force applied to it which is included in the whole bench of nine judges, that are collected there not for that purpose and that idea, but because there are nine circuits?

We propose, by our method, to take hold of the subject where the pressure is, and, by an administrative measure that does not depart from any fundamental ideas of the Constitution, enable the Supreme Court to do its business. Is it constitutional? I agree not only that what is unconstitutional is impossible, but that any grave or serious question upon a matter respecting the Constitution should be carefully abstained from, whatever might be the final judg ment about it. But, as I say, all the principles and ideas of the Constitution are maintained and observed by maintaining the supremacy of the Supreme Court, and by keeping it the single Court of Appeal in the country.

Is there, then, in this administration by sections or quorums that we propose, any departure from the unity of the court as a court, or its supremacy as a court of appeals? Manifestly none, unless you hold that under our government and Constitution, however large you may make that court, the judges must all sit for the hearing of private causes. You may need to have fifteen, or twenty-one, or even forty-five, for aught I know, if the smiles of Heaven are not withdrawn from us. Would you say that all that number must necessarily sit in such cases?.

It has been my fortune sometimes to argue causes in the Supreme Court of the United States involving great questions of constitutional law or general jurisprudence; but the great number of cases, after all, that I have had to do with have been questions under statutory or common law, involving the rights of private parties; and it has always seemed to me that such cases could be effectually and satisfactorily disposed of, and ample justice done by a less number of judges than a full bench.

The presence of so many judges in the hearing of a cause tends to the responsibility or active administration of the particular cause being surrendered to one or two of the judges, the others preserving only an attitude of supervision and criticism. I would rather have three judges attending ad idem, and with the same measure of interest, to every discussion, than a larger number who, finding no necessary or proper occupation for so great a judicial force, leave the administration necessarily to the active responsibility and vigilant attention of some one or two of their number. There is no provision in the Constitution except there shall be one court. What is our plan?-that there shall be two? By no means. There is still one court, one docket. It is that there shall be a division into quorums, which shall hear, in separate rooms, causes in their order on the docket. Two quorums can, of course, dispose of twice as many cases as are now disposed of. The risk of independent judgments, that forms the basis of an objection to our scheme, is small. It is not like having tribunals sitting in different parts of the country, in which case there would be a great probability of diversity. These quorums would each be advised of the nature of the business coming before the other. One of the members of one quorum says to a judge of the other, "You had argued in your court that case of A vs. B." "Yes." "And we, that of C vs. D." "One is from Massachusetts, and one from New Orleans; but they both involve the same question of a charter party." "That is so." And before any decision is made, pronounced, or recorded, if there is a division, then it becomes a subject that the whole court is to hear, and one judgment is made applicable to both cases, before the diversity has escaped into public notice. But there is no such scheme or method as that, and can be none, in an establishment of courts in different parts of the country.

We observe, then, that the number of members of the court now employed in hearing private cases grows out of considerations entirely independent of the wisdom of having so many thus employed.

The only alternative, for a system of lesser quorums, is one that either deprives the citizen of an appeal, or deprives the Supreme Court of supervision. The quorum is within the power of Congress to establish. If there should arise circumstances requiring six out of the nine judges to be attending in their circuits for the hearing of causes of original jurisdiction, it would be entirely competent for Congress to say that three should be a quorum for the transaction of the business of appeals. It might limit that number to causes of private interest, as it certainly would. Does it, then, make a difference that three shall be sufficient for a quorum, and that it shall be the duty of the court to divide itself into three or into two quorums of four and five, that shall sit concurrently and take up cases in the order of the calendar? I have not been able to see the force of any constitutional objection to the scheme. Lawyers may find an objection to its substance, and then endeavor to fortify that objection by a doubt, for doubts can be bred on almost every subject; but it is a doubt without a reasonable foundation.

Now let me treat on what are the important elements in this alternative plan of the majority of the committee.

The spirit of the committee is very harmonious. Though differing in their judgment, they have desired to propose, as far as they could, a system that was adequate to furnish relief; and this alternative is substituted for the proposition which we have presented to the Association.

The proposition of the majority is that there shall be nine appellate courts, with geographical limits, and made up of members of inferior courts; that the decisions of these courts

shall be final, to the larger portion of litigants; $10,000 must be the right of appeal to the Supreme Court of the United States. That amount must be involved before the litigant can get to the court of last resort. Ten thousand dollars, as we lawyers, talking of our clients' interests, use the phrase, rolls smoothly off the tongue; but it is an amount so large that it is all that the mass of our citizens, short of a few hundred thousand, ever expect to be worth in all their lives.

What becomes, then, of this judicial system of a free people, in drawing this line in the equality of justice between the rich and poor? What becomes of that great encomium upon the law as having its greatest attribute in this, that there was nothing above its power or beyond its control, nothing beneath its notice nor without its protection?

If your system requires you to strangle the rights of the people, to begin with, and our system does not disturb in the least any of the enjoyment of their rights whatever, it seems to me we have the stronger argument in our favor. If our scheme is adopted, it will be but a few years before the Supreme Court will be able to discharge its functions, not surrender them; the people will be able to have their litigation upon the old standard of $2,000, instead of having their heritage further shortened by this larger amount of $10,000.

I warn the Bar, and would warn judges, if judges would ever take warning, that the notion that this country has got so many merchant princes and railroad kings that they need to have the time of the Supreme Court saved for them and for the Constitution-for I agree we keep, by either plan, the Supreme Court for the Constitution; we do not allow the railroad magnates and merchant princes to crowd out the Constitution. But this notion, that they should claim almost exclusively the attention of the Supreme Court, is

an enormous mischief, an immeasurable evil. It is a fester and sore in the community to have one measure of justice for a great cause and another measure for a small.

The inability of suitors to press their claims or engage lawyers, the poor, or those in moderate circumstances, bear as a part of the incidents of their poverty; but they do not require it, as an additional incident to their poverty, that it should affect their relations with this great tribunal that the people reverence as a great popular institution, after all; for it is the guardian of the Constitution, which is the most popular institution of the people of this country. The presidency, the Congress, the courts, literature, science, art -all have admirers and worshipers and votaries; but, thank God, the Constitution of the people of this country stands to them as the greatest human institution that the world has ever seen.

As I have said, there is no obligation in government to give more than one day in court to all its citizens; but is it not its duty to give as many days in court to all its citizens as it gives to any? Do not think you have done your duty in providing for the prompt administration of justice by cutting off all recourse to that administration on the part of a great portion of your people.

The old system, providing for the presence of a Supreme Court judge as part of the Circuit Court, was intended, really, and operated to carry, so to speak, in this divided and divisible form, the wisdom and knowledge of the whole court; so that in the courts of first instance it should be felt by the suitor that, except in very debatable and difficult cases, he had had the wisdom of the Supreme Court brought into the original determination of his cause. If the unbending circumstances of our expansion would have justified a continuance of that system, we should not have heard of intermediate courts of appeal; but that was not possible.