This bill, reported from the Judiciary Committee by Mr. Harris, of New York, was considered for several days in the Senate, and finally passed that body. It failed in the House of Representatives. Another bill, having a similar object, afterwards became a law.[22]
On the present bill Mr. Sumner remarked:—
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.
THE LATE SOLOMON FOOT, SENATOR FROM VERMONT.
Speech in the Senate, on his Death, April 12, 1866.