Year: 1878




portance and intended to meet an urgent
necessity. In aim and outline it is similar
to the bill prepared by Senator Davis, of
Illinois but it differs in details and is
more careful and comprehensive, having
probably been drawn after wider consulta-
I tions with judges and lawyers Senator
Davis was not the original proposer of the
contemplated changes. Senator Harris, of
this State, prepared bill having similar
purpose some thirteen years ago, and
in the last Congress Mr.. McCrary,
the present Secretary of War, carried
such bill through the House, but it did
| not pass the Senate. Both of these last
named bills fell short of the requirements
of the judicial situation, and that OF Senator
Davis is an improvement on them, although
it will doubtless be superseded by the one
offered by Senator Conkling This is, by
its title, IA bill to revise the Judicial sys-
tenn of the United States" Its most i'm
portant feature is the creation of inter-
mediate appellate tribunals, or ''courts of
review" as they are called in the bill, be-
tween the Circuit Courts and the Supreme
Court. The necessity for these tribunals
grows out Of the overburdened condition Of
the Supreme Court calendar. The business
of the Supreme Court is fully three years be-
hind, and the multitude of cases in arrear
tends constantly to increase from the same
causes that have led to the present unwieldy
accumulation. In many cases the delay
OF justice works nearly as much hardship as
;o1 nd offo bo
passage of Mr.. Conkling's bill it will take
many years tor the Supreme Court to get its
docket clear enough to be able to adjudicate
new cases within reasonable time.


Before proceeding to describe this impor-
tant bill we desire to call attention to
closely related subject whose connection
with it may not be very apparent until it is
pointed out. There is political, question
Of the first magnitude which runs parallel
with and borrows light from this judicial
question. What is called Capitalization has
long been a great bugbear with one
OF our political parties; but the ne
cessity for these new courts of review
against that evil in the nature Of things
than can ever be supplied by the vigilance
of political parties. In every government
its judicial system must be commensurate
with its political jurisdiction. This results
from the obvious consideration that it is
idle to pass laws unless they can besen-
forced, and that their enforcement devolves
on the courts Of justice. Laws may be
effective up to the capacity of the judicial
machinery to administer them, but beyond
that limit they are no better than recommen-
dations. From these premises there follows
this important conclusion-namely, that
the federal government cannot extend its
jurisdiction to greater number of subjects
than at present belong to it with
out breaking down under the weight
Of its own powers. The great mass
of affairs which are left to the
State governments must remain under their
control or we can never have q Judiciary
system coextensive with the federal politi-
cal system. Even now, with the federal
authority restricted to few great subjects,
it is found that the highest appellate tribu-
nal is inadequate to the business which
presses upon it, and this pressure must
constantly increase with the growth Of the
country. Instead of usurping or absorbing
the powers Of the States the federal govern
ment will be compelled, by the sheer force
of physical necessity, to confne itself
within the limits originally marked out by
the constitution. Even with the present
limited powers, and at this comparatively
early stage OF our national growth, it is
not an easy problem to devise an adequate
judicial system. The mere multiplica-
ton of courts and judges will not help us
in the vital point. The multitude of subor-
dinate courts only tends to introduce un-
certainty and confusion unless there is one
central appellate tribunal whose decisions
fix the law and impose unity of interpreta-
ton. Minor courts Of review may be inter-
posed, like those provided for in Mr.. Conk-
ling's bill, but, although they may relieve
the pressure, they cannot dispense with the
necessity of an ultimate tribunal of appeal
to prevent or rectify diversities in their
decisions In order to maintain unity there
must always be one tribunal which stands
alone superior to all the rest, and
as the country continues TO grow it
will require all the ingenuity Of our
statesmen to prevent the supreme appellate
court from being overwhelmed by the ac-
cumulation Of business, even with the re-
stricted powers now possessed by the fed
eral government. But if the powers of the
States were absorbed the system would be
crushed beneath its own weight. We con-
clude, therefore, that the fears of the State
rights champions are chimerical.


One important particular in which Mr..
Conklings bill differs from that of Judge
Davis is in the provision it makes for adj
ditional judges in the courts below Secre-
tary McCrarys bill provided for no addi-