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Law: for the oldest of them is not forty, and the youngest not five years of age; and no usage can have grown up among them into the strength and vigor of Common Law, in any time less than that, “whereof the memory of man runneth not to the contrary.” Can a judge, sir, not learn these by reading and study ? Can he thus make himself master of all the almost infinite variety and extent of all other laws? and must he depend for a knowledge of these few items of State law, on the testimony of local judges? Tell it not, sir, in hearing of those nations who, by their ambassadors, are near our government in this city of Washington. Tell it not in hearing of that gifted citizen, who, first in honorable field, lifted targe and lance against the learned chivalry of Europe, and in defence of the talent and science of our own country. Leave us not, sir, leave us not to the literary tomahawk and scalpingknife of the Giffords and Buffons of the old world. Judges, we are told, sir, are to learn by travel. Whither, how, and addressing themselves to whom 7 Not to visit law schools, or colleges of civilians; not as the Solons or Platos of antiquity travelled, to consult the Initiati of Sais, the Sanhedrim of Palestine, or the disciples of the Persian Zoroaster. They must, however, have the benefit of travel; and, if so, in the common method in coaches, wagons, solos, gigs, carryalls; in steamboats, packet-boats, and ferryboats; receiving the full benefit in eating-houses, taverns, boarding-houses and bar-rooms, of the conversation of learned tapsters, stewards, and stage-coach drivers. No man, I must own, who travels in the ordinary method—and judges can hardly afford to travel in different style—will lose any portion of these several sorts of accommodation and instruction. Judges will, in serious truth it is said, by travel, mingle with the people, and often come in contact with them. Will they mingle with the poor, the ordinary 7 With mechanical men; with middling interest men; with the great community of toil, and sinew, and production ? No, sir, they can do no such thing. Let them have the humility of Lazarus, and the versatile affability of Alcibiades, and they can do no such thing. There is to such men, as it was once said of a learned judge—than whom no man ever bore his honors more meekly—there is, I say, to the feelings of such men, around a judge, a kind of repulsive atmosphere. They stand aloof, and give him large room. They bow, not, indeed, with servility, but with profound respect; and look towards him with a kind of hallowed reverence, as one set apart, and consecrated to the service, and surrounded by the ritual of justice. With all these men, the judge can old no tangible communion. The assurance of wealth, the confidence of rank, office, power, will press through this medium, and come hand to hand with him. Do the gentlemen, sir, mean to saw that, for such purposes, judges should with the people?
Sir, judges of the circuits, as we are told, are to communicate to the Supreme Court their various local knowledge. How * Yes, sir, how ! By books or by parol? The facts, in the appealed causes, are placed on the record; the law on which they have been decided is like the ballad of the ancient bard, committed to memory; and is to be said or sung in open court. In this manner, each of the ten judges of the Supreme Court is to learn all his knowledge of the “leges loci,” governing appealed causes. He may possibly know, and indeed by the reasonings on this bill, he is supposed to know one-tenth parts of his legal alphabet of twenty-four States; that is to say, two letters and four-tenth parts of a letter. This may comprehend all the great doctrine of locatives and entries, as the same was learnedly expounded to us, early in this "ebate. The court, sir, who try the appealed cause, must, according to the arguments of the friends of the bill, learn the facts, the law, and the decision, from the judge who tried the cause in the court below ; and who, in sustaining his own decision is interested by the pride of opinion, the pride of character, and the avarice of fame; and who, if he do not produce the books from which he drew his law, ought to place over his oral tradition of it, the Scotch bard's apology—
“I cannot say how the truth may be;
Will this mode of procedure, sir, secure to appellants the benefit of a second trial 7 Of the facts, there can be, there needs no second trial; they are ascertained and placed on the record. They are to measure the facts by the law, and observe if that measure result in the former decision. Who places this measure in their hand : The judge who measured the article and placed the amount on the record. If the judge honestly give the law, as he understood, and still understands it to be, the Supreme Court must understand it as he understood it, and the cause must be decided as he decided it. You weigh the same article at the same scale beam, with the same weights. Its weight must be the same. The beam may be out of balance; the weights too light or too heavy. These men, “measuring themselves are not wise.” If you measure the same thing by the same thing ten thousand times, you cannot detect a single error. Would you, sir, avoid this repetition of error? Give your Supreme Court a check on the circuit judge. What shall it be? A knowledge of the laws. If therefore, sir, your Supreme judges are qualified for Supreme judges, and all the nation know that they are, there exists no inequality in their knowledge of local law; but if that inequality do exist, the provisions of this bill cannot remove it.
Sir, this bill proposes to add three judges to the Supreme Judicial Court, and to make the number ten. This, if a remedy for the evils at the west, is none for those at the very vitals of the judiciary—the accumulated mass of causes which have laid in the Supreme Court till, like an ossification in the heart of the animal body, they paralyze pulsation, and obstruct the wholesome circulation of o the very extremities of the body politic. The bill proposes for this evil no other remedy than three additional judges. Can ten men do more o labor than seven can perform 2 Moral, like mechanic or mathematical truth, is discovered by induction—a kind of process at which but one mind can labor. We do not learn that either Archimedes, or Euclid, or Sir William Jones, was joined with any co-thinker adminicular to either of them, in his sublime speculations or discoveries. In money there may be copartnership; there can be none in mind. Here each one, unless a plagiarist, must trade on his own capital. Make your judges, sir, if you please, seventy-two, and, like Ptolemy, you will call on each one for a complete version. These gentlemen will tell us that, although this bill gives no relief to the Supreme Court, yet there is on the stick a little bill, No. 15, giving a perfect remedy. Yes, sir, sheets of legislation for the western States; ten lines only for the whole nation. It adds a month to the term of the Supreme Court; a month did I say? No, not so much; “not a little month;” three weeks, eighteen working days. One long maritime cause from the east, or one broad land cause from the west, will consume two days; and thus, the next year, nine more causes will be tried than will have been this year; and so the number, standing over on the docket, will truly be one hundred and seventy-one, and not one hundred and eighty. This bill proposes to increase the Supreme Court, originally six but now seven, by adding three new judges, and making the whole number ten. Can this, sir, be constitutionally done? All supreme judicial power is now lodged in the Supreme Court. What judicial power have you, then, sir, to confer on your three new judges? Circuit court power you certainly have, for all inferior courts are within your control; but all the supreme judicial power is already vested, and no part of it can be taken away. The Supreme Court is a whole, in all its parts, its properties, its extension, its relations. Have you the power to alter it? How, then, can you add to it? Or is it that wonderful entity which addition to it does not increase, or which, multiplied any number of times by itself, would continue to be the same * We shall all acknowledge, sir, that Congress cannot require, by law, the President to select a judge of the Supreme Court from any particular district or part of the United States; but Congress can create a court inferior to the Supreme Court, and among the legal qualifications of the judge, insert an inhabitancy or residence within his territorial jurisdiction. This may be the circuit court. f, sir, you then annex the office of such a circuit judge to that of a judge of the Supreme Court, you require, by law, the President to select a judge of the Supreme Court, from a limited
and designated district of the United States; that is to say, from the territorial jurisdiction of such circuit judge. The constitutional power of the Supreme Court is vested in the majority of that court; whatever shall change this relative proportion to the whole number of the number creating that majority, must change the vested power of that court, and must, for that reason, be unconstitutional; but four, the majority of six, is two-thirds of that court; whereas six, the majority of ten, is less than two-thirds of that court. Making the number of judges ten, is, therefore, altering the power of the court, vested in two-thirds thereof, and giving it to a lesser proportionate number. It may, sir, be set down as a political axiom, that, when you shall have added so many judges to the original number o, the Supreme Court, as will make a majority or constitutional quorum of that court, the judicial article of the constitution will have been expunged. Add your three new judges, it makes ten. This is four more than the original number; six is a constitutional quorum of ten; but four is a majority of that quorum, and may reverse all the decisions of the original court. All decisions of the Supreme Court, on the constitution, on treaties, and on laws, not enacted by Congress, are beyond the control of the National Legislature: but if we can send into the Supreme Court an overruling majority, whenever the united ambition of Congress and the Executive may choose to do it, we place the constitution, and all treaties, and all constitutions and laws of all the States, in the power of two branches of the government, and thus erect ourselves into a complete tyranny; and that, too, as the advocates of the bill must contend, upon perfectly constitutional principles. Does the constitution, sir, thus place the judiciary at the good will and pleasure of the other two branches of the government? No, sir; the patriots who built, and the people who consecrated that glorions fabric, did not intend to devote their temple to the polluted oblations of legislative ambition, or the unhallowed rites of executive subserviency. The wisdom of legislation, sir, should look to the durability of her works. How long, sir, will the judiciary, as amended by the provisions of the bill, continue to subserve and satisfy the wants of the country : Some of its advocates say twenty, some fifty, and some one hundred years. Yes, sir, those gentlemen, who have, with all the force of facts, and all the resistless conclusions of reason, pressed on this House the unparalleled growth of western wealth and western population, do say that new States will not, in less than one hundred years, have been added to this Union in such a number as to require even one additional judicial circuit. Have they duly considered the various expansive principles of production and population in this country : A prescient policy should look to the future under the lights of the past. In twice that period, a few scattered families have augmented to more than ten millions of people, covering eight hundred and forty-seven thousand one hundred and eighteen square miles of territory, arranged into twenty-four United States, and requiring ten judicial circuits. Through this whole course, the people and the country seem to have multiplied and extended in nearly a geometrical ratio. Ten millions of people not quite five years ago; five millions of couples for heads of families; and, at this moment, not less than two millions five hundred thousand of the whole number placed in that relation. Ordinary calculation may, under ordinary prosperity, expect to find in each family eight children. This, will, in less than twenty years, give to our population twenty additional millions of people. Will not new States arise? Already, sir, you have three new territories. Florida is spreading her population down to the very margin of her waters, and enriching her cultivation from the “cane-bearing isles of the west.” Arkansas is looking up the channel of her long rivers, towards the mountains of Mexico, and will soon become rich, populous and highly cultivated. The tide of migration is setting up the grand canal towards Michigan, and that peninsula will, in a short period, be located and peopled, from lake to lake. These three, sir, in less than five years, with due courtesy, and fair cause for admission, will knock at your door, and propose to sit down in the family circle of political union. This is not all, sir. Population is travelling up the latitude, across your north-western territory, towards the great Caspian of our continent: and when they shall have heard of your ships on the waters of the Oregon, and of your colonies along the rich valley of that river—as from the able report of the gentleman from Massachusetts, whose mind is capacious of such things, we may predict, they will very soon hear—these people will then, sir, with the rapidity of a deep sea-lead, thrown from the chains of a seventy-four, plunge down the longitude to meet and to mingle with their countrymen on the waters of the Pacific. Twenty years, sir! Are we told the system of the bill will accommodate and satisfy the |. wants of this country for twenty years? n twenty years you will have ten new States, and thirty millions of people ! Why, sir, in such a country—such a sun-bright region of hill and vale, mountain and moor, river, plain, lake, and all of boundless fertility—where population is busy on land and on ocean; where, from the plough, the loom, and the soil, are continually drawn the materials of food, clothing, habitation; where the human arteries swell and pulsate with teeming existence; where the human bosom heaves and palpitates with the fostering current of incipient life—what calculation will you make What calculation can you make, approximating in any reasonable degree towards reality? What then, sir, the advocates of the system bill may ask—what shall be done? The of it are prepared for the interroga
tory: Adopt the system recommended by the resolution. Restore the constitution. Trace out, and fill up, the great judiciary map of 1789 : revise, and correct, and establish the constitutional lines of the law of 1801. We are told, sir, by the gentleman from Illinois, that the experience of a single year overthrew that system. Was, then, the system of 1801 overthrown by experience? As well might the honorable gentleman tell us that brick, and granite, and marble, are improper materials for houses, and palaces, and temples; because experience has taught us, that, at some times, and in some places, earthquakes have overthrown and demolished such buildings. “It was,” says the honorable gentleman from Massachusetts, chairman of the Judiciary Committee, “repealed in one year in toto.” Was it because that, or the law on which it was founded, was “enacted in the hurried session of the summer of 1789?” Because it was built on false analogies, or contained awkward provisions : That session, sir, was begun on the 4th of March, and ended on the 24th of September. In this session of somewhat more than six months, those illustrious men enacted twentyseven laws, and passed three resolutions. Was this hurried legislation? Why, sir, many a Congress, since that period, putting no extraordinary vigor or hasty effort to the work, have, in less time, sent into the world a legislative progeny of from two to three hundred laws, great and little. What have we now, sir, valuable, or of probable durability, and which was not produced by that Congress, at that session The fiscal, the foreign, the war, the naval, and the judicial department, were then, and by those men, founded, erected, and finished. These great national edifices have stood, and I trust will continue to stand: for, when the vandalism of faction shall demolish them, we shall cease to be a nation. Later times, it is true, have added, now and then, a piece of tiling, or a patch of paint; and the nation has put itself to costs upon the interior garniture of them, the drapery, and other various ornament and accommodation; but, otherwise, these valuable edifices are as old, as unaltered, and quite as venerable as the constitution itself. “Awkward provisions and false analogies,” do we call any part of the Judiciary Act of that session ? It was, sir, indited by the Ellsworths and Hamiltons of those times—men, whose political little finger was larger than the loins of politicians in these degenerate days. Why, sir, do not men who know, tell us boldly for what cause the judiciary law of 1801 was repealed ? Men of candor, and I trust, sir, such men are in great numbers here, will all agree, that party overthrew that system. Why disguise it? Those unhappy days are past, and we are indeed now all “brothers of the same principle.” What was not demolished in those inconsiderate times? The National Bank, the Army, the Navy, Fortifications —almost all that told the understanding, or the eye, that we are one—tumbled into ruins, in the shock of that tremendous political earthquake. Coming years brought better feelings and sounder reasonings; and men have profited of their experience, and re-edified all that was most valuable: the Bank, the Army, the Navy, the system of fortifications; and we are again a nation. Our fortresses on the ocean and on the land, look out from many a hundred iron eyes, ready with indignation to blaze annoyance and destruction against hostile approach. Why, sir, do you not follow this enlightened experience in your judiciary 2 The very Turk or Tartar, though he demolish the palace and temple of classical antiquity, yet will he draw from the ruins materials for his stable and his seraglio. He who does not profit by that of others, stands in the next rank of fatuity to him who is a fool in spite of his own experience. Let us not be told, sir, that the system of the resolution will augment the judiciary expenses. What will be expended in one way, will be saved in another. A saving to the citizen is a saving to the nation. These courts will perform and finish the judiciary labor in every district, circuit, and department. It will bring justice home, “and that right early,” to those who are now compelled to travel for it; to wait for it; and to lavish their subsistence on the means of acquiring it. It may diminish a productive employment for us who come here to legislate for our constituents, and to litigate for our clients; but I trust we are sufficiently patriotic not to feel any attachment to a system, because it may augment our emoluments, when we know it must diminish the productive capital of our country. Sir, the people now expend less on the judiciary than on foreign relations. , You give more, by some scores of thousands of dollars, for courtesy to other nations, than you pay for justice to your own citizens. It would be dishonorable to the Republic to be wanting to its dignity abroad; but can it be honest to be wanting in justice to its own citizens at home 2 The system of the bill, sir, cannot, it is agreed that it cannot endure; for circuits will become too numerous to add a new judge to the Supreme Judicial Court for each circuit. We are told in reply, that we should not legislate for osterity: “let posterity take care of itself.” what country, in what house, are we, sir, told this? Did the Pilgrims, the Bradfords, the Williamses, the Penns, the Smiths, migrate to this country for themselves, and not for posterity ? Look out upon our American world: not a government was instituted; not a forest felled; not a city founded; not a house built; not a tree planted ; and not for posterity. Where, and what should we have been, but for
those who cared for posterity? This House, sir, the great model of art and taste; the pride and ornament of our country, and of the republican world; the magnificent forum of legislation; the hallowed temple of justice—this House, sir, was it built for us, and for the present generation only 8 No, sir, it was founded by that man whose name spreads the light of glory over our nation, and whose whole life was but one act for his country—for the world, and for posterity. “Let posterity take care of itself l’” To a gentleman who could feel and utter such a sentiment, I would address the words of the bereaved Macduff: “he hath no children.” The system of the resolution carries in itself the principles of durability. When new States shall be added to this Union, and form new districts, their judges will distribute justice, until enough for a new circuit shall have been formed, and then this circuit shall receive a new judge. This may be repeated as often as a new circuit may be formed; until circuit after circuit shall be extended to the utmost limits of our national domain. The Supreme Court will sit a supervising tribunal—regulating and correcting every inferior jurisdiction. When the multiplied calls for justice shall require, then it may be separated, like the highest English courts, into a fiscal, a criminal, and a civil tribunal. Two judges in each department, as they must of necessity be unanimous, will, almost of necessity, secure correct decisions. Thus, sir, you may legislate, not for twenty years only, but, by Divine aid, for twenty centuries. Your judicial edifice will be extended, with your extending country; and will subserve the wants, and satisfy the requirements of these increasing States, and the multiplying millions of this great nation; until the American Eagle shall, with one wing, winnow the breezes of the Atlantic, and with the other, hover over the quiet waters of the Pacific ; until the colossal power of the republic, standing on the lofty mountains of this continent, shall, with one hand, extend the olive branch to the peaceful nations of the earth, and with the other, wave the sword of justice over the satisfied and tranquil citizens of these widely extended regions. I have thus, sir, according to the limited measure of my ability, made an effort to sustain the resolution, moved by the honorable gentleman from Virginia; and I should be in some sort satisfied with that effort, could I have brought to his aid any portion of that efficiency, which, on a great and former occasion, was brought to the aid of an illustrious citizen of that State, by a son of Rhode Island.
REMOVAL OF WASHINGTON'S REMAINS.
On the 13th of February, 1832, a Resolution was introduced into the House of Representatives, to remove the remains of Washington from Virginia, and to place them in a vault under the centre of the Capitol. Mr. Burges addressed the House on the Resolution in the following speech:
Mr. SPEAKER : Permit me to join my voice to that of the many who have already mingled in this discussion. There is a kind of immortality associated with what may be deemed the perishable part of this mighty theme; and he who speaks of the venerated remains of Washington, must catch something of inspiration; and feel himself elevated to the loftiest purposes of our nature. Twice has this question come before this House, twice without a dissenting voice. Once, soon after the death of the illustrious Father of his Country covered the nation with mourning; and once, when, a few years ago, enquiry was made here, concerning the most appropriate method of carrying into effect the arrangement originally made between the bereaved family and the national government. If that arrangement of piety and patriotism cannot now be consummated with equal unanimity; nothing surely need fall in the way of performing it, under the exercise of our purest and best feelings. In this controversy of patriotism among great States, concerning their respective interests in this question, it may be thought of one, geographically so inconsiderable as Rhode Island, that silence might more become her Representatives in this House, than any, the most perfect form of speech. Sir, in any arduous passage of arms, in any intricate question of council, Washington himself in his time did not so decide. Nor will one man in this Hall very severely censure my wish to be heard on this occasion; if he call to mind, that he, who in the darkest hour of revolutionary conflict, stood, in the estimation of the nation, and of that illustrious man, next to himself, was a native of that State. There was, there was a time, sir, when this man was the property of his whole country. If I look back towards the beginning of life, memory is in a moment filled with bright and joyous recollections of that time, when, even in the distant and humble neighborhood of my birth, the lessons of youth, and of childhood, when the very songs of the cradle, were the deeds, the glory, the praises of Washington. Think you, sir, these teachings have ceased in the land; that these feelings are dead in our country? What then do we hear from the contleman from South Carolina (Mr. McDuffie) 7 oot we, who regard the buried remains of of Father of our Country, as the earthly
remains of no other mortal man are regarded; cannot we, awed and subdued with gratitude, with more than filial piety; cannot we approach the hallowed repository, and roll back the stone from the door of the sepulchre, without the guilt of sacrilege : Cannot his country remove the remains of this, its great Founder; and carry them in solemn procession, accompanied by all the rites of religion, and all the sanctity of its ministers; and finally deposit them in the national cemetery provided for that purpose under the foundation of this building; which thenceforth shall be, not only the temple of freedom, legislation, and justice, but also the august mausoleum of Washington? Who, sir, who, of all the civilized world, will, while these reverential movements are performing, who will point his finger at these solemnities, and call them a mere pageant? It is the feeling, sir, the purpose of the persons, and not the place or the subject, which renders their deeds pious or profane. Can we never again without sacrilege look into the dark house of those so dear to us, until they, bursting the cerements of the tomb, are clothed with immortality? How often does the piety of children, how often the anxious affection of parents, induce them to remove the remains of endeared relatives, to places of more appropriate sepulture? How often do nations remove to their own countries, from distant foreign lands, the bones of their illustrious dead? Was it sacrilege in the Hebrews, when migrating from Egypt, to take from the consecrated catacomb or pyramid, where for centuries they had been deposited, the bones of the illustrious founder of one of their families, and the preserver of them all; and bearing them from the populous valley of the Nile, the learned and luxurious realm of the Pharaohs, the scene of all his glory; that they might carry them to a land of rocks and mountains; and render his burial place one of the eternal monuments of their country? So it has continued; and at this day it is, by the dwellers on the hill or on the plain, pointed out to the traveller as the tomb of Joseph the Patriarch. Sir, what man is there who does not shudder with horror when he is told, that, not many years ago, a felonious gardener of the late proprietor of Mount Vernon, conceived the sacrilegious project of plundering the family cemetery of those sacred remains; and of transporting to Europe the bones of Washington, and there offering them for sale as relics to the disciples or the fanatics of freedom in the old world. Procuring a false, or purloining the true key, he entered the tomb; but, in the darkness of night, and under the excitement of horror natural to the deed, he bore away those of another, by mistake; and left the hallowed bones of him, whose country would now with