with forty-five representatives, only one circuit and one judge, and to Indiana, Illinois and Missouri, with only five representatives, one circuit also and one judge! How striking the unfitness of a system which assigns to one judge the business of a population of about two hundred thousand, and to another the business of about two millions! When admitted into the great family of the Union, it was not considered by the three oldest States in this bill, or by the other six States, that the want of a circuit and a judge of the Supreme Court was derogatory to their independence or humiliating to their dignity; else, then, if ever, would and should the tocsin of remonstrance have been blown long and loud; because then, if ever, on this ground of State pride, did their honor and their rights require complaint; then, if ever, on this ground, was it a grievance and an ignominy.

No, sir. The truth then lay, as it now lies, deep in their physical condition, and in the nature of the circuit system. I would be one of the last to wound their just pride, or to withhold from them, in a measure otherwise safe and judicious, any proportionate right; but it was always justly supposed that the primary duties of the Supreme Court consisted in the discharge of its great appellate jurisdiction here; and that the local duties of the judiciary were subordinate to those, and to be performed by local judges, aided by the Supreme Court only as much as might be practicable, without any neglect or sacrifice of their higher duties here. Hence, the judges of the Supreme Court were not then required to go to the extremes of Maine and Kentucky to discharge local duties; hence, they have not since been sent into other Territories or new States, which might call them away too distant and too long for the proper despatch of the business of paramount consequence in the Supreme Court itself. Hence, we should not now, to remove any local grievance, make a hazardous inroad on the numbers, character and security, of that august tribunal, which is the palladium of all the States, which is consecrated by the constitution, and all the best theories of free government, and in whose supervisory duties all now enjoy an equal share, and for the blushing honors of whose bench all now stand in equal competition.

The only remaining ground of complaint, concerning the system in these six new States, is, that it is not in itself so excellent as the system which prevails in the other States. But if it be as similar and as good as their physical condition, the proportionate rights of all, and the legitimate application of the circuit system, will permit, though not perhaps the best in the abstract, or not the best for other conditions of society, then the bill is on this point likewise unsupported.

That it is thus similar and good, we have already attempted to show. Without a repetition of former remarks, may I be permitted to suggest one or two additional considerations concerning this position?

Let gentlemen advert to the judicial establishments in their respective States, and tell me, where they possess counties new and thinly settled, whether the terms and structure of their courts are not

in these counties somewhat different?-not subjecting their own Supreme Courts to fluctuation and innovation, to make the system identical in every county, but adapting their local system in some degree to the physical condition of the people. I beseech the House, also, not to take for granted that, under such a modified system, there is in the system itself any obstacle to as good and as equal an administration of justice as the structure of human society and the relative rights of each portion will permit. The questions of fact are all settled, by similar juries; and the questions of law, though decided in the first instance by judges inferior in rank or number, are, or may be, carried, by appeal or writ of error, to the same higher tribunal which acts for the whole. There is a difference, I admit; but it is only a difference between the correctness of the district judge,-who is selected, on the favorite theory of gentlemen, from his own district, with all the lex loci and lex non scripta of his region of country,—and the correctness of the circuit judge; and which difference, in all cases of any magnitude, can be corrected by some additional expense and cost in appeals or writs of error.

I concede that this additional expense and cost, though in a few cases only, is still to be avoided, if it can be avoided on any equal principles, and without danger to the great and general tribunals which dispense justice to the whole. But surely no person can be so unreasonable as to ask its removal in such a manner as to put those tribunals in jeopardy, and to incur disproportionate expense to the whole Union, to remedy inconveniences which all small populations on new and large territories have always been accustomed to endure.

The argument might be urged, with much greater strength, to the removal of every other inconvenience arising from the physical condition of any part of our country, as the fewness of mechanics, badness of roads, small number of schools, and distance from markets, because these would only require a disproportionate share of our joint funds, without, perhaps, putting at hazard any of our important institutions, like that of the Supreme Court.

So, as a mere badge of State uniformity or State pride, it might more safely and forcibly be argued that as many light-houses and custom-house officers should be provided for each State, without regard to its commerce; and, as respects the wisdom of the bill, on the ground of mere equality in system, what planter, with two hundred acres of land and ten workmen, would insist upon only using the spade system of husbandry, because in and of itself most excellent, and because that system had been found appropriate where a planter with two hundred acres of land had one hundred workmen ?

All legislation is only an approximation to the theories of abstract right and equality. It must be modified by an infinite number of circumstances. Every wise man, in common life, acts invariably according to the diversity of means, interests and condition of himself and

those around him, and any different system of equality in legislation is only the levelling, indiscriminate equality of a church-yard.

But if such an equality is to be pushed, at every sacrifice and danger, in respect to a judicial system, this bill is a perfect felo-de-se, on that hypothesis; because, as before shown, it violates such an equality in judicial representation as much as it enforces such an equality in system. Nor is it any answer to this view of the subject, that the executive may select the new judges from the north and east, when, in the same breath, gentlemen argue that they are wanted on account of their knowledge of local law in the west; when by the bill they are compelled to reside in the west; when all their local duties are to be performed there, and when we witness around us such splendid specimens of western and south-western talent, that must be overlooked in order to import into the rich valley of the Mississippi, from some eastern manufactory, a cargo of foreign judges.

Again: if this system is to be extended to the six new States, because most excellent, without regard to the effect of such an extension on the Supreme Court itself, and without regard to population or expense, then why not extend it to every part of the Union now destitute of it? When gentlemen talk of equality and broad American grounds, when they, with indignation and justice, disdain sectional views and favoritism,-why create new circuits for the people in these new States, and not at the same time create them for more than three times as many people, now destitute of such circuits, in western New York, Pennsylvania and Virginia? Is not this straining at a gnat, and swallowing a camel? For, if the circuit system of itself be superior, and therefore, without regard to other circumstances, is to be extended to the west and south-west, for the safety and advantage of about half a million of people now destitute, then surely a million and a half of people in the three great Atlantic States are equally entitled to its securities and blessings. Are not the lives and liberties of any of the constituents of the chairman as much endangered now, by a trial before one judge, as he feelingly described those of the people of Illinois to be? Is not this as cogent a reason for a change, a speedy and radical change, in Pennsylvania as in Alabama? And though the honorable chairman might recollect that life is constantly tried in England before one judge, whose system has been so much eulogized, and also that it can be so tried, under our present system, in any part of the Union, in the absence of the circuit judge,—and that the jury in such trials, passing on both the law and the facts, are the great safeguard of the citizen, -yet, admitting that a change in this respect is indispensable, it should be made in the old as well as the new States; because, reversing his own language, can it be questioned that life, liberty and property, are as valuable in the old as in the new States? It is no answer to this reasoning, that Circuit Courts now exist in some parts of Pennsylvania or Virginia; for those courts no more secure and benefit the lives, liberties and property, of the other parts, than they benefit the people

of Missouri. So, if other modes of relief can be suggested for all these old States, other modes can also be suggested for all the new States. So, if the old States have not petitioned for relief on this ground, neither have the new ones.

Why not, on this ground, Are not their inhabitants flesh

Carry the argument one step further. extend the circuits to the Territories? of our flesh? Are they not Americans? Are not their properties, lives and liberties, as valuable to them to use again the words of the chairman as ours are to us? Have they not men as competent for judges of the Supreme Court, when one of them is now spoken of as a prominent candidate? Shall they not enjoy equal protection, and a judicial system of equal excellence? Thus, pursuing an abstract theory to all its legitimate consequences, its fallacy, when applied without any regard to the different conditions, rights and duties, of all, becomes most manifest.

One more ground was mentioned, by the chairman, as a justification for this increase of the judges of the Supreme Court, which, since the debate on Friday last, as to the union of Ohio and Kentucky in one circuit, will probably not be much relied on.

It was that these judges were wanted on account of the peculiar and extraordinary mass of judicial business in the west and south-west. If this mass of business in fact existed, it might be answered that we have, as already shown, devoted an equal and proportionate number of judges and judicial expenditure to its discharge. But, as I am one of the last persons to withhold relief where actual grievances exist, or to begrudge to any quarter of the Confederacy any expense, any number of judges, or any kind of system, safe to the whole Confederacy, and necessary to perform the business properly and permanently devolving on our courts, I will detain the House a moment to ascertain how the truth is as to this supposed mass of business, and to ascertain how necessary and safe for its discharge may be this proposed increase of judges on the bench of the Supreme Court. Here I confide implicitly in the local knowledge of gentlemen from those nine States, as to the character and amount of the business. I will stand on the utmost verge of courtesy, and take the highest estimate of one of the warmest friends of the bill.

That estimate gives to Louisiana and Illinois eighty actions each per year; to Alabama, sixty; to Indiana and Mississippi, forty each; and to Missouri, thirty. These are the six States without the circuit system, and will first be considered. The largest of them, on the highest supposition, brings but eighty actions a year into our courts; and this, at the liberal portion of one-third for trial, which is as many as the chairman himself supposed, last Friday, in the other States, would leave on the most crowded dockets nearly two weeks for each trial. If this be an extraordinary mass of business, it surely is an extraordinary small mass for any one court in any section of the Union; and so far from rendering necessary more judges to des

patch it, would hardly keep the mould and cobwebs from gathering over the present judges. As regards, then, the whole six States, all who have not now a circuit, and the attendance of a judge of the Supreme Court, the increase of judges, on account of the mass of business, is entirely useless. The bill, as respects them, on this account, rests upon sand.

Mark, then, sir, the conclusion as to the other three States. Though they now have a circuit, and the attendance of a judge of the Supreme Court, yet we are to create three more circuits and three more judges, on account of a mass of business, which, if it exist at all, must exist in those three States alone.

Again: we are to create some of these circuits and judges in Alabama or Missouri, for example, when the business itself exists only in Kentucky, Ohio and Tennessee. Or, to show distinctly the character of the bill on this hypothesis, we are, on account of a pressure of business solely in the present seventh circuit, to create three new judges and new circuits, and yet, by this very bill, not assign to the States within that circuit the whole labors of one additional judge. I appeal to the bill itself, on this point, as conclusive. Ohio and Kentucky now form one circuit, and one additional judge is to do the business, not only of Tennessee, but Alabama. It was settled here, no longer since than last Friday, and by almost an unanimous vote, and on the statements of the very friends of the bill, that no pressure of business existed there which required any more additional labor.

The business, though nominally large, was said to be of such a character that the decision of one cause frequently governed the disposition of fifty more. Much of the accumulation on the dockets had, in some of the States, arisen from transient causes, such as the illness of a judge, the sudden operation of some statute of limitation, the enactment of some relief system, the difficulties between rival courts, the suits growing out of the United States Bank controversy, and various other causes, which need not be enumerated, and on the merits of which I offer no opinion whatever, but all of which established, beyond doubt, that the accumulation of business was temporary, and that their dockets would soon diminish to one or two hundred cases each.

The western gentlemen also admitted, with their usual frankness. and manliness, that most of this business was that where our courts have concurrent, and not exclusive jurisdiction; where suitors might enter the State courts with it, but prefer the United States courts.

Reasoning a priori, every lawyer would have arrived at the same. conclusion; because the business of exclusive jurisdiction, such as relates to custom-house bonds, salvage, seizures for breaches of the revenue laws, libels for seamen's wages, &c., must, on account of our commerce, exist in a greater proportion on the eastern than the western side of the Alleghanies. And yet, the courts of the former seldom exhibit a docket of more than one or two hundred actions.