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by its great applicability. The illustration employed, and the application made of it, has not been surpassed by any thing ever said upon the subject. He cited Herod's rash oath under which he bound himself to the death of John the Baptist. Mr. Douglas applied this with great effect to the hasty, inconsiderate, yet solemn and sweeping obligations assumed by the members of the Know-nothing order.
THE FEDERAL JUDICIARY.
In January, 1855, the Judiciary Committee of the Senate, having had for some years the subject of affording to the members of the Supreme Court such relief as would enable them to perform fully their high duty as the court of last resort in the Union, reported a bill having in view that end. The bill reported by that committee discharged the justices of the Supreme Court from all circuit duty, allowing them, however, the same jurisdiction and powers now vested in them by law within any of the circuits in which they may reside, in allowing writs of habeas corpus and of error, granting injunctions, and generally all such powers as may be exercised under existing law at chambers and out of term. Instead of one term, there were to be two terms of the Supreme Court annually. The bill continued the existing judicial districts, but provided for their arrangement into eleven circuits-viz.: 1. Maine, New Hampshire, Massachusetts, and Rhode Island; 2. New York, Connecticut, and Vermont; 3. Pennsylvania and New Jersey; 4. Delaware, Maryland, and Virginia; 5. North and South Carolina, Georgia, and Florida; 6. Alabama, Mississippi, and Louisiana; 7. Arkansas and Texas; 8. Tennessee, Kentucky, and Missouri; 9. Ohio, Indiana, and Michigan; 10. Illinois, Wisconsin, and Iowa; 11. California. The bill provided for the appointment of eleven circuit judges, one for each of these circuits, at a salary of $4000 per annum each; the circuit judges to perform the circuit duties now performed by the justices of the Supreme Court.
Mr. Douglas, who had given to the subject considerable attention, proposed, on the 5th of January, when the bill came up, a substitute, involving a new plan, or adapting the exist
ing system to the present exigencies and wants of the country. He opposed most strenuously the separation of the Supreme Court judges from the people-from intercourse with the bar and courts throughout the Union. His plan continued the existing District Courts, and conferred on them all the powers and jurisdiction now possessed by the Circuit Courts. He then proposed to establish nine judicial circuits, as follows: 1. The six New England States; 2. New York, New Jersey, and Pennsylvania; 3. Delaware, Maryland, Virginia, and North Carolina; 4. South Carolina, Georgia, Alabama, and Florida; 5. Mississippi, Louisiana, Arkansas, and Texas; 6. Tennessee, Kentucky, Ohio, and Indiana; 7. Illinois, Michigan, Wisconsin, Iowa, and Minnesota; 8. Missouri, New Mexico, Kansas, and Nebraska; 9. California, Oregon, Washington, and Utah. The district judges within those districts to assemble once in each year, with one judge of the Supreme Court to preside, and to hear all appeals from the several District Courts within that circuit. The several judges of the Supreme Court to attend these circuits once in each year, and to alternate, so as that each judge in turn should attend all the circuits. In the debate on this question, Mr. Douglas explained, in his peculiarly forcible manner, the practical workings of this plan proposed by him. He said:
I have been induced, Mr. President, to offer this substitute from a conviction that the plan proposed by the Judiciary Committee will not answer the purposes which they have in view, and will not remedy the evils which they desire to correct. They propose to make a separate Supreme Court, with no other duties than those which are imposed upon the Supreme Court of the United States sitting at Washington alone. Here I differ in toto with the committee. I think the Supreme Court ought to have other jurisdiction. I think it is for the good of the country, and for the good of that court, that its judges should be required to go into the country, hold courts in different localities, and mingle with the local judges and with the bar. I think that if the judges of that court be released from all duties outside the city of Washington, and stay here the whole year round, they will become, as a senator remarked to me a moment ago, mere paper judges. I think they will lose that weight of authority in the country which they ought to have just in proportion as they lose their knowledge of the local legislation, and of the practice and proceedings of the courts below. I believe, therefore, that the theory of the original plan on which our judiciary system was formed was right. In consequence of the increase of the judicial business of the country, some modification of that plan has become necessary in order to preserve the same principle, and render it applicable to our present condition. The plan which I propose in this substitute is simply this: that there shall be no new judges appointed, but the duties now performed by the District and Circuit Courts of the United States in each state shall hereafter be performed by the district judge in that state. According to it, the district judge
will hold the District and the Circuit Courts at the same time. Both will be open at the same time; the record of each will be before him, in the same manner as in a court of law with chancery jurisdiction. As both courts are open at the same time, the judge may take up a case on the law docket or the chancery docket, as may be convenient; so, according to my plan, the district judge could take up a case on the docket of either the District or the Circuit Court, both courts being held by the same judge. Then, having released the judges of the Supreme Court from the necessity of going into every district in each state-and where there are three districts in a state, as in Tennessee and other states, that must be a great labor-the question is, how much of this local duty can we devolve upon them without depriving them of the opportunity of performing all their duties at the seat of government? It occurred to me that this point could be settled in the manner which I have proposed in my amendment; that is, to divide the whole United States into nine judicial circuits, and provide that there shall be held, once a year, in each of those circuits, a Court of Appeals, to be composed of the district judge of each district within the circuit, together with one of the judges of the Supreme Court of the United States, who should preside. By way of illustration, suppose the New England States should be made one of the circuits; there are, in New England, six United States District Courts, and the Court of Appeals would therefore be composed of these six district judges, with one judge of the Supreme Court of the United States presiding, which would make a court of seven judges. I provide for appeals to be taken directly from the District Court to this Court of Appeals, and then from the Court of Appeals to the Supreme Court of the United States, with certain restrictions. This illustration would apply to each of the other nine districts, comprehending all the states and all the Territories of the Union. This system would, it seems to me, have very great advantages, and would remedy several evils which we have known to grow up under our present system. You now find that in one district the rules of practice are one way, and in another district entirely different. One district judge decides a controverted principle in one way, and another in another way. If all the district judges in a circuit could come together once a year to review their own decisions, it would tend to bring about uniformity of thought and uniformity of practice within those districts. To secure this object, my substitute provides that the Court of Appeals in each circuit shall prescribe the rules of practice for the District Courts within the circuit. You thus infuse uniformity into all the District Courts within the same circuit, acting under the same rules, and the consequence would be that very few appeals would be taken from the Court of Appeals to the Supreme Court of the United States. I propose also to allow an appeal from the District Court to the Court of Appeals in every case in which it is now allowed by law from the District to the Circuit Courts; and to allow appeals from the Court of Appeals to the Supreme Court, but to fix a higher sum than is now required to be the amount in controversy to entitle the parties to an appeal from a Circuit Court to the Supreme Court, so that small cases may stop at the Courts of Appeal, and none but cases involving large amounts and important principles be carried to the Supreme Court of the United States. Then, sir, with a view of remedying other evils which may now exist, I have introduced another principle, derived from the judicial system of some of the states of the Union. It is what is known as the rotary principle; that is to say, inasmuch as one of the judges of the Supreme Court is to preside in each of the Courts of Appeals once a year in each circuit throughout the United States, I require them to rotate; so that if the chief justice presides in district No. 1 this year, he may next year go to district No. 2, and next to district No. 3, and so on until he come to district No. 9, at San Francisco. Then, the succeeding year, the next judge highest in
commission begins at district No. 1, goes to the second, and the third, and all the other districts. The consequence of this would be that a judge of the Supreme Court would not preside in the same circuit over a Court of Appeals more than once in nine years. In that way the foundation of complaints, which sometimes are gotten up-probably unjustly, but yet none the less mischievous for being unjust-that there is a coterie around the judge when he goes every year to the same circuit, would be destroyed. Again, if a judge goes to the New England circuit one year, to the Middle States the next year, then through the Southern States, then to the Western States, and finally to California, he becomes more familiar with the local judicial system of the whole Union; and inasmuch as the Supreme Court is the final Court of Appeals from all decisions of the lower courts throughout the land, its judges ought to be familiar, so far as it is possible for them to become familiar, with the modes of proceeding in the various sections of the Union, with the local legislation, and the local laws of all parts of the country. Now, sir, without meaning any disrespect to any one, but for the purpose of illustrating the practical operation of the principle, I trust I may be permitted to say that I do not think it would be the slightest injury to Judge Curtis, of Boston, after having practiced law all his life in New England, to hold court for one term in Charleston, South Carolina, and then in New Orleans, and again in Chicago, and then in San Francisco. I think a system which required that would liberalize the mind, elevate the train of thought, and expand the range of knowledge of any judge, no matter how exalted he might be. On the other hand, I do not think it would do the slightest harm to Judge Campbell, of Mobile, to send him to Boston to hold court, and let him mingle with the people of New England, and the New England bar and judiciary, and become acquainted with the New England character and New England jurisprudence. Let him go the round until he gets back, at the end of nine years, to his own circuit where he resides, and I think he would be liberalized, and improved, and benefited by the trip. The same remark would apply to each one of the judges. They would then have a degree of knowledge of the systems in each state, and of the local jurisprudence of each part of the country, which would be very valuable to them. They would thus become acquainted with the bar all over the Union, and with the sentiments and feelings of the bar, operating upon the rules of practice and of the rules of court, and would acquire a knowledge which never could be acquired in any other way. Entertaining these opinions, I believe that the best system we could adopt would be to take the present system as it is, adding no new judges, or at least not more than one, if an additional judge should be necessary, and I doubt whether one is; leave the district judges to perform their own duties in the District and Circuit Courts of the United States; constitute the Court of Appeals which I have proposed, and allow an appeal from them to the Supreme Court of the United States. Thus the whole system is harmonious. This plan would never render it necessary, in any expansion of the country, no matter how great, to increase the number of judges on the bench of the Supreme Court of the United States; but when we bring other states into the Union, or organize other Territories, all we shall have to do will be to attach one of those new states or Territories to one of the existing nine judicial circuits. Then this system is complete. It will adapt itself to any expansion of our country, to any increase of business in all time to come, and I believe it will be harmonious in its action.
I have not been able to look into my proposition since I drew it up, and presented it informally at the last session. I did not expect it to come up to-day, and therefore can not go fully into all its details; but there is a special provision in it which I think I ought to notice. In order to give ample compensation to the judges of the Supreme Court for the extra labor which would
be imposed on them by my proposition, in addition to their duties on the Supreme bench, I have proposed to allow them the per diem and mileage of members of Congress while they are absent as presiding judges in the Courts of Appeals. If a judge should go only from here to Boston to hold court, the mileage would be but small. If he should go to New Orleans, it would be a very respectable sum; and if he should go to San Francisco, it would be quite a little fortune. I think such a provision would really improve the health of many of the judges, so that they could take a trip to San Francisco without complaining that they would suffer very much by it, though they might find it very unhealthy if some such provision were not made. I also believe, as a matter of justice, that they should receive mileage in proportion to their travel. I do not say whether or not the present salary is sufficient. If it is not, increase it. But I say, in addition to whatever salary you award to them as judges of the Supreme Court, you should allow them a per diem while holding the appellate courts, and the mileage of members of Congress while traveling over the country to reach the sittings of those courts. I propose to apply the same principle to the district judges when they leave their respective districts, and go to a central point in the circuit, to sit in the Court of Appeals. I have thus stated briefly the chief provisions of the substitute which I have offered. It has occurred to me that by this proposition we could avoid many of the evils which we are likely to encounter by the adoption of the system reported by the Committee on the Judiciary. I have great reluctance at any time to make a radical and sudden change in the judiciary of the country. If there is any department of this government for which I have a higher reverence than any other-if there is any department in the purity and stability of which I place higher hopes than any other, it is the judiciary. I would not wish to make any such sudden and radical change in that system as would infuse into it too many new men at one time. I would allow that infusion of new blood and new life to come into it by the course of nature, simply by filling vacancies when they may occur from time to time. Sir, I think it is unwise to make a change by which all the Circuit Courts of the Union shall at once be held by new men, perhaps politicians, perhaps lawyers who have never been upon the bench. It is a thing which ought to be done gradually, so that there shall always be a majority of experienced judges upon each of the benches of the country. These views, sir, have operated on my mind. I have doubted whether the system proposed by the Judiciary Committee could be adopted, and if adopted, I have had still more serious doubts whether it would remedy the evils intended to be remedied by those who have brought it forward. But, sir, not being a member of the Judiciary Committee, I have felt great reluctance in interposing my voice on this question. My duties have been such that I have not been able to give it that consideration which the importance of a subject of this magnitude would require; but still, having these firm convictions on my own mind, I have felt that I owed it to the country, and especially to the bench with which I have been associated for a small portion of my life, to make these suggestions, in order that the Senate may pass their judgment upon them, and make such disposition of the subject as they shall think proper.
Mr. PRATT having asked some explanation:
Mr. Douglas. I am aware that I was, perhaps, somewhat confused in the brief explanation which I gave this morning, as the matter came up unexpectedly, and therefore omitted many points which ought to have been fully explained. I have turned my attention, however, to the points to which the senator from Maryland has adverted. It occurred to me that the duties of the Supreme Court of the United States would be materially lessened by the plan which I have proposed in this respect; I have thought that by having a