hope you feel in a proper state of

under which you are gathered. I do not know any reason why the distinction was made by which Lord Shaw of Dunfermline should speak in a place where athletic contests had theretofore been had, and I should be assigned to this sacred structure. It was doubtless because they knew that Lord Shaw could be trusted anywhere. I am sorry that we have not had the benefit of this fine church auditorium for all the sessions. I feel in speaking here as if I were enjoying an undue privilege, as if it were denying to others the equal protection of the law, not to give them the same opportunity. However, I shall need your prayers and all your self-restraint to keep your attention to what I have to present to you this morning, because it is going to be dry to the point of satisfying the Anti-Saloon League.

For many years, the disposition of business in the federal courts of first instance was prompt and satisfactory. This was because the business there was limited, and the force of judges sufficient to dispose of it; but of recent years the business has grown because of the tendency of Congress toward wider legislative regulation of matters plainly within the federal power which it had not been thought wise theretofore, to subject to federal control. More than that, the general business of the country, and the consequent litigation growing out of it has increased, so that even in fields always occupied by the federal courts, the judicial force has proved inadequate. In

this situation, the war came on, statutes were multiplied, and gave a special stimulus to federal business. Since the war, there has been a great increase of crimes of all kinds throughout the country. This within the federal jurisdiction has included depredations on interstate commerce, and schemes to defraud in which are used facilities furnished by the general government.

Then under the inspiration of the war traffic in intoxicating liquors was forbidden, and under the same inspiration the Eighteenth Amendment was passed and the Volstead Law was put upon the statute book. Prosecutions under this law alone have added to the business in the federal courts certainly 10 per cent.; while cases growing out of the income. and other war taxation, out of war contracts and claims against the government, have made discouraging arrears in many congested centers. The criminal business has usually been first attacked, and the effort to dispose of it has in some jurisdictions nearly stopped the work on the civil side.

The Attorney General, properly as it seems to me, conceived that the first step to take was the creation of new judgeships. A bill was introduced in both houses for the addition of eighteen District Judges to the judicial force, two for each circuit, who were not to be assigned to any district, but were to be subject to call to any district in the circuit in which they were appointed, to assist the existing District Judges. In addition, these judges and the existing District Judges were made subject to assign

ment from one circuit to another where the business required it. The suggestion of a flying squadron of judges, however, did not meet with approval in the House of Representatives, and the Judiciary Committee of that body preferred to add local District Judges for the districts where the congestion was most apparent.

Accordingly a bill was put through which made new judges in twenty-one districts. The bill when it reached the Senate was modified somewhat. It went to conference, and a bill which provides for twenty-four new District Judges and one Circuit Judge in the Fourth Circuit has been reported to both houses. It is opposed, and will doubtless lead to discussion; but, in view of the previous votes in the two houses, it seems likely that the bill will pass before the close of this Congress.

The bill contains a very important provision, which it seems to me will make for expedition and efficiency. While the districts which receive new judges are those in which additions to the judicial force are most needed, there are arrears in other districts and the delays and defeats of justice are not confined to the normal jurisdiction of the twenty-four new judges. The new bill authorizes a judicial council of ten judges, consisting of the Chief Justice and the senior Circuit Judge of each circuit, which is to meet in Washington the last Monday in September, to consider reports from each. District Judge with a description of the character of the arrears, and a recommendation as to the extra judicial force needed in his district. The conference thus called is to consider at large plans for the ensuing year by which the District Judges available for assignment may be best used. The senior Circuit Judge of each circuit is given authority to assign any District Judge of one district to any other in his circuit, while the Chief Justice is given authority to assign any District Judge in one circuit to a district in any other circuit, upon request of the senior Circuit Judge of the circuit to which the District Judge is to be assigned, and the consent of the senior Circuit Judge of the circuit from which he is to be taken.

These provisions allow team work. They throw upon the council of judges the responsibility of making the judicial force do a work which is distributed unevenly throughout the entire country. It ends the absurd condition, which has heretofore prevailed, under which each District Judge has had to paddle his own canoe and has done as much business as he thought proper. Thus one judge has broken himself down in attempting to get through an impossible docket, and another has let the arrears grow in a calm, philosophical contemplation of them as an inevitable necessity that need not cause him to lie awake nights. It may take some time to get this new machinery into working operation, but I feel confident that the change will vindicate itself. The application of the same executive principle to the disposition of legal business in the municipal courts of certain cities, and in the courts of some states, has worked well. Although the whole United States is a more difficult field in which to apply it, there would seem to be no reason why its more ambitious application should not prove useful.

A good many objections, I may state informally, have been made to this feature of the bill. It is thought that it gives too much power to the council of judges, and especially to the Chief Justice. Gentlemen have suggested that I would send dry judges to wet territory and wet judges to dry territory, oblivious of the fact that the Chief Justice has not the means of assigning them to any particular work in any district to which he may assign them, and that assignment to cases must necessarily be made by the local District Judge who is in charge, and oblivious of the fact also that it is only by the consent of the two Circuit Judges that he can act. It nevertheless did serve to call out in the discussion references to Jeffreys, and other notorious judges in the history of our profession, which did not seem to be altogether complimentary to those to whom the references were applied.

Second. I come to the appellate business in the federal system. In the old days when business was light in all the federal courts, the appeals and writs of

error that were taken to the Supreme Court were not sufficiently numerous to occupy the full time of the Supreme Court and the Justices were able to do a large amount of circuit work. Indeed, under the statute, until recent years, a Circuit Justice was required to visit each district in the circuit to which he was assigned, once in two years. As the appellate business grew, however, this rule became more honored in the breach than in the observance, and it has now been properly repealed. Its existence, however, showed that there was a time when its obligation was not unreasonable.

It has had one effect, good or otherwise, as you may be affected by it, that it justified the adjournment of the Supreme Court early in the spring, in order that the Justices might do their circuit work. And if they didn't have any circuit work, the logical result was that it enlarged their summer vacation. Now we have been gradually creeping up on that vacation, so that ultimately it may come within reasonable limits.

In 1891 a new intermediate court was created, the Circuit Court of Appeals, one to each circuit, and the Circuit Judges were ultimately increased, so as to give three or more Circuit Judges for each Circuit Court of Appeals, except that of the Fourth Circuit, where there are only two. The new bill proposes to give that circuit an additional judge. In the act of 1891 appeals were allowed from the courts of first instance to the Circuit Court of Appeals, and, speaking generally, the judgments of the new court in cases depending on diverse citizenship, patent cases, admiralty cases, and criminal cases were made final. This radical change became necessary because of the arrears in the Supreme Court, which put the court three years behind the disposition of its cases. The new system worked a great reform, and the court was able to catch up and keep up with its business until within recent years. Now there is an interval of fifteen months between the filing of a case in the court and its hearing. To be exact, I had the clerk give me the time taken between the filing of the transcript and the hearing of the last ten cases on the regular docket heard in

the Supreme Court, and the average interval was fourteen months and sixteen days. This is due not alone to the number of cases filed, but also to the fact that, with the increasing number of cases in which emergent public interest demands that a speedy disposition be had, many cases are taken out of their order and are advanced. Much of the time of the court is consumed in the hearing of such cases and the regular docket is delayed.

The members of the Supreme Court have become so anxious to avoid another congestion like that of the decade before 1891 that they have deemed it proper themselves to prepare a new bill amending the jurisdiction of the Supreme Court and to urge its passage. A committee was appointed some two years ago of the court, and this year they gave great attention to it. The committee was composed of Mr. Justice Day, Mr. Justice McReynolds, and Mr. Justice Vandeventer, while the Chief Justice was an ex officio member. The bill is now pending in both houses of Congress. The act of 1891 introduced into the appellate system a discretionary jurisdiction of the Supreme Court over certain classes of appeals. It proceeded on the theory that, so far as the litigants were concerned, their rights were sufficiently protected by having one trial in a court of first instance, and one appeal to a court of appeal, and that an appeal to the Supreme Court of the United States should only be allowed in cases whose consideration would be in the public interest. Accordingly, under existing law, appeals in diverse citizenship cases, in patent cases, in bankruptcy cases, in admiralty cases, and in criminal cases can now reach the Supreme Court for review only when that court shall, after consideration of the briefs and record, deem it in the public interest to grant the writ of certiorari. By the act of 1916, this discretionary power of the court was extended and its obligatory jurisdiction reduced, as to review of the state court judgments, so that now the only questions which can come by writ of error from a state court to the Supreme Court as a matter of right are those in which the validity of a state statute or authority or of a federal stat

ute or authority under the Constitution has been the subject of consideration by the state court, and has been sustained in the former or denied in the latter case. All constitutional questions arising in the federal courts, in the District Courts or the Circuit Court of Appeals, subject to review at all, may under existing law be brought to the Supreme Court as of right. Thus there is a distinction between writs of review from the state courts and review of the subordinate federal courts.

The new bill increases the discretionary appellate jurisdiction now vested in the Supreme Court so that no case of any kind can be taken from the Circuit Court of Appeals to the Supreme Court of the United States without application for a certiorari. Obligatory appeals from all other courts subordinate to the Supreme Court of the United States, except from the federal District Courts in a limited class of cases and from the state courts, are also abolished and only review by certiorari is provided. This includes the Court of Appeals of the District of Columbia and the Court of Claims, as well as the territorial courts. Direct appeals from the District Courts to the Supreme Court in jurisdictional and constitutional questions are abolished and such questions are to reach the Supreme Court only through the Circuit Court of Appeals. These changes it is thought will give the Supreme Court such control over the business as that it can catch up with its docket.

The objection urged to the bill is that it gives the Supreme Court too wide discretionary power in respect to granting appeals and that a thorough examination. of the cases on the applications for certiorari is impossible. The bill has been recommended by the members of the court only after a very full consideration of the subject. They are convinced that it is the best and safest method of avoiding arrears on their docket. It does not need an extended and close argument upon the merits of a question to enable the court to decide whether it is important enough in a public sense to justify its consideration. It is not necessary upon such an application for the court to de

cide the issues which were considered below. That is not what the certiorari should turn on. The court can quickly acquire knowledge of the nature of the questions in the case from the briefs filed. To allow an oral argument on such applications would be largely to defeat the object of the new bill. Every brief presented is carefully examined by each. member of the court and every case is discussed and voted on. I want to emphasize that, because I am a witness.

The class of cases most pressed upon the court for the writ of certiorari is not that of the cases that involve serious constitutional questions or questions of public importance. The motive of the litigants generally is merely to get another chance to have questions of importance to them, but not of importance to the public, passed upon by another court. The present discretionary power of the Supreme Court in allowing appeals in certain cases coming from state Supreme Courts and involving federal constitutional questions is very little enlarged by the new bill. The change in the new bill on this point was made rather to clarify the meaning of the existing law than to enlarge the court's discretion, and if objected to may well be stricken out.

The general power of certiorari in such constitutional questions was conferred in the act of 1916, and has been exercised ever since. It was granted because Congress found that counsel were often astute in framing pleadings in state courts to create an unsubstantial issue of federal constitutional law and so obtain an unwarranted writ of error to the Supreme Court. It was, therefore, thought wise not to permit a writ of error as of right in any cases except in those in which the plaintiff in error could show that a state court had held a state statute valid which was said to be in violation of the federal Constitution, or a federal statute invalid for the same reason, and to require in all other cases of alleged violation of federal constitutional limitations that the Supreme Court should be given a preliminary opportunity on summary hearing to say whether the claim made presented a real question of doubtful constitutional law, or was, on its face,

unworthy of serious consideration in view of settled principles. It was thought that a court, very familiar with such questions by constant application of them, could in a summary hearing separate wheat from the chaff and promptly end litigation, the continuance of which must do great injustice to the successful party below, and, what is more important, clog the docket and delay the hearing of meritorious causes.

As already said, the new bill extends the certiorari jurisdiction of the Supreme Court to constitutional questions which are decided by the federal Circuit Courts of Appeal. There really is not any reason why a distinction should be made between the state Supreme Courts in this regard and the Circuit Court of Appeals. If in two federal courts whose reason for being is to protect the rights of individuals against local prejudice in state courts, or against infraction of their federal constitutional rights, a complainant is defeated, surely it is not conferring undue power upon the Supreme Court, whose members are engaged daily and for years in the consideration of such questions and their final adjudication, to provide a preliminary investigation into their seriousness and importance before burdening that court and its docket with a lengthy and formal hearing. The public and other litigants have rights in respect of frivolous and unnecessary consumption of the time of the Supreme Court which the use of the writ of certiorari seems to be the only practical method of preserving.

Too many appeals impose an unfair burden on the poor litigant. Gentlemen, speed and dispatch in business are essential to do justice. Various methods have been adopted to limit appeals to courts of last resort. One is by imposing heavy costs. But that puts the privilege within the reach of the longer purse. Again, classification, by subject-matter has been attempted, but this has not prevented clogging the docket with cases presenting no question of general interest or difficulty. In California, in Ohio, in Illinois and in other states, the Legislature has extended to the state Supreme Court a discretion after preliminary and sum

mary examination, to grant or deny appeals.

The failure of the Supreme Court to lay down definite rules for determining the cases in which certiorari should be granted has called for adverse comment. This is unjust. Certain general rules have been laid down. The writ is used to secure uniformity of decision in subordinate courts of appeal and to decide questions of general public importance which are not well settled. It is said that this is vague. But the very postulate upon which the discretion is granted is that definite rules for determining the appealable cases have not proved satisfactory, and that it is better to let the Supreme Court distinguish between questions of real public importance and those whose decision is only important to the litigants..

The members of the court have recommended the new bill to Congress because they believe it to be the most effective way of speeding the disposition of causes before it and therefore speeding justice. The gain which the arrears have made upon the court during this last year down to July 29 is represented by seventy cases, or 20 per cent. of the whole number in arrear, and while the court will make an effort to reduce the arrears, the prospect is, in view of the great additions to business in the subordinate courts, that the court will fall further and further behind.

I may speak of a secondary reason why this bill should pass. The statutes defining the jurisdiction of the Supreme Court and of the Circuit Courts of Appeal are not as clear as they should be. It is necessary to consult a number of them in order to find exactly what the law is, and I regret to say that without clarification by a revision, the law as to the jurisdiction of the Supreme Court, and of the Circuit Courts of Appeals, is more or less a trap, in which counsel are sometimes caught. This bill removes all technical penalties for mistaken appellate remedies.

Of course, amendments could be made which would easily cut down the work. of the Supreme Court, if Congress wishes to adopt a different function for the