While this necessity has been generally recognized, some exact statistics may be useful to show its imminence. The number of causes now on the docket of the Supreme Court is about 1,200. Prior to the year 1847 the number had never reached 200, and had usually fallen much below that figure. It did not reach 300 until.the year 1858. In 1870, for the first time, it exceeded 600. In 1875 it reached 974. In 1876 it exceeded 1,000, and in 1878 it exceeded 1,100. The increase

is thus seen to have been regular, and of late years, rapid. Previous to the year 1868, the court had in no year but one, been able to dispose of so many as 200 causes. Since that time the number disposed of annually has ranged from 230 to 411. The average disposition in the last eight years, -through great exertions by the judges and prolonged terms of the court, has been about 360 causes. During this time the docket, notwithstanding this reduction, has increased from 676 to 1,202, the average annual accession having been about 425 causes. It is not doubted by the committee, that every practicable effort has been made by the court to reduce the volume of its business, and that a greater rate of reduction cannot be expected under the existing facilities; and to accomplish thus much, as the profession is well aware, the judges have been withdrawn from circuit duty, to an extent not altogether consistent with the theory of our system, or with its former practice.

It will thus be seen, that it would require more than three years to clear the docket of the court, with the best exertions in their power, even if no new causes were to be added during that time; that the annual accession to the docket considerably exceeds its reduction; and that even at the same ratio of increase that has hitherto prevailed, every five years that elapse may be expected to add one year to the period that must intervene between the entry of a cause and its decision. But it is not reasonable to expect that the same

ratio will continue in the future. It has steadily increased in the past; and in view of the rapid development of the country, the extension of its occupied territory, and the enlargement of its business, it is easy to see that the rate of accumulation will be constantly accelerated. The delay which now so nearly approaches, must soon reach the proportions of a substantial denial of justice, and unless relief is interposed, the court must become at no distant day, so far as its general jurisdiction is concerned, principally useful only to those who seek by appeal a long escape from the payment of judgments..

To attempt a relief, as some have proposed, by abridging the jurisdiction of the federal courts, would be in our opinion most unwise and unjust. Business between citizens of different states has of late years immensely expanded, both in amount and in importance. For reasons unnecessary to be considered, but stringent in their character, such causes as are authorized by law to be commenced in, or transferred to those courts, are more and more rapidly finding their way thither. Under the provision of the Constitution which extends their jurisdiction to this class of causes, it would be difficult, if not impossible, greatly to limit its amount. Any discrimination for that purpose must be based upon technical and accidental circumstances, that would exclude causes as much within the spirit and intent of the Constitution as those that are admitted. To reject these causes, to refuse the protection of the federal judiciary to even a portion of the litigants who reside in one state and have controversies with citizens of another, would be to reject the fundamental idea upon which that jurisdiction proceeds, at the very time when its importance in the administration of justice is most apparent. Such is not the theory of our Constitution, the policy of our legislation, nor the dictate of our experience. If mutual confidence is to be maintained between the people

of the different states, adequate and equal means for impartial inter-state justice must be furnished, as they always have been hitherto, and as the Constitution intends they should be. Concurring, then, as all must concur, in the necessity of immediate relief to the Supreme bench in some other way, the committee have anxiously addressed themselves to the inquiry how that relief should be attained. Fully aware of the importance of a unanimity of recommendation, if much usefulness is to follow their labors, they have earnestly endeavored to assimilate their views, so as to unite in the proposal of a remedy. In this, unfortunately, they have not succeeded. Having considered, discussed, and finally thrown aside as impracticable or impolitic, various suggestions, they find themselves at last nearly equally divided in respect to two principal plans that have found favor in the profession. The one authorizing a division of the court, for the hearing in separate sections of such causes as may be thought proper to be heard in that way; the other providing for the establishment in the different circuits of local courts of appeal, with final jurisdiction in ordinary causes to an amount so large as would diminish appeals to the Supreme bench, to such a number as that tribunal might conveniently hear.

It is to be premised that the present system of appeals from the inferior courts to the Supreme Court would be universally admitted to be the best method, both in theory and practice, that can be devised, if it were only practicable to discharge the business under it, as has been done in former years. No one ever has proposed, or probably ever would propose to depart from it, except under the pressure of absolute necessity. Any other system. therefore, however wisely devised, must be at most only a second best; and no second best plan can be proposed that would be altogether free from objection. The question is not, therefore, whether

the remedy suggested is impervious to criticism, but whether it is the best the nature of the case admits of.

It has seemed to us, since it is universally agreed that appeals can be best heard, as they always have been, under our Constitution, by the Supreme Court at Washington, that if those judges find themselves now unable to discharge the business on their docket, the most obvious and simple remedy would be to enable them to discharge it; and this we believe can be done. No one familiar with the character of causes in that court, or who will take the trouble by examining the reports to make himself familiar with it, will fail to perceive, while that many appeals find their way there which involve questions of great importance and serious doubt, a large proportion of the business consists of causes not presenting any special difficulty, or any questions either new or important. That this class of causes can be as well or even better heard and decided by a lesser number of judges than nine, is obvious to every lawyer of experience, and is shown in the proceedings of many state courts of last resort, whose members do not exceed five, or sometimes even three. The decision of the House of Lords, the highest court of appeal under the English law, have always been rendered by judges not more than five, and often less; yet they are accepted by the bench and bar of the common law world, as in every respect among the highest and best expositions of English law. It is believed that very general judicial testimony would be given in favor of the proposition that a bench of four or five constitutes, for all ordinary purposes, the best working court; and that common causes will receive on the whole a better consideration and a speedier disposition by such a court than by a larger one. By the existing law, six judges of the Supreme Court of the United States constitute a quorum, and may, and often do hear and decide causes. Any sup

posed necessity that, if the court consist of nine, all should participate, or appear to participate, in the hearing of every cause, would equally exist if it consisted of nineteen. Yet every additional member added to a bench that is already sufficient, tends obviously, in ordinary cases, to diminish the degree of personal responsibility and of personal attention. A judge who is one in five is much more likely to give a cause anxious and thorough attention, and to feel the responsibility of his decision, than if he were one of ten. And whether such is ostensibly the practice or not, every enlargement of a court beyond what its necessary duty requires, tends to induce the practice of delegating causes to a lesser number of judges, or even to a single judge, for examination.

All will agree that the original jurisdiction of the Supreme Court, conferred by the Constitution, should continue to be exercised by the whole court; that constitutional questionsthose arising upon the construction of treaties with foreign nations and difficult and important questions that may occur in causes of general jurisdiction, should also be heard and decided by the whole court. Beyond this, we cannot perceive that any great good is attained by requiring all the judges to participate personally in the disposition of every cause.

We therefore propose, without presenting any formal bill, the following legislation, as affording the best remedy we can suggest for the existing emergency :

That the Supreme Court should be divided into two or more sections for the hearing of the causes upon their docket, except such as are hereafter mentioned as proper to be heard before the whole court.

Such sections not to be made up by permanent assignment. of judges, but by such system of division as the court may from time to time find expedient; no judge to sit upon review of his own decision; and the causes not to be distrib