online

. (page 149 of 188)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 149 of 188)
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ble gentleman statea with much emphacis and
feelmg that the judges had been hardy ^loa^
to send their mandate into the Executive c^-
net. Was the gentieman, sir, acquainted with
the tact when he made this statement ? It dif-
fers essentially from what I know I have heard

Digitized by




Fbbeuast, 1802.]

Jwdinarff Bif&tea^

[H. OF R.

upon the sul^ject I shall be allowed to state
the fact.

Several oommisnons had been made out by
the late Administration for jnstioes of the peace
of this Territory. The commissions were com-
plete; they were signed and sealed, and left
with the clerks of the office of State to be
handed to the persons appointed. The new
Administration found them on the Clerk's table,
and thought {Hooper to withhold them. These
officers are not dependent on the will of the
President. The p^^ons named in the oommis-
mons considered that their appointments were
complete, and that the detention of their com-
missions was a wrong, and not jostified bythe
legitimate authority of the Executive. They
applied to the Supreme Court for a rule upon
the Secretarv of State, to show oause why a
mandamus should not issue, commanding mm
to deliver up tlie commissions. Let me aSc. sir,
what could the judges do ? The rule to snow
cause was a matter of course upon a new point,
at least doubtful To have denied it, would
have been to shut the doors of Justice against
the parties. It concluded nothing, neither the
jurisdiction nor the regularity of &e act. The
judges did their duty; they gave an honorable
proof of their independence. They listened to
the complaint of an individual against your
President, and have shown themselves disposed
to grant redress a^unst the greatest man in
the Government. If a wrong has been com-
mitted, and the constitution authorizes thdr in-
terference, will gentlemen say that the Secre-
tary of State, or even the President, is not
subject to law? And if they violate the law,
where can we apply for redress but to our
courts of justice? But, sir, it is not true that
the judges issued their mandate to the Execu-
tive ; they have only called upon the Seoretaiy
of State to show them that what he has done is
right. It is but an incipient proceeding which
decides nothing. ^

To show the inexpediency of tiie present bill,
I shall endeavor to prove the expediency of the

Judicial law of the last session. In doing this
t win be necessaiy to take a view of the lead-
ing features of the pre-existing systenL to in-
quire into its defects, and to examine how far
tne evils complained of were remedied by Uie
provisions of the late act. It is not my inten-
tion to enter into the details of the former sys-
tem; it can be necessary only to state so much
as will distinctly show its d^ects.

Tliere existed, sir, a Supreme Court, having
original cognizance in a few cases, but prind-
paUy a court of appellate jurisdiction. This was
the great national court of dernier resort Be-
fore this tribunal, questions of unlimited magni-
tude and consequence, both of a civil and polit-
icflJ nature, received their final decision ;*and I
may be allowed to call it the national crucible
of justice, in which the judgments of inferior
courts were to be reduced to their elements and
cleansed from every impurity. There was a
Cirouit Court, composed in each disbict of a

judge of the Supreme Court and the district
judge. This was the chief court of business
bou of a civil and criminal nature.

In each district a court was established for
affiiirs of revenue, and of admiralty and mari-
time jurisdiction. It is not necessary for the
purposes of the present argument to give a
more extensive outline of the former plan of
our Judiciary. We discover t^t the judges of
the Supreme Court, in consequence of their
composing a part « f the circuit courts, were
obliged to travel from one extremity to t^e
other of this extensive country. In order to be
in the court-house two months in the year they
were forced to be upon the road six. The Su«

Ereme Court being the court of last resort,
aving final jurisdiction over questions of incal-
culable unportance, ought certainly to be filled
with men not only of probitf, but of great tal-
ents, learning, patience, and experience. The
union of these qualities is rarelv, very rarely
found in men who have not passed the meridian
of life. My Lord Coke tells us no man is fit to
be a judge until he has numbered the lucubra-
tions of twenty years. Men of studious habits
are seldom men of strong bodies. In the course
of things it could not be expected tiiat men fit
to be judges of your Supreme Courts would be
men capable of traversing the mountains and
wildernesses of this extensive country ? It was
an essential and great defect in this court, that
it required in men the combination of qualities,
which it is a phenomenon to find united. It re-
quired diat they should possess the learning and
experience of years and the strength and activ-
ity of youth. I may say farther, Mr. Chairman^
that this court, from its constitution, tended to
deterioration and not to improvement. Your
judges, instead of being in their closets and in-
creasing by refiection and study their stock of
wisdom and knowledge, had not even the means
of repairing the ordinary waste of time. In-
stead of becoming more learned and more capar
ble, thejr would gradually lose the fruits of their
former mdustry. Let me ask if this was not a
vicious construction of a court of the highest
authority and greatest importance in the nation?
Lot/ a court from which no one had an appeal
and to whom it belonged to establish the lead-
ing principles of national jurisprudence ?

In the constitution of this court, as a court
of last resort, there was another essential de-
fect The appeals to this court are from the
drcuit courts. The dronit 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 he haa
decided in the court below, the judge of the Su-
preme Court alone composes the circuit court
What, then, is substantially the nature of this
appeUate 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 Cast
your eyes upon the Supreme Court; vou see it
disappear, and its members afterwards arising

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•/tMHCiofy SifiitM,

[FKBBUikJtT, 1802

in the shape of cironit judges. Behold the dr-
onit judges ; they vanish, and Immediately you
perceive the form of the Supreme Court appear-
ing. There is, sir, a magic in this arrangement
which is not friendly to justice. When the Su-
preme Court assemhles, appeals come from the
various circuits of the United States, There
are appeals from the decisions of each judge.
The judgments of each memher pass in suc-
cession under the revision of tiie whole hody.
Will not a judge, while he is examining the sen-
tence of a hrother to-day, remember that that
brother will sit in judgment npon his proceed-
ings to-morrow? Are the members of a court
thus constituted, firee from all motive, exempt
from all bias, which could even remotely influ-
ence opinion on the point 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 tiie scales
mt its true merits ?

Your Supreme Court, mr, I have never con-
sidered as any thing more than the judges of as-
size sitting in bank. It is a system with which
perhaps I should find no fault, if the judges sit-
ting in bank did not exercise a final jurisdiction.
Pohtical 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 etprit du eorpa^
that he would neither be gratified by the affirm-
ance, nor mortified by the reversal of his opin-
ions; but this, sir, is estimating the strengdi
and purity of human nature upon a possible, but
not on its ordinary scale.

I believe, said Mr. B., that in practice the
formation of the Supreme Court frustrated, in a
great degree, the design of its institution. I be-
lieve that many suitors were discouraged from-
seeking a revision of the opinions of the circuit
court, by a deep impression of the difficulties to
be surmounted in obtaining the reversal of the
judgment of a court from the brethren of the
judge who pronounced the judgment. The ben-
efit of a court of appeals, well constituted, is
not confined to the mere act of reviewing the
sentence of an inferior court ; but is more ez-
tensivdy useful by the general operation of the
knowledge of its existence upon inferior courts.
The power of uncontrollable decision is of the
most delicate and dangerous nature. When ex-
ercised in the courts, it is more formidable than
by any other branch of our government. It is
the Judiciary only which can reach the person,
the property, or life of an individual. The ex-
ercise of their power is scattered over separate
cases, and creates no common cause. The great
safety under this power arises from the right of
appeal. A sense of this right combines the re-
putation of the judge with the justice of the
cause. In my opmion, it is a strong proof of the
wisdom of a judicial system when few causes
are carried into the court of the last resort. I

would say, if it were not paradoxical, that the
very existence of a court of appeals oug^t to de-
stroy the occasion for it. The conscience of the
judge, sir, will no doubt be a great check upon
him in the unbounded field of discreticm created
by the uncertainty of law ; but I should, in gen-
eral oases, more rely npon the effect prodaced
by his knowledge, that an inadvertent or de-
signed abuse of power was liable to be oor-
rected by a superior tribunal. A court of appel-
late jurisdiction, organized npon sound prindples,
should exist, though few causes arose fo^ their
decision ; for it is surely better to have a court
and no causes, than to have causes and no
court. I now proceed, sir, to consider the de-
fects which are plainly discernible, or whieh
have been discovered by practice in the oonsti*
tution of the circuit courts. These courts, from
information which I have received, I apprehend
were originally constructed npon a fallacious
principle. I have heard it stated that the de-
sign of placing the judges of the Supreme Court
in the cLrcuit courts, was to establish uniform
rules of decision throughout the United States.
It was supposed that the presiding judges of the
circuit courts^ proceeding from l£e same body,
would tend to identify l£e principles and rules
of decision in the sevend districts. In practice,
a contrary effect has been discovered to be pro-
duced by the peculiar organization of these
courts. In practice we have found not only a
want of uniformity of rule between the diflferent
districts, but no uniformity of rule in the same
district No doubt there was a uniformity in
the decisions of the same judge ; but as the same
judge seldom sat twice successively in the same
district, and sometimes not till after an interval
of two or three years, his opinions were f
ten or reversed before he returned. The jud
were not educated in the same soihooL 1
practice of the courts, the forms of proceeding,
as well as the rules of property, are extremely
various in the different quarters of the Unitea
States. The lawyers of the Eastern, the Mid-
dle, and Southern States, are scarcely professors
of the same science. These courts were in a
state of x)erpetual fluctuation. Thot successive
terms gave you courts in the same district, as
different from each other as those of Connecti-
cut and Virginia. No system of practice could
grow up, no certainty of rule could be estab-
Bshed. The seeds sown in one term scarcdy
vegetated before they were trodden nnd^ foot
The condition of a suitor was terrible; the
ground was always trembling under his feet
The opinion of a former judge was no precedent
to his successor. Each considered himself boond
to follow the light of his own understanding.
To exemplify these remarks, I will take the
libertv of stating a case which came under my
own observation. An application before <xie
judge was made to quash an attachment in hr
vor of a subsequent execution creditor; the ap-
plication was resisted upon two grounds, and
the learned judge, to whom the i^plioataon was
first made, expressing his opinion in support of

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Febbuabt, 1802.]

Jvdiaary Sydem,

[H. OF R.

both grounds, dismiaBed the motion. At the
succeeding court, a different judge presided, and
the application was renewed and answered
upon the same grounds. The second learned
judge was of opinion, that one point has no
validity, but he considered the other sustainable,
and was about also to dismiss the motion, but
upon being pressed, at last consented to grant a
rule to show cause. At the third term, a third
learned judge was on the bench, and though
the case was urged upon its former principles,
he was of opinion, that both answers to the
application were clearly insufficient^nd ac-
cordingly quashed the attachment When the
opimons of his predecessors were cited, he re-
plied, that every man was to be saved by his
own &ith.

Upon the opinion of one judge, a suitor would
set out in a long course of proceediogs, and
after lodng much time and wasting much mon-
ey, he would be met by another judge, who
would tell him he had mistaken his road, that
he must return to the place from which he
started, and pursue a different track. Thus it
happened as to the chancery process to compel
the appearance of a defendant. Some of the
judges considered themselves bound by the
rules in the English books, while others con-
ceived that a power belonged to the court, upon
the service of a subpoBua, to make a short rule
for the defendant to appear and answer, or that
the bill should be taken pro wf^feMO. A case
of this kind occurred where much embarrass-
ment was experienced. In the circuit court
for the district of Pennsylvania, a bill in chan-
cery was filed against a person, who then hap-
pened to be in that district, but whose place of
residence was in the North-western Territory.
The subpoena was served, but there was no an-
swer nor appearance. Tne court to which the
writ was returned, without difficulty, upon an
application, granted a rule for the pairty to ap-
pear and answer at the expiration of a limited
tume, or that the bill be taken fro ea^feno, A
personal service of this rule being necessary, the
complainant was obliged to hire a messenger to
travel more than a thousand miles to serve a
copy of the ride. At the ensuinff court, affi-
davit was made of the service, and a motion to
make the rule absolute. The scene immediate-
ly changed, a new judge presided, and it was
no longer the same court

The authority was called for to grant such a
rule. Was it warranted by any act of Con-
gress, or by the practice of the State? It was
answered there is no act of Oongreas — ^the State
has no court of chancery. But this proceeding
was instituted, and has been brought to its
present stage at conmderable expense, under the
direction of this court. The j udge knew of no
power the court had to direct the proceeding,
and he did not consider that the complainant
could have a decree upon his bill without going
through the long train of process found in the
books of chancery practice. The complainant
took this course, and at a ftiture time was told

by another judge, that he was incurring an un-
necessary loss of time and money, and that a
common rule would answer his purpose. I ask
you, Mr. Chairman, if any system could be de-
vised more likely to produce vexation and de-
lay? Surely, sir, the law is uncertain enou^
in itself, and its paths sufficiently intricate and
tedious, not to require that your suitors should
be burdened witn additional embarrassments
by the oi^ganization of your courts.

The circuit is the principal court of civil and
criminal business ; the defects of this court were,
therefore, most generally and sensibly felt The
high characters of the judges at first brought
suitors into the courts ; but the business was
gradually declining, though causes belonging to
the jurisdiction of the courts were multiplying,
the continual oscillation of the court baffled all
coi]\)ecture Bs to the correct course of the pro-
ceeding or the event of a cause. The law ceased
to be a science. To advise your client it was
less important to be skilled in the books than to
be acquainted with the character of the judge
who was to preside. When the term approach-
ed, the inqjuiry was, what judge are we to have ?
What is his diaracter as a lawyer ? Is he ac-
quainted with chancery law? Is he a strict
common lawyer, or a special pleader ?

Whe^ the character of the judge was ascer-
tained, gentlemen would then consider the na-
ture of their causes, determine whether it was
more advisable to use means to postpone or to
bring them to a hearing.

The talents of the judges rather increased the
evil, than afforded a corrective for the vicious
constitution of these courts. They had not
drawn their knowledge from the same sourcea
Their systems were different, and hence the
character of the court more essentially changed
at each successive term. These difficulties and
embarrassments banished suitors from the court,
and without more than a common motive, re-
course was seldom had to the Federal tribunals.

I have ever considered it, also, as a defect in
this court, that it was composed of judges of the
highest and lowest grades. This, sir, was an
unnatural association ; the members of the
court stood on ground too unequal to allow the
firm assertion of his opinion to the district
judge. Instead of being, elevated, he felt him-
self degraded by a seat upon the bench of this
court In the district court he was every thing,
in the circuit court he was nothing. Some-
times he was obliged to leave his seat, while his
associate reviewed the judgment which he had
given in the court below. In all cases he was
senfflble that the sentences in the court in which
he was, were subject to the revision and con-
trol of a superior jurisdiction where he had no
influence, but the authority of which was shar-
ed by the judge with whom he was acting. No
doubt in some instances the district judge was
an efficient member of this court, but this never
arose from the nature of the system, but from
the personal character of the man. 1 have yet,
Mr. Chairman, another fault to find with the

Digitized by



fi. OF R.]

Judiciary SyiteKU



ancient establishment of the circuit courts.
They consisted only of two judges, and some-
times of one. The nnmber was too small, con-
sidering the extent and importance of the Jaris-
diction of the court. WOl you remember, sir,
that they held the power of life and death, with-
out appeal ? That their Judgments were final
over sums of two thousand dollars, and their
original Jurisdiction restrained by no limits of
yalue, and that this was the court to which ap-
peals were carried from the district court.

I have often heard, sir, that in a multitude of
counsel there was wisdom, and if the converse
of the maxim be equally true, tins court must
have been very deficient. When we saw a
ringle judge reversing the Judgment of the dis-
trict court, the objection was most striking, but
the court never had the weight which it ou^t
to have possessed, and would have enjoyed had
it been composed of more members. But two
judges belonged to tiie court, and inconvenience
was sometimes felt from a diviedon of their opin-
ions. And this inconveni^ice was but poorly
obviated by the provision of the law tiiat in
such cases the cause should be continued to the
-succeeding term, and receive its decision from
the opinion of the Judge who should then pre-

I do not pretend, Mr. Ohairman, to have enu-
merated all the defects which belonged to the
former Judicial system. But I trust those which
I have pointed out, in the minds of candid men,
will Justify the attempt of the Legislature to re-
vise that system, and to make a fiurer experi-
ment of that part of the plan of our constitution
wUdi regards the Judicial power. The defects,
sir, to which I have alluded, had been a Ions
time felt and often spoken ofl Remedies had
frequently been proposed. I have known the
8uly)ect brought forward in Congress or agitated
in ' private, ever since I have had the honor of,
a seat upon this fioor. I believe, sb, a great
and just deference for the author of the ancient
scheme prevented any innovation upon its ma-
terial principles ; tJbiere was no gentiiemim who
felt the deference more than myself, nor should
I have ever hazarded a change upon speculative
opinion. But practice had discovered defects
which nodght weU escape the most discerning
mind in planning the theory. The original
system could not be more than experiment ; it
was built upon no experience. It was the first
application of principles to a new state of things.
The first judicial law displays great ability, and
it is no disparajgement of me author to say its
plan is not perfect

I know, sir, that some have said, and perhaps
not a few have believed, that the new system
was introduced not so much with a view to its
improvement of the old, as to the {daces which
it provided for the Mends of the Administra-
tion. This is a calumny so notoriously false,
and so humble, as not to require nor to deserve
an answer upon this floor. It cannot be sup-
posed that the paltry object of providing for
sixteen unknown men could have ever onered

an inducement to a great party basely to vio-
late their duty, meanly to sacnfice their char-
acter, and foolishly to forego all ftttore hopes.

I now come, }£t. Chairman, to examine the
changes which were made by the late law. <
This subject has not been correctly nndeistood.
It has every where been erroneously represent-
ed. I have heard much said abont the addi-
tional courts created by the act of last sesnoo.
I perceive them spoken of in the PreaideDf s
Message. In the fiace of this hi^ anthority, I
undertake to state, that no additional ooort was
established by that law. Under the fonner
system there was one Supreme Oonrt, and tiiere
is but one now. There were seventeen district
courts^ and there are no more now. There was
a circuit court held in each district, and sadi is
the case at present. Some of the district judges
are directed to hold thdr courts at new plaM^
but there is still in each district but one dutriet
court. What, sir, has been done? Thennnatonl
alUanoe between the Supreme and diatrict eoojts
has been sevoied, but the jurisdiction of both
these courts remains untouched. The power or
authority of neither of them has been angment-
ed or dimioiahed. The Jurisdiction of the cir-
cuit court has been extended to the oognizanoe
of debts of four hundred dollars, and this is the
(mly material change in the power of thai
court. The chief operation of 1»e late law is a
new organization of the circuit ooortsL To
avoid tiie evils of the former plan, it became
necessary to create a new corps of jodges.. h
was considered that the Supreme Court ought
to be stationary, and to have no connection
with the judges over whose sentences they bad
an appellate jurisdiction.

To nave formed a circuit court out of the &-
trict Judges, would have allowed no court of ap-
peal from the district court, exo^ the Suui eme
Court, which would have been attended with
great inconvenience. But this scheme was op-
posed by a still greater difficulty. In many
districts the duties of the judge require a daily
attention. In all of them business of great im-
portance may on unexpected oocncrsnoea r^
quire his presence.

This plan was thought of; it was well a*
amined and finally rejected, in cooseqfnenoe of
strong objections to which itwaaliAhle. No-
thing therefore remained but to compose the
drcuit court of judges distinct frxxn those aH the
other courts. Admitting the propriety of ex-
cluding from this court the judges of the So*

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 149 of 188)