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Law: for the oldest of them is not forty, and Sir, judges of the circuits, as we are told, are the youngest not five years of age; and no usage to communicate to the Supreme Court their can have grown up among them into the strength various local knowledge. How? Yes, sir, and vigor of Common Law, in any time less than how? By books or by parol ? The facts, in that, "whereof the memory of man runneth not the appealed causes, are placed on the record; to the contrary.”
the law on which they have been decided is, Can a judge, sir, not learn these by reading like the ballad of the ancient bard, comunitted and study? Can he thus make himself master to memory; and is to be said or sung in open of all the almost infinite variety and extent of court. In this manner, each of the ten judges all other laws ? and must he depend for a of the Supreme Court is to learn all his knowknowledge of these few items of State law, on ledge of the “leges loci,” governing appealed the testimony of local judges ? Tell it not, sir, causes. He may possibly know, and indeed by in hearing of those nations who, by their am- the reasonings on this bill, he is supposed to bassadors, are near our government in this city know one-tenth parts of his legal alphabet of of Washington. Tell it not in hearing of that twenty-four States; that is to say, two letters gifted citizen, who, first in honorable field, lifted and four-tenth parts of a letter. This may comtarge and lance against the learned chivalry of prehend all the great doctrine of locatives and Europe, and in defence of the talent and science entries, as the same was learnedly expounded to of our own country. Leave us not, sir, leave us, early in this ebate. The court, sir, who try us not to the literary tomahawk and scalping- the appealed cause, must, according to the arguknife of the Giffords and Buffons of the old ments of the friends of the bill, learn the facts, world.
the law, and the decision, from the judge who Judges, we are told, sir, are to learn by travel. tried the cause in the court below; and who, Whither, how, and addressing themselves to in sustaining his own decision is interested by whom? Not to visit law schools, or colleges the pride of opinion, the pride of character, and of civilians; not as the Solons or Platos of an- the avarice of fame; and who, if he do not protiquity travelled, to consult the Initiati of Sais, duce the books from which he drew his law, the Sanhedrim of Palestine, or the disciples of ought to place over his oral tradition of it, the the Persian Zoroaster. They must, however, Scotch bard's apologyhave the benefit of travel; and, if so, in the common method in coaches, wagons, solos, gigs,
“I cannot say how the truth may be;
I tell you the tale as 't was told to me." carryalls; in steamboats, packet-boats, and ferryboats; receiving the full benefit in eating-houses, Will this mode of procedure, sir, secure to taverns, boarding-houses and bar-rooms, of the appellants the benefit of a second trial? Of conversation of learned tapsters, stewards, and the facts, there can be, there needs no second stage-coach drivers. No man, I must own, who trial; they are ascertained and placed on the travels in the ordinary method—and judges can record. They are to measure the facts by the hardly afford to travel in different style—will law, and observe if that measure result in the lose any portion of these several sorts of ac- former decision. Who places this measure in commodation and instruction. Judges will, in their hand? The judge who measured the serious truth it is said, by travel, mingle with article and placed the amount on the record. the people, and often come in contact with If the judge honestly give the law, as he underthem. Will they mingle with the poor, the stood, and still understands it to be, the Suordinary? With mechanical men; with mid-preme Court must understand it as he understood dling interest men; with the great community it, and the cause must be decided as he decided of toil, and sinew, and production ? No, sir, | it. You weigh the same article at the same they can do no such thing. Let them have the scale beam, with the same weights. Its weight humility of Lazarus, and the versatile affability must be the same. The beam may be out of of Alcibiades
, and they can do no such thing. balance; the weights too light or too heavy. There is to such men, as it was once said of a These men, "measuring themselves are not learned judge—than whom no man ever bore wise.” If you measure the same thing by the his honors more meekly—there is, I say, to the same thing ten thousand times, you cannot defeelings of such men, around a judge, a kind of tect a single error. Would you, sir, avoid this repulsive atmosphere. They stand aloof, and repetition of error? Give your Supreme Court a give him large room. They bow, not, indeed, check on the circuit judge. What shall it be? with servility, but with profound respect; and A knowledge of the laws. If, therefore, sir, look towards him with a kind of hallowed your Supreme judges are qualified for Supreme reverence, as one set apart, and consecrated to judges, and all the nation know that they are. the service, and surrounded by the ritual of there exists no inequality in their knowledge of justice. With all these men, the judge can local law; but if that inequality do exist, the hold no tangible communion. The assurance provisions of this bill cannot remove it. of wealth, the confidence of rank, office, power, Sir, this bill proposes to add three judges to will press through this medium, and come hand the Supreme Judicial Court, and to make the to hand with him. Do the gentlemen, sir, mean number ten. This, if a remedy for the evils at to suy that, for such purposes, judges should the west, is none for those at the very vitals of with the people?
the judiciary—the accumulated mass of causes which have laid in the Supreme Court till, like and designated district of the United States; an ossification in the heart of the animal body, that is to say, from the territorial jurisdiction they paralyze pulsation, and obstruct the whole- of such circuit judge. The constitutional power some circulation of justice, to the very extremi- of the Supreme Court is vested in the majority ties of the body politic. The bill proposes for of that court; whatever shall change this relathis evil no other remedy than three additional tive proportion to the whole number of the judges. Can ten men do more judicial labor number creating that majority, must change the than seven can perform? Moral, like mechanic vested power of that court, and must, for that or mathematical truth, is discovered by induc- reason, be unconstitutional; but four, the mation-a kind of process at which but one mind jority of six, is two-thirds of that court; whereas can labor. We do not learn that either six, the majority of ten, is less than two-thirds Archimedes, or Euclid, or Sir William Jones, of that court. Making the number of judges was joined with any co-thinker adminicular to ten, is, therefore, altering the power of the court, either of them, in his sublime speculations or vested in two-thirds thereof, and giving it to a discoveries. In money there may be copartner- lesser proportionate number. ship; there can be none in mind. Here each It may, sir, be set down as a political axiom, one, unless a plagiarist, must trade on his own that, when you shall hare added so many judges capital. Make your judges, sir, if you please, to the original number o. the Supreme Court, seventy-two, and, like Ptolemy, you will call on as will make a majority or constítutional quorum each one for a complete version.
of that court, the judicial article of the constiThese gentlemen will tell us that, although tution will have been expunged. Add your three this bill gives no relief to the Supreme Court, new judges, it makes ten. This is four more yet there is on the stick a little bill, No. 15, than the original number; six is a constitutional giving a perfect remedy. Yes, sir, sheets of quorum of ten: but four is a majority of that legislation for the western States; ten lines quorum, and may reverse all the decisions of the only for the whole nation. It adds a month to original court. the term of the Supreme Court; a month did All decisions of the Supreme Court, on the I say? No, not so much; “pot a little month;" constitution, on treaties, and on laws, not three weeks, eighteen working days. One long enacted by Congress, are beyond the control of maritime cause from the east, or one broad land the National Legislature : but if we can send cause from the west, will consume two days; into the Supreme Court an overruling majority, and thus, the next year, nine more causes will whenever the united ambition of Congress and be tried than will have been this year; and so the Executive may choose to do it, we place the number, standing over on the docket, will the constitution, and all treaties, and all constitruly be one hundred and seventy-one, and not tutions and laws of all the States, in the power one hundred and eighty.
of two branches of the government, and thus This bill proposes to increase the Supreme erect ourselves into a complete tyranny; and Court, originally six but now seven, by adding that, too, as the advocates of the bill must conthree new judges, and making the whole num- tend, upon perfectly constitutional principles. ber ten. Can this, sir, be constitutionally done? Does the constitution, sir, thus place the judiAll supreme judicial power is now lodged in the ciary at the good will and pleasure of the other Supreme Court. What judicial power have you, two branches of the government? No, sir; then, sir, to confer on your three new judges ? the patriots who built, and the people who Circuit court power you certainly have, for all consecrated that glorions fabric, did not intend inferior courts are within your control; but all to devote their temple to the polluted oblations the supreme judicial power is already vested, of legislative ambition, or the unhallowed rites and no part of it can be taken away. The Sa- of executive subserviency. preme Court is a whole, in all its parts, its The wisdom of legislation, sir, should look to properties, its extension, its relations. Have you the durability of her works. How long, sir, the power to alter it? How, then, can you add will the judiciary, as amended by the provisions to it? Or is it that wonderful entity which ad- of the bill, continue to subserve and satisfy the dition to it does not increase, or which, multi- wants of the country? Some of its advocates plied any number of times' by itself, would say twenty, some fifty, and some one hundred continue to be the same? We shall all acknow- years. Yes, sir, those gentlemen, who have, ledge, sir, that Congress cannot require, by law, with all the force of facts, and all the resistless the President to select a judge of the Supreme conclusions of reason, pressed on this House Court from any particular district or part of the the unparalleled growth of western wealth and United States; but Congress can create a court western population, do say that new States will inferior to the Supreme Court, and among the not, in less than one hundred years, have been legal qualifications of the judge, insert an in- added to this Union in such a number as to rehabitancy or residence within his territorial quire even one additional judicial circuit. Have jurisdiction. This may be the circuit court. they duly considered the various expansive It, sir, you then annex the office of such a circuit principles of production and population in this judge to that of a judge of the Supreme Court, country? A prescient policy should look to you require, by law, the President to select a the future under the lights of the past. In judge of the Supreme Court, from a limited twice that period, a few scattered families have augmented to more than ten millions of people, | tory: Adopt the system recommended by the covering eight hundred and forty-seven thou- resolution. Restore the constitution. Trace out, sand one hundred and eighteen square miles of and fill up, the great judiciary map of 1789: territory, arranged into twenty-four United revise, and correct, and establish the constituStates, and requiring ten judicial circuits. tional lines of the law of 1801. We are told, Through this whole course, the people and the sir, by the gentleman from Illinois, that the excountry seem to have multiplied and extended perience of a single year overthrew that system. in nearly a geometrical ratio. Ten inillions of Was, then, the system of 1801 overthrown by people not quite five years ago ; five millions of experience? As well might the honorable gencouples for heads of families; and, at this mo- tleman tell us that brick, and granite, and marment, not less than two millions five hundred ble, are improper materials for houses, and palthousand of the whole number placed in that aces, and temples; because experience has taught relation. Ordinary calculation may, under or us, that, at some times, and in some places, earthdinary prosperity, expect to find in each family quakes have overthrown and demolished such eight children. This, will, in less than twenty buildings. “It was," says the honorable gentleyears, give to our population twenty additional man from Massachusetts, chairman of the Judimillions of people. Will not new States arise? ciary Committee, “repealed in one year in toto." Already, sir, you have three new territories. Was it because that, or the law on which it was Florida is spreading her population down to founded, was "enacted in the hurried session of the very margin of her waters, and enriching the summer of 1789 ?” Because it was built on her cultivation from the “cane-bearing isles of false analogies, or contained awkward provithe west.” Arkansas is looking up the channel sions ? That session, sir, was begun on the 4th of her long rivers, towards the mountains of of March, and ended on the 24th of September. Mexico, and will soon become rich, populous In this session of somewhat more than six and highly cultivated. The tide of migration months, those illustrions men enacted twentyis setting up the grand canal towards Michigan, seven laws, and passed three resolutions. Was and that peninsula will, in a short period, be this hurried legislation? Why, sir, many a Conlocated and peopled, from lake to lake. These gress, since that period, putting no extraordinary three, sir, in less than five years, with due vigor or hasty effort to the work, have, in less courtesy, and fair canse for admission, will time, sent into the world a legislative progeny knock at your door, and propose to sit down in of from two to three hundred laws, great and the family circle of political union. This is not little. What have we now, sir, valuable, or of all, sir. Population is travelling up the latitude, probable durability, and which was not proacross your north-western territory, towards the duced by that Congress, at that session? The great Caspian of our continent: and when they fiscal, the foreign, the war, the naval, and the shall have heard of your ships on the waters of judicial department, were then, and by those the Oregon, and of your colonies along the rich men, founded, erected, and finished. These valley of that river-as from the able report of great national edifices have stood, and I trust the gentleman from Massachusetts, whose mind will continue to stand : for, when the vandalism is capacious of such things, we may predict, they of faction shall demolish them, we shall cease will very soon hear—these people will then, sir, to be a nation. Later times, it is true, have with the rapidity of a deep sea-lead, thrown added, now and then, a piece of tiling, or a patch from the chains of a seventy-four, plunge of paint; and the nation has put itself to costs down the longitude to meet and to mingle with upon the interior garniture of them, the drapery, their countrymen on the waters of the Pacific. and other various ornament and accommoda
Twenty years, sir! Are we told the system tion; but, otherwise, these valuable edifices are of the bill will accommodate and satisfy the as old, as unaltered, and quite as venerable as judicial wants of this country for twenty years? the constitution itself. “Awkward provisions İn twenty years you will have ten new States, and false analogies," do we call any part of the and thirty millions of people! Why, sir, in Judiciary Act of that session ? It was, sir, insuch a country—such a sun-bright region of hill | dited by the Ellsworths and Hamiltons of those and vale, mountain and moor, river, plain, lake, times—men, whose political little tinger was and all of boundless fertility-where population larger than the loins of politicians in these deis busy on land and on ocean ; where, from the generate days. Why, sir, do not men who plough, the loom, and the soil
, are continually know, tell us boldly for what cause the judidrawn the materials of food, clothing, habita-ciary law of 1801 was repealed ? Men of candor, tion; where the human arteries swell and pul- and I trust, sir, such men are in great numbers sate with teeming existence; where the human here, will all agree, that party overthrew that bosom heaves and palpitates with the fostering system. Why disguise it? Those unhappy days current of incipient lite—what calculation will are past, and we are indeed now all “brothers you make? What calculation can you make, of the same principle.” What was not demolapproximating in any reasonable degree towards ished in those inconsiderate times? The Nareality?
tional Bank, the Army, the Navy, Fortifications What then, sir, the advocates of the system -almost all that the understanding, or the bill may ask—what shall be done? The eye, that we are one-tumbled into ruins, in
of it are prepared for the interroga- | the shock of that tremendous political earth
quake. Coming years brought better feelings | those who cared for posterity? This House, and sounder reasonings; and men have profited sir, the great model of art and taste; the pride of their experience, and re-edified all that was and ornament of our country, and of the repubmost valuable: the Bank, the Army, the Navy, lican world; the magnificent forum of legisthe system of fortifications; and we are again lation; the hallowed
temple of stice-this a nation. Our fortresses on the ocean and on | House, sir, was it built for us, and for the presthe land, look out from many a hundred iron ent generation only? No, sir, it was founded eyes, ready with indignation to blaze annoyance by that man whose name spreads the light of and destruction against hostile approach. Why, glory over our nation, and whose whole life sir, do you not follow this enlightened expe- was but one act for his country—for the world, rience in your judiciary? The very Turk or and for posterity. “Let posterity take care of Tartar, though lie demolish the palace and tem- itself !” To a gentleman who could feel and ple of classical antiquity, yet will he draw from utter such a sentiment, I would address the the ruins materials for his stable and his seraglio. words of the bereaved Macduff: "he hath no He who does not profit by that of others, stands children.” in the next rank of fatuity to him who is a fool The system of the resolution carries in itself in spite of his own experience.
the principles of durability. When new States Let us not be told, sir, that the system of the shall be added to this Union, and form new disresolution will augment the judiciary expenses. tricts, their judges will distribute justice, until What will be expended in one way, will be enough for a new circuit shall have been formed, saved in another. A saving to the citizen is a and then this circuit shall receive a new judge. saving to the nation. These courts will perform This may be repeated as often as a new circuit and finish the judiciary labor in every district, may be formed; until circuit after circuit shall circuit, and department. It will bring justice be extended to the utmost limits of our national home, and that right early," to those who are domain. The Supreme Court will sit a supernow compelled to travel for it; to wait for it; vising tribunal-regulating and correcting every and to lavish their subsistence on the means of inferior jurisdiction. When the multiplied calls acquiring it. It may diminish a productive em- for justice shall require, then it may be sepaployment for us who come here to legislate for rated, like the highest English courts, into a our constituents, and to litigate for our clients; fiscal, a criminal, and a civil tribunal. Two but I trust we are sufficiently patriotic not to judges in each department, as they must of nefeel any attachnient to a system, because it may cessity be unanimous, will, almost of necessity, augment our emoluments, when we know it secure correct decisions. must diminish the productive capital of our Thus, sir, you may legislate, not for twenty country. Sir, the people now expend less on years only, but, by Divine aid, for twenty centhe judiciary than on foreign relations. You turies. Your judicial edifice will be extended, give more, by some scores of thousands of dol- with your extending country; and will subserve lars, for courtesy to other nations, than you the wants, and satisfy the requirements of these pay for justice to your own citizens. It would increasing States, and the multiplying millions be dishonorable to the Republic to be wanting of this great nation; until the American Eagle to its dignity abroad; but can it be honest to shall, with one wing, winnow the breezes of be wanting in justice to its own citizens at the Atlantic, and with the other, hover over home?
the quiet waters of the Pacific; until the colosThe system of the bill, sir, cannot, it is agreed sal power of the republic, standing on the lofty that it cannot endure; for circuits will become mountains of this continent, shall, with one too numerous to add a new judge to the Su- hand, extend the olive branch to the peaceful preme Judicial Court for each circuit. We are nations of the earth, and with the other, wave told in reply, that we should not legislate for the sword of justice over the satisfied and tranposterity : “let posterity take care of itself.” | quil citizens of these widely extended regions. In what country, in what house, are we, sir, I have thus, sir, according to the limited told this? Did the Pilgrims, the Bradfords, measure of my ability, made an effort to sustain the Williamses, the Penns, the Smiths, migrate the resolution, moved by the honorable gentleto this country for themselves, and not for pos- man from Virginia; and I should be in some terity? Look out upon our American world: sort satisfied with that effort, could I have not a government was instituted; not a forest brought to his aid any portion of that efficiency, felled; not a city founded; not a house built; which, on a great and former occasion, was not a tree planted ; and not for posterity. brought to the aid of an illustrious citizen of Where, and what should we have been, but for that State, by a son of Rhode Island.
REMOVAL OF WASHINGTON'S REMAINS.
On the 13th of February, 1832, a Resolution | remains of no other mortal man are regarded ; was introduced into the House of Representa- cannot we, awed and subdued with gratitude, tives, to remove the remains of Washington the hallowed repository, and roll back the stone
with more than filial piety; cannot we approach from Virginia, and to place them in a vault from the door of the sepulchre, without the under the centre of the Capitol. Mr. Burges guilt of sacrilege? Cannot his country remove addressed the House on the Resolution in the the remains of this, its great Founder; and carry following speech :
them in solemn procession, accompanied by all the rites of religion, and all the sanctity of its
ministers; and finally deposit them in the naMr. SPEAKER: Permit me to join my voice tional cemetery provided for that purpose under to that of the many who have already mingled the foundation of this building; which thencein this discussion. There is a kind of immor- forth shall be, not only the temple of freedom, tality associated with what may be deemed the legislation, and justice, but also the august mauperishable part of this mighty theme; and he soleum of Washington? Who, sir, wbo, of all who speaks of the venerated remains of Wash- the civilized world, will, while these reverential ington, must catch something of inspiration; movements are performing, who will point his and feel himself elevated to the loftiest purposes finger at these solemnities, and call them a mere of our nature. Twice has this question come pageant ? before this House, twice without a dissenting It is the feeling, sir, the purpose of the pervoice. Once, soon after the death of the illus- sons, and not the place or the subject, which trious Father of his Country covered the nation renders their deeds pious or profane. Can we with mourning; and once, when, a few years never again without sacrilege look into the dark ago, enquiry was made here, concerning the house of those so dear to us, until they, bursting most appropriate method of carrying into effect the cerements of the tomb, are clothed with the arrangernent originally made between the immortality? How often does the piety of bereaved family and the national government. children, how often the anxious affection of If that arrangement of piety and patriotism parents, induce them to remove the remains of cannot now be consummated with equal unani- endeared relatives, to places of more approprimity; nothing surely need fall in the way of ate sepulture? How often do nations remove performing it, under the exercise of our purest to their own countries, from distant foreign and best feelings.
lands, the bones of their illustrious dead? Was In this controversy of patriotism among great it sacrilege in the Hebrews, when migrating States, concerning their respective interests in from Egypt, to take from the consecrated catathis question, it may be thought of one, geo- comb or pyramid, where for centuries they had graphically so inconsiderable as Rhode Island, been deposited, the bones of the illustrious that silence might more become her Represen- founder of one of their families, and the pretatives in this House, than any, the most perfect server of them all; and bearing them from the form of speech. Sir, in any arduous passage of populous valley of the Nile, the learned and arms, in any intricate question of council, luxurious realm of the Pharaohs, the scene of Washington himself in his time did not so de- all his glory; that they might carry them to a cide. Nor will one man in this Hall very land of rocks and mountains; and render his severely censure my wish to be heard on this burial place one of the eternal monuments of occasion; if he call to mind, that he, who in their country? So it has continued; and at the darkest hour of revolutionary conflict, stood, this day it is, by the dwellers on the hill or on in the estimation of the nation, and of that illus- the plain, pointed out to the traveller as the trious man, next to himself, was a native of that tomb of Joseph the Patriarch. State. There was, there was a time, sir, when Sir, what man is there who does not shudder this man was the property of his whole country. with horror when he is told, that, not many If I look back towards the beginning of life, years ago, a felonious gardener of the late promemory is in a moment filled with bright and prietor of Mount Vernon, conceived the sacrijoyous recollections of that time, when, even in legious project of plundering the family cemethe distant and humble neighborhood of my tery of those sacred remains; and of transportbirth, the lessons of yonth, and of childhood, ing to Europe the bones of Washington, and when the very songs of the cradle, were the there offering them for sale as relics to the disdeeds, the glory, the praises of Washington. ciples or the fanatics of freedom in the old
Think you, sir, these teachings have ceased in world. Procuring a false, or purloining the true the land ; that these feelings are dead in our key, he entered the tomb; but, in the darkness country? What then do we hear from the of night, and under the excitement of horror gentleman from South Carolina (Mr. McDuffie) ? natural to the deed, he bore away those of Cannot we, who regard the buried remains of another, by mistake; and left the hallowed the great Father of our Country, as the earthly bones of him, whose country would now with