We all know that the Supreme Court is now some three years behind
in its business, and the practical question is, How are we to bring
relief? There are two different ways. One is by limiting appeals, so
that hereafter it shall have less business. Another, and to my mind
the better way, would be to allow appeals substantially as now, but
to limit the court to the exclusive hearing of those appeals. Of
course that raises the question, whether the judges of the Supreme
Court sitting here in Washington should have duties elsewhere. That
is a question of practice, and also of theory. Since I have been in
the Senate, it has been very often discussed, formally or informally,
and there have been differences of opinion upon it. I believe the
inclination has always been that judges are better in the discharge of
their duties from experience at _Nisi Prius_. That opinion, I take it,
is derived from England; and yet I need not remind the Senator from
New York that the two highest courts in England are held by judges who
at the time do nothing at _Nisi Prius_, and do not go the circuit:
I refer to the court of the Privy Council, and to the highest court
of all, the court of the House of Lords. If you pass over to France,
where certainly the judicature is admirably arranged on principles
of science, where I believe justice is assured, you have the highest
court, known as the Court of Cassation, composed of persons set apart
exclusively for appeals,--never leaving Paris, and never hearing any
other business except that which comes before them on appeal.
I refer to these instances for illustration. The Senate is also aware,
that, in the beginning of our Government, when Washington invited his
first Chief Justice and his Associates to communicate their views on
the subject of the Judiciary system, the answer, prepared by John Jay,
assigned strong reasons why the Supreme Court should be exclusively for
the consideration of appeals.[23] The other business was by circuit
judges. This recommendation was put aside, and the existing system
prevailed. Justice has been administered to the satisfaction of the
country, reasonably at least, under this system.
But now we are driven to a pass: justice threatens to fail in the
Supreme Court, unless we provide relief. Is the bill of the Senator
from New York adequate? Speaking frankly, I fear that it is not; and I
fear that the proposition of my friend from Wisconsin [Mr. HOWE], if
adopted, will still further limit the relief which my friend from New
York proposes. I am disposed to believe that the only real relief will
be found in setting apart the judges of our highest court exclusively
for the consideration of appeals. They would then sit as many months
in the year as they could reasonably give to judicial labor. They
might, perhaps, hear every case that could reach the tribunal, while
they had a vacation to themselves in which to review the science of
their profession and add undoubtedly to their attainments. I remember
that one of the ablest lawyers in England, in testimony some years
ago before a Committee of the House of Commons on the value of what
is known as the vacation,--I refer to Sir James Scarlett, afterward
Lord Abinger, Lord Chief Baron,--testified that for one, as an old
lawyer, he regarded the vacation as important, because it gave him
an opportunity to review his studies and to read books that he could
not read in the urgency of practice. I have heard our own judges make
similar remarks.
Now the question is, whether the present bill meets the case. Does it
supply the needed relief? I fear it does not; and I really should be
much better satisfied, if my friend from New York had dealt more boldly
with the whole question by providing a court of appeal, composed of the
eminent judges of the land, devoted exclusively to appeals, and leaving
to other judges the hearing of cases at _Nisi Prius_.