I have not failed, on that account, to reconsider carefully the views I had originally formed, and to give attention to the arguments in support of theirs; but the result of all the reflection I have been able to give to the subject, has only confirmed the conclusion before reached, and expressed in the minority report.

If the members of the Association have done me the honor to read the views there set forth, it is unnecessary that I should repeat them; but as we shall all agree, I think, that this subject is one of the most important that can engage our attention, I may be excused for adding some further suggestions.

All parties concur that some action must be taken for the relief of the Supreme Court. That body is at least three years behind with its docket, and the arrears are steadily increasing. Many plans of relief have been suggested, and have engaged the attention of the committee; but they have been all thrown aside, with the exception of the two presented in these reports.

The minority report proposes that the Supreme Court be authorized to divide itself into branches for the hearing of such causes as they may think proper to be heard in that way; reserving to the whole court the duty of hearing constitutional questions, and either upon their own motion or upon previous application of parties, such other causes as they may deem necessary to be so heard, and likewise all causes the argument of which shall have elicited a serious disagreement among the judges. The practical result of such a plan is that all causes involving constitutional questions. must be heard, as now, by the whole court; that in respect to all other causes it will be for the court to determine whether they need to be heard by the whole court or may be disposed of by a section of it, with the further right, on the part of a section hearing a case, to order it reheard be

fore the whole court, if it is found necessary or desirable; and all decisions of a section to be reported to the full court and announced as its judgment, unless a reargument is directed.

It is further recommended, that in constituting these divisions of the court, they should not be made up by a permanent assignment of the judges, but by what may be called an interchangeable division, from time to time, as the court may assign; and that the business shall not be distributed by subjects, but by its order on the docket, so that the jurisdiction of both tribunals should be general.

The plan submitted by the majority of the committee, is to constitute an intermediate appellate court for each circuit, to consist of the judge of the Supreme Court for the circuit in which it sits, of the circuit judges for the same circuit, and two district judges to be designated for the purpose; that court to entertain in the first instance the entire appellate jurisdiction from the Circuit and District Courts, so that all appeals must come in the first instance to that tribunal; then a second appeal to be allowed from them. to the Supreme Court in cases exceeding $10,000 in amount, cases involving constitutional questions, and those which, by the judgment of the intermediate court, shall be certified as of sufficient importance for that purpose.

Since the foundation of our government we have had a system of appellate jurisdiction which until recently has commanded universal approval. We have had all appeals from the Circuit Courts of the United States, heard in the first instance, as well as in the last, by the Supreme Court of the United States at Washington,

Is there any lawyer in America who would to-day propose to change that system, if it were possible for the court to continue to discharge its business? Would any argument of convenience or inconvenience be thought sufficient to

justify such a change? I have never heard such a suggestion; I should never expect to hear it.

It is only necessity which suggests the adoption of some new plan, which must necessarily be only a second best, because we are already in the enjoyment of the best, if it were only practicable to continue it. It is only the existing exigency that would, I believe, induce any lawyer to favor for a moment the proposition to take any part of the appellate jurisdiction of the federal courts away from the Supreme Court of the United States. If that be true-and I venture to say it will not be controverted in this discussion-then, why is not the best and most natural remedy, that which will enable that court to continue to hear all appeals? We all agree they should hear them if possible; and if we can put it in their power to do so by a simple and obvious process, is there any remedy better than that? Is there any other expedient which can be called the "second best”?

The statistics show that if the court should sit in two branches of four and five judges, they could bring up the arrears of their business, and keep it up in the future.

And it does not need to be added, that if the future increase of appellate business in the federal courts should become so large that two branches cannot transact it, by an addition of two or three judges to the present number they would be able to form three tribunals in the same way; so that the plan recommended in our report not only meets the present difficulty, but all the probable or possible exigencies of the future.

A statute of a few lines-without additional expenditurewith no new judges-puts the court in a situation to transact all its business as at present existing.

What is the objection to it? It may be urged by gentlemen that the decision of all the judges in all cases is desirable. I heartily concur in that; but experience shows us that

we cannot have it any longer. What then is the next best recourse? Is it to have the appeals in ordinary cases, not involving novelty or difficulty, heard by a portion of the Supreme Court, with the advantage of a hearing before the whole court whenever found desirable, or is it better to send those appeals off into the circuit, to a tribunal composed of no greater number of judges, to be raised by drafting out of the local forces?

It would be usually impossible to get one of the judges of the Supreme Court to sit in such a Circuit Court, because they are all occupied in Washington from October to May, and the rest of the time is largely the summer vacation. This would leave only the circuit judges, more or less, as they may be created for the purpose, and the district judges designated from time to time to sit with them. Is that the tribunal whose judgment gentlemen would prefer to the decision of one-half of the Supreme Court, sitting in constant consultation with the remainder, still bearing in mind the provision, that upon application of the parties, or upon their own motion, that half may direct any case to be reheard before the whole court? Can better decisions be expected from nine courts, sitting one in each circuit of the United States, far apart from each other, and composed of this miscellaneous and shifting material, better or worse, as it may happen; and then an appeal in certain cases not distinguished for difficulty or importance, but simply by involving over $10,000; with the possibility of the allowance of an appeal in lesser cases, if the judges of the court can be brought to believe that it is reasonably probable their decision may be wrong? Can there be hesitation among lawyers as to which of these plans affords the prospect of the best administration of justice, and the best system of general law?

It is said there is a constitutional objection to allowing the Supreme Court to sit in branches, inasmuch as the constitu

tion requires that there should be but one Supreme Court. I have not heard this objection argued; I have not even heard it asserted; it is only suggested; I invite its discussion.

The principle of this provision of the constitution, that there shall be but one Supreme Court, is common to every common law country, and to every state of the Union; it is universal, whether expressed in the terms of a constitution or not, that there shall be but one court of last resort in a common law judiciary.

Our constitution then, in using the phrase, has adopted no new idea, and created no new law.

The constitution declares 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." I shall have occasion to quote further from the second section of the same article, on the subject of appellate jurisdiction.

Now, the suggestion is, that unless all the judges of that court, or a majority of them at least, participate in every hearing, it ceases to be "one Supreme Court." Let us see if that is true. What constitutes the quorum of the Supreme Court of the United States? Does any lawyer need to be told that it is the number fixed by Congress? If there were no constitutional provision and no legislation on the subject, it might be said that a majority of the Supreme Court would be necessary to a quorum; but the language of the constitution in the second section of the same article is, "In all the other cases before mentioned" (that is, all the jurisdiction of the court except its original jurisdiction,) "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

That language has received the construction of the Supreme Court of the United States repeatedly, and they have declared