United States. Congress.

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

. (page 157 of 187)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 157 of 187)
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Here, the rules of practice and the law of evi-
dence are different in every circuit court in the
Union. What next? Why, the justices of the
Supreme Court of England, when in consulta-
tion, compare the knowledge which each has
acquired, of the same constitution and laws and
practice, and by which each has been always
and every where governed. But when the
justices of our Supreme Court are in consulta-
tion, is it so with them ? It is not — ^because
the local constitutions and laws and practices are
not the same in any two of their circuits. Now,
according to the argument, the justice allotted
to one circuit is supposed to rely upon his
brother justice for information as to what the
law, or the practice, in each particular case, is
in another circuit. But, if each justice pos-
sesses a thorough knowledge of the whole law
of the case, then such information will not be
sought or required, and the decision of the case
wiU be the judgment of the court. Whereas,
if this sort of information be material and neces-
sary, then the decision of the case* is no longer
the judgment of the court, but of a single mem-
ber of the court.

The honorable chairman apprehended that
the justices, if withdrawn from the circuits,
would probably come to the city of Washing-
ton to reside, where they might possibly, in
future time, become corrupt. Sir, if I thought
that the political influences of the day would
act more strongly upon them, than upon other
men here, I should agree with them. But is
there danger that corruption will insinuate its
way into the bosom of the court ? If so, where
is it most likely to effect its purpose? Is it
here, when the eye of the nation is continually
upon them, and where the concurrence of three
or four, at least, is necessary to decide a cause ;
or at the circuits, where they may be taken in
detail, one by one, and where, too, both the
property and the life of the citizen may depend
upon the decision of a single circuit judge ?

I very much regret one remark which fell
from the honorable gentleman. I was sorry to
hear him invoke, in advance, the public indig-
Hation upon the court, by characterizing it as
fulminating its decrees from a dark and vaulted
chamber, declaring State laws unconstitutional.
Wherefore utter a doubt as to the exercise of
powers which are clearly constitutional ?
Wherefore seem to impugn the members of a
court justly distinguished, as well for their
learning and integrity, as for their republican
meekness and simplicity ? And wherefore cast
the dark shades of suspicion over this high tri-
bunal ? It is the only strong barrier between
armed power and the unarmed citizen. It
should be cautiously touched. Sir, much

handling soils the whiteness of the ermine, as
it dims the lustre of fine gold. And though it
do not destroy, it deeply injures.

The honorable gentleman gives me to under-
stand that he did not deny this high power to
the court, of deciding upon the constitution-
ality of laws. I know, sir, he did not. But
his language implied that the exercise of it was
odious. It is of that I complain. What is
doubted, soon comes to be denied. Is not this
great power indispensable to our safety ? And
if so, ought it to be impaired? Suppose Con-
gress should suspend the writ of habeas corpus,
when there was no war, nor insurrection, nor
rebellion — ^in a time of profound peace, and
when every man would admit the suspension to
be unconstitutional? An innocent citizen is
arbitrarily seized and imprisoned ; what redress
has he? WiU he come to Congress for it?
Congress is his oppressor. Where then must
he go? He must go to this same "dark and
vaulted chamber." There is no other power
that can open his prison doors and set him free.
Again — suppose a State Legislature should re-
vive the old law of attainder, or make bank
bills, for example, a legal tender, instead of
"gold or silver?" Where else than to this
court can the citizen go, for the protection of his
property, and his blood? But if the war be
carried further, as it might be, and a State-Gov-
ernment should wantonly aitomS federal oflBcers
— and the Federal Government should arbitra-
rily imprison State offloers, who could stay the
strife, and redress the wrong, but the Supreme
Court ? It is the constitutional judge, and there
is none else. The court may sometimes err.
But what then? Shall we destroy all respect
for it, by direct or implied charges of usurpa-
tion ? Sir, it appears to me that the fear which
leads some to think that the court may wanton-
ly abuse or usurp power, rests upon no good
foundation. The justices are liable to impeach-
ment. If they wantonly abuse their high trust,
they may be impeached, and turned out of ofiice.
This is a strong security. But there is still a
stronger. Congress can at any time diminish,
or whoUy take away, their appellate jurisdic-
tion; and thus leave them nearly powerless.
Suppose, however, that we had not this secu-
rity. Wni adding to their number increase
their responsibility, or diminish their power, or
prevent error in judgment? Directly the con-

Should my amendment be adopted, the per-
manent residence of the justices of the Supreme
Court at the city of Washington would not be a
thing ot. course. There would be no necessity
for it. But suppose they should come to this
city to reside, could they not acquire as much
valuable information from the lawyers, and
judges, and other citizens, who resort to this
place, from the several States, as they could
obtain while on their circuits ? Besides, if it
requires any eye to watch over them, would
they not be subjected here to the severe scru-
tiny of the President, the Senate, and the im-



H. OP K.]

The Judiciary.

[jANTAETj 1830.

mediate representatives of the people? If,
however, the residence of the justices at Wash-
ington he ohjeotionable, it affords an additional
reason for having two or three terms a year
of the Supreme Court, instead of one. If one
term of the court he held at the city of "Wash-
ington, and one or two other terms be held at
one or two of the following places, namely, Cin-
cinnati, Philadelphia, or New York, some of the
advantages would be obvious. It would re-
move the objection, if there be any thing in it,
against the justices residing at any one place.
They would naturally reside at different places
about the country, as they now do. It would
prevent delay, and make justice more prompt,
by the frequency of the terms. It would be a
great accommodation to suitors, by the great
saving of time and expense to them. It would
carry the court home to the people, and among
the people. Sir, I agree that judges, to be good
judges, should be employed, and constantly
employed. But it is the employment of the
mind that makes the judge. It is the time spent
in the study, in the acquisition of legal science,
and not in stages, in traversing the country, that
makes the profound jurist. I have not been
able to ascertain the quantity of business the
court now has to do. The honorable gentleman
seemed to think it might all be done in six
weeks or two months. This appears td me to
be too low an estimate. But, whatever the
fact may be, it is very easy to give the court
enough to do. By simply extending the right
of appeal, there would soon be enough for the
court to do.

My conviction is thorough, that the justices
of the Supreme Court ought to be withdrawn
from the circuits. I see no other way to main-
tain the integrity of the court, which I deem
not more essential to its safety than to its use-
fulness. Think of it as we may, stiU this high
tribunal occupies the neutral ground between
the twenty-five governments and the people.
No matter whether the oppression or the wrong
proceed from the federal or from a State gov-
ernment. Uncontrolled power is the enemy of
liberty, and the people's tyrant. It is, there-
fore, between the governments and the govern-
ed, between the powers and the duties of the
people's agents, and the rights and privileges of
the people themselves, that this court is the
constitutional judge, and the sole judge. And
he assumes a fearful responsibility who impairs
this last and strongest citadel, to which man
can flee for the protection of liberty or life.

Mr. Polk next rose. He said that, in con-
sidering the bill now before the committee, and
the amendment offered as a substitute for it by
the gentleman from New York, who had just
resumed his seat, he perfectly agreed both with
the chairman of the Committee on the Judiciary
and with the gentleman from New York, that,
whatever the judicial system of the United
States he, it should be uniform; that the in-
ferior judicial tribunals, however organized, and
with whatever jurisdiction and power it was

deemed wise to invest them, as well as the
mode of administering justice, should he the
same in every portion of the Union. K (said
Mr. P.) " the citizens of each State shall be en-
titled to all privileges and immunities of citi-
zens in the several States," and if the States are
entitled to he governed (as far as this Govern-
ment can legitimately extend its authority) by
equal and uniform laws, operating alike upon
every portion of the country, it is diflScult to
perceive upon what principle it is that the ju-
dicial system extended to one portion of the
Union should be withheld from another. AU
the States are equal in point of dignity and of
rights. The principles of this bill I prefer to
the amendment, though I am not entu-ely sat-
isfied with either. The bill proposes no new
system, but an extension of the old one, long
enjoyed by the Atlantic States, to the Western
country. I could have wished that its provi-
sions had not only extended the system, but
have made it the same in aU the States. The
West asks this ; and is her request unreason-
able ? In the Atlantic States there is no com-
plaint. There should be none in the nine
Western States. Your judiciary ought to ex-
pand itself with the growth and population of
the country. The system which has been
tested by the experience of forty years in the
Atlantic States, and which was adapted to our
condition in our infancy, has not been enlarged
so as to suit us in our manhood. We have out-
grown the garment that then fitted us, and it
is now too small. Six of the Western States
are wholly without the benefit of the present
circuit court system, (having only district
courts,) and it has been but imperfectly extended
to the seventh circuit, composed of Ohio, Ken-
tucky, and Tennessee, as I shall presently en-
deavor to show.

In order to show more distinctly the in-
equality of the present system as regards the
Western States, compared with those east of
the Alleghany mountains, it may be well to
look, for a moment, to the judicial history of
the United States, and to ask of gentlemen here
representing the East, why this inequality
should have been permitted so long to remain,
and what sensible reason there can he now to
refuse the remedy.

When the judiciary act of September, 1789,
was passed, there were but ten States la the
Union; North Carolina, Khode Island, and
Vermont came into the Union subsequently to
the passing of that act ; and the system which
it provided was extended to the former in June,
1790, and to the latter in March, 1791. At the
date of that act, with only ten States in the
Union, and with a population not exceeding
one-third of the present population of the
twenty-four States, it was deemed necessary to
appoint six judges of the Supreme Court. The
States were divided into three circuits, the
Eastern, Middle, and Southern. North Caroli-
na was attached to the Southern, and Ehode
Island and Vermont to the Eastern circuits, as



Jancaky, 1830.]

2%e Judiciary.

[H. OF K.

they respectively came into the Union. Two
judges of the Supreme Court were required to
preside in each circuit with the respective dis-
trict judges, and constituted the circuit court,
■until the act of March, 1793, when one judge
of the Supreme Court and the district judge
composed the circuit court, who were required
to alternate or interchange circuits with each
other. It is not my purpose to detain the com-
mittee by a minute account of the judicial his-
tory, further than to show the inequality of the
system as it operates in the different States.
The chairman of the Judiciary Committee, in
Ms opening argument, has relieved me from
the necessity of doing so. Thus the system
continued until the famous act of the 18th Feb-
ruary, 1801, familiarly known to the country
as the midnight system. By that act, the Su-
preme Court judges were relieved from circuit
court duties, and were to constitute an appel-
late court alone. Many additional circuit
judges were created and commissioned, two of
whom, with the district judge, constituted a
court termed a circuit court. This system is not
precisely the same with that proposed by the
gentleman from New York, but differs from it
only in this, that the gentleman's amendment
does not propose the appointment of circuit judg-
es, but to invest the district judges with circuit
court powers. At the first session of Congress
after Mr. Jefferson came into oflBce, the system
of 1801 was repealed, and the new judges legis-
lated out of office ; and, at the same session, the
former system was reorganized, with slight
and immaterial alterations from that of 1793,
not important here to mention, and the system
which we now have was established. At the
reorganization of the system in 1803, Kentucky
and Tennessee had been admitted into the
Union. Ohio came in shortly afterwards.
They were left with only district courts — being
at that time animportant districts, with a sparse
and comparatively small population, with but
little judicial business to transact, falling within
the jurisdiction conferred upon the federal
courts. In 1807, they had grown in numbers,
in business, and importance, to such an ex-
tent, that a law was passed constituting them
into a circuit, and appointing a seventh judge
of the Supreme Court, who was allotted to that
circuit ; and who, with the respective district
judges in those three States, constitute circuit
courts. Louisiana was admitted into the Union
in 1812, Indiana in 1816, Mississippi in 1817,
niiaois in 1818, Alabama in 1819, Maine in
1820, and Missouri in 1821. The circuit court
system was extended to Maine at the same ses-
sion of Congress that she was admitted into the
Union as a free and independent State. The
other six States, although admitted into the
Union upon an equal footing with the original
States, have, to this hour, only district courts.
No judge from that quarter of the Union has a
place upon the bench of the Supreme Court.
No judge of the Supreme Court ever aids the
district judge in the trial of causes in that quar-

ter of the Union. The constitution, the trea-
ties, and laws of the United States, the consti-
tution and laws of the States, which may be
drawn in question in this court, affecting these
junior members of the confederacy, in common
with the older States, are now expounded by a
court of the last resort, composed of six judges
east of the Alleghany, and but one west of it,
and that one having no connection with these
six States. They have no participation, direct
or indirect, in this high tribunal, in protecting
or defending the lives, the liberties, or the prop-
erty of their citizens. Sir, the population of
these six Western States is already great, and
is rapidly increasing. It is already near two
millions of inhabitants. More than twenty-two
years have elapsed since the system was extend-
ed, imperfectly as it is, to the seventh circuit.
Within that period the thick forests of the val-
ley of the Mississippi have been filled by your
enterprising and adventurous citizens ; and the
vast region, then an uninhabited waste, but
recently reclaimed from its savage possessors,
now swarms with a dense, a free, and a hap-
py population of civilized freemen. The judi-
cial business has increased to such an extent,
that they feel the inconvenience of their exclu-
sion from the benefits of the circuit court sys-
tem, and they clamor for its extension. So
great has the judicial business become, that you
have already found it necessary, in two of these
States, (Louisiana and Alabama,) to establish
two district courts in each of them. And let
me say, sir, that the district courts at New
Orleans and Mobile — whether regarded from
the quantity of business which they do, or from
the great importance of the legal questions
which it often becomes their duty to decide —
are second in importance to but few courts in
the Union. Are these new States, let me ask,
always to remain in their present condition —
as judicial provinces ? If they are not, has not
the time come to extend to them the benefits of
the system which you enjoy east of the Alle-
ghany ridge ?

I come now to speak more particularly of the
seventh circuit ; of the inadequacy of the sys-
tem as at present extended there, and of the
utter inability, the physical as well as men-
tal inability, of any one man to perform, as he
should, the various duties that devolve upon
him in that extensive circuit. In addition to
the large territorial extent of that circuit, and the
great distance of travel which the judge has
annually to perform, in attending the courts at
Columbus, at Frankfort, at Nashville, at Knox-
viUe, and the Supreme Court in this city, and
in addition to the cases within the jurisdiction
of that court, common to all the States, there is
a very large mass of litigation there, in regard
to land titles, which is scarcely known in the
Eastern States. The land litigation in that cir-
cuit, over which this court has concurrent juris-
diction with the State courts, is more extensive,
and the cases more numerous than in all the
Eastern States together. Many of the lands in



H. OF E.]

The Judiciary.

[Jahuaey, 1830.

Tennessee were patented by the State of North
Carolina more than forty years ago, when the
territory belonged to that State, and when the
lands were subject to the Indian possession ; and
many of the lands have been patented by Ten-
nessee since she has been a member of the
Union. It is a fact that cantnot be contro-
verted, and need not be concealed, that such is
the intricacy and complexity of the land laws
of North Carolina and Tennessee, constituting
almost a volume of themselves, and certainly
forming a distinct code different from any other
I have ever seen, that but few men of the pro-
fession of law in that State with years of study
and constant practice in the courts, have ever
acquired the reputation of being sound land
lawyers. Such was the peculiar system of ac-
quiring titles to lands, and such the looseness
and uncertainty which prevailed in practice,
both in North Carolina, and afterwards prac-
tised upon in Tennessee, that one of the great-
est scourges that has ever visited the people of
that State is the uncertainty of their land titles,
and the vast amount of litigation that has grown
out of this state of things. Much the greater
portion of this description of litigation, I hope,
indeed I know, has been disposed of; but, at the
same time, much, I fear, yet remains to be
settled. This description of litigation, added
to the other business, over which the court has
jurisdiction, is one great cause of the great de-
lay of justice in the federal court at Nashville.
The chairman of the committee has already
stated the fact, as represented by the bar of that
place, to this House, several years ago, that
such was the delay of justice in that court, that
some of the causes on the docket were older
than the professional career of almost every
member of that bar, some of whom had been
in practice a dozen and more years. In Ken-
tucky and Ohio, but more especially in the for-
mer, much litigation of the same character has
existed. Kentucky, when a part of Virginia,
was, in great part, patented by the State ; and
many of the lands in some portions of Ohio
were patented by Virginia and other States.
The Representatives from both these States in-
form us, that the courts there have not the time
nor the ability to dispose of the causes upon
their respective dockets. If this be the fact,
and it cannot be controverted, of what conse-
quence is it, that, upon your statute books, you
extend the circuit court system to those three
States ; hut so overburden the judge that is al-
lotted to that circuit, that he has neither the
merits nor the physical ability to do the busi-
ness? When those three States were consti-
tuted into a circuit in 1807, their population
did not exceed half a million of souls. It
amounts now to more than two millions. Then
the litigation was comparatively small ; now it
is great.

I have thus attempted to present to this com-
mittee the true present condition of the nine
"Western and Southwestern States, in reference
to the operation of the federal judiciary within

their limits. That condition presents many
evils and inconveniences that require a remedy.
What that remedy should be, it wiU be proper
that I should next consider.

And first, wiU this bill afford the remedy
which the existing evils require ? It wUl un-
questionably in part, and but in part, remedy
some of the existing inconveniences of the pres-
ent organization of the courts ; but I regard it
as a misfortune that the Judiciary Committee
who reported it had not gone further, and af-
forded a complete remedy. Three additional
judges, instead of two, would have enabled us
so to arrange the circuits as to extend equal
justice to the West, tod to afford a system that
win require no alteration or extension in aU
time. This biU makes no provision for the
western district of Louisiana, or the northern
district of Alabama. The courts at Opelonsas
and at HuntsviUe are stiU to be left with only dis-
trict courts. The four States of Ohio, Indiana,
Illinois, and Missouri, are crowded into one cir-
cuit ; Kentucky and Tennessee are united in one
circuit; and the southern district of Alabama,
Mississippi, and the eastern district of Louisiana,
are thrown in one circuit. Sir, the chairman
of the Judiciary Committee has stated that
Tennessee and Kentucky must be united in one
circuit, however reluctant the Union may be.
That, he says, is the only arrangement by
which nine judges can be made to answer for
the present. That gentleman, when this sub-
ject was last before Congress, in 1826, voted
with a large majority of this House to separate
Kentucky and Tennessee, and throw them into
different circuits, because of the undue propor-
tion of judicial business in those two States;
that gentleman, at that time, voted for ten
judges instead of nine. He then thought less
than ten judges would not do. If it was
then proper to separate Tennessee and Ken-
tucky, what has since occurred to render it so
peculiarly necessary to unite them now ? If
the state of the Western coimtry was in such a
condition then, that, in the opinion of the gen-
tleman, ten judges were required to do the
business, what has since occurred to change
that opinion? Has not the Western country
been advancing rather than receding in popula-
tion, since that time ? Has the judicial business
decreased, or, rather, has not the gentleman
himself labored to prove to us that it has in-
creased since that time ? At that time, I be-
lieve, it was admitted by aU who advocated the
extension of that system, that less than ten
judges would not afford a remedy for the evils
of which the West complained. The then
ohaii-man of the Judiciary Committee in this
HousCj (now a Senator from Massachusetts,) in
reportmg the bUl with ten judges, I well re-
member, stated that he rather assented to ten
judges, than recommended their apppointment
at that time. He rather inclined to prefer nine
.to ten judges, but ultimately voted for ten. I
see gentlemen around me noting this. They
will be pleased to note, too, the ground upon



Jascahy, 1830.]

The Jvdioiary.

[H. ov K.

vhich that opinion was expressed by the then
chairman of the Judiciary Committee. It was
that, in his opinion, the three Northwestern
States (Indiana, Illinois, and Missouri) "might
well enough go on for some time longer, and
form a circuit of themselves, perhaps, hereafter,
as the population shall increase, and the state

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 157 of 187)