CHAPTER VI.
1829–1831.
THE FIRST ELECTION OF GENERAL JACKSON—BUCHANAN AGAIN ELECTED TO THE HOUSE OF REPRESENTATIVES—HE BECOMES CHAIRMAN OF THE JUDICIARY COMMITTEE—IMPEACHMENT OF JUDGE PECK—BUCHANAN DEFEATS A REPEAL OF THE 25TH SECTION OF THE JUDICIARY ACT—PROPOSED IN PENNSYLVANIA AS A CANDIDATE FOR THE VICE-PRESIDENCY—WISHES TO RETIRE FROM PUBLIC LIFE—FITNESS FOR GREAT SUCCESS AT THE BAR.
General Jackson was elected President of the United States in the autumn of 1828, by a majority of forty-eight electoral votes over Mr. John Quincy Adams, and was inaugurated March 4, 1829. Mr. Calhoun became Vice-President by a majority of forty-one electoral votes. Mr. Buchanan had entered into the popular canvass in favor of General Jackson with much zeal and activity. His efforts to secure for the General the popular vote of Pennsylvania, which were begun in the summer of 1827, were in danger of being embarrassed at that time by the General’s misconception of the purpose of Mr. Buchanan’s interview with him, which took place in 1824, while the election of a President was pending in the House of Representatives. But Mr. Buchanan conducted himself in that matter with so much discretion and forbearance that his influence with General Jackson’s Pennsylvania friends was not seriously impaired. When the canvass of 1828 came on, he was in a position to be regarded as one of the most efficient political supporters of General Jackson in the State; and indeed it was mainly through his influence that the whole of her twenty-eight electoral votes was secured for the candidate whose election he desired. Yet this commanding position did not lead him to expect office of any kind in the new administration, nor does he appear to have desired any. He was re-elected to his old seat in Congress, and was in attendance at the opening of the first session of the 21st Congress in December, 1829. He now became Chairman of the Judiciary Committee of the House, and as such had very weighty duties to perform.
One of the first of these duties, and one that he discharged with signal ability, required him to introduce and advocate a bill to amend and extend the judicial system of the United States, by including in the circuit court system the States of Louisiana, Indiana, Mississippi, Illinois, Alabama, and Missouri, which had hitherto had only district courts, and by increasing the number of judges of the Supreme Court to nine. Mr. Buchanan’s speech in explanation of this measure, delivered January 14, 1830, was as important a one as has been made upon the subject. The measure which he advocated was not adopted at that time; but his speech may be resorted to at all times for its valuable discussion of a question that has not yet lost its interest,—the question of releasing the judges of the Supreme Court entirely from the performance of circuit duties. Until I read this speech, I was not aware how wisely and comprehensively Mr. Buchanan could deal with such a question. The following passages seem to me to justify a very high estimate of his powers, as they certainly contain much wisdom:
Having thus given a hasty sketch of the history of the Judiciary of the United States, and of the jurisdiction of the circuit courts which this bill proposes to extend to the six new States of the Union, I shall now proceed to present the views of the Committee on the Judiciary in relation to this important subject. In doing this, I feel that, before I can expect the passage of the bill, I must satisfy the committee, first, that such a change or modification of the present judiciary system ought to be adopted, as will place the Western States on an equal footing with the other States of the Union; and, second, that the present bill contains the best provisions which, under all the circumstances, can be devised for accomplishing this purpose.
And first, in regard to the States of Ohio, Kentucky, and Tennessee. It may be said that the existing law has already established circuit courts in these three States, and why then should they complain? In answer to this question, I ask gentlemen to look at a map of the United States, and examine the extent of this circuit. The distance which the judge is compelled to travel, by land, for the purpose of attending the different circuit courts, is, of itself, almost sufficient, in a few years, to destroy any common constitution. From Columbus, in Ohio, he proceeds to Frankfort, in Kentucky; from Frankfort to Nashville; and from Nashville, across the Cumberland mountain, to Knoxville. When we reflect that, in addition to his attendance of the courts in each of these States, twice in the year, he is obliged annually to attend the Supreme Court in Washington, we must all admit that his labors are very severe.
This circuit is not only too extensive, but there is a great press of judicial business in each of the States of which it is composed. In addition to the ordinary sources of litigation for the circuit courts throughout the Union, particular causes have existed for its extraordinary accumulation in each of these States. It will be recollected that, under the Constitution and laws of the United States, the circuit courts may try land causes between citizens of the same State, provided they claim under grants from different States. In Tennessee, grants under that State and the State of North Carolina, for the same land, often come into conflict in the circuit court. The interfering grants of Virginia and Kentucky are a fruitful source of business for the circuit court of Kentucky. These causes, from their very nature, are difficult and important, and must occupy much time and attention. Within the Virginia military district of Ohio, there are also many disputed land titles.
Another cause has contributed much to swell the business of the circuit court of Kentucky. The want of confidence of the citizens of other States in the judicial tribunals of that State, has greatly added to the number of suits in the circuit court. Many plaintiff’s, who could, with greater expedition, have recovered their demands in the courts of the State, were compelled, by the impolitic acts of the State Legislature, to resort to the courts of the United States. Whilst these laws were enforced by the State courts, they were disregarded by those of the Union. In making these remarks, I am confident no representative from that patriotic State will mistake my meaning. I rejoice that the difficulties are now at an end, and that the people of Kentucky have discovered the ruinous policy of interposing the arm of the law to shield a debtor from the just demands of his creditor. That gallant and chivalrous people, who possess a finer soil and a finer climate than any other State of the Union, will now, I trust, improve and enjoy the bounties which nature has bestowed upon them with a lavish hand. As their experience has been severe, I trust their reformation will be complete. Still, however, many of the causes which originated in past years, are yet depending in the circuit court of that State.
In 1826, when a similar bill was before this House, we had the most authentic information that there were nine hundred and fifty causes then pending in the circuit court of Kentucky, one hundred and sixty in the circuit court for the western district, and about the same number in that for the eastern district of Tennessee, and upwards of two hundred in Ohio. Upon that occasion, a memorial was presented from the bar of Nashville, signed by G. W. Campbell as chairman, and Felix Grundy, at present a Senator of the United States, as secretary. These gentlemen are both well known to this House, and to the country. That memorial declares that “the seventh circuit, consisting of Kentucky, Ohio, and Tennessee, is too large for the duties of it to be devolved on one man; and it was absolutely impossible for the judge assigned to this circuit to fulfil the letter of the law designating his duties.”duties.” Such has been the delay of justice in the State of Tennessee, “that some of the important causes now pending in their circuit courts are older than the professional career of almost every man at the bar.”
The number of causes depending in the seventh circuit, I am informed, has been somewhat reduced since 1826; but still the evil is great, and demands a remedy. If it were possible for one man to transact the judicial business of that circuit, I should have as much confidence that it would be accomplished by the justice of the Supreme Court to which it is assigned, as by any other judge in the Union. His ability and his perseverance are well known to the nation. The labor, however, both of body and mind, is too great for any individual.
Has not the delay of justice in this circuit almost amounted to its denial? Are the States which compose it placed upon the same footing, in this respect, with other States of the Union? Have they not a right to complain? Many evils follow in the train of tardy justice. It deranges the whole business of society. It tempts the dishonest and the needy to set up unjust and fraudulent defences against the payment of just debts, knowing that the day of trial is far distant. It thus ruins the honest creditor, by depriving him of the funds which he had a right to expect at or near the appointed time of payment; and it ultimately tends to destroy all confidence between man and man.
A greater curse can scarcely be inflicted upon the people of any State, than to have their land titles unsettled. What, then, must be the condition of Tennessee, where there are many disputed land titles, when we are informed, by undoubted authority, “that some of the important causes now pending in their circuit courts are older than the professional career of almost every man at the bar.” Instead of being astonished at the complaints of the people of this circuit, I am astonished at their forbearance. A judiciary, able and willing to compel men to perform their contracts, and to decide their controversies, is one of the greatest political blessings which any people can enjoy; and it is one which the people of this country have a right to expect from their Government. The present bill proposes to accomplish this object, by creating a new circuit out of the States of Kentucky and Tennessee. This circuit will afford sufficient employment for one justice of the Supreme Court.
Without insisting further upon the propriety, nay, the necessity, of organizing the circuit courts of Ohio, Kentucky, and Tennessee, in such a manner as to enable them to transact the business of the people, I shall now proceed to consider the situation of the six new States, Louisiana, Indiana, Mississippi, Illinois, Alabama, and Missouri. Their grievances are of a different character. They do not so much complain of the delay of justice, as that Congress has so long refused to extend to them the circuit court system, as it exists in all the other States. As they successively came into the Union, they were each provided with a district court and a district judge, possessing circuit court powers. The acts which introduced them into our political family declare that they shall “be admitted into the Union on an equal footing with the original States, in all respects whatever.” I do not mean to contend that by virtue of these acts we were bound immediately to extend to them the circuit court system. Such has not been the practice of Congress, in regard to other States in a similar situation. I contend, however, that these acts do impose an obligation upon us to place them “on an equal footing with the original States,” in regard to the judiciary, as soon as their wants require it, and the circumstances of the country permit it to be done. That time has, in my opinion, arrived. Louisiana has now been nearly eighteen years a member of the Union, and is one of our most commercial States; and yet, until this day, she has been without a circuit court. It is more than thirteen years since Indiana was admitted; and even our youngest sister, Missouri, will soon have been nine years in the family. Why should not these six States be admitted to the same judicial privileges which all the others now enjoy? Even if there were no better reason, they have a right to demand it for the mere sake of uniformity. I admit this is an argument dictated by State pride; but is not that a noble feeling? Is it not a feeling which will ever characterize freemen? Have they not a right to say to us, if the circuit court system be good for you, it will be good for us? You have no right to exclusive privileges. If you are sovereign States, so are we. By the terms of our admission, we are perfectly your equals. We have long submitted to the want of this system, from deference to your judgment; but the day has now arrived when we demand it from you as our right. But there are several other good reasons why the system ought to be extended to these States. And, in the first place, the justices of the Supreme Court are selected from the very highest order of the profession. There is scarcely a lawyer in the United States who would not be proud of an elevation to that bench. A man ambitious of honest fame ought not to desire a more exalted theatre for the display of ability and usefulness. Besides, the salary annexed to this office is sufficient to command the best talents of the country. I ask you, sir, is it not a serious grievance for those States to be deprived of the services of such a man in their courts? I ask you whether it is equal justice, that whilst, in eighteen States of the Union, no man can be deprived of his life, his liberty, or his property, by the judgment of a circuit court, without the concurrence of two judges, and one of them a justice of the Supreme Court, in the remaining six the fate of the citizen is determined by the decision of a single district judge? Who are, generally speaking, these district judges? In asking this question, I mean to treat them with no disrespect. They receive but small salaries, and their sphere of action is confined to their own particular districts. There is nothing either in the salary or in the station which would induce a distinguished lawyer, unless under peculiar circumstances, to accept the appointment. And yet the judgment of this individual, in six States of the Union, is final and conclusive, in all cases of law, of equity, and of admiralty and maritime jurisdiction, wherein the amount of the controversy does not exceed two thousand dollars. Nay, the grievance is incomparably greater. His opinion in all criminal cases, no matter how aggravated may be their nature, is final and conclusive. A citizen of these States may be deprived of his life, or of his character, which ought to be dearer than life, by the sentence of a district judge; against which there is no redress, and from which there can be no appeal.
There is another point of view in which the inequality and injustice of the present system, in the new States, is very striking. In order to produce a final decision, both the judges of a circuit court must concur. If they be divided in opinion, the point of difference is certified to the Supreme Court, for their decision; and this, whether the amount in controversy be great or small. The same rule applies to criminal cases. In such a court, no man can be deprived of life, of liberty, or of property, by a criminal prosecution, without the clear opinion of the two judges that his conviction is sanctioned by the laws of the land. If the question be doubtful or important, or if it be one of the first impression, the judges, even when they do not really differ, often agree to divide, pro forma, so that the point may be solemnly argued and decided in the Supreme Court. Thus, the citizen of every State in which a circuit court exists, has a shield of protection cast over him, of which he cannot be deprived, without the deliberate opinion of two judges; whilst the district judge of the six new Western States must alone finally decide every criminal question, and every civil controversy in which the amount in dispute does not exceed two thousand dollars.
In the eastern district of Louisiana, the causes of admiralty and maritime jurisdiction decided by the district court must be numerous and important. If a circuit court were established for that State, a party who considered himself aggrieved might appeal to it from the district court in every case in which the amount in controversy exceeded fifty dollars. At present there is no appeal, unless the value of the controversy exceeds two thousand dollars; and then it must be made directly to the Supreme Court, a tribunal so far remote from the city of New Orleans, as to deter suitors from availing themselves of this privilege.
I shall not further exhaust the patience of the committee on this branch of the subject. I flatter myself that I have demonstrated the necessity for such an alteration of the existing laws as will confer upon the people of Ohio, Kentucky, and Tennessee, and of the six new Western States, the same benefits from the judiciary, as those which the people of the other States now enjoy.
The great question, then, which remains for discussion is, does the present bill present the best plan for accomplishing this purpose, which, under all circumstances, can be devised? It is incumbent upon me to sustain the affirmative of this proposition. There have been but two plans proposed to the Committee on the Judiciary, and but two can be proposed, with the least hope of success. The one an extension of the present system, which the bill now before the committee contemplates, and the other a resort to the system which was adopted in the days of the elder Adams, of detaching the justices of the Supreme Court from the performance of circuit duties, and appointing circuit judges to take their places. After much reflection upon this subject I do not think that the two systems can be compared, without producing a conviction in favor of that which has long been established. The system of detaching the judges of the Supreme Court from the circuits has been already tried, and it has already met the decided hostility of the people of this country. No act passed during the stormy and turbulent administration of the elder Adams, which excited more general indignation among the people. The courts which it established were then, and have been ever since, branded with the name of the “midnight judiciary.” I am far from being one of those who believe the people to be infallible. They are often deceived by the arts of demagogues; but this deception endures only for a season. They are always honest, and possess much sagacity. If, therefore, they get wrong, it is almost certain they will speedily return to correct opinions. They have long since done justice to other acts of that administration, which at the time they condemned; but the feeling against the judiciary established under it remains the same. Indeed, many now condemn that system, who were formerly its advocates. In 1826, when a bill, similar in its provisions to the bill now before the committee, was under discussion in this House, a motion was made by a gentleman from Virginia [Mr. Mercer] to recommit it to the Committee on the Judiciary, with an instruction so to amend it, as to discharge the judges of the Supreme Court from attendance on the circuit courts, and to provide a uniform system for the administration of justice in the inferior courts of the United States. Although this motion was sustained with zeal and eloquence and ability by the mover, and by several other gentlemen, yet, when it came to the vote, it was placed in a lean minority, and, I believe, was negatived without a division. It is morally certain that such a bill could not now be carried. It would, therefore, have been vain and idle in the Committee on the Judiciary to have reported such a bill. If the Western States should be doomed to wait for a redress of their grievances, until public opinion shall change upon this subject, it will, probably, be a long time before they will obtain relief.
But, Sir, there are most powerful reasons for believing that public opinion upon this subject is correct. What would be the natural consequences of detaching the judges of the Supreme Court from circuit duties? It would bring them and their families from the circuits in which they now reside; and this city would become their permanent residence. They would naturally come here; because here, and nowhere else, would they then have official business to transact. What would be the probable effect of such a change of residence? The tendency of everything within the ten miles square is towards the Executive of the Union. He is here the centre of attraction. No matter what political revolutions may take place, no matter who may be up or who may be down, the proposition is equally true. Human nature is not changed under a Republican Government. We find that citizens of a republic are worshippers of power, as well as the subjects of a monarchy. Would you think it wise to bring the justices of the Supreme Court from their residence in the States, where they breathe the pure air of the country, and assemble them here within the very vortex of Executive influence? Instead of being independent judges, scattered over the surface of the Union, their feelings identified with the States of which they are citizens, is there no danger that, in the lapse of time, you would convert them into minions of the Executive? I am far, very far, from supposing that any man, who either is or who will be a justice of the Supreme Court, could be actually corrupted; but if you place them in a situation where they or their relatives would naturally become candidates for Executive patronage, you place them, in some degree, under the control of Executive influence. If there should now exist any just cause for the complaints against the Supreme Court, that in their decisions they are partial to Federal rather than to State authority (and I do not say that there is), that which at present may be but an imaginary fear might soon become a substantial reality. I would place them beyond the reach of temptation. I would suffer them to remain, as they are at present, citizens of their respective States, visiting this city annually to discharge their high duties, as members of the Supreme Court. This single view of the subject, if there were no other, ought, in my judgment, to be conclusive.
Let us now suppose, for the sake of the argument, that the withdrawal of the justices of the Supreme Court from their circuit duties, and their residence in this city, would produce no such effects, as I apprehend, upon the judges themselves; what would be the probable effect upon public opinion? It has been said, and wisely said, that the first object of every judicial tribunal ought to be to do justice; the second, to satisfy the people that justice has been done. It is of the utmost importance in this country that the judges of the Supreme Court should possess the confidence of the public. This they now do in an eminent degree. How have they acquired it? By travelling over their circuits, and personally showing themselves to the people of the country, in the able and honest discharge of their high duties, and by their extensive intercourse with the members of the profession on the circuits in each State, who, after all, are the best judges of judicial merit, and whose opinions upon this subject have a powerful influence upon the community. Elevated above the storms of faction and of party which have sometimes lowered over us, like the sun, they have pursued their steady course, unawed by threats, unseduced by flattery. They have thus acquired that public confidence which never fails to follow the performance of great and good actions, when brought home to the personal observation of the people.
Would they continue to enjoy this extensive public confidence, should they no longer be seen by the people of the States, in the discharge of their high and important duties, but be confined, in the exercise of them, to the gloomy and vaulted apartment which they now occupy in this Capitol? Would they not be considered as a distant and dangerous tribunal? Would the people, when excited by strong feeling, patiently submit to have the most solemn acts of their State Legislatures swept from the statute-book, by the decision of judges whom they never saw, and whom they had been taught to consider with jealousy and suspicion? At present, even in those States where their decisions have been most violently opposed, the highest respect has been felt for the judges by whom they were pronounced, because the people have had an opportunity of personally knowing that they were both great and good men. Look at the illustrious individual who is now the Chief Justice of the United States. His decisions upon constitutional questions have ever been hostile to the opinions of a vast majority of the people of his own State; and yet with what respect and veneration has he been viewed by Virginia? Is there a Virginian, whose heart does not beat with honest pride when the just fame of the Chief Justice is the subject of conversation? They consider him, as he truly is, one of the greatest and best men which this country has ever produced. Think ye that such would have been the case, had he been confined to the city of Washington, and never known to the people, except in pronouncing judgments in this Capitol, annulling their State laws, and calculated to humble their State pride? Whilst I continue to be a member of this House, I shall never incur the odium of giving a vote for any change in the judiciary system the effect of which would, in my opinion, diminish the respect in which the Supreme Court is now held by the people of this country.
The judges whom you would appoint to perform the circuit duties, if able and honest men, would soon take the place which the judges of the Supreme Court now occupy in the affections of the people; and the reversal of their judgments, when they happened to be in accordance with strong public feeling, would naturally increase the mass of discontent against the Supreme Court.
There are other reasons, equally powerful, against the withdrawal of the judges from the circuits. What effect would such a measure probably produce upon the ability of the judges themselves to perform their duties? Would it not be very unfortunate?
No judges upon earth ever had such various and important duties to perform, as the justices of the Supreme Court. In England, whence we have derived our laws, they have distinct courts of equity, courts of common law, courts of admiralty, and courts in which the civil law is administered. In each of these courts, they have distinct judges; and perfection in any of these branches is certain to be rewarded by the honors of that country. The judges of our Supreme Court, both on their circuits and in banc, are called upon to adjudicate on all these codes. But this is not all. Our Union consists of twenty-four sovereign States, in all of which there are different laws and peculiar customs. The common and equity law have thus been changed and inflected into a hundred different shapes, and adapted to the various wants and opinions of the different members of our confederacy. The judicial act of 1789 declares “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide,” shall be regarded as rules of decision in the courts of the United States. The justices of the Supreme Court ought, therefore, to be acquainted with the ever-varying codes of the different States.
There is still another branch of their jurisdiction, of a grand and imposing character, which places them far above the celebrated Amphictyonic council. The Constitution of the United States has made them the arbiters between conflicting sovereigns. They decide whether the sovereign power of the States has been exercised in conformity with the Constitution and laws of the United States; and, if this has not been done, they declare the laws of the State Legislatures to be void. Their decisions thus control the exercise of sovereign power. No tribunal ever existed, possessing the same, or even similar authority. Now, Sir, suppose you bring these judges to Washington, and employ them in banc but six weeks or two months in the year, is it not certain that they will gradually become less and less fit to decide upon these different codes, and that they will at length nearly lose all recollection of the peculiar local laws of the different States? Every judicial duty which each of them would then be required to perform, would be to prepare and deliver a few opinions annually in banc.
The judgment, like every other faculty of the mind, requires exercise to preserve its vigor. That judge who decides the most causes, is likely to decide them the best. He who is in the daily habit of applying general principles to the decision of cases, as they arise upon the circuits, is at the same time qualifying himself in the best manner for the duties of his station on the bench of the Supreme Court.
Is it probable that the long literary leisure of the judges in this city, during ten months of the year, would be devoted to searching the two hundred volumes of jarring decisions of State courts, or in studying the acts of twenty-four State Legislatures? The man must have a singular taste and a firm resolution who, in his closet, could travel over this barren waste. And even if he should, what would be the consequence? The truth is, such knowledge cannot be obtained; and after it has been acquired, it cannot be preserved, except by constant practice. There are subjects which, when the memory has once grasped, it retains forever. It has no such attachment for acts of Assembly, acts of Congress, and reports of adjudged cases, fixing their construction. This species of knowledge, under the present system, will always be possessed by the judges of the Supreme Court; because, in the performance of their circuit duties, they are placed in a situation in which it is daily expounded to them, and in which they are daily compelled to decide questions arising upon it. Change this system, make them exclusively judges of an appellate court, and you render it highly probable that their knowledge of the general principles of the laws of their country will become more and more faint, and that they will finally almost lose the recollection of the peculiar local systems of the different States. “Practice makes perfect,” is a maxim applicable to every pursuit in life. It applies with peculiar force to that of a judge. I think I might appeal for the truth of this position to the long experience of the distinguished gentleman from New York, now by my side (Mr. Spencer). A man, by study, may become a profound lawyer in theory, but nothing except practice can make him an able judge. I call upon every member of the profession in this House to say whether he does not feel himself to be a better lawyer at the end of a long term, than at the beginning. It is the circuit employment, imposed upon the judges of England and the United States, which has rendered them what they are. In my opinion, both the usefulness and the character of the Supreme Court depend much upon its continuance.
I now approach what I know will be urged as the greatest objection to the passage of this bill—that it will extend the number of the judges of the Supreme Court to nine. If the necessities of the country required that their number should be increased to ten, I would feel no objection to such a measure. The time has not yet arrived, however, when, in my opinion, such a necessity exists. Gentlemen, in considering this subject, ought to take those extended views which belong to statesmen. When we reflect upon the vast extent of our country, and the various systems of law under which the people of the different States are governed, I cannot conceive that nine or even ten judges are too great a number to compose our appellate tribunal. That number would afford a judicial representation upon the bench of each large portion of the Union. Not, Sir, a representation of sectional feelings or of the party excitements of the day, but of that peculiar species of legal knowledge necessary to adjudicate wisely upon the laws of the different States. For example, I ask what judge now upon the bench possesses, or can possess, a practical knowledge of the laws of Louisiana? Their system is so peculiar, that it is almost impossible for a man to decide correctly upon all cases arising under it, who has never been practically acquainted with the practice of their courts. Increase the number of judges to nine, and you will then have them scattered throughout all the various portions of the Union. The streams of legal knowledge peculiar to the different States will then flow to the bench of the Supreme Court as to a great reservoir, from whence they will be distributed throughout the Union. There will then always be sufficient local information upon the bench, if I may use the expression, to detect all the ingenious fallacies of the bar, and to enable them to decide correctly upon local questions. I admit, if the judges were confined to appellate duties alone, nine or ten would probably be too great a number. Then there might be danger that some of them would become mere nonentities, contenting themselves simply with voting aye or no in the majority or minority. There would then also be danger that the Executive might select inefficient men for this high station, who were his personal favorites, expecting their incapacity to be shielded from public observation by the splendid talents of some of the other judges upon the bench. Under the present system we have no such danger to apprehend. Each judge must now feel his own personal responsibility. He is obliged to preside in the courts throughout his circuit, and to bring home the law and the justice of his country to his fellow-citizens in each of the districts of which it is composed. Much is expected from a judge placed in his exalted station; and he must attain to the high standard of public opinion by which he is judged, or incur the reproach of holding an office to which he is not entitled. No man in any station in this country can place himself above public opinion.
Upon the subject of judicial appointments, public opinion has always been correct. No factious demagogue, no man, merely because he has sung hosannas to the powers that be, can arrive at the bench of the Supreme Court. The Executive himself will always be constrained by the force of public sentiment, whilst the present system continues, to select judges for that court from the ablest and best men of the circuit; and such has been the course which he has hitherto almost invariably pursued. Were he to pursue any other, he would inevitably incur popular odium. Under the existing system, there can be no danger in increasing the number of the judges to nine. But take them from their circuits, destroy their feeling of personal responsibility by removing them from the independent courts over which they now preside, and make them merely an appellate tribunal, and I admit there would be danger, not only of improper appointments, but that a portion of them, in the lapse of time, might become incompetent to discharge the duties of their station.
But, Sir, have we no examples of appellate courts consisting of a greater number than either nine or ten judges, which have been approved by experience? The Senate of the State of New York has always been their court of appeals; and, notwithstanding they changed their constitution a few years ago, so much were the people attached to this court, that it remains unchanged. In England, the twelve judges, in fact, compose the court of appeals. Whenever the House of Lords sits in a judicial character, they are summoned to attend, and their opinions are decisive of almost every question. I do not pretend to speak accurately, but I doubt whether the House of Lords have decided two cases, in opposition to the opinion of the judges, for the last fifty years. In England there is also the court of exchequer chamber, consisting of the twelve judges, and sometimes of the lord chancellor also, into which such causes may be adjourned from the three superior courts, as the judges find to be difficult of decision, before any judgment is given upon them in the court in which they originated. The court of exchequer chamber is also a court of appeals, in the strictest sense of the word, in many cases which I shall not take time to enumerate.
I cannot avoid believing that the prejudice which exists in the minds of some gentlemen, against increasing the number of the judges of the Supreme Court to nine, arises from the circumstance that the appellate courts of the different States generally consist of a fewer number. But is there not a striking difference between the cases? It does not follow that because four or five may be a sufficient number in a single State where one uniform system of laws prevails, nine or ten would be too many on the bench of the Supreme Court, which administers the laws of twenty-four States, and decides questions arising under all the codes in use in the civilized world. Indeed, if four or five judges be not too many for the court of appeals in a State, it is a strong argument that nine or ten are not too great a number for the court of appeals of the Union. Upon the whole, I ask, would it be wise in this committee, disregarding the voice of experience, to destroy a system which has worked well in practice for forty years, and resort to a dangerous and untried experiment, merely from a vague apprehension that nine judges will destroy the usefulness and character of that court, which has been raised by seven to its present exalted elevation.
It will, no doubt, be objected to this bill, as it has been upon a former occasion, that the present system cannot be permanent, and that, ere long, the judges of the Supreme Courts must, from necessity, be withdrawn from their circuits. To this objection there is a conclusive answer. We know that the system is now sufficient for the wants of the country, and let posterity provide for themselves. Let us not establish courts which are unnecessary in the present day, because we believe that hereafter they may be required to do the business of the country.
But, if it were necessary, I believe it might be demonstrated that ten justices of the Supreme Court will be sufficient to do all the judicial business of the country which is required of them under the present system, until the youngest member of this House shall be sleeping with his fathers. Six judges have done all the business of the States east of the Alleghany mountains, from the adoption of the Federal Constitution up till this day; and still their duties are not laborious. If it should be deemed proper by Congress, these fifteen Eastern States might be arranged into five circuits instead of six, upon the occurrence of the next vacancy in any of them, without the least inconvenience either to the judges or to the people; and thus it would be rendered unnecessary to increase the bench of the Supreme Court beyond nine, even after the admission of Michigan and Arkansas into the Union. The business of the Federal courts, except in a few States, will probably increase but little for a long time to come. One branch of it must, before many years, be entirely lopped away. I allude to the controversies between citizens of the same State claiming lands under grants from different States. This will greatly diminish their business both in Tennessee and Kentucky. Besides, the State tribunals will generally be preferred by aliens and by citizens of other States for the mere recovery of debts, on account of their superior expedition.
I should here close my remarks, if it were not necessary to direct the attention of the committee for a few minutes to the details of the bill. And here permit me to express my regret that my friend from Kentucky (Mr. Wickliffe) has thought proper to propose an amendment to add three, instead of two, judges to the Supreme Court. Had a majority of the Committee on the Judiciary believed ten judges, instead of nine, to be necessary, I should have yielded my opinion, as I did upon a former occasion, and given the bill my support in the House. This I should have done to prevent division among its friends, believing it to be a mere question of time: for ten will become necessary in a few years, unless the number of the Eastern circuits should be reduced to five.
Another important matter which devolved upon Mr. Buchanan as Chairman of the Judiciary Committee, related to the impeachment of Judge James H. Peck, the United States district judge for the district of Missouri. The facts of this singular case were briefly these: Judge Peck had decided a land-cause against certain parties who were represented in his court by an attorney and counsellor named Lawless. Lawless published in a St. Louis newspaper some comments on the Judge’s opinion, by no means intemperate in their character. The Judge thereupon attached Lawless for a contempt, caused him to be imprisoned twenty-four hours in the common jail, and suspended him from practice for a period of eighteen months. Upon these facts, when brought before the House of Representatives by Lawless’ memorial, there could be but one action. The Judiciary Committee voted an impeachment of the Judge, and Mr. Buchanan reported their recommendation on the 23d of March, 1830. He said that the committee deemed it most fair towards the accused not to report at length their reasons for arriving at the conclusion that the Judge ought to be impeached, but that they thought it advisable to follow the precedent which had been established in the case of the impeachment of Judge Chase. A desultory discussion followed upon a motion to print the report and the documents, and upon an amendment to include the address which it seems that the Judge had been allowed to make to the committee. But before any vote was taken, the Speaker, on the 5th of April, presented a memorial from Judge Peck, praying the House to allow him to present a written exposition of the facts and law of the case, and to call witnesses to substantiate it, or else to vote the impeachment at once on “the partial evidence” which the committee had heard. In the course of these proceedings the House, if it had not been better guided, might have established an unfortunate precedent. While the resolution reported by the Judiciary Committee for the impeachment of the Judge was pending in Committee of the Whole, Mr. Everett moved a counter-resolution that there was not sufficient evidence of evil intent to authorize the House to impeach Judge Peck of high misdemeanors in office. This, in effect, would have converted the grand inquest into a tribunal for the determination of the whole question of guilt or innocence, upon allegations and proofs on the one side and the other. It was opposed by Mr. Storrs, Mr. Ellsworth, Mr. Wickliffe and others, and was negatived. The resolution reported by Mr. Buchanan for the impeachment of the Judge was then adopted by the Committee of the Whole, and reported to the House, after which Mr. Buchanan demanded the yeas and nays, which resulted in a vote of 123 for the impeachment and 49 against it. An article of impeachment was prepared by Mr. Buchanan, and was by order of the House presented to the Senate. The managers appointed to conduct the impeachment on the part of the House were Mr. Buchanan, Henry R. Storrs of New York, George McDuffie of South Carolina, Ambrose Spencer of New York, and Charles Wickliffe of Kentucky.
The Senate was organized as a court of impeachment on the 25th of May, 1830; but the trial was postponed to the second Monday of the next session of Congress. It began on that day, December 20, 1830. It was Mr. Buchanan’s duty to close the case on behalf of the managers, in reply to Mr. Wirt and Mr. Meredith of Baltimore, the counsel for Judge Peck. Of Mr. Buchanan’s speech, I have found no adequate report. It was delivered on the 28th of January, 1831. Contemporary notices of it show that it was an argument of marked ability. His positions as given in the Annals of Congress were in substance the following:
He declared that the usurpation of an authority not legally possessed by a judge, or the manifest abuse of a power really given, was a misbehavior in the sense of the Constitution for which he should be dismissed from office. He contended that the conduct of Judge Peck, in the case of Mr. Lawless, was in express violation of the Constitution and the laws of the land; that the circumstances of that case were amply sufficient to show a criminal intention on his part in the summary punishment of Mr. Lawless; that in order to prove the criminality of his intention it was not necessary to demonstrate an actually malicious intention, or a lurking revenge; that the infliction upon Mr. Lawless of a summary and cruel punishment, for having written an article decorous in its language, was itself sufficient to prove the badness of the motive; that the consequences of the Judge’s actions were indicative of his intentions; that our courts had no right to punish, as for contempts, in a summary mode, libels, even in pending causes; and that if he succeeded, as he believed he should, in establishing these positions, he should consider that he had a right to demand the judgment of the court against the respondent.
He took the further position that the publication of Mr. Lawless, under the signature of “A Citizen,” could not, in a trial upon an indictment for libel, be established to be libellous, according to the Constitution and laws of the land; that the paper was, on its face, perfectly harmless in itself; and that, so far as it went, it was not an unfair representation of the opinion of Judge Peck. The honorable manager critically and legally analyzed the nine last specifications in the publication, to establish these points. He then proceeded to sum up and descant upon the testimony produced in the case before the court of impeachment, in order to show the arbitrary and cruel conduct of Judge Peck; and in a peroration, marked by its ardent eloquence, he declared that if this man escaped, the declaration of a distinguished politician of this country, that the power of impeachment was but the scarecrow of the Constitution, would be fully verified; that when this trial commenced, he recoiled with horror from the idea of limiting, and rendering precarious and dependent, the tenure of the judicial office, but that the acquittal of the respondent would reconcile him to that evil, as one less than a hopeless and remediless submission to judicial usurpation and tyranny, at least so far as respected the inferior courts.
God forbid that the limitation should ever be extended to the Supreme Court. Mercy to the respondent would be cruelty to the American people.
Judge Peck was acquitted by a vote of 21 for the impeachment and 22 against it, the constitutional vote of two-thirds requisite for conviction not being obtained. It is quite apparent that no party feeling entered into the case.