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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.

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that is, granting injunctions, issuing writs of habeas corpus, and matters of that kind; but they are entirely withdrawn by this bill from the duties of judges of an inferior court.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. 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,

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 incident to our common nature, and which may not 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 organiza. tion 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 I 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, hold 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 satisfy another that, in a public opinion, already uttered, be 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 highest 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 inost probably to repeat their former suffrages, or to vindicate them with strenuous ability; or, if to avoid 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 he 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 ap pellate 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: 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 conie 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 constituted 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

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

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;

quire 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 appellate 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.

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

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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.

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 misi prius decisions-r.othing morehasty 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 presiding 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.

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 uch would be the effect, I admit the objection would be with me all potent, and I should at once

abandon the system recommended by the com- from time immemorial, no lay member has voted mittee. But is it true? What grounds, except on a case taken there on appeal from a court the mere assertion of the honorable Senator from below. Only the law lords, men who are profesMissouri, [Mr. GEYER,] that, in his opinion, it sionally acquainted with the law, ever vote on would have that effect, have you for supposing appeals. A striking instance of the power and such would be the result? Let us inquire into the force of usage, and of its controlling and beneficial probable effect. Your judges, according to the tendency, was exhibited in the case of O'Connell, Constitution of the United States, may be ap- in that body. Two law lords, who belonged to pointed from any portion of the Union. At the the party which stood in a decided majority in origin of your Government, when there were but the House, supposed his conviction to be legal. six Judges upon the bench of the Supreme Court, Three law lords, who ranked with the minority they were much more concentrated than they are in the House, thought it was illegal. It was a ponow. 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 citizens 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.

I am willing to admit that, if we could constitutionally impose in this bill a restriction that a judge should be appointed from each circuit, such a provision 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 court, and the usage will remain unshaken, and 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 country shall ever pass into the hands of any one section 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 confident that, whether the Supreme Court Judges travel the circuit, or whether they sit in Washington 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 represented, under a usage which has become as powerful 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,

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 be our political divisions, there will always be sufficient intelligence, love of order, and sense of right to prevent a departure from a usage so essential 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 objection 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.

Sir, rely upon it, practically it would be impossible to carry out such a system. It would be unjust to the bar, because the appeals in such cases would be for smaller sums than to the Supreme Court; and the result would necessarily tend to concentrate the emoluments in the hands of that part of the profession who resided in the place where the local appellate court was held, to the exclusion of practitioners in the States where the district courts are held from whose judgment appeals would be taken. This is one of the defects of the proposed substitute, and one which would be found difficult to obviate in practice as creating a hostile feeling, a feeling of jealousy among different States, and the bars of different States, and operating unjustly upon the members of those bars.

There is yet another objection to the substitute of the honorable Senator from Illinois. It would be absolutely impracticable for many district judges of the United States to perform the duties of both district and circuit judges within their districts, even without sitting in the appellate court. I think the honorable Senators from Massachusetts would tell you that in Boston it could not be done. I am sure the honorable Senators from New York will tell you that, in New York, it would be absolutely impracticable. There the district judge even now, is unable, of himself, to get through with the business of the district court. If you also confer on him the jurisdiction of the circuit court, you could not expect a decision in the first instance, from which an appeal could be taken, until years after the suit was brought. In Pennsylvania the same evil would exist, though in a less degree. It would also apply to the United States courts in Baltimore, in New Orleans, and perhaps in other places. In those quarters of the country, where the large commercial cities exist, it would overwhelm the district courts, or you would have to organize another court of ori- || ginal jurisdiction, if you throw the circuit court duties upon the hands of the district judge, in addition to his own proper duties, and also require him to sit in the appellate court. This objection alone to the system would seem to render it impracticable.

Further, sir, on the question of delay, regard the effect. The Senator from Illinois proposes to have, in each circuit, an appellate court, composed of all the judges of the district courts of the circuit, together with a Judge of the Supreme Court. In each State of this Union, there is at least one United States district judge; in some States there are two such judges. You have from four to five States generally in a circuit. Then, according to this plan, you would have an appellate court composed of from five to seven members. Each judge of the court would have his own proper duties pressing upon him, especially in the large cities, to such an extent as to occupy all his time. How frequently would your appellate court adjourn for want of a quorum. An appeal could be taken to this appellate court but once a year, instead of twice a year as to the circuit courts. Owing to the want of a quorum, and the fact that appeals to the appellate court would include all suits within the jurisdiction of the present circuit, as well as district courts, they would probably remain a long time in this intermediate appellate court, and then the decision would not be final. There might be a further appeal to the Supreme Court. Certainly, if this last appeal were denied, or curtailed by increasing the sum requisite to an appeal, the people of the States would not be satisfied to submit to a local tribunal decisions upon questions of magnitude, without giving them the right also of || going before the general tribunal of last resort, the highest tribunal of the land. The result, in my belief, would produce increased delay in the disposition of causes, even beyond that which now exists.

Again, sir, what would be the effect of the probable constitution of such a court, upon the character, standing, and weight of the Supreme Court? A Judge of the Supreme Court is to preside in these local appellate courts. You cannot prevent men from feeling the differences in the dignity of their positions. His brethren on the bench would naturally feel, not that he was a better man-for he might be less able-but that he occupied a higher position than themselves, and would per

Judicial System-Mr. Bayard.

haps defer too much to his opinions. On the other hand, it might be, that some of them would be restive under the consciousness of inferior power, if they deemed their presiding associate unequal to themselves in knowledge and capacity, yet from his position in the Supreme Court, having the right to revise, and perhaps the power to overrule, their decisions. The reesult would be that in the deliberations of the appellate court, when differences of opinion existed,(which would certainly be the case sometimes, and might occur not unfrequently,) between the Suprem Court, Judge, and a majority of the district judges, they would overrule him in the court below; but they would overrule him with the knowledge, that in the superior tribunal, with predetermined opinions, and his pride of opinion enlisted, their decision would come before him for revision. Suppose such a decision should be reversed by the Supreme Court. Is it in human nature to expect that the judges so overruled would not be apt to defend their own opinion, and the soundness of that opinion, against the decision of the Supreme | Court? Have we not all sufficient experience of humanity to know, that though a man may commence on the line of defense, yet where pride of opinion comes in question, he is but too apt to shift his ground, become an aggressor, and question the capacity, if not the motives, of the tribunal by which his decision has been overruled. | I ask then, if a court so constituted, would not more probably, (supposing the judges of our district courts to be, as most of them I doubt not are, able men,) produce a state of feeling and consequent criticism, and comment, on the reversal of their decisions, which would tend to undermine public confidence in the Supreme Court, far more than under any other system which could possibly be devised?

Sir, the plan of the honorable Senator from Illinois, from the character of the appellate courts which it proposes to organize, is also open to the objection which I have stated to the present system, on the score of possible bias, in a higher degree, because there is much less probability of a collision of opinion between the Supreme Court Judge and a single judge of a district court, as our circuit courts are now organized, than there would be between the same judge and his associates in a court composed of four or six associates, who were men of intelligence and capacity; and more especially on questions with which they might be more familiar than the judge who, under this rotary system, would preside at distant intervals over their deliberations.

I submit that, if a fatal blow could be struck at the Supreme Court of the United States, it would be done by the organization of such appellate tribunals, with an appeal to the Supreme Court, as are constituted by the amendment offered as a substitute by the honorable Senator from Illinois. I have endeavored previously to show that, by that substitute, even the objects which that Senator seeks to attain will not be attained. Of course the Supreme Court Judge learns nothing of practice by sitting in an appellate court. According to the Senator's plan, he cannot mingle among the people, because there will be no trials by jury in these appellate courts. In point of fact, the Supreme Court Judge will literally learn in such an appellate court nothing more than he now learns in the Supreme Court, in Washington; but he will be liable to come in collision with the opinions of the local judges, and he alone, and not they, may sit in error for the purpose of revising those opinions upon which the collision arises. With that exception, his duties, and the mode of their performance, will be the same in Washington as in an intermediate appellate court as proposed. He decides upon the face of the record in either court. What advantage, then, can accrue from such a system? The effect will be, if you require the judges to travel on the circuits, that you deprive them of the opportunity for study during the time (and it will be no short period) consumed in traveling. You absolutely deny them everything like relaxation or domestic comfort, and you embarrass and retard the administration of justice in the court of highest jurisdiction and last resort.

I repeat the expression of the opinion confidently entertained, that your judges cannot pre

SENATE.

serve the Supreme Court in the public esteem and confidence, by any other means than the wisdom and learning, and impartiality, which the decisions of that court may exhibit. As long as you select proper men for the bench, and select them from different quarters of the country, the commanding influence of public virtue, of learning, of ability, and of impartiality, will have its due effect upon an intelligent people, and will secure the standing of that court, so that it will retain the appellation which it has heretofore received, "the sheetanchor of the Federal Union."

Are not the Judges of the Supreme Court now overworked? They sit here for more than three months in each year; and in every alternate year they sit for five or six months. Do gentlemen suppose that it is merely by sitting in court for four hours per day, and hearing the arguments of counsel, the judge is enabled to decide the cause? Do they not know that each cause requires investigation, and that, for a due investigation, a judge must not only have the general learning and reading to be acquired only by years of toil; but he must read also for the particular case, and if he means to decide rightly he must examine the leading authorities which are pressed upon his attention. Look, then, to the extent of labor encountered. Are they not continuously in session here, or on the circuits? They can allow themselves no holiday. When they leave this city, are you to give them no relaxation? Do you expect that the human mind, working day after day continuously, not upon the same case, but on the same general subject and same principles, will not become impaired, and give way sooner, and have a less vigorous action, than if a reasonable time were allowed for its relaxation in literary pursuits, or in any other occupation which accorded with the temperament and inclinations of the individual? I presume few Senators doubt that the Judges of our Supreme Court are overworked, and yet with all their work, they are unable to dispose of more than half the cases on their calendar at the single term of the court; even when they sit until the month of March, and adjourn to the 1st of April, and then sit again through April, May, and part of June. Even with that extent of labor, besides their duties on the circuit, as the business has stood for the last six or seven years, such has been the course of events; and the difficulty will increase, unless we provide some relief.

Can it, Mr. President, be answered that they should dispose of their business more rapidly by curtailing the privilege of being heard? Whenever the time shall come that causes in courts of justice of last resort, where great interests and great principles are at stake, are decided without allowing a full hearing to each side, you may denominate it the administration of justice, but it will be but Turkish justice; a decision without a hearing; and of the two, I think the evil is almost, if not quite, as great, to decide without a hearing as to hear without deciding. The latter denies a remedy, the former perpetrates a wrong. The length of time to which counsel are necessarily limited in the Supreme Court, in the discussion of causes, is the shortest which the judges felt they could fix, and even that limit in a great variety of cases, in the exercise of their discretion they are obliged to abandon from the complexity of the cases, the number of questions which arise in their discussion, and the magnitude of the interests involved.

Sir, I hope the time will never come in this country-I am very sure that when it does come ours will no longer be a free country-when the rights of its citizens are finally adjudged without a full hearing, under the affectation of dispatch of business, and the prompt dispensation of justice. I would rather, in reference to the administration of justice, as in reference to the freedom of the press, see some abuse of the privilege, than have the right of the suitor to be heard by his counsel, curtailed to such an extent as to encounter the hazard of arbitrary decisions.

Mr. President, I have consumed more time than I intended or anticipated in this debate, and the views which I have suggested have been expressed in a more desultory manner than I could have wished. My excuse is, indisposition from the commencement of the session, which unfitted me

for mental labor and condensation of my thoughts.