it introduced no inconvenience, but the making the oath of the juror a little longer, to introduce the implication by express words. The first time that I ever heard of such a scruple was from a juror in the western country, at the first organization of Washington county, who seemed to have some difficulty upon this head, from his habits of casuistry, and the scrupling articles of church government and discipline. I forget whether the court were able to satisfy him by explaining the tacit condition of the oath; or whether they excused him from taking the oath, and of course from serving as a juror. But be it as it might, he got the credit of being a man of tender conscience; and it began to be no uncommon thing to allege such a difficulty in the taking the oath; whether from conscience or from policy it could not be said. The last time that some difficulty of this kind occurred in my recollection, with a juror, was in a court at Chambersburgh. Judge Smith, with whom I sat, said it was the law. I attempted to explain the reason of the law, but the judge interrupted me, and ordered the juror to be sworn. I take it, was this very circumstance which gave rise to this addition to the oath of a juror. It will be seen therefore, that it did not originate with the legislature, but with the scruples of the people, which whether honest in all cases, or affected, gave the court trouble. For as the legislator of the Jews, is said to have given some laws to the people in the wilderness, "because of the hardness of their hearts," so our representatives have thought it advisable to accommodate, in some instances, to the weakness of the people whom they represent, and with whose concerns they have been entrusted. Legal characters of other states, or individuals of good sense, to whom I have made this explanation of the amendment in question, were satisfied, and deduced no inference of a want of understanding in our legislature, to conceive such an amendment necessary; an amendment changing the form of an oath from that of the common law, and which had been in use, and the implication of it generally understood for an im memorial period of years.

that it was this

I will observe here, as an apology for what has been introduced, that a judge, especially, cannot but feel a peculiar interest in all that concerns the credit of the legislature of his state; in all that relates to their provisions, as well as to the language, of their acts, whether ambiguous, or the arrangement defective. I had it once objected to me by a Virginia lawyer; an expression of the old act of assembly, I think Galloway's edition, that the state house yard should be "surrounded by a brick wall, and remain an open inclosure forever;" but I put him down by that act of the legislature of Virginia, which is entitled, a "supplement to an act, entitled an act, to amend an act, making it penal to alter the mark of an unmarked hog." The solecism was at least as great in one case as in the other; our act of the 17th Feb. 1762, has altered that phraseology, by saying that the "same shall be, and remain a public green and walk forever."

An enquiry into the causes of that obloquy, under which the supreme court of this state laboured from the year 1800, down, during a period of several years.

This was owing to several causes; I shall begin with the weakest, and conclude with the strongest.

1stly, The supreme court itself, consisting of four, three of these were so connected by affinities, that they seemed to be but one person. For it is necessary, not only, that judges be independent of the people to a certain extent, but also, for the public confidence, that they be independent of each other. Affinity, and habits of close connexion, cannot but beget a suspicion of such resignation of individual opinion, as to be unfriendly to the freedom, and voluntary exercise of individual judgment. There is such a thing as even a weaker brother, or assistant judge in all ministerial matters at least, managing the arrangement, and not without influence by address, and representation in conciliating a determina

tion to his way of thinking even in matters of a judicial na

ture.

For these reasons I did think, and now think with the public, without intending the least reflection upon the cha racter of the judges, that the circumstance of a seeming attachment from family considerations with some of them, however accidental it may have been, and not the result of intrigue with the governor, that so many of a connexion having got upon the bench, was a drawback, if I may use a mercantile phrase, on the confidence of the public with regard to the judges who composed the bench at that time.

But,

2dly; What was perhaps a more obvious circumstance, the same three of the four were from wealth and connexion, and supposed political way of thinking, all of the aristocracy of the commonwealth. For the two natural divisions of society are into the few and the many; or the aristocracy, and democracy under whatever name it may be disguised, or whatever character it may assume. I will not say that the judiciary power is not safely lodged in any case with that which may be deemed of the aristocracy of the state; but in general, I do not approve of it without such a due admixture, as will approximate to the common people. It is impossible that a man of wealth and powerful connexions, should not consider these of better mould, or meliore luto than the bulk; and have a leaning, perhaps imperceptible even to a good man, in favour of people that keep carriages, and who entertain, and are entertained by him. It will be observable if not in an individual case, yet at least in a tone of mind disposed to wind up the construction of statutes, favourably to the inequality of estates and conditions. But, 3dly; The arrangement of their own services. It was a radical error that the whole four judges, suffered themselves to be occupied a considerable part of their time, sitting upon jury trial. It was a monstrous mis-application of their services, or arrangement of their duties. I saw the error, and knew the dissatisfaction that it occasioned both with bar and country; but though remonstrating to the court themselves, and to individuals of them I could not prevail in ef

fecting an alteration. Each admitted the evil, but no change could be brought about. How or why the obstinacy of the habit which had been established, I may suspect, but I can not develope. The bar have always to me disclaimed any approbation of it, or that they were the cause of its continuance. But be it as it may, this was a substantial cause of dissatisfaction with the court, producing a delay in trials. For, as four men cannot walk four miles, sooner than one man, it is of no use to have four as to the effect of expediting the journey. The truth is, it was a source of great delay, to have four on a jury trial. A paper offered in evidence must be read by the presiding judge, and a note taken of it. It then comes to the second who must read, and note also; and to a third, and a fourth who has the same right to read and note; and, if he does not, at least read, he is under a disadvantage in understanding the cause. By the time it came to a fourth, which was my place, I found by both bar, and country, such an impatience at the vexatious delay, that I was led to dispense with looking at it at all; and to content myself with catching the substance from the argument of the counsel, or the hearing it cursorily read by them, without seeing it, which at all times fixes the impression of the contents more forcibly upon the mind.

Segnius irritant animum demissa per aures

Quam quæ sunt occulis subjecta fidelibus.

It happened that the two assistants immediately preceding me, took notes at great length, so that in copying a paper, there seemed to be no end. The delay of trials, therefore, by this, and other means, was a great cause of dissatisfaction with the administration of justice. I say other means ; because, the trial was protracted by the taking notes at great length of the testimony of witnesses; and there was a constant cry of, "wait until I take that down," expressed by bar,

or court.

The bringing many books, and reading cases at great length, was another means of the delay of trials; together with the long comments made by counsel on the application of the authorities. But I come now to a

4th, Or greater cause, than all these; the constitution of

circuit courts. These had succeeded to the nisi prius courts, and were of the same nature, save that judgment could be rendered, at these courts, but subject to revision in term. It was the arrangement that two judges sat on trials at these courts; though not made necessary by the act under which these. courts were constituted. This was unnecessary, and injudicious, being subject in some degree to the same inconvenience with four sitting at nisi prius, in the city and county of Philadelphia. The time and services of the judges could have been distributed singulatim on jury trials. The augmentation of judges to this extent, prevented the dispatch of business; for one could dispatch a trial, at least in the same time with two; and hence there was less business done by half than might otherwise have been done. But taking the number of judges into view, it was impracticable, with any arrangement that could be made, to give satisfaction to the country, under the constitution of the circuit or country nisi prius courts. Of the greater number of causes depending, but few could be tried in the course of the time allotted for a county, and much time could not be allotted for twenty six or thirty counties. But as all the suitors must have a chance of having their actions brought forward, all must be put down for trial; and witnesses summoned, and attending in the respective cases. This made it a matter of great expence to the parties, and it was a source of great pain to the judges to be under the necessity, though but little prospect of reaching a case, to detain suitors, and witnesses for the trial. For an action could not be continued over until another sitting, without the consent of both parties. And the court, consistent with their duties elsewhere, could not sit more than once in the year. In fact it was an absurdity in the constitution of the court to be bringing judges from a distance to each county of the state to try matters of fact, which could not be sup posed to be in contemplation by the new constitution, under which, districts, were established; and a president, a legal character, was appointed to preside. Nisi prius courts had been continued for some time after the framing and adopting the constitution; but this was an inconsistency with the provision which had been introduced; and which had rendered it unnecessary, when carried into effect. At a circuit court,