Page images

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 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 à 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 at 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 anexpectedly, 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 Court of Appeals, composed of six or seven judges in the respective circuits, one of the justices of the Supreme Court presiding, there would be a much less number of appeals taken to the Supreme Court of the United States than there is under the present system. Under the existing system, an appeal from a District Court to a Circuit Court of the United States is a mere mockery. I do not speak offensively; but I say, in its practical effect it is a mockery, and for this reason: a case is first tried before the district judge, and then an appeal is taken to the Circuit Court. The Circuit Court is composed of that same district judge and one judge of the Supreme Court of the United States. If, when the case comes up for hearing before the Circuit Court, the district judge is of the same opinion that he was before, as he probably would be, and the circuit judge differs from him, there would then be no decision, and the case would be certified to the Supreme Court of the United States to decide between them. If, on the contrary, the circuit judge should agree with the judge below, then there would be a decision, but the appeal would have been useless, for it merely led to the affirmation of the opinion below. The consequence is, that whenever there is a difference of opinion between the circuit judge and the district judge, the case is certified to the Supreme Court, and thus you multiply the causes on the docket of the Supreme Court without having accomplished any benefit by the appeal through the intermediate court. But, according to my plan, instead of appealing from the judge below to himself and one other, you appeal to himself and probably six others, and one of those six a judge of the Supreme Court of the United States. If they should reverse a decision unanimously, the chances are that the matter would stop there. If they should be nearly equally divided on a question involving a new or intricate principle of law, or a vast amount of property, the case would probably be appealed. I think, then, that in the practical operation of this system, there would be very few appeals to the Supreme Court of the United States in comparison to the number there is now. Again, sir, the system I have submitted will diminish the duties of the judges of the Supreme Court in another respect. Judge M‘Lean, for example, is the judge assigned to the Northwestern Circuit, in which I reside. He is expected to attend to his duties in the Supreme Court here at Washington, and also to preside twice a year in the Circuit Court in Ohio; twice in Indiana; four times in Illinois, there being two districts there, and twice in Michigan. There are, then, ten terms which he is expected to hold in the courts below in one year, besides attending to his duties in the Supreme Court. I propose, instead of his holding ten terms of the Circuit Courts in each year, he shall attend but one term of the Court of Appeals of a particular circuit. It strikes me that this would materially diminish his duties. If the term of the Court of Appeals should last for three months-and certainly it could hardly be expected to take up that much time-he would still have nine months for attendance on the Supreme Court here. My substitute requires the Court of Appeals to be held in the nine circuits on the same day-say the first Monday in June or the first Monday in May. That being the case, the judges of the Supreme Court would arrange their terms as to allow them to disperse to their respective circuits at the same time, finish their circuits, and get back here at the same time. I take it for granted, therefore, that, instead of being limited, as they now are, to two or three months every year for their duties here, the judges of the Supreme Court, under my plan, would have at least nine months to be at Washington, after performing all their duties in the different circuits. In this way, by giving them eight, or nine, or ten months to be here, instead of three or four months, for their duties in the Supreme Court, and by diminishing the amount of their circuit labors in the mode I have mentioned, they would be enabled to perform all their duties, and have probably one half the year to themselves.

[ocr errors]

The bill was debated several days; but there was such a diversity of opinion in the Senate as to the principle of the orig. inal bill—to exempt the judges of the Supreme Court from circuit duty—that the friends of the bill abandoned it. Before it was disposed of, however, a vote was taken on Mr. Douglas's amendment, and it was rejected-yeas 19, nays 26. Those voting for it were Atchison, Benjamin, Bright, Cass, Clay, Clayton, Dodge of Wisconsin, Dodge of Iowa, Douglas, Fessenden, Foot, Geyer, Gwin, Jones of Iowa, Sebastian, Shields, Stuart, Thomson of New Jersey, and Wade. The subject has never been acted upon definitely since then.

Perhaps no public man in the Union has labored more earnestly and indefatigably in the Senate, in his written papers, and in his addresses before the people, than Mr. Douglas, to sustain and defend the supreme judicial authority of the federal judiciary. He has had to meet and encounter the misrepresentations of the Dred Scott decision, and has had to labor hard, yet willingly and successfully, to defend that decision to its fullest extent before the people of the Northwest. One of the charges made against him in 1858 was that he had conspired with Judge Taney in having that decision made. While he defended the venerable chief justice from the accusation of conspiracy, Mr. Douglas endorsed and approved that decision without equivocation or reservation. Throughout all his speeches will be found a broad emphatic approval of that decision, and of a purpose on all occasions to submit to and abide by whatever decision that court may make upon questions of construction of the Constitution.

In a speech delivered at Springfield June 12, 1857, Mr. Douglas thus referred to the Supreme Court and the Dred Scott decision:

“That we are steadily and rapidly approaching that result I can not doubt, for the slavery issue has already dwindled down into the narrow limits covered by the decision of the Supreme Court of the United States in the Dred Scott case.

The moment that decision was pronounced, and before the opinions of the court could be published and read by the people, the newspaper press, in the interest of a powerful political party in this country, began to pour forth torrents of abuse and misrepresentations not only upon the decision, but upon the character and motives of the venerable chief justice and his illustrious associates on the bench. The character of Chief Justice Taney, and his associate judges who concurred with him, require no eulogy-no vindication from me. They are endeared to the people of the United States by their eminent public services-venerated for their great learning, wisdom, and experience--and beloved for the spotless purity of their characters and their exemplary lives. The poisonous shafts of partisan malice will fall harmless at their feet, while their judicial decisions will stand in all future time, a proud monument to their greatness, the admiration of the good and wise, and a rebuke to the partisans of faction and lawless violence. If, unfortunately, any considerable portion of the people of the United States shall so far forget their obligations to society as to allow partisan leaders to array them in violent resistance to the final decision of the highest judicial tribunal on earth, it will become the duty of all the friends of order and constitutional government, without reference to past political differences, to organize themselves and marshal their forces under the glorious banner of the Union, in vindication of the Constitution and the supremacy of the laws over the advocates of faction and the champions of violence. To preserve the Constitution inviolate, and vindicate the supremacy of the laws, is the first and highest duty of every citizen of a free republic. The peculiar merit of our form of government over all others consists in the fact that the law, instead of the arbitrary will of a hereditary prince, prescribes, defines, and protects all our rights. In this country the law is the will of the people, embodied and expressed according to the forms of the Constitution. The courts are the tribunals prescribed by the Constitution, and created by the authority of the people, to determine, expound, and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal aims a deadly blow at our whole republican system of government-a blow which, if successful, would place all our rights and liberties at the mercy of passion, anarchy, and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States—in a matter, like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitutionshall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitutionthe friends and the enemies of the supremacy of the laws.".



UNDER the operation of the Kansas-Nebraska Act, the governments provided for the two Territories were in due time erected. That established in Nebraska was put in operation, and has been conducted ever since with as little trouble, as little excitement, as little distraction at home or throughout the Union as would be expected from the organization of a new county in Virginia or Illinois. Not so with Kansas. From the first day of its establishment down to the present Kansas has been the theatre of fearful strife, involving bloodshed upon her plains, the formation of treasonable operations there and in other places, and to some extent, at times, the substitution of irresponsible anarchy for legal and constitutional government.

The entire history of Kansas difficulties formed a leading

« PreviousContinue »