hereafter, it had occurred to me that whenever that question. arose it would be competent for the Chair to pass upon it.

The President said:

The question comes up directly on the resolution which has been offered, which is to confirm and adopt the majority report, as I understand it. I suppose it would be orderly and according to precedent that those supporting the affirmative proposition are entitled to have the opening and close.

Henry Hitchcock then opened the debate upon the subject as follows:

MR. PRESIDENT AND GENTLEMEN:-It would have been much more satisfactory to me personally if some other of the distinguished gentlemen with whom I had the pleasure of signing the majority report had been designated by them to make what will be simply a brief opening statement of the reasons which led them to the conclusions stated in that report.

I shall assume that the members of the Association generally have read both the reports. I am fully justified in assuming also that every practising lawyer is familiar with the state of things which has induced the action already taken on this subject by the Association. We all agree that there is an imperative necessity that Congress should in some manner provide an adequate remedy for the delays incident to the final determination of causes in the United States Courts, concerning which this committee was directed to inquire and report. It will also be agreed that the remedy to be provided must be one which shall not only apply to the Supreme Court, but also to the Circuit Courts, suitors in which are suffering not less from delays and impediments than those in the Supreme Court. Any remedy which did not meet the exigencies of both the Supreme and the Circuit Courts of the United States would be totally inadequate.

The problem may be very simply stated: The present appellate and nisi prius business cannot be done by the machinery now provided for it. How shall this great evil and injustice be remedied? It is obvious that the remedy must consist, so far as the Supreme Court is concerned, either in diminishing the quantity of appellate business, or increasing the means or machinery provided for transacting it, or both. The question at once arises whether the appellate business might not be sufficiently reduced by again raising the pecuniary limit of appealable cases. The authors of the Judiciary Act of 1789, in fixing $2,000 as the least amount in controversy authorizing an appeal to the Supreme Court, recognized the fact, or at any rate acted upon the presumption, that causes involving a less amount than that were not likely to be of such general nature, or to involve principles of such importance, that their final determination by the highest Appellate Court would be necessary to do substantial justice. But the steady increase of the number of appeals, and the consequent inability of the Supreme Court to dispose of them without delay, induced Congress some years ago to raise this limit to $5,000. That method of relief, therefore, has already been resorted to. I think we shall all agree that the present limit is as high as is just or permissible, if it is to be an absolute limit of appeal. Indeed, every one knows that it has been gravely questioned whether the limit should ever have been raised to $5,000, even for the reasons which induced that step; and I think we shall all agree that any effort to fix a still higher amount as an absolute limit of appeal, applicable to all cases, would meet with the strongest opposition, and be most questionable as a matter both of justice and of expediency. Speaking for myself, I go further, and strongly deprecate any pecuniary limit of appeal, if it is to be fixed. as an absolute rule in all cases, without regard to the nature

or importance of the questions involved. Whatever may be the ground upon which an appeal should be allowed or denied, it does not seem to me that the mere amount of money involved is the right one.

In fact, neither of the reports now before the Association proposes to diminish the appellate business of the Supreme Court by increasing the amount now fixed as the absolute pecuniary limit of appeals; but the plan advocated in the majority report does provide both for reducing the amount of appellate business to be done by the Supreme Court, and for increasing the judicial force, in the manner of which I shall presently speak.

It is clear that no plan should or can be adopted which does not fulfill certain obvious conditions, the first of which is that it shall conform to the requirements of the Constitution.

Under the Constitution there is, there can be, only "one Supreme Court." I need not argue that this absolute requirement must be fulfilled both in letter and in spirit by any plan which is to be even favorably considered.

In the next place, we shall all agree that, so far as the relief of the Supreme Court is concerned, no plan or remedy can be acceptable or effective which does not carefully conserve the dignity of that high tribunal, or which tends, or may tend, to lessen the confidence with which its decisions have been received throughout not only this country, but the civilized world, during its illustrious history.

Neither of these propositions will be denied; but it may be well briefly to consider their full scope and meaning.

The

mandate of the Constitution that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," so far from being an arbitrary or unmeaning provision, was conceived in the highest wis

dom, and rests upon the gravest and broadest reasons. I beg leave, Mr. President, to recall to your mind and to the attention of the Association the comments of Mr. Justice Story upon this important provision. I read from the second volume of Story on the Constitution, at section 1,597 :

"The Constitution has wisely established that there shall be one Supreme Court, with a view to uniformity of decision in all cases whatsoever belonging to the judicial department, whether they arise at the common law, or in equity, or within the admiralty and prize jurisdiction; whether they respect the doctrines of mere municipal law, or constitutional law, or the law of nations. It is obvious that if there were independent Supreme Courts of common law, of equity, and of admiralty a diversity of judgment might, and almost necessarily would, spring up, not only as to the limits of the jurisdiction of each tribunal, but as to the fundamental doctrines of municipal, constitutional, and public law. The effect of this diversity would be that a different rule would or might be promulgated on the most interesting subjects by the several tribunals, and thus the citizens be involved in endless doubts, not only as to their private rights, but as to their public duties. The Constitution itself would or might speak a different language, according to the tribunal which was called upon to interpret it, and thus interminable disputes might embarrass the administration of justice throughout the whole country."

I can add nothing to this lucid and forcible statement of the true meaning of that provision and of the dangers against which it was meant to provide. The safety of the Republic no less than the authority of the Constitution demand that in spirit as well as in the letter it shall be obeyed. It cannot be doubted that the members of the Supreme Court itself, if and whenever the occasion should arise, would jealously scrutinize, in the light of this fundamental requirement, any scheme or plan, however apparently convenient, which might even remotely tend, either

in fact or in the popular estimation, to imperil that unity which is essential alike to the dignity and the usefulness of the court itself.

Finally, no remedy would be adequate or acceptable which did not provide sufficient force for all the appellate work reasonably anticipated as likely to come in the future certainly for many years to come-before that tribunal. Now, in respect to this problem, three principal solutions or plans have been proposed :

1. The establishment of an inferior but independent tribunal at Washington City.

This plan is not recommended in either of the reports presented for consideration here, nor, as I think, has it received any general support anywhere. There is, therefore, no need that anything more be said about it here.

2. Another plan, which is that approved in the minority report, may be generally stated thus: That the Supreme Court be divided into subdivisions, sections, or, as they are sometimes called, committees, to whom respectively shall be assigned certain portions of the appellate business, with such limitations and qualifications as set forth in the minority report.

3. The third plan provides for the establishment of intermediate appellate tribunals, between the present Circuit Courts and the Supreme Court. This is the distinguishing feature of the plan supported by the majority report.

I think I am authorized to say for my associates that we have great pleasure in agreeing with certain propositions which we find in the minority report. For example, I read from page 8 of that report the following statement:

one familiar with the

character of the causes in that

[the Supreme] Court, or who will take the trouble, by examining the reports, to make himself familiar with it, will