prevent the higher court being harrassed by frivolous controversy. That is the cardinal idea of all appellate jurisdiction. It should be a matter of right, and at the option of the party, not of the court.

Any system of appeal by favor of the court, to be granted or refused at discretion or at will, is but a mockery. It leaves to the court the absolute power of final decision, which the policy of our law accords to no judge, except in cases too small to justify appeal.

If, on the other hand, this provision is to be so liberally construed by the judges as to allow an appeal whenever it is demanded, then as many causes as ever will pass to the Supreme Court, and no relief to that body will be obtained.

And it is to be borne in mind that the limit of $10,000, below which no appeal as of right is allowed, comprises the great mass of controversies and questions that come before the federal courts.

In the conclusions reached by two different branches of the Supreme Court, there would be no possibility of conflict. These branches would sit at the same place and time, in daily intercourse and consultation. The decisions of both, as they would have to be reported to the full bench before being promulgated, would necessarily be known to all members of the court before they were announced. In fact, they would not be announced, unless the other members of the court were prepared to adopt them. A doubt on that point would at once produce a reargument before the whole court. And there could be no such thing, under these circumstances, as a decision by one branch one way and by another branch in conflict with it, especially as the arrangement of judges in the different branches would not be permanent, but would be changed from time to time.

It is in order to guard against the infinite mischief of conflicting and fluctuating decisions, that the wisdom of

the constitution requires "one Supreme Court." We of the minority are contending for the essence and the spirit of that provision—that there should be one Supreme Court in reality and in substance as well as in name. While our friends-who "cavil on the ninth part of a hair," lest the theoretical unity of the court shall be infringed if every member of it does not personally participate in every hearing-would set up nine or more Supreme Courts, widely asunder, each practically of the last resort, so far as the great mass of the business is concerned. I venture to assert, sir, that such an experiment, however convenient, would prove disastrous.

It may, indeed, well be doubted, whether upon the true construction of the constitution, any part of the appellate jurisdiction given to the Supreme Court can be taken away from it, and conferred upon the "inferior courts that the Congress may from time to time ordain and establish." The language is, "in all the other cases before mentioned" (that is, in all cases to which the judicial power extends, except those in which the Supreme Court has original jurisdiction), "the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make."

The reason of this provision is obvious. It is that the judicial power shall have one head-one court of last resort, in which the law shall be uniformly declared. What is its construction? Does it mean that the Supreme Court shall have appellate jurisdiction in all cases, except where Congress shall think proper to confer that appellate jurisdiction upon the inferior courts, so that there may be various appellate courts of last resort? or does it mean that the appellate jurisdiction, so far as it exists at all, with the exception only of those cases in which it is refused altogether, shall be vested in the Supreme Court of the United States, under

such regulations, as to the manner of its exercise, as Congress may prescribe? That Congress may restrict and regulate the appellate jurisdiction, is plain. Can they transfer it to the inferior courts? If they may do so in part, then beyond question they may do it in whole; they may take away all the appellate jurisdiction of the Supreme Court, and leave it only the barren function of its few and rare cases of original jurisdiction. They might virtually legislate the court out of existence, and completely deprive it of its power to determine constitutional questions, by taking away the appellate jurisdiction through which alone such questions can be brought before it. I cannot believe that constitutional lawyers would regard such a conclusion as sound or safe.

But suppose that we interpret the constitution to mean that the appellate jurisdiction may be thus divided and carved up, and the larger part of it sent to the inferior courts; then, when that has been accomplished, what is the result? What becomes the function of the Supreme Court?-To sit with dignity and ceremony, to hear only cases involving more than $10,000 in amount; not those presenting questions of importance or difficulty, but those involving the controversies of the very wealthy. How large a proportion of the cases pending to-day in the federal courts, involve more than $10,000 in amount?

men.

The cases of that magnitude are principally those of the great corporations, whose existence and whose extension is already a subject of the gravest foreboding among reflecting Their enormous power is the coming cloud in our sky. You virtually set aside the United States Supreme Court to be a tribunal for the use of such corporations, and of those wealthy men whose controversies involve a larger amount than nine-tenths of our people accumulate in a lifetime.

No longer the Supreme Court of the constitution, open to the whole people, but the special court of the railroad

magnates and other men of that stamp, and of the rich corporations. What follows? In my judgment, as sure as night succeeds day, when that time arrives, the hold of the court upon the esteem and confidence of the American people will perish.

When its doors are closed to the great mass of the people, when it ceases to transact their business, and is set aside as peculiarly a rich man's court, it will sink in the estimation of the people, and become an object of jealousy, aversion, and distrust.

Once make any institution in this country permanently unpopular, and its destruction is but a question of time. Public opinion is ultimately irresistible. That is the only ultimate foundation of every institution we have, and one that is attempted to be founded or sustained upon any other basis, is the house that is built upon the sand.

We know how many times the suggestion has been made on the floor of Congress, that it was not the true function of the Supreme Court of the United States to determine constitutional questions, except so far as they affected the rights of litigants; and that the judgment of that court upon such questions was not to be taken into account, or to stand in the way of the legislative branch of the government. That suggestion alway comes forward, when the constitution, as expounded by the courts, stands in the way of party schemes or popular excitement. But it has been put down hitherto, by public opinion, which has stood fast by the idea that the very sheet-anchor of our government, was the power of that court to restrain the executive and legislative branches from infringing the constitution.

Would any wise man desire to see that power withdrawn? Read the history of the last three months in Congress. Does any one desire that should be the last tribunal in this country to determine what is and what is not within the provisions of the constitution?

Would any man feel safe if there no longer existed any restraint upon Congress, on constitutional grounds judicially determined? I think not. Once take away from the court the strong support of public confidence and esteem,―once bring the people to believe that it exists no longer of them or for them, but only to subserve the purposes of a class which they distrust and fear,-that there is one court of last resort for the rich, and another for those who are not rich; and then establish the proposition now contended for, that the jurisdiction of the court may be taken away by Congress and conferred upon more popular tribunals, and the power and usefulness of that eminent tribunal will rapidly perish. It may continue to exist in name, but in name only.

It is true that the present limit of the Supreme Court jurisdiction is $5,000, but I venture to say there is no lawyer in the country who would not declare that limit to have been felt oppressive. It has only been acquiesced in because it was believed to be unavoidable, by reason of the accumulation of business. If it cannot be set back, as it should be, where it once was, do not, at any rate, let it be increased, and increased to such a sum as will turn out of the Supreme Court the great mass of our people.

I am aware that the argument of convenience has carried away many persons, in the active canvass that has been made in favor of this bill; and the interest of the localities that expect to obtain these new courts, and the personal efforts of those who may expect appointments under it, have had a considerable effect in favor of the scheme it proposes.

It is not to be denied, that to many counsel, these proposed courts would be more convenient than having to go to Washington to argue appeals. But if that were all there is of this question, it would be altogether beneath the level of the appropriate action or inquiry of this body; it would be a mere matter of regulation of detail, not worth our while to interfere with.