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attempt a relief by abridging the jurisdiction of the Federal Courts. “If mutual confidence is to be maintained between the people of the different States, adequate and equal means for impartial inter-State justice must be furnished, as they always have been hitherto, and as the Constitution intends they should be.”

Upon the two general plans which have found favor in the profession, the one for dividing the Supreme Court into divisions, and the other for establishing an intermediate Court of Appeals, the full committee, after full consideration and discussion, found itself about evenly divided.

The minority report premises that the present system of appeals is the best that can be devised, except this, that under that system the Supreme Court is unable to discharge the business upon its docket. The only necessary, the most obvious and the simplest remedy is to enable them to discharge it; "and this, we believe, can be done.” A large proportion of the cases decided there do not present questions of any special difficulty, nor questions either new or important. They can as well be decided by a less number of Judges than nine, as not, as is the case in the House of Lords, the highest court of appeal under the English law. Every additional member added to a bench which is already sufficient tends obviously to diminish the degree of personal responsibility and of personal attention.

“ Constitutional questions” should be heard and determined by the full bench. Beyond that, no good is attained by requiring all the Judges to participate personally in the disposition of every case. The propositions of the minority of the committee

1. That the Supreme Court should be divided into two or more sections for the hearing of the causes upon their docket, except as named below.

2. Such sections not to be made up by permanent assignment of Judges, but by such system of division as the Court may, from time to time, find expedient; no Judge to sit upon review of his own decision; and the causes not to be distributed according to their subjects, but according to the discretion of the Court, under such regulations, for the dispatch of business, as they may deem expedient.

3. All causes pertaining to the original jurisdiction of the Court and all involving questions under the Constitution or treaties, and such other causes as the Court may, in its own discretion, or upon previous application direct to be so heard, to be heard before the whole Court.

4. Causes heard before either division to be ordered by such division, if thought advisable, to be reargued before the whole Court, all decisions to be reported to the whole Court before being announced, and all judgments rendered to be rendered as the judgment, of the whole Court.

This arrangement would permit of a competent disposition of about seven hundred cases per year; and any future increase in the business of the Court could be provided for by an increase of the divisions, involving possibly hereafter an increase in the number of Judges, if the same should in the future become necessary.

The objection that this plan is unconstitutional will not be seriously insisted upon by constitutional lawyers. This method does not create two or more Supreme Courts. To maintain the objection, it must be maintained that all of the Judges, or at least a majority of them, should take part in the hearing and discussion of every cause before it. But the Constitution gives this Court jurisdiction, "with such exceptions and under such regulations as the Congress shall make.”

Its jurisdiction cannot be exercised in any other form, or in any other mode of proceeding, than that which the law (of Congress) provides." (3 How. 103, and vide 6 Cranch, 307.) Congress may enact that any number-four, six, eight, or nine-shall constitute a quorum for the transaction of business. Under the existing law, six judges being a quorum, four may decide a cause, though two, or even three, Judges may dissent, and two or even three others take no part in the hearing.

The plan proposed by the minority was enacted in New Jersey, under a similar constitutional provision for “one Supreme Court," and the enactment was sustained as constitutional by the Court of Errors of that State (4 Zab. 838).

The only other objection suggested to the plan of the minority was stated to be that it was undesirable that any cause should be disposed of without the concurrence of a majority of the whole Court in the decision. But such is not the exist

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ing law or practice; nor is it practicable, with any regard to the dispatch of business, that it should be. If an appeal can be heard by even four or five Judges of the Supreme Court, nothing will be gained in the character of the decisions, or in the ability, or even in the number, of the Judges participating, by sending the cause to be heard by three Judges of an inferior court.

As to the convenience of the proposed intermediate Court of Appeals, that is a question purely of the convenience of counsel and not of clients; and, after all, a considerable proportion of the appeals must be heard at a distance from the residence of the parties and from the Court in which the trial appealed from took place. The journey to Washington is not material.

The objections to an intermediate Court of Appeals are grave:

1. Any relief to the Supreme Court implies a limitation of the right of appeal from the intermediate court to cases involving $10,000, and probably a much higher limit must be made in that plan, for when, in 1872, it was raised from $2,000 to $5,000, hardly any perceptible diminution in the docket resulted, but, on the contrary, there was an increase in the docket from 676 cases, in 1872, to 1,202, in 1880, notwithstanding the fact that more cases were disposed of during those years than during previous years.

This increase in the money limit from $2,000 to $5,000 has been felt to be oppressive, and nothing but a supposed absolute necessity has induced submission to it. To the great mass of litigants, controversies involving from $5,000 to $10,000 are serious, important, and frequently involve all they po-sess. An increase in this jurisdictional amount would practically set aside the Supreme Court for the benefit of wealthy men and great corporations. Some monetary limit is necessary to save the Court from being harassed with small controversies; but an increase therein would now practically amount to a total denial of justice, which certainly is worse than a mere matter of delay in its administration.

2. This is the only tribunal to which ever has been committed the final arbitrament of all questions of constitutional law. This function in this tribunal is the mainstay of our government. Its maintenance in dignity and authority among the people depends upon its exercise of the functions of a Supreme Court in other regards, in fact as well as in name. Remove it from the people by high money jurisdictional limits, or by barriers which prevent an approach to it by the people, and its sole foundation of practical authority will crumble. It cannot be preserved as it now is if the people, other than wealthy individuals and large corporations, are excluded from its doors and compelled to accept, as final, such humbler justice as local tribunals may afford.

3. The body of the common law, as now administered by the Federal tribunals, is the only homogeneous law we have, and such administration should be preserved at all hazards. The influence of local institutions and traditions, of varying political sentiments and diverse financial, productive and commercial interests upon the intermediate local Courts of Appeals is to be expected-yes, must be expected-by the most conservative, to that degree that there would result therefrom “a mass of heterogenous decisions on many points irreconcilable, and a law that would vary, like the climate, with the latitude and the longitude.”

4. The provision in the Davis Bill, allowing the Appellate Court to certify cases to the Supreme Court, fails to obviate the objection. An appeal should always be a matter of right, not of favor.

5. Centralization in the general government of powers which belong to the States is to be deprecated; but a centralization which brings the Federal Judiciary under the immediate control of one supreme head is essential to the existence of such a judiciary.

6. The plan requires the appointment of additional Judges to hold this additional court. This would not relieve the crowded dockets of the Circuit Courts at all, but would incur large additional expense, for no other purpose than to create an additional court.

7. Traditions are stronger than institutions. The creation of nine local subexecutive departments, or of nine local Congresses (in the legislative department), would tend to the same result that the creation of nine local courts, each with final jurisdiction, in a majority of cases, would tend to, and any such disintegrating tendency should be avoided.

The report also says:

The creation at Washington of an independent Court of Appeals would tend to supplant and weaken the Supreme Court in popular estimation, and, perhaps, would endanger its ultimate existence.

Recurring to the plan of dividing the Supreme Court into sections, this report says: “A moderate increase in the number of the Judges of the Supreme Court would make the several sections as large as the present legal quorum of the whole Court; would permit a division into three sections; would reduce the size of the circuits; would enable the Supreme Judges to perform necessary circuit duty, and would relieve the overburdened Circuit Judges."

As before stated, the minority report was signed by Messrs. E. J. Phelps, Cortlandt Parker, William M. Evarts and Richard T. Merrick.

The whole committee was unanimous (except Mr. Hitchcock, who preferred to express no opinion, except in favor of an intermediate Appellate Court,) that, in the absence of the establishment of such a court, it should be enacted (and such, under rule of court, was formerly the law in some circuits,) that any bill of exceptions reserved on the trial in the Circuit or District Courts, and any petition for a rehearing in any equity case, shall be heard at a term of the Circuit Court, when the Circuit Judge or a Judge of the Supreme Court shall be present; and that there should be some method of revision of important interlocutory orders.

Although the matter was mentioned several times, yet no discussion or definite action was further had with reference to this subject by this Association till in August, 1888, when a special committee of five was ordered to urge upon Congress the enactment of the propositions of the “majority report" of 1882. The committee appointed consisted of Messrs. David Dudley Field, of New York; Francis Rawle, of Pennsylvania; J. Randolph Tucker, of Virginia; Geo. H. Bates, of Delaware, and E. O. Hinckley, of Maryland.

Mr. D. S. Troy, of Alabama, insisted that the objection to dividing the Supreme Court into senates or sections, that it is inimical to the provisions of the Constitution that there shall be one Supreme Court, is based upon a failure to recognize a distinction between the decision of a cause and the judgment of the Court. The latter, litigants are entitled to and are affected by. The former, the public is entitled to and interested in. “And this constitutional right of the parties to the judgment of the Court is not violated because that judgment is rendered upon an exposition of the legal principles involved, made by a part only of the Court.” It is not necessary to require the Supreme Court to render judgment on the decisions of a division; it is only necessary to authorize that which, practically, and to a considerable extent, is now the practice. Let each division have the power to set down any case for hearing by the court in banc, and if the division shall proceed to a hearing and decision, then, in advance of judgment, the syllabus might be furnished to each Justice of the Supreme Court, and a majority may order a rehearing before the full Court.

A mere reference to the paper read by the writer hereof before the Illinois State Bar Association, at its meeting for 1886, may be pardoned; but his present contribution to the literature of this subject, in addition to the reflection, in the preceding pages, of the statements of others, must, in propriety, be brief. This disastrous condition of the docket of the Supreme Court is a result, partially, of the custom or rule established by the Court for its own guidance, under which, more or less strictly followed, the opinion and judgment of the Court is, in each case, the opinion and judgment of each member of the Court who does not dissent; but principally that disastrous condition is the result of causes existing outside of the Supreme Court, sounding in the development of the country and in the unsatisfactory manner in which, under existing law, much of the business of the District and Circuit Courts must be transacted.

A logical consideration of the matter will commence with the first cause of the trouble, and the proper remedy must have reference specially thereto.

To go back still further: The questions arising in both the lower courts and in the Supreme Court, all, under the present system, to be determined by the same Judge at the trial, and all by the same Judges on appeal, are so multitudinous and varying as that it is physically impossible that full justice should be done, or that it should be promptly decreed. It goes without saying, that in some circuits (or districts, which terms are, unfortunately, too often synonyinous,) the administration of railroad properties by receivers of the courts, and the adjudications preceding and following the same; in other circuits, the decisions as to mining laws; in others, the trial of patent causes; in others, the enforcement of the revenue laws; in others, the opinions concerning the common law of trade-marks; and, in others, the pronouncements as to what constitute unconscionable business methods, commercial fraud, or unwarranted interference with trade, are unsatisfactory alike to both plaintiffs and defendants.

And, even in the Supreme Court, the theory to the contrary notwithstanding, an examination of any ten volumes of the repoits of that court will show that the announcements of its opinions (which is the most important factor in the determination of the law by that court) are made by its members, very largely at least, according to their personal familiarity and respective comparative study of the respective branches of the law. Several of them have, for instance, announced upon public occasions that they dislike to hear or take up patent cases for determination; and, while the Court has been understood to be almost unanimously opposed to a division of the Court into senates for the purpose of hearing cases, members of the Court have, in writing, advocated the establishment of an intermediate Appellate Court for patent causes.

Now this does not come about because there is such a wide distinction between the statutory law and the metaphysics involved in patent cases, and the statutes and the logic of other branches of the law, for, as wide distinctions could be named concerning insurance, mining, maritime, corporation, revenue, railroad, banking and commercial law.

When cases in these several branches of the law come on in the Supreme Court which involve constitutional questions, or involve a matter of general public concern and attention, then each member of the Court gives such a case the same consideration which he would if called upon alone to determine the case. But it will not be denied that this is not true of the mass of litigation determined in that Court. The construction of the patent laws has been announced from the Supreme Bench for the last twenty years, practically, by no greater number of Judges than would constitute a division of that Court if its membership was slightly increased and was divided into senates; and the writer thinks that such has been, and such will be, the necessary results of fact beyond the control of legislation and rules of court.

The first cause of most of the present embarrassments is found in the rapid growth of our country and of the laws and rules pertaining to its commercial kaleidescope, and in the fact that, as a rule, no one man is qualified to try cases, either upon the bench or before it, in all branches of the law, as they should be tried to secure a prompt and uniform administration of justice. Whether reluctantly or otherwise, the practitioners of earlier days, who are now on the bench or at the bar, must recognize the facts just stated, and due consideration must be given thereto before a proper and a lasting remedy will be provided.

Sooner or later, the logic of events, which has already divided the practice of the law and the State Judiciaries upon special lines of subject matter (including special criminal, probate, insolvency, equity and law courts in the States) will make its imprint upon the Federal Courts, perhaps first upon the Supreme Court, and later upon the trial courts, but ultimately upon both.

If these facts and considerations be controlling, and if the people are still to have a Supreme Court, in fact as well as in name, then the writer is of opinion that the inevitable result will be that the hearing of arguments and the first investigation of cases in the Supreme Court will be conducted by a part only of its members (and by that part best qualified, by previous special study, to give to each case a most thorough, careful and competent consideration); and the present theory of intimate, direct, controlling direction of the course of justice in the trial courts and the confidence of the people will be maintained by a refusal to raise the jurisdictional liroitations of the Supreme Court, and by a refusal to relieve its members of circuit duty.

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