that while this grant of appellate jurisdiction is positive, yet, as it is placed under the regulation of Congress, the action of Congress is necessary, and must be read in connection with the constitution in order to find out whether and how that jurisdiction shall be exercised.

Therefore Congress have prescribed that six judges shall constitute a quorum. Five would be a majority, yet five are not a quorum; and it never has been questioned that it is in the power of Congress to prescribe how many judges shall form a quorum. Then, have they not the same constitutional power to say that four or three shall be a quorum as they have to say that six shall be? Is there any doubt that Congress, having the constitutional power to fix the quorum, may fix it at any number they think proper?!

When Congress shall have declared that four judges shall be a quorum, sitting together to transact appellate business, it is not possible to maintain that there is any constitutional objection to their sitting as such.

Suppose the "Davis bill," so-called, should be passed, and, for the purpose of sending Supreme Court judges into the circuits to hold this appellate court, Congress should enact that four judges of the Supreme Court shall form a quorum for hearings at Washington, and that the other five judges shall go on the circuits to sit in the appellate courts; would any lawyer pretend that there is any constitutional difficulty in the four judges that are left at Washington continuing the business under such an act as that?

If then, these four judges may sit to hear appeals, does it make any difference what the other five are doing at that time-whether they are in their circuits, or whether they are likewise authorized to sit at Washington and hear another class of appeals?

If these considerations dispose of this constitutional question, as I believe they do; if they make it apparent that the

one Supreme Court" is placed altogether in the hands of Congress as to its number, its quorum, and its manner of exercising appellate jurisdiction; and that the plan we propose is not the construction of two courts, but only the regulation of the manner in which the one court shall exercise its functions for the furtherance of justice, what further objection can be stated to allowing our court to do, when absolutely necessary, what the courts of England are doing under their present system with the utmost approbation and success-to sit in branches large enough to transact the business, and numerous enough to keep it from falling into arrears?

This very question was decided in the state of New Jersey, whose constitution, in language almost identical with that of our federal constitution, provides that there shall be "one Supreme Court."

The Supreme Court of that state found it necessary, and deemed it proper for the despatch of business, to sit in different branches at the same time; and the question was raised whether that was an infringement of the constitution of New Jersey. It was unanimously held by the court that it was not; and that plan has been in operation in that state ever since.

What is proposed on the other side? A series of intermediate appellate courts made up of circuit and district judges substantially; for I dismiss the idea that a judge of the Supreme Court can often be found there, in view of his other duties.

The "Davis bill," as recommended in the majority report, proposes to appoint two circuit judges in each circuit-eighteen new judges, with their appropriate retinue of clerks, marshals, and subordinates; and that, it seems to me, constitutes the eighteen most powerful arguments in favor of the "Davis bill" that have been brought forward.

But does any man need to be told that the business of this country cannot long continue without an increase in circuits? They are rapidly ceasing to be circuits; they are getting to be respectable portions of a continent. At present the Fourth Circuit includes Maryland, West Virginia, Virginia, North and South Carolina; The Fifth, Georgia, Florida, Mississippi, Louisiana, Alabama, and Texas; the Eighth, Minnesota, Iowa, Missouri, Kansas, Arkansas, Nebraska, and Colorado. They must be increased in number for the sake of the circuit business, irrespective of this matter of appellate jurisdiction. But whether increased or not, is there a lawyer having business in the federal courts, or any judge on the federal bench who does not know that the present judicial force is altogether inadequate to discharge the present judicial duty in the circuits? Yet you would impose upon them the additional duty of holding an appellate court of universal jurisdiction, consisting of not less than four judges, to be formed out of the circuit and district judges, with the addition of only two new judges in each circuit. The reinforcement would be entirely inadequate to enable the judges to perform these new duties in addition to the present duties. It cannot be done. This is, therefore, but the entering wedge. Instead of two new judges in each circuit, you will have to furnish four; and instead of nine circuits, we shall most of us live to see the day when the number will be eighteen.

But suppose, now, you have your circuit supreme courts in operation, with a sufficient number of judges, what follows? What course and character of decision is to be expected? Would it possess the uniformity which my friend (Mr. Hitchcock) tells us Judge Story deemed so important? Would it be such a salutary, uniform, equal, and consistent administration of the law as would commend itself to the confidence of the people?

What variety of law is not to be anticipated from nine separate courts, rapidly increasing to eighteen, sitting, not as in Illinois, side by side, but scattered over the breadth of the country, from Maine to California-in debtor states and in creditor states, in "hard money" states and in "greenback" states, in Northern states and in Southern states, in Eastern and in Western-pressed and controlled everywhere by interests so diverse, by traditions so different, by political sentiment so hostile, by local institutions so multiform, by corporate influences so powerful?

What lawyer of experience does not know how completely the law of the land is a reflex of the spirit of the land-of its institutions, its traditions, its customs, its views or how strongly it is controlled by popular feeling and local interests? What condition of the law, I beg to know, should we have had immediately preceding and succeeding the war of the Rebellion, from such courts as are now proposed, contrasting the decisions of the courts in South Carolina for instance with those in Massachusetts? Can we reasonably hope from such tribunals a homogeneous system of law, a uniform, harmonious course of decision, or is it likely to be a system of law under which a man who has a case in one circuit shall recover, while his neighbor across the line, with the same case in the other circuit, shall fail; under which the federal law shall be one thing here, and another thing there?

It has seemed obvious to us, that the creation of such a number of independent supreme courts, from whom appeals lie only in exceptional cases, will break up into discord and fragments that system of federal law, which some lawyers are beginning to regard as the last hope of the administration of justice in this country. The growing power of great corporations, and the operation of other causes which I need not rehearse, have shaken the confidence of the American people in the decisions of many of the state courts; and that

is the reason why the dockets of the federal courts are to-day overflowing, that is the occasion of the enormous increase of their business in the last ten or fifteen years.

The most precious judicial possession we have is the system of federal law. If its usefulness is to continue, it must be preserved in its integrity, in its uniformity, in its consistency, so that every man can feel that the justice that is applied to his neighbor, is equally applied to himself.

What gentleman of experience at the bar, upon thoughtful consideration-not upon a mere suggestion of convenience or expediency, but upon reflection will believe that this proposed plan is consistent with the probable preservation of the integrity, the harmony, or the value of the federal law of our country?

Pressed by these considerations, two observations have been made in reply by our friends on the other side. First, That the danger of conflicting and irreconcileable decisions will be obviated by the proposed provision authorizing the circuit appellate courts to allow, in their discretion, an appeal to the Supreme Court in any case, without regard to amount, where the question involved appears to be of sufficient difficulty and importance. Second, That if the Supreme Court shall sit in separate branches, as we propose, there would be danger of a similar conflict between the decisions of the different branches. Neither of these suggestions will prove to be well founded.

In cases involving less than $10,000, the appeal (except upon constitutional questions) would not be a right, but would rest in the discretion of the judge, in view of the difficulty and doubt attending the questions. My own experience has not been that judges who have made decisions, have often been easy to persuade that they were probably wrong. appeal should always be regarded as a matter of right; subject, of course, to a reasonable limitation as to amount, to

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