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The combinations of interest and the resentments of disappointed ambition in a new election, may render them liable to hazards, to which it is cruelty and injustice to expose them.
I will next enquire, whether any necessity exists for this rash measure, among the judges of the Western District. Of judge Hamilton I have heard no complaint. Of judge Turley I never expect to hear any. He is one of those rare instances of judgemaking in Tennessee, which could hardly be bettered.
Judge Haskell, whatever might have once been the case, seems lately to have risen in popularity in his circuit. At all events, it can hardly be necessary to nullify him out of office, since you are in a fair way to do so in a much more constitutional manner. I come now to speak of the judges of Middle Tennessee, and I begin with judge Kennedy. The history of our lives would show, that we have not always been friendly, and that we are not now the greatest admirers of each other; but, sir, were he my greatest enemy, his character as a man and his reputation as a judge, shall not be tarnished with my consent by turning him out of office. Next, sir, I will enquire, who complains of judge Humphreys? I know not, and I care not; for turn him out when you may, his place will not be supplied by an equal. Have complaints been raised against judge Mitchell? If so, let us take warning from the fact. It goes to show that the judge which you made in 1829 could not last until 1831, What assurance then have gentlemen to offer, that this whole tribe af judges which you are proposing to make, will endure until 1833? I have yet to speak of judge. Stewart and judge Williams, and have left them for the last, because I knew they were most complained of. I believe, sir, that nine-tenths of all this noise and clamor against the judges may be traced to their two circuits. Admit all this complaint to be well founded, do not gentlemen perceive how unjust it would be, to involve the other judges in the same disgrace with these? Surely that moral vision must be clouded that could expect the representatives of the other nine judges to commit an act so unreasonable and so indefensible. I will now ask the gentlemen from Williams' circuit if we have not already done a great deal to relieve them from the real or supposed hardship of their condition. At the last session thousands were spent to rid them of the evil by the direct operation of an impeachment. When that failed, a new circuit was formed to lighten their burdens. Beside all this, in 1827, the complaints from that quarter induced the Legislature to pass a law authorizing the appointment of special judges. In doing this I adınit the provisions of the constitution were most probably transcended, but coming from that region of the State, the gentleman from White should have been the last to reproach us for the infraction. Sir, I am inclined to believe that it is because we have done so much, and shewed such a disposition to do every thing asked for, that we are now called upon to consummate this last and fatal act of constitutional violation.
As to judge Stewart, most of us were boys--some on this floor were scarcely in existence-when he commenced the labors of the bench. This flourishing city in which we are now deliberating on his overthrow, was then nothing more than an ordinary village. He penetrated the forest, visited all the new counties as they were established, and in log court houses which neither sheltered him from the rain nor protected him from the cold, administered the law, “without sale, denial or delay.” Patient and persevering, and possessing more learning than many who outstripped him in the career of judicial promotion, he has been for twenty-two years the most virtuous, the most unambitious, and the most useful of all our circuit judges. I will go further and assert to this committee, that he has rendered more valuable services to the people of this State than any other judge of any grade or rank whatever. Your books of reports inay hand down to posterity many names more honored than his, but the memory of none will be more richly embalmed in the affections and gratitude of the present generation. And yet he too is to be swept away by this modern doctrine of judicial nullification! And for what? Because he has grown old, Yes, sir, that is true; but let it be remembered, that he has grown old in your service. The infirmity of his body has not impaired a single faculty of his mind. I this day assert that he knows more law than half his persecutors, and is a better judge than the best half of those who are getting ready to step into his slippers. But he is crippled, withal, and goes upon crutches! How did he become so ? He has told the simple and affecting story in his own memorial now lying on your table. I was in this city when the news of his unfortunate accident arrived; I witnessed the anxiety of the public mind about his fate, and let me warn gentlemen how they too rudely pull him down from the bench: for judging from what I then saw, his downfall may excite a tide of popular indignation, deep, powerful and overwhelming.
I have often thought, that there was something strange and unaccountable in the cold indifference, and even absolute neglect, of the world toward meritorious and useful civil officers. You decree a triumph to him who captures a city-you crown with laurels the General who achieves for you a victory, whilst the judge who builds up and perfects your jurisprudence and administers justice in its purity to thousands, lives unrespected and dies unhonored. For myself it is not so ; for I would today rear as proud a monument to the memory of a Haywood, a Crabb, and a Brown, as to that of the bravest hero that expired on the plains of New Orleans. Holding such sentiments as these, I should be recreant to honor and to justice, were I to join in this crusade against the judges. Yet I desire gentlemen, whilst I acquit them of every improper motive, to understand distinctly the reasons why I cannot go with them.
1st. Because they do not substantially change the systemthey do not even give it a new dress. It is called, to be sure, a district court, but what signifies names? It is to be held by one judge as at present-to be held at the same places to have the same jurisdiction, and is, to all intents and purposes, the old circuit court over again. I regard it as a disguised and fraudulent bantling, re-christened by the gentleman from Smith, with the gentlemen from Davidson and from White standing as its reputed God-fathers!
2nd. I cannot go with them, because I do verily believe we shall get worsted in the exchange. We have now eight or nine good judges and only two or three indifferent ones. I had rather stand as we are, than risk the chances of making matters worse by attempting to mend them.
Mr. Chairman, I pass over the proposition in favor of abolishing the Chancery Courts. All the different propositions
believe contemplate that event. It is demonstrable that they render no service adequate to the expense. They now stand as sinecure offices, which ought not to be allowed in a republican country. Such they must continue to be, unless you transfer to them all equity jurisdiction from the circuit courts. This I apprehend the people will not consent to, as they are too few in number and too sparsely scattered over the country.
Nor do I intend now to discuss at length the proposition to transfer all jury cases from the county to the circuit court. I shall ask of this committee hereafter a separate and distinct consideration of that branch of the subject, when I hope to be able to show, that such a transfer will be greatly serviceable to both plaintiffs and defendants, and calculated to lighten the taxes and diminish the expenses of litigation in every county in the State.
I proceed therefore to consider the last proposition to abolish the present Supreme Court and to build up another on its ruins. This is your court of the highest and last resort-the head and the heart of your judicial system. It is the head, because from it all the subordinate members receive their direction, and the heart, because from it proceeds every principle of vitality that pervades and strengthens the whole. lop away one member after another, and still the branchless trunk would live, a mutilated monument of the heedless violence of the times; but when you have once laid the axe to the root and prostrated its majestic trunk on the ground, all will be lost that rendered life secure or made liberty valuable.
Let this committee remember that no substantial alteration in the system of this court is proposed. Its name, its jurisdiction, its emoluments are the same. It is the old Supreme Court in disguise, with but little to conceal its identity. Gentlemen have only muttered a few cabalistic words, and the presen court has disappeared and a new one has risen in its place, with nothing to distinguish it but a new set of judges! Is such pretended magic consistent with the constitution of the State ?The 2nd section of the 5th article declares, the General Assembly shall by joint ballot of both houses appoint judges of the several courts of law and equity, who shall hold their respective offices during good behaviour--not so long as they may remain
young--not so long as they may be blessed with eyesight-not so long as they may be popular with the Assembly—but for and during their good behaviour. Sir, I throw no peculiar sanctity around our judges, I am no advocate for them as individuals. and would never consent to keep up uscless or unnecessary offices for their benefit; but I maintain that sccording to the spirit and intention of the constitution, we have no right to abolish a necessary and useful office for the purpose of getting clear of obnoxious incumbents. If the Legislature possess this right, then our judiciary can no longer be regarded as independent. The judges continue in office, not during their good behaviour, but during the will and pleasure of the General Assembly. If it were intended that they should hold their offices by so frail a tenure as this, why so much caution in providing for their removal by impeachment? Why so carefully provide, not that a majority, but that two thirds of the Senate, sitting as a court of impeachment, should be necessary to conviction ? Now all these safe guards have been erected in vain, if the Legi lature can, in this summary way, remove the judges at its pleasure.
A precedent for doing so has been drawn from the removal of the midnight judges of the elder Adams. There is not the slightest resemblance between the cases. The Federal party had changed the system--they had established a separate Supreme Court to be holden by a distinct set of judges, and to find employment for their favorites, had required the district courts to be holden, not by one, but by a plurality of judges. The Republican party, coming into power the very next day, were of opinion that the change was an improper and unnecessary one, and therefore repealed it at once and restored to the country the former system. They were abolishing useless and unnecessary offices, and the incumbents necessarily fell with them. Besides, sir, if the history of those times were examined, which I have not done for many years, it would very probably be found, that no commissions were ever actually delivered, or any oath of qualification ever administered to those new judges-however this may be, the repeal can be justified on the most correct principles without referring it to the party excitements of the day. The repeal of the old district court, in 1809, and the establishment of the present Circuit and Supreme Court system