REMARKS

IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, ON THE BILL TO AMEND THE JUDICIARY SYSTEM. JAN. 4, 1826.

[This bill proposed that the Supreme Court of the United States should thereafter consist of a Chief Justice and nine Associate Justices, and provided for the appointment of hree Additional Associate Justices of said Court.

That the seventh Judicial Circuit Court of the United States should thereafter consist of the Districts of Ohio, Indiana, and Illinois; the eighth Circuit, of the Districts of Ken tucky and Missouri; the ninth Circuit, of the Districts of Tennessee and Alabama; and the tenth Circuit, of the Districts of Louisiana and Mississippi.

It repealed so much of any act or acts of Congress, as vested in the District Courts of the United States in the Districts of Indiana, Illinois, Missouri, Mississippi, Alabama, and Louisiana, the powers and jurisdiction of Circuit Courts, and provided that there should be thereafter Circuit Courts for said Districts, to be composed of the Justice of the Supreme Court, assigned or allotted to the Circuit to which such Districts might respectively belong, and of the District Judge of such Districts.]

Mr. WEBSTER said that the bill, which was under consideration of the Committee, was so simple in its provisions, and so unembarrassed with detail, that little or nothing, in the way of explanation, merely, was probably expected from the Committee. But the general importance of the subject, and the material change which the proposed measure embraces, demanded some exposition of the reasons which had led the Committee on the Judiciary to submit it to the consideration of the House.

The occasion naturally presents two inquiries: first, whether any evils exist in the administration of justice in the Courts of the United States; and, secondly, whether, if there be such evils, the proposed bill is a proper and suitable remedy. On both these points, it is my duty to express the sentiments which the Committee on the Judiciary entertain. Perhaps, however, Mr. Chairman, before entering into a discussion of those two questions, I may be allowed to state something of the history of this Department of the Government, and to advert to the several laws which have been, from time to time, enacted, respecting its organization.

The Judicial power, which, by the Constitution, was to be exercised by the present Government, necessarily engaged the attention of the first Congress. The subject fell into the hunds of very able men, and it may well excite astonishment that the system which they prepared and recommended, and which was adopted in the hurried session of the summer of 1789, has been found to fulfil, so far, so

well, and for so long a time, the great purposes which it was designed to accomplish. The general success of the general system, so far, may well inspire some degree of caution in the minds of those who are called on to alter or amend it.

By the original act, of September, 1789, there was to be a Supreme Court, according to the Constitution, which was to consist of six Judges, and to hold two sessions a year at the seat of Government. The United States, or such of them as had then adopted the Constitution, were to be divided into Circuits and Districts, and there was to be a District Court, in each District, holden by a District Judge. The Districts were divided into three Circuits, the Eastern, the Middle, and the Southern; and there was to be a Circuit Court in each District, to be composed of two of the Justices of the Supreme Court, and the District Judge for the District; this Circuit Court was to hold two sessions a year, in each District, and I need not inform the Committee, that the great mass of business, excepting only that of Admiralty and Maritime jurisdiction, belonged to the Circuit Court as a Court of original jurisdiction. It entertained appeals, or writs of error, also, from the decisions of the District Courts, in all cases.

By this arrangement, then, the Justices of the Supreme Court were required to hold two sessions of that Court, annually, at the Seat of Government, to hear appeals and writs of error; and it was required of them also, that two of them should attend in each District twice a year, to hold, with the District Judge, a Circuit Court.

It was found that these duties were so burdensome, that they could not be performed. In November, 1792, the Judges addressed the President on the subject, (who laid their communication before Congress,) setting forth their inability to perform, without exertions and sacrifices too great to be expected from any men, the services imposed on them by law. It was, doubtless, this communication which produced the law of March, 1793, by which it was provided that one Judge of the Supreme Court, with the District Judge, should constitute the Circuit Court. And, inasmuch as the Courts would now consist of two Judges, provision was made, perhaps sufficiently awkward and inconvenient, for the case of difference of opinion. It will be observed, Mr. Chairman, that by these laws, thus far, particular Justices are not assigned to particular Circuits. Any two Judges of the Supreme Court, under the first law, and any one, under that of 1793, with the District Judge, constituted a Circuit Court. A change, or alternation, of the Judges, was contemplated by the law. Therefore, it was provided, by the act of 1793, that, in case of division of opinion, as the Court consisted of but two Judges, the question should be continued to the next session, and, if a different Judge then appeared, and his opinion coincided with that of his predecessor, judgment should go accordingly.

And here, Mr. Chairman, I wish to observe, that, in my opinion, the original plan of holding the Circuit Courts by different Judges, from time to time, was ill-judged; it was founded on a false analogy: it seems to have been borrowed from the English Courts of Assize and Nisi Prius; but the difference in the powers and jurisdiction of

the Judges in the two cases, rendered what was proper for one, not a fit model for the other. The English Judges at Nisi Prius, so far as civil causes are concerned, have nothing to do but try questions of fact by the aid of a jury, on issues or pleadings already settled in the Court from which the record proceeds. They give no final judgments; nor do they make interlocutory orders respecting the proceeding and progress of the cause. They take a verdict of the jury on the issues already joined between the parties, and give no other directions in matters of law, than such as become necessary in the course of this trial by jury. Every case begun, therefore, is ordinarily finished. Nothing of that case remains for the Judges' successor. If it be tried, the record is taken back with the verdict to Westminster Hall; if it be not tried, the whole case remains for a subsequent occasion. It is, perhaps, surprising, that the very able men who framed the first judicial act, did not see the great dif ference between this manner of proceeding at the English Assizes, and the necessary course of proceeding in our Circuit Courts, with the powers and jurisdictions conferred on those Courts. These are Courts of final jurisdiction; they not only take verdicts, but give judgments. Here suits are brought, proceeded with, through all their stages, tried, and finally determined. And, as in the progress of suits, especially those of equity jurisdiction, it necessarily happens that there are different stages, and successive orders become necessary, from term to term, it happened, of course, that the Judge was often changed before the cause was decided: he who heard the end, had not heard the beginning. And, when to this is added, that these Judges were bred in different schools, and, as to matters of practice, especially, accustomed to different usages, it will be easy to perceive that no small difficulties were to be encountered in the ordinary despatch of business. So, in cases reserved for advisement and further consideration, the Judge reserving the question, was not the Judge to decide it. He who heard the argument, was not to make the decision. Without pursuing this part of the case farther, it is quite obvious that such a system could not answer the ends of justice.

The Courts, indeed, were called Circuit Courts; which seemed to imply an itinerant character; but, in truth, they resembled much more, in their power and jurisdiction, the English Courts sitting in bench, than the Assizes, to which they appear to have been likened.

The act of 1793, by requiring the attendance of only one, instead of two, of the Judges of the Supreme Court, on the Circuits, of course diminished, by one half, the Circuit labors of those Judges.

We then come to the law of February, 1801. By this act, the Judges of the Supreme Court were relieved from all Circuit duties. Provision was made that their number should be reduced, on the first vacancy, from six to five. They were still to hold two sessions annually, of the Supreme Court: and Circuit Judges were appointed to hold the Circuit Court in each District. The provisions of this law are generally known, and it is not necessary to recite them particularly. It is enough to say, that, in five of the six Circuits, the Circuit Court was to consist of three Judges, specially appoint

ed to constitute such Court; and, in the sixth, of one Judge, specially appointed, and the District Judge of the District.

We all know, sir, that this law lasted but a twelvemonth. It was repealed in toto by the act of March 8, 1802; and a new organization of the Circuit Courts was provided for by the act of the 29th of April, of that year. It must be admitted, I think, sir, that this act made considerable improvements upon the system, as it existed before the act of February, 1801. It took away the itinerary character of the Circuit Courts, by assigning particular Justices to particular Courts. This, in my opinion, was a great improvement. It conformed the constitution of the Court to the nature of the powers which it exercised. The same Judges now heard the cause through all the stages of its progress, and the Court became, what its duties properly made it, a Court of Record, with permanent Judges, exercising a various jurisdiction, trying causes at its bar by Jury, in cases proper for the intervention of a jury, and rendering final judgments. This act, also, provided another mode of proceeding with cases in which the two Judges composing the Circuit Court should differ in opinion. It prescribed, that such difference should be stated, certified to the Supreme Court, and that that Court should decide the question, and certify its decision to the Circuit Court.

In this state of things, the Judicial System remained, without material change, until the year 1807, when a law was passed for the appointment of an additional Judge of the Supreme Court, and a Circuit allotted to him in the Western States.

It may be here observed, that, from the commencement, the system has not been uniform. From the first, there was an anomaly in it. By the original act of September, 1789, a District Court was established for Kentucky, (then part of Virginia,) and for Maine, (then part of Massachusetts,) and, in addition to the powers of District Courts, there was conferred on these, all the jurisdiction which elsewhere belongs to Circuit Courts, and, in other cases, as new States were added to the Union, District Courts were established, with the powers of Circuit Courts. The same thing has happened, too, when States have been divided into two Districts There are, at present, several States which have no Circuit Court except the District Court, and there are other States which are divided into more than one District, and in some of which Districts there is but a District Court with Circuit Court jurisdiction; so that it cannot be said, that the system has been at any time entirely uniform.

So much, Mr. Chairman, for the history of our legislation on the Judicial Department.

• I am not aware, Mr. Chairman, that there is any public complaint of the operation of the present system, so far as it applies to the Atlantic States. So far as I know, justice has been administered efficiently, promptly, and satisfactorily, in all those Circuits. The Judges, perhaps, have a good deal of employment: but they have been able to go through their arduous duties in such manner as to leave no cause of complaint, as far as I am informed. For my own part, I am not sanguine enough to expect, as far as those Circuits

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are concerned, that any improvement can be made. In my opinion, none is needed. But it is not so in the Western States. Here exists a great deficiency. The country has outgrown the system. This is no man's fault nor does it impute want of usual foresight to any one. It would have seemed chimerical in the framers of the law of 1789, if they had struck out a plan which should have been adequate to the exigencies of the country, as it actually exists in 1826. From a period as far back as the close of the late war, the people of the West have applied to Congress on the subject of the Courts. No session of Congress has passed without an attempt, in one or the other House, to produce some change: and although various projects have been presented, the inherent difficulties of the subject have prevented any efficient action of the Legislature. I will state, shortly, sir, and as nearly as I remember, what has been at different times proposed.

In the first place, it has been proposed to recur to the system of Circuit Courts, upon the principle, although not exactly after the model, of the act of February, 1801. A bill of this character passed the Senate in 1819, dividing the country into nine Circuits, and providing for the appointment of one Circuit Judge to each Circuit, who, with the District Judge of the District, should constitute the Circuit Court. It also provided, that the Supreme Court, as vacancies should occur, should be reduced to five members. This bill, I believe, was not acted upon in this House. Again it has been proposed, to constitute Circuit Courts by the union of the District Judges in the Circuit. It has been proposed, also, to extend the existing system somewhat in conformity to the object of the present bill, by adding to the number of the Judges in the Supreme Court. And a different arrangement still has been presented, which contemplates the appointment of Circuit Judges for some Districts, and the continued performance of Circuit duties by the Supreme Judges in others, with such legal provision as shall not attach the Judges of the Supreme Court, in the performance of their Circuit duties, unequally, to any part of the country, but allow them to be distributed equally and fairly, over the whole. This system, though somewhat complex, and perhaps liable to be misunderstood, is, I confess, what appears to me best of all suited to our condition. It would not make the Supreme Court too numerous; and it would still require from its members the performance of Circuit duties; it would allow a proper distribution of these members to every part of the country; and, finally, it would furnish an adequate provision for the despatch of business in the Circuit Courts. Upon this plan, a bill was presented to the House of Representatives at the first session of the last Congress, but it did not meet with general favor; and the fate of a similar proposition elsewhere, at a subsequent. period, discourages any revival of it.

I now come, sir, to consider whether any, and what, evils exist, and then, whether this bill be a suitable remedy. And in the first place, it is said, perhaps with some justice, that the business of the Supreme Court itself, is not gone through with sufficient promptitude: that it is accumulating: that great delays are experienced, and greater delays feared. As to this, I would observe, that the annual