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.” 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.

[GEO. W. BUCHANAN TO JAMES BUCHANAN]

PITTSBURGH, November 5, 1830.

DEAR BROTHER:—

I had the honor to receive by last night’s mail a letter from Mr. Van Buren, enclosing me a commission from the President for the district attorneyship. This day I will acknowledge its receipt. I am sincerely glad both on your account and my own that the President has appointed me. It banishes in a moment all those suspicions which some persons entertained of his coldness towards you. It should be my highest ambition to justify the appointment by a faithful discharge of official duty.

My appointment appears to be received very well in this city. It will excite some feelings of envy towards me among the young members of the bar. My path, however, is very plain. It shall not alter my conduct or manner in any respect.

I am, in haste, your grateful and affectionate brother,

GEO. W. BUCHANAN.

The most signal service rendered by Mr. Buchanan in the 21st Congress, as Chairman of the Judiciary Committee, was in a minority report made by him on the 24th of January, 1831, upon a proposition to repeal the twenty-fifth section of the judiciary act of 1789, which gave the Supreme Court appellate jurisdiction, by writ of error to the State courts, in cases where the Constitution, treaties, and laws of the United States are drawn in question. A resolution to inquire into the expediency of repealing this great organic law having been referred to the committee, a majority of the committee made an elaborate report in favor of the repeal, through Mr. Smith of South Carolina, accompanied by a bill to effect the repeal. Mr. Buchanan’s counter-report, which had the concurrence of two other members, caused the rejection of the bill, by a vote of 138 to 51. I know of few constitutional discussions which evince a more thorough knowledge or more accurate views of the nature of our mixed system of Government than this report from the pen of Mr. Buchanan. If it be said that the argument is now familiar to us, or that it could have been drawn from various sources, let it be observed that this document shows that Mr. Buchanan was, at this comparatively early period of his life, a well-instructed constitutional jurist; and that while no one could originate at that day any novel views of this important subject, it was no small merit to be able to set forth clearly and cogently the whole substance of such a topic. I think no apology is needed for the insertion here of this valuable paper. It may be prefaced by an extract from a letter of Mr. Buchanan’s youngest brother, George W. Buchanan, which shows how it was received by the public in Pennsylvania:

PITTSBURGH, February 4, 1831.

...... I have read with the highest degree of satisfaction your able report from the minority of the Judiciary Committee. That document will identify your name with the most important constitutional question which has been presented to the consideration of Congress for many years. It was looked for with much anxiety, and is now spoken of by politicians of every party as a lucid and powerful appeal to the patriotism of Congress. If the question was to be started, I am sincerely glad that it has arisen while you occupied the chair of the Judiciary Committee......

HOUSE OF REPRESENTATIVES, January 24, 1831.

The Committee on the Judiciary, to which was referred a resolution of the House of Representatives of the 21st ultimo, instructing them “to inquire into the expediency of repealing or modifying the twenty-fifth section of an act entitled ‘An act to establish the judicial courts of the United States,’ passed the 24th September, 1789,” having made a report, accompanied by a bill to repeal the same, the minority of that committee, differing in opinion from their associates upon this important question, deem it to be their duty to submit to the House the following report:

The Constitution of the United States has conferred upon Congress certain enumerated powers, and expressly authorizes that body “to make all laws which shall be necessary and proper for carrying these powers into execution.” In the construction of this instrument, it has become an axiom, the truth of which cannot be controverted, that “the General Government, though limited as to its objects, is supreme with respect to those objects.”

The Constitution has also conferred upon the President, “by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur,” the power to make treaties.

By the second section of the sixth article of this instrument it is declared, in emphatic language, that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

The Constitution having conferred upon Congress the power of legislation over certain objects, and upon the President and Senate the power of making treaties with foreign nations, the next question which naturally presented itself to those who framed it was, in what manner it would be most proper that the Constitution itself, and the laws and treaties made under its authority, should be carried into execution. They have decided this question in the following strong and comprehensive language: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” [Art. 3, Sec. 2.] This provision is the only one which could have been made in consistency with the character of the Government established by the Constitution. It would have been a strange anomaly had that instrument established a judiciary whose powers did not embrace all the laws and all the treaties made under its authority. The symmetry of the system would thus have been destroyed; and, in many cases, Congress would have had to depend exclusively for the execution of their own laws upon the judiciary of the States. This principle would have been at war with the spirit which pervades the whole Constitution. It was clearly the intention of its framers to create a Government which should have the power of construing and executing its own laws, without any obstruction from State authority. Accordingly, we find that the judicial power of the United States extends, in express terms, “to all cases,” in law and in equity, arising under the Constitution, the laws, and the treaties of the United States. This general language comprehends precisely what it ought to comprehend.

If the judicial powers of the United States does thus extend to “all cases” arising under the Constitution, the laws, and treaties of the Union, how could this power be brought into action over such cases without a law of Congress investing the Supreme Court with the original and appellate jurisdiction embraced by the Constitution?

It was the imperious duty of Congress to make such a law, and it is equally its duty to continue it; indeed, without it, the judicial power of the United States is limited and restricted to such cases only as arise in the Federal courts, and is never brought to bear upon numerous cases, evidently within its range.

When Congress, in the year 1789, legislated upon this subject, they knew that the State courts would often be called upon, in the trial of causes, to give a construction to the Constitution, the treaties, and laws of the United States. What, then, was to be done? If the decisions of the State courts should be final, the Constitution and laws of the Union might be construed to mean one thing in one State, and another thing in another State.

All uniformity in their construction would thus be destroyed. Besides, we might, if this were the case, get into serious conflicts with foreign nations, as a treaty might receive one construction in Pennsylvania, another in Virginia, and a third in New York. Some common and uniform standard of construction was absolutely necessary.

To remedy these and other inconveniences, the first Congress of the United States, composed, in a considerable proportion, of the framers of the Constitution, passed the 25th section of the judicial act of the 24th September, 1789. It is in the following words:

“SEC. 25. _And be it further enacted_, That a final judgment or decree in any suit, in the highest court of law or equity of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party under such clause of the said Constitution, treaty, statute, or commission, may be re-examined and reversed, or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court; and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity, or construction of the said Constitution, treaties, statutes, commissions, or authorities, in dispute.”

This section embraces three classes of cases. The first, those in which a State court should decide a law or treaty of the United States to be void, either because it violated the Constitution of the United States, or for any other reason. Ought there not in such cases to be an appeal to the Supreme Court of the United States? Without such an appeal, the General Government might be obliged to behold its own laws and its solemn treaties annulled by the judiciary of every State in the Union, without the power of redress.

The second class of cases is of a different character. It embraces those causes in which the validity of State laws is contested, upon the principle that they violate the Constitution, the laws, or the treaties of the United States, and have, therefore, been enacted in opposition to the authority of the “supreme law of the land.” Cases of this description have been of frequent occurrence. It has often been drawn into question before the State courts, whether State laws did or did not violate the Constitution of the United States. Is it not then essential to the preservation of the General Government, that the Supreme Court of the United States should possess the power of reviewing the judgments of State courts in all cases wherein they have established the validity of a State law in opposition to the Constitution and laws of the United States?

The third class differs essentially from each of the two first. In the cases embraced by it, neither the validity of acts of Congress, nor of treaties, nor of State laws is called in question. This clause of the 25th section merely confers upon the Supreme Court the appellate jurisdiction of construing the Constitution, laws, and treaties of the United States, when their protection has been invoked by parties to suits before the State courts, and has been denied by their decision. Without the exercise of this power, in cases originating in the State courts, the Constitution, laws, and treaties of the United States would be left to be finally construed and executed by a judicial power, over which Congress has no control.

This section does not interfere, either directly or indirectly, with the independence of the State courts in finally deciding all cases arising exclusively under their own constitution and laws. It leaves them in the enjoyment of every power which they possessed before the adoption of the Federal Constitution. It merely declares that, as that Constitution established a new form of Government, and consequently gave to the State courts the power of construing, in certain cases, the Constitution, the laws, and the treaties of the United States, the Supreme Court of the United States should, to this limited extent, but not beyond it, possess the power of reviewing their judgments. The section itself declares that no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.

The minority of the committee will now proceed to advance, in a more distinct form, a few of the reasons why, in their opinion, the 25th section of this act ought not to be repealed.

And, in the first place, it ought to be the chief object of all Governments to protect individual rights. In almost every case involving a question before a State court under this section of the judiciary act, the Constitution, laws, or treaties of the United States are interposed for the protection of individuals. Does a citizen invoke the protection of an act of Congress upon a trial before a State court which decides that act to be unconstitutional and void, and renders judgment against him? This section secures his right of appeal from such a decision to the Supreme Court of the United States.

When a citizen, in a suit before a State court, contends that a State law, by which he is assailed, is a violation of the Constitution of the United States and therefore void (if his plea should be overruled), he may bring this question before the Supreme Court of the United States.

In like manner, when an individual claims any right before a State court under the Constitution or laws of the United States, and the decision is against his claim, he may appeal to the Supreme Court of the United States.

If this section were repealed, all these important individual rights would be forfeited.

The history of our country abundantly proves that individual States are liable to high excitements and strong prejudices. The judges of these States would be more or less than men if they did not participate in the feelings of the community by which they are surrounded. Under the influence of these excitements, individuals, whose rights happen to clash with the prevailing feeling of the State, would have but a slender hope of obtaining justice before a State tribunal. There would be the power and the influence of the State sovereignty on the one side, and an individual who had made himself obnoxious to popular odium on the other. In such cases, ought the liberty or the property of a citizen, so far as he claims the same under the Constitution or laws of the United States, to be decided before a State court, without an appeal to the Supreme Court of the United States, on whom the construction of this very Constitution and these laws has been conferred, in all cases, by the Constitution?

The Supreme Court, considering the elevated character of its judges, and that they reside in parts of the Union remote from each other, can never be liable to local excitements and local prejudices. To that tribunal our citizens can appeal with safety and with confidence (as long as the 25th section of the judicial act shall remain upon the statute book) whenever they consider that their rights, under the Constitution and laws of the United States, have been violated by a State court. Besides, should this section be repealed, it would produce a denial of equal justice to parties drawing in question the Constitution, laws, or treaties of the United States. In civil actions, the plaintiff might then bring his action in a Federal or State court, as he pleased, and as he thought he should be most likely to succeed; whilst the defendant would have no option, but must abide the consequences without the power of removing the cause from a State into a Federal court, except in the single case of his being sued out of the district in which he resides; and this, although he might have a conclusive defence under the Constitution and laws of the United States.

Another reason for preserving this section is, that without it there would be no uniformity in the construction and administration of the Constitution, laws, and treaties of the United States. If the courts of twenty-four distinct, sovereign States, each possess the power, in the last resort, of deciding upon the Constitution and laws of the United States, their construction may be different in every State of the Union. That act of Congress which conforms to the Constitution of the United States, and is valid in the opinion of the supreme court of Georgia, may be a direct violation of the provisions of that instrument, and be void in the judgment of the supreme court of South Carolina. A State law in Virginia might in this manner be declared constitutional, whilst the same law, if passed by the Legislature of Pennsylvania, would be void. Nay, what would be still more absurd, a law or treaty of the United States with a foreign nation, admitted to be constitutionally made, might secure rights to the citizens of one State, which would be denied to those of another. Although the same Constitution and laws govern the Union, yet the rights acquired under them would vary with every degree of latitude. Surely the framers of the Constitution would have left their work incomplete, had they established no common tribunal to decide its own construction, and that of the laws and treaties made under its authority. They are not liable to this charge, because they have given express power to the Judiciary of the Union over “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”

The first Congress of the United States have, to a considerable extent, carried this power into execution by the passage of the judicial act, and it contains no provision more important than the 25th section.

This section ought not to be repealed, because, in the opinion of the minority of the Committee on the Judiciary, its repeal would seriously endanger the existence of this Union. The chief evil which existed under the old confederation, and which gave birth to the present Constitution, was that the General Government could not act directly upon the people, but only by requisition upon sovereign States. The consequence was, that the States either obeyed or disobeyed these requisitions, as they thought proper. The present Constitution was intended to enable the Government of the United States to act immediately upon the people of the States, and to carry its own laws into full execution, by virtue of its own authority. If this section were repealed, the General Government would be deprived of the power, by means of its own judiciary, to give effect either to the Constitution which called it into existence, or to the laws and treaties made under its authority. It would be compelled to submit, in many important cases, to the decisions of State courts; and thus the very evil which the present Constitution was intended to prevent would be entailed upon the people. The judiciary of the States might refuse to carry into effect the laws of the United States; and without that appeal to the Supreme Court which the 25th section authorizes, these laws would thus be entirely annulled, and could not be executed without a resort to force.

This position may be illustrated by a few striking examples. Suppose the Legislature of one of the States, believing the tariff laws to be unconstitutional, should determine that they ought not to be executed within its limits. They accordingly pass a law, imposing the severest penalties upon the collector and other custom-house officers of the United States within their territory, if they should collect the duties on the importation of foreign merchandise. The collector proceeds to discharge the duties of his office under the laws of the United States, and he is condemned and punished before a State court for violating this State law. Repeal this section, and the decision of the State court would be final and conclusive; and any State could thus nullify any act of Congress which she deemed to be unconstitutional.

The Executive of one of the States, in a message to the Legislature, has declared it to be his opinion, that the land belonging to the United States within her territory is now the property of the State, by virtue of her sovereign authority. Should the Legislature be of the same opinion, and pass a law for the punishment of the land officers of the United States who should sell any of the public lands within her limits, this transfer of property might be virtually accomplished by the repeal of the 25th section of the judicial act. Our land officers might then be severely punished, and thus prohibited by the courts of that State from performing their duty under the laws of the Union, without the possibility of redress in any constitutional or legal form. In this manner, the title of the United States to a vast domain, which has cost the nation many millions, and which justly belongs to the people of the several States, would be defeated or greatly impaired.

Another illustration might be introduced. Suppose the Legislature of Pennsylvania, being of opinion that the charter of the Bank of the United States is unconstitutional, were to declare it to be a nuisance, and inflict penalties upon all its officers for making discounts or receiving deposits. Should the courts of that State carry such a law into effect, without the 25th section there would be no appeal from their decision; and the Legislature and courts of a single State might thus prostrate an institution established under the Constitution and laws of the United States.

In all such cases, redress can now be peaceably obtained in the ordinary administration of justice. A writ of error issues from the Supreme Court, which finally decides the question whether the act of Congress was constitutional or not; and if they determine in the affirmative, the judgment of the State court is reversed. The laws are thus substituted instead of arms, and the States kept within their proper orbits by the judicial authority. But if no such appeal existed, then, upon the occurrence of cases of this character, the General Government would be compelled to determine whether the Union should be dissolved, or whether there should be a recurrence to force—an awful alternative, which we trust may never be presented. We will not attempt further to portray the evils which might result from the abandonment of the present judicial system. They will strike every reflecting mind.

It has of late years been contended that this section of the judicial act was unconstitutional, and that Congress do not possess the power of investing the Supreme Court with appellate jurisdiction in any case which has been finally decided in the courts of the States. It has also been contended that, even if they do possess this power, it does not extend to cases in which a State is a party. On this branch of the question, we would refer the House to the very able and conclusive argument of the Supreme Court of the United States, in the cases of Martin _vs._ Hunter’s Lessee (1st Wheaton, 304) and Cohens vs. the State of Virginia (6 Wheaton, 264) by which the affirmative of these propositions is clearly established. It may be proper, however, that we should make a few observations upon this part of the question. Those who have argued in favor of these positions, assert that the general words of the Constitution, extending the judicial power of the Union “to all cases, in law and equity,” arising under the Constitution and laws of the United States, ought, by construction, to be restricted to such cases in law and equity as may originate in the courts of the Union. They would thus establish a limitation at war with the letter, and, in our opinion, equally at war with the spirit of the instrument. Had such been the intention of the framers of the Constitution, they well knew in what language to express that intention. Had it been their purpose to restrict the meaning of the general language which they had used in the first clause of the section, they could have done so with much propriety in the second. This clause, after providing “that, in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction,” proceeds to declare “that, in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” On the supposition contended for, it is wholly unaccountable that the framers of the Constitution did not limit the natural effect of the words used in the first clause, by making the second to read “that, in all the other cases before mentioned,” arising in the inferior courts of the United States, “the Supreme Court shall have appellate jurisdiction.” But no such restriction exists; and, from the fair import of the words used in both clauses, the Supreme Court possess the power of finally deciding “all cases, in law and equity,” arising under the Constitution, the laws, and the treaties of the United States, no matter whether they may have originated in a Federal or in a State court, and no matter whether States or individuals be the parties.

But it is not our intention to enter into a protracted constitutional argument upon the present occasion, because this question has long since been put at rest, if any constitutional question can ever be considered as settled in this country. The Federalist, which is now considered a text-book in regard to the construction of the Constitution, and deservedly so, as well from the great merit of the work as the high character of its authors, is clear and explicit on this subject. After reasoning upon it at some length, the author of the 83d number of that production arrives at the following conclusion: “To confine, therefore, the general expressions which gave appellate jurisdiction to the Supreme Court to appeals from the subordinate Federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.”

The Federalist, it will be recollected, was written between the formation of the Constitution and its adoption by the States. Immediately after its adoption, Congress, by passing the 25th section of the judicial act, now sought to be repealed, fully confirmed this construction. This appellate jurisdiction has ever since been exercised by the Supreme Court in a great variety of cases; and we are not aware that the constitutionality of its exercise has ever been questioned by the decision of any State court, except in a single instance, which did not occur until the year 1815. And even in that case (Hunter _vs._ Fairfax), the judgment of the Supreme Court was carried into effect according to the existing law, without endangering the peace of the country.

The last topic to which we would advert is, the claim which has been set up to exempt the judgments obtained by the States of this Union, before their own courts, in civil and criminal suits, prosecuted in their name, from being reviewed by the Supreme Court of the United States upon a writ of error. Much stress has been laid by those who sustain this claim, upon the general proposition that a sovereign independent State cannot be sued, except by its own consent. But does this proposition apply, in its extent, to the States of this Union. That is the question for discussion.

We have in this country an authority much higher than that of sovereign States. It is the authority of the sovereign people of each State. In their State conventions they ratified the Constitution of the United States; and so far as that Constitution has deprived the States of any of the attributes of sovereignty, they are bound by it, because such was the will of the people. The Constitution, thus called into existence by the will of the people of the several States, has declared itself, and the laws and treaties which should emanate from its authority, to be “the supreme law of the land;” and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Why, then, should a State, who has obtained a judgment in her own courts against an individual, in violation of this “supreme law of the land,” be protected from having her judgment reversed by the Supreme Court of the United States? Is there any reason, either in the Constitution or in natural justice, why judgments obtained by a State in her own courts should be held sacred, notwithstanding they violated the Constitution and laws of the Union, which would not apply, at least with equal force, in favor of individual plaintiffs? The Constitution subjects to the review of the Supreme Court all cases in law or equity arising under itself, or the laws of the Union. It excepts no case bearing this character. Whether the party be a State or an individual, all must alike bow to the sovereign will of the people, expressed in the Constitution of the United States.

In suits brought by a State against an individual in her own courts, there is much greater danger of oppression, considering the relative power and influence of the parties, than there would be in controversies between individuals. And are these to be the only cases selected, in which the citizen shall not be permitted to protect himself by the Constitution and laws of the Union before the Supreme Court of the United States? Is it not sufficient that, under the Constitution, the States cannot be sued as defendants, without adding to this, by a strained and unnatural construction, the additional privilege that the judgments which they may obtain as plaintiffs or prosecutors before their own courts, whether right or wrong, shall in all cases be irreversible?

We will not repeat the considerations which have been already urged to prove that, unless this provision of the Constitution applies to the States, the rights of individuals will be sacrificed, all uniformity of decision abandoned, and each one of the States will have it in her power to set the Constitution and laws of the United States at defiance.

The eleventh amendment to the Constitution of the United States interferes in no respect with the principles for which we have contended. It is in these words:

“The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”

Chief Justice Marshall, in delivering the opinion of the court in the case of Cohens vs. Virginia, has given so clear, and in our opinion, so correct an exposition of the true construction of the amendment, that we shall, in conclusion, present to the House a few extracts from that opinion, instead of any argument of our own. He says that “the first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt, in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relation between the whole and its parts, as to strip the Government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation. The words of the amendment appear to the court to justify and require this construction.

“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand a process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the States before the amendment was introduced into Congress, and others might be commenced before it should be adopted by the State Legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the Constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State, by the citizens of another State. If a suit, brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a State. It is clearly, in its commencement, the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defence against a claim made by a State.

“Under the judiciary act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not, in any manner, act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court for the sole purpose of inquiring whether the judgment violates the Constitution or laws of the United States can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State, whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it, of any description, is asserted or prosecuted. The party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper, where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendant; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union.

“The only part of the proceeding which is in any manner personal is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him: but this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause.

“The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits; yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court.

“It is, then, the opinion of the court that the defendant who removes a judgment rendered against him by a State court into this court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State, whatever may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing which he demands.”

All which is respectfully submitted.

JAMES BUCHANAN, WM. W. ELLSWORTH, E. D. WHITE.

It was Mr. Buchanan’s intention to retire from public life at the close of this session of Congress in March, 1831. But in the early part of February, without his previous knowledge, a movement was set on foot in Pennsylvania to bring him forward as the candidate of that State for the Vice-Presidency at the next election, on the ticket with General Jackson, whose re-election to the Presidency was already anticipated by his party. As soon as information of this purpose reached Mr. Buchanan, he did what he could to discourage it, as will appear from the following letter to one of his Pennsylvania friends and neighbors:

[JAMES BUCHANAN TO GEORGE PLITT, ESQ.]

WASHINGTON, February 18, 1831.

DEAR SIR:—

I received your kind letter of the 7th instant and the Chester County _Democrat_ of the 8th by the same mail; and I confess the information which they contained was wholly unexpected. I can say nothing upon the subject to which they refer, unless it be to express a profound and grateful sense of the kindness and partiality of those of my friends in Chester County who would elevate me to a station to which I have never aspired. I cannot flatter myself, for a single moment, that the people of the State will respond to a nomination which I feel has been dictated in a great degree by personal friendship; and I shall retire to private life, after the close of the present session, without casting one lingering look behind. As a private citizen I shall always remember with the deepest sensibility the many favors which I have received from the people of the district whom I have so long represented, perfectly convinced that they have already bestowed upon me quite as many honors as I have ever deserved.

I sent you by yesterday’s mail a copy of the correspondence between the President and Vice-President. Its publication has not produced the sensation here which was expected. I think it will not injure General Jackson in the estimation of his friends in Pennsylvania. Its effect, however, will be still more to divide the personal friends of Mr. Crawford and Mr. Calhoun.

The speech which I made upon Peck’s trial will probably not appear until a full report of the case shall be published. The commendations which have been bestowed upon it, both here and elsewhere, have been of a character so far beyond its merits that I fear the public will be disappointed upon the appearance in print.

I would suggest to you the propriety of considering this letter confidential so far as it regards myself. The subject is of a nature so delicate, and anything I can say upon it is so liable to misconstruction, that I should not have answered your letter, had I not felt that you have always deserved my friendship, and that I might rely with confidence on your discretion.

From your friend,

JAMES BUCHANAN.

P. S.—What is now the state of anti-masonry in your county?

The truth is that a longer continuance in public life did not accord with Mr. Buchanan’s plans. His professional income had fallen to the low rate of about $2000 per annum, and he determined to restore it to what it had previously been, and to take his chances for raising it still higher.

He had many qualifications for great success at the bar: competent learning, untiring industry, a ready and pleasing address, an uncommon reasoning power, and a reputation of perfect integrity. Had he been impelled by the wants of a family to devote himself exclusively to his profession, there can be no doubt that he would have risen in it to great eminence. His talents were not of that order which would have enabled him to unite in his own person the very different functions of a statesman and a lawyer; a union which has been exhibited in a very marked manner by only one person in America, and perhaps by no one in England. But my estimate of Mr. Buchanan’s abilities leads me to say, that if he had not at this period of his life been again drawn into a political career, he would have ranked among the first lawyers of his time. He must have soon encased in the forensic discussion of constitutional questions. He had very early imbibed a deep reverence for the Constitution of the United States, and his turn of mind would have adapted him to the handling of questions such as were then arising and are likely long to arise upon its interpretation. As he grew older and his sphere of professional employment became widened, he must have been found at the bar of the Supreme Court of the United States, if not as the peer of Webster and Pinkney, at least as the peer of many against whom those great advocates had to put forth their strength. But from such a professional career Mr. Buchanan was drawn away, not by the prospect of the Vice-Presidency, but by the unexpected offer of the mission to Russia, an account of which will be found in the next chapter.

[FROM GEORGE W. BUCHANAN.]

PITTSBURGH, March 4, 1830.

DEAR BROTHER:—

I am much pleased to observe from the _U. S. Telegraph_ of the 25th ultimo that you have taken a manly stand on the constitutional side of the Indian question. In this pleasure there is no doubt a spice of personal vanity, as your sentiments, so far as they can be inferred from the debate, are in perfect accordance with my own. It is a question which has produced an unaccountable excitement in our city. Every word on the subject is devoured with wonderful avidity; and I can assure you that you did not put too high an estimate on public feeling when you moved for the printing of _ten thousand_ copies of the report. As public opinion is yet unsettled, it is important that the report of the committee, if temperate and decided, should have an extensive circulation.

I have read your speech on the Judiciary with great interest and advantage. The legal gentlemen in our city have highly complimented both its style and research. The best evidence of its effect is, that all those with whom I have conversed on the subject are decidedly in favor of _your bill_.

Anti-masonry is still flourishing. I do not know the state of feeling in the eastern section of Pennsylvania, but I am now perfectly convinced that no western county will return _a mason_ to the next Legislature. Strong, however, as anti-masonry is, much of its apparent strength is borrowed from extrinsic circumstances. In this city, for instance, many persons are anxious to be rid of a set of rulers who have managed with so much political dexterity as to control the destinies of this county for many years. _These men happen to be masons._ No other hobby could be mounted with the same prospect of success. The honest anti-masons, the old Adams men, and the disappointed office-seekers are easily induced to unite their influence against the “powers that be.” The motley materials are thus thrown into one caldron and stirred up into a _dangerous compound_. These remarks I have made to account for the extraordinary strength of anti-masonry in this quarter......

I am obliged to you for the salutary counsel contained in your last letter. I believe that a whole volume of advice (both moral and political) is contained in that single direction, “Be wise as the serpent, but harmless as the dove.” ...... My health is very good.

Your grateful and affectionate brother,

GEO. W. BUCHANAN.

It appears, however, that a meeting was held at Lancaster in March, at which he was nominated for the Vice-Presidency, with what effect may be learned from the following letters written by his brother George from Pittsburgh:

[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]

PITTSBURGH, March 23, 1831.

DEAR BROTHER:—

I have just read with great pleasure the proceedings of the Lancaster meeting which nominated you for the Vice-Presidency. Whether success shall crown the exertions of your friends or not, no public man can receive so flattering and precious a testimonial as the unanimous and unsolicited voice of his neighbors and acquaintances. In this part of the State, the idea seems to take very well. Both this county and Washington will, I think, hold meetings in your favor. I saw the editor of the _Manufacturer_ this morning and ascertained that he will be disposed to take a prominent part. The _Democrat_ will probably not be unfavorable. The editor, however, is a very timid creature.

On Thursday last I was so unfortunate as to fall and break my arm. The pain has subsided in a great degree, and I think that my arm will be restored in a short time to its wonted strength and action. I can now attend to any business that does not require the use of both hands.

I write under a feeling of great inconvenience, and will therefore close.

Your grateful and affectionate brother,

GEO. W. BUCHANAN.

PITTSBURGH, April 29, 1831.

DEAR BROTHER:—

I have been absent from home in attendance upon a sale of United States property at Uniontown for a week past. I succeeded in effecting a very good disposition of the property. The Government, I have no doubt, will approve my proceedings.

I find that in every county in which I have been, your nomination for the Vice-Presidency is very popular. In Fayette and Washington there will scarcely be a division of sentiment. Still, however, it is thought proper to suspend all public proceedings in your favor till the time of holding their regular Democratic meetings in the summer. That course will also be adopted in this county. Every leading _Jackson politician_ here, with the exception of one or two Ingham men, is favorable to your nomination. It will, however, be probably better to wait for a further expression of public opinion at _the regular meetings of the party throughout the State_. I observe that in the _Kentucky Gazette_ your name is placed on the Democratic ticket, under General Jackson’s.

It is believed here that the appointment of Attorney-General has been tendered to you. If so, I hope that you will accept it. It is a most honorable station, and free from that abuse which attaches to the Secretaryships. Will Van Buren be a candidate for the Vice-Presidency?

My arm is not yet so far restored as to be of any use. I trust, however, that the weakness is only of a temporary nature. My health, in other respects, is good.

I am your grateful brother,

GEO. W. BUCHANAN.

Mr. Buchanan returned to Lancaster after this meeting had been held. His nomination to the Vice-Presidency continued to be agitated in other parts of Pennsylvania, and in June a great meeting of the supporters of General Jackson was held at Williamsport, of which George Buchanan gives the following account:

[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]

PITTSBURGH, June 15, 1831.

DEAR BROTHER:—

I arrived here on Thursday. The heat was so oppressive on horseback that I sold my horse at Bellefonte, and returned in the stage. The journey has, in a very great degree, restored my health.

The Jackson meeting at Williamsport was an exceedingly respectable one. Fifteen counties were represented. There can be no doubt that you were the Pennsylvanian to whom the resolution respecting the Vice-Presidency was intended to point. I have every reason to believe that your name would have been inserted by an almost unanimous vote, if Mr. Potter, from Centier, had not been detained at home by the illness of his wife. He would have offered a resolution nominating you; and I can say, _from information of the most undoubted credit_, that at least two-thirds of all the jurors would have warmly sustained it. Mr. Ward, editor of the _Susquehanna Register_, and Mr. Youngman, editor of the _Union Times_, with both of whom I became intimately acquainted, are decidedly favorable to your nomination. They are intelligent young men, and have, in a warm and flattering manner, solicited my correspondence.

In the Western country, I find that the Ingham faction is extremely weak. Out of Bradford County, and apart from their family connections, they appear to have no friends in the West. The people in our district speak very favorably of Mr. Muhlenburg as _the next Governor_, and, I assure you, I did nothing to discountenance that feeling. The popularity of the present Governor has been injured by the appointment of General McKean, the proposition to tax coal, and the character of certain county appointments. The resolution adopted at our meeting, and opposing General Jackson’s course in the Cabinet affair, was intended as a direct censure upon Messrs. Ingham, &c. Owing to the relation I bore to you and to General Jackson, I determined to take no active part in the meeting.

I should like very much to see you and hold a long conversation on matters and things. In July I shall endeavor to visit Franklin County, and, if you should be unable to meet me there, I will extend my journey to Lancaster.

Governor Wolf left our city this morning for Erie. He was here at the time of my arrival, and, in company with several ladies and gentleman, I escorted him to Economy. He was exceedingly well received by the people of that singular village. His plain manners and German language endeared him very much to Raff and his whole Society. The Governor treated me with great attention, and evinced a disposition to be very familiar. His daughter, however, _pleased my fancy_ much more than the old gentleman himself. She is a very interesting lady, and has well nigh _stolen my heart_.

I observe that the newspapers are determined to give you some office. They now make you Minister to Russia. Is this report true? If so, it will then become your duty to consider _what sort of a Secretary your brother George would make_. It would be a very interesting time to visit Europe.[25]

I remain your grateful and affectionate brother,

GEO. W. BUCHANAN.

Footnote 23:

Mr. Buchanan’s speech extended through two sessions of the Committee of the Whole. After some amendments by the Senate, the bill was finally passed, and was approved by the President May 19, 1828. The speech may be found in Gales & Seaton’s Register of Debates, Vol. IV,