United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-03-27 00:00:00, page 5

Mr. BAYARD's SPEECH.
(Continued from the 3dpage of the Oracle)
Your supreme court, fir, I have never
considered as any thing more than the
judges of allize fitting in bank. It is a
system with which perhaps I should find
no fault, if the judges fitting in bank
did not exercise a final jurifdidion. Po
litical indications Ihould be so calculat
ed as not to depend upon the virtues,
but to guard against the vices and weak
nesses ofmen. It is possible that a judge
of the supreme court, would not be in
fluenced by the esprit du corps, that he
would neither be gratified by the affirm
ance, nor mortified by the reversal of his
opinions ; but this, fir, is estimating the
strength and purity of human nature
upon a possible, but not upon its ordina
ry scale.
I believe, Mr. Chairman, that in prac
tice, the formation of die supreme court
fruftrated in a great degree the design
of its institution. I believe that many
suitors were discouraged from seeking a
revition of the opinions of the circuit
court, by a deep imprelhon of the dif
ficulties to be surmounted in obtaining
the reversal of the judgment of a court,
from the brethren of the judge who
pronounced the judgment. The bene
fit of a court of appeals well constitut
ed, is not confined to the mere aft of
reviewing the sentence of an inferior
Court, but is more extensively ufeful by
the general operation of the knowledge
of its existence upon inferior courts
The power of uncontrolable decision is
of the most delicate and dangerous na
ture. When exercised in the courts it
is more formidable than by any other
branch of our government. It is the
judiciary only which can reach the per
son, the property, or life of an indi
vidual. The exercise of their power
is scattered over separate cases, and cre
ates no common cause. The great
fafety under this power arifts from the
right of appeal. A sense of this right
combines the reputation of the judge
with the justice of the cause. In my
opinion it is a strong proof of the wis
dom of a judicial fyllem, when few caus
es are carried into the court of the last
resort. I would fay, if it were not par
adoxical that the very exigence of a
court of appeals ought to destroy the
occasion for it. The conscience of the
judge, fir, will no doubt be a great
check upon him, in the unbounded field
of discretion created by the uncertainty
of law, but I Ihould in general cases,
more rely upon the effed produced by
his knowledge, that an inadvertent or
designed abuse of power, was liable to
be corrected by a superior tribunal. A
Court of appellate jurifdidiori, organiz
ed upon found principles, should exist,
though few causes arose for their de
cision : for it is Purely better to have a
court and no causes, than to have caus
es and no court. I now proceed, fir,
to confider the defers which are plain
ly difcernable, or which have been ?<f.
covered by practice, in the conftit&i
of the circuit courts.
These courts from information which
I have received, I apprehend were ori
ginally conftrufted upon a fallacious
principle. I have heard it dated, that
the design of placing the judges of the
supreme court in the circuit courts was
to edablifh uniform rules of decision
throughout the United States, Jt was
supposed, that the presiding judges of
the circuit courts, proceeding from the
fame body, would tend to indentify the
- principles and rules of decision in the
several diftrids. In practice, a contra
ry effed has been difeovered to be pro
duced by the peculiar organization of
these courts. In practice we have found
not only a want of uniformity of rule
between the different di&rifts ; but no
uniformity of rule in the fame diftria.
No doubt there was an uniformity in
the decisions of the fame judge, but as
the fame judge seldom fat twice fucef
fively in the fame diftrid, and some
times not till after an interval of two or
three years, his opinions were forgotten
or reversed before he returned. The
judges were not educated in the fame
school. The practice of the courts, the
forms of proceeding, as well as the rules
ot property, are extremely various in
the different quarters of the U. States.
The lawyers of the eastern, the middle
and fouthetn dates, are scarcely pro
feffors of the fame science. These courts
were in a date of perpetual fluduxion.
The successive terms gave you courts in
the fame diftrid, as different from each
other as those of Connecticut and Vir
ginia. No system of practice could
grow up, no certainty of rule could be
ettablifhed. The feeds sown in one
term scarcely vegitated before they
were trodden under foot. The condi
tion of a suitor was terrible ; the ground
was always trembling under him. The
opinion of a former judge was no pre
cedent to his fuccerfor. Each consider
ed himfelf bound to follow the light of
his own understanding. To exemplify
these remarks, I will take the liberty of
dating acafe which came under my own
observation. An application before
one judge, was made to quash an at
tachment in favor of a subsequent exe
cution creditor ; the application was
resisted upon two grounds, and the
learned judge, to whom the application
was firtt made, expressing his opinion in
support of both grounds, dismissed the
motion. At the succeeding court, a
different judge presided, and the appli
cation was renewed and answered upon
the fame grounds. The second learned
judge was of opinion, that one point,
has no validity, but he considered the
other sustainable, and was about also to
dismiss the motion, but upon being pres
sed, at last consented to grant a rule to
shew cause. At the third term, a third
learned judge was on the bench, and
though the case was argued upon its
former principles, he was of opinion,
that both answers to the application
Were clearly infufficient, and according
ly quashed the attachment. When the
opinions of his predeceflors were cited,
he replied, that every man was to be
saved by his own faith.
Upon the opinion of one judge, a
suitor would set out in a long course of
proceedings, and after losing much
time, and wafting much money, he
would be met by another judge, who
would tell him he had mistaken his road,
that he must return to the place from
which he started, and pursue a different
track. Thus it happened as to the
Chancery process, to compel the ap
pearance of a defendant : Some of the
judges considered themselves bound by
the rules in the English books, while
others conceived that a power belong
ed to the court, upon the service or a
fubpeena, to make a short rule for the
defendant to appear and answer, or
that the bill should be taken pro confeffo.
A case of this kind occurred, where
much embarrassment was experienced.
In the circuit court for the diftria of
Pennsylvania, a bill in Chancery was
filed against a person who then happen
ed to be in that diftrift, but whose place
of residence was in the N. W: Territory.
The fubpeena was served, but there was
no answer nor appearance. The court
to which the writ was returned, without
difficulty, upon an application, granted
a rule for the party to appear and an
swer at the expiration of a limited time,
or that the bill be taken pro confefo
A personal service of this rule being
necessary, the complainant was obliged
to hire a mefenger, to travel more
than a thousand miles to serve a copy
of the rule. At the ensuing court, af
fidavit was made of the service, and a
motion to make the rule absolute. The
feene immediately changed,a newjudge
presided, and it was no longer the fame ^
court.:
The authority was called for, to*
grant such a rule ; was it warranted
by any ad of Congress, or by the prac
tice of the state ? It was answered
there is no aft of Congress : the state
has no court of Chancery : but this
proceedingwas instituted and has been
brought to its present stage, at consi
derable expence, under the direction of
this cotirt. The judge knew of no
power the court had to dired the pro
ceeding, and he did not confider that
the complainant could have a decree
upon the Bill, without going through
the long train of process found in the
Books of Chancery practice. The com
plainant took this course, and at a fu
ture time was told by another judge,
that he was incurring an unnecessary
loss of time and moneys and that a
commonrule wouldanfWer his purpose.
I ask you, Mr. Chairman, if any sys
tem couid be devised more likely to
produce vexation and delay ? Surely,
Sir, the law is uncertain enough in it
felf, and its paths fudiciently intricate
and tedious, not to require that your
suitors should be burthened with addi-
Supplement to the Oracle,
SATURDAY, March 27, 1-802.
tional embarrassments by the organi- |
zation of your courts.
The circuit is the principal court ofl
civil and criminal business ; the defects
of this court were therefore most gen
erally and sensibly felt. The high cha
racters of the judges at firft brought
suitors into the courts, but the business
was gradually declining, though causes
belonging to the jurifdidion of the
courts were multiplying, the continual
oscillation of the court baffled all con
je&ure as to the correct course of the
proceeding or the event of a cause
The law ceased to be a Icience. To
advise four client, it was less impor
tant to be skilled in the books, than to
be acquainted with the charader of the
judge who was to preside. When the
term approached, the enquiry was,
what judge are we to have ? What is
his character as a lawyer ? Is he ac
quainted with chancery law ? Is he a
ftriff common lawyer ? or a special
pleader ?
When the charader of the judge was
afeertained, gentlemen would then,
considering the nature of their causes,
determine whether it was more adyife
able to use means to postpone or to
bring them to a hearing.
The talents of the judges rather en
creafed the evil, than afforded a correc
tive for the vicious constitution of these
courts. They had not drawn their
knowledge from the fame sources;
Their fyiterns were different, and hence
the charader of the court moll eflen
tially changed at each successive term.
These difficulties and embarrassments
banished suitors from the court, and
without more than a common motive,
recourse was seldom had to the federal
tribunals;
I have ever considered it also, as a
defeat in this court, that it was com
posed ofjudges of the highest and low
est grades. This, Sir, was an unna
tural affocjation ; the members of the
court flood on ground too unequal, to
allow to the diftrid judge the firm as
sertion of his opinion. Instead of be
ing elevated, he felt himfelf degraded
by a feat upon the bench of this court.
In the diftrid court he was every thing,
in the circuit court he was nothing.
Simetimes he was obliged to leave his
feat, while his associate reviewed the
judgment which be had given in the
court below. In all cases, he was sen
sible that the sentences in the court in
which he was, were fubje&ed to the
revision and controul of a superior ju
rifdidion, where he had no influence,
but the authority of which was Shared
by the judge with whom he was ad
ing. No doubt in some instances the
difiriff judge was an efficient member
of this court, but this never arose from
the nature of the system, but from the
personal character of the man. I have
yet, Mr. Chairman, another fault to
find with the ancient establishment of
the circuit courts. They confined on^
ly of two judges, and sometimes of
one ; the number was too Tmall, con
sidering the extent and importance of ,
the jur'fdidion of the court. Will you,
remember, fir, that they hold the pow
er of life and death, withouf appeal 1
That their judgments were final upon;
all sums of 2000 dollars and under,
and their original jurifdidion restrain
ed by no limits of value, and that this
was the court which appeals were car
ried from the diftrid: court ?
I have often heard, fir, that in a
multitude of council there was wis
dom, and if the converse of the maxim
be equally true, this court must have
been very deficient. When we fawa
Angle judge reverting the judgment of
the diftrift court, tne objection was
most striking, but the court never had
the weight which it ought to have pos
sessed and would have enjoyed, had it
been composed of more members.
Two judges only belonging to the
Court, an inconvenience was sometimes 1
felt from a division of their opinions.
And this inconvenience was but poor
ly obviated by the provision of the
la% that in such cases, tile cause should
be continued to the succeeding term,
and receive its decision from the opin
ion of the judge who Ihould then pre
side.
I do not pretend, Mr. Chairman, to
have enumerated all the defers, which
belonged to the former judicial sys
tem. But I trtift those which I hate '
pointed out will, in the minds of can
did men, jaftify the attempt of the
I legislature to revise that system, and fed
I make a fairer experiment of that part
I of the plan of our constitution which
regards the judicial power. The de
sects, fir, to which I have alluded, had
been a long time felt and often spoken
of. Remedies had frequently been
proposed. I have kndwn the fubieft
brought forward in Congress or abat
ed in private, ever since I have had
the honor of a feat upon this floor. I.
believe, fir, a great and just deference
for the author of the ancient scheme,
prevented any innovation upon its mate
rial principles ; there was no gentle
man who felt that deference more tha
myfelf, nor should I have ever hazar
ed a change upon fpecdlative opinic
But practice had difeovered deft
which might well escape the mod
cerning mind in planning the 1 1
The original system could abt be n
than experiment : it wa.9built upo
experience ; It was the firft applies
of principles to a new state of th
The firft judicial law displays gre
bility, and it is no difparageme
the author, to fay its plan is nc
fed.
I know, fir, that some have fate
perhaps not a few have believed
the new system was introduced, n
much with a view to its improve
of the old, as tb the places whic
provided for the friends of the adt
iftration. This i) a calumny /; not
oufly falfe, arid so humble as not to
quire nor to deserve an answer upon th
floor. It cannot be supposed that tl
paltry objeft of providing foi 16 un
known men could have ever offered ai
inducement to a great party, bafeiy to
violate their duty ; meanly to facrifice
their charader ; and foolifhly to fore
go all future hopes.
I now come, Mr. Chairman, to exam
ine the changes which were made by
the late law This fubjeft has not been
correctly understood. It has every
where been erroneously represented. I
have heard much said about the addi
tional courts, created by the aft of last
session. I perceive them Ipoken of in
the President's message. In the face of
this high authority, I undertake to
state, that no additional court was ef
tabliffiid by that law. Under the for
mer system there was one Supreme
Court, and there is but one now—
There were seventeen diftrid courts^
and there are no more now. There
was a circuit cdurt held in each diftrify
and such is the case at present Some
of the diftrift judges are directed to hold
their codrts at new places, but there is
Rill in each dillrift but dne district court.
What, Sir, has been cion- ,• the tin
natural alliance between the fuprem
and diftridtcourts has been fevered, I:
the jurifdidion of both those courts
mains untouched. The power or
thority of neither of them has been :
mented dr dimiriiflied. The jurit
tion of the circuit cotirt has been exp
ed to the cognizance of debts of
dollars, and this is the only me
, change in the pdwer of that cot
The chief operation of the late la
new organization of the circuit <
To avoid the evils of the former [,
became necessary td cre^t^ a new
of judges. It was config b d th;
supreme court ought to be i'atic
arid to have no conne&iori wi f
judges, over whose sentences the
ah appellate jurifdidion.
To have formed a circuit court
of the dillrid judges, would have
lowed no cotirt of appeal from the di
trid court, except the supreme courts
which would have been attended witl
gteat iricoriveflierice. But this scheme
Was opposed by a still greater difficul
ty. In many diftrids the duties of th
judge require a daily attention. In
of them, brifinefs of great impr'
may, oh uhexpe&i occurren
quite his presence.
This plan was thotight of; it v&,
Well examined and finally rejected, in
cOnfequenCe of strong objedions to
which it was liable. Nothing therefore
remained, but th compose the circuit
court of judges, diftind from those of
the other cotirts. Admittirig the pro
priety of excluding from this cotirt the
judges of the supreme : & diftrift courts,
I think the late Congress cannot be ac
ctifed of any wanton expence, nor even
of a neglect of economy in the new ef
tablifhmem. This executive country ,_
has been divided into fix circuits, and
three judges appointed for each circuits