many other things essential to the practical completeness of the system, the means of doing all which are to be sought in other provisions of the Constitution as follows:

"ART. I, Sec. 8. The Congress shall have power

"To constitute tribunals inferior to the Supreme Court;

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.

"ART. II, Sec. 1. The executive power shall be vested in a President of the United States of America.

*

*

"ART. II, Sec. 2. He shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, or in the courts of law, or in the heads of departments."

In executing the powers which the Constitution has thus conferred on Congress, to provide by legislation for the details of the organization of the courts of the United States, that body has enacted numerous laws, which, while modifying the judicial system in important particulars at different periods, have invariably, from the beginning to the present time, assumed the following great elements of the system, namely:

1. A Supreme Court, consisting of a chief justice and associate justices, sitting periodically at the seat of government, with unity of constitutional power and jurisdiction, and exercised in definite forms. prescribed by law throughout the United States.

2. The subdivision of the United States into judicial districts, each district consisting of a State or a defined part of a State, with a single district judge for each district, such judge being invested with admiralty and maritime jurisdiction; jurisdiction in certain seizures on land and suits for penalties and forfeitures; jurisdiction in certain suits by aliens, by the United States, and by and against consuls; jurisdiction to grant injunctions in equity, writs of habeas corpus, and to perform some other acts of miscellaneous judicial power; and jurisdiction of all crimes and offences, not capital, which are cognizable under the authority of the United States. Some of these powers are exclusive,

some not.

3. The distribution of the judicial districts into a less number of judicial circuits, with circuit courts sitting periodically in each district, and consisting of a plurality of judges, the district judge of the district being one, which circuit courts have original jurisdiction, in some cases exclusive, in others concurrent only, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds a certain defined sum, and an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State; original jurisdiction in cases of equity of a certain amount where the United States are petitioners, and of all suits at common law

where the United States, or any officer thereof, shall sue under the authority of any act of Congress; original jurisdiction of crimes and offences against the United States; original jurisdiction in certain suits removed from the courts of a State, and in sundry miscellaneous matters of special provision under the patent, post office, and other laws; and appellate jurisdiction in certain cases by writ of error to, or direct appeal from, the district courts.

The general system, thus cursorily sketched, has now stood the test of the controversies and criticism of two generations; its practical working has become familiar to the whole community; the adjudications of a long succession of eminent judges have regulated its forms and imparted precision to its action; and no other theory of judicial system presents itself, which promises any advantages commensurate with the experimental uncertainties which a radical change of organization would introduce into the administration of justice throughout the Union. The district courts, with jurisdiction limited by the boundaries of the respective States; the circuit courts, with concurrent jurisdiction, or with original, superior, and appellate jurisdiction; and the Supreme Court, with its constitutional power, seem together to constitute a judicial system of inherent adaptation to the federative political system of the United States.

Accordingly, while Congress has in its wisdom seen fit, as occasion seemed to require, to make changes in secondary matters, such as the number of the judges of the Supreme Court, or the number and limits of the several circuits, or the personality of the circuit courts, or the quality or degrees of the relative or absolute jurisdiction of the district and circuit courts, it has left the great monumental parts of the system as they were constructed by the same wise men who framed the Constitution. Modifications of the judicial system, within the limits indicated, especially when the number of States is more than twice what it was at the time of the adoption of the Constitution and the organization of the government under it, and when the interests of our society have outstripped, in the ratio of their exigencies, even the vastly augmented territorial extent of the country, are imperatively demanded, not merely to give to the system completeness according to the present number of States, but to enable it, though but partially, yet at all, to discharge its appropriate functions.

At the very foundation of the government, with but thirteen States in the Union, and comparatively small subject territory, the Supreme Court was made to consist of a chief justice and five associate justices. The number has been at successive periods increased by the addition of three other justices. If the duties of these judges did not go beyond their function as members of the Supreme Court, the present number would undoubtely suffice, nay, is more than the public interest requires, because, in proportion to the increase of the number of judges constituting a court, is its tendency to lose its proper judicial, and to acquire instead a deliberative, character.

But the great difficulty in this respect is in the present organization of the circuit and the district courts in their relation to the Supreme Court.

By the law as it now stands, the districts, with exceptions hereafter indicated, are distributed into nine circuits, and the circuit court sits, according to the theory of the law, in each district, periodically, and is composed of the district judge of that district and of one of the judges of the Supreme Court.

I say, according to the theory of the law; for, in the existing magnitude of the country, it becomes physically impossible for the judges of the Supreme Court, compatibly with their proper constitutional duties, to transact the circuit business of all the districts of the United States. Thus it happens that the entire States of California, Florida, Iowa, Texas, and Wisconsin, and districts of some other sub-divided States, remain wholly outside of the system, the entire circuit duty there being performed by a district judge. It needs no argument to show that this anomalous condition of things is in plain violation of the true spirit of the Constitution, which pre-supposes absolute equality of political right, of government and of its advantages, among all the sovereign members of

the Union.

Besides which, in some of the districts, which are, by law, within the system, the amount of circuit business exceeds the powers of a single judge of the Supreme Court, and thus the contemplated and theoretical benefits of the system are but imperfectly enjoyed even there.

It seems to be self-evident that there ought to be such a reformation of the circuits as to have them embrace all the States.

To accomplish this indispensable object, the exigency for which disturbs the interests of society more seriously, perhaps, than any other federal question of mere government organization, several plans have been considered.

One is, to provide an additional number of judges of the Supreme Court; a part of them to transact the business in bank, at the seat of government, and a part to be detailed for circuit duty. But as all the justices, so appointed, would possess an equality of right as such, and as the power of the Supreme Court is a constitutional power, it is not easy to see how a distinctive classification could be established by law, so as to exclude any of them from the regular business of the Supreme Court. And, if such a classification could be permanently enacted, or any means of compulsory self-classification provided, the result would be a fluctuating tribunal, and all the evils of unsettled decision. Besides which, if such a plan were adopted and found impracticable, it would be impossible to recede from it without leaving an excessive number of judges of the Supreme Court; because those judges are not removeable by legislation. But the constitutional objection to this plan seems insuperable. Congress may, undoubtedly, enact a quorum of the court, of any number, however small; but it cannot exclude a member of it from participation in its action under the Constitution.

Another plan is to relieve the judges of the Supreme Court of their circuit duty; to reduce the number of the judges of that court as vacancies occur; to re-arrange all the districts of the United States in proper circuits; and to appoint a circuit judge for each circuit.

This plan has the advantages of simplicity and of involving little or no change in the forms of legal business, and the times and places in which it is to be conducted.

This plan is, undoubtedly, also more conformable than the present arrangement to the spirit and theory of the Constitution; because the Supreme Court is created by the Constitution, while the circuit courts are of those "inferior courts" which Congress has the power to ordain and establish; for which reason it has been much questioned whether the two things be not constitutionally incompatible; and the judges of the Supreme Court are only appointed and commissioned as such.

On the other hand, it is forcibly urged that contemporaneous exposition of the Constitution, the practice under it, and long acquiescence in that practice, have served to sanction the existing law in this respect; that nisi prius duty is valuable as mental discipline to a judge; and that it is exceedingly inconvenient, in a political sense, to separate the judges. from immediate intercourse with the people of the respective States.

Another plan has, therefore, been proposed, which is to re-arrange the circuits so as to comprehend all the districts in all the States; to enlarge the jurisdiction of the district courts relatively to the circuit courts, and that of the circuit courts relatively to the Supreme Court; to have a circuit court holden at one place only, in each circuit, for all the districts composing it; and to constitute that circuit court of one judge of the Supreme Court and all the district judges within it.

This plan supposes, moreover, that all the original civil jurisdiction of the circuit courts, whether concurrent or exclusive, be taken away from them, and vested in the respective district courts; and thus all the criminal business be confined to the district courts, because of the provisions of the Constitution, which require the trial of crimes to be in the State and district where the crime shall have been committed.

To this idea it is objected that it will greatly increase the expenses of litigation in all the States, except those few in which the court is holden; that it will, as to many of the circuits, give rise to insoluble controversy concerning which State shall be the seat of the circuit court; that the judges of the district courts have not been appointed as for the unaided exercise of all the present original jurisdiction of the circuit courts; that the proper performance by them of the proposed new duties will, especially in the maritime States, interfere with their appropriate admirality and other district duties; and that, in other respects, the plan will disturb the interests, and affect, inconveniently, the sensibilities of the different States.

A fourth plan is, after re-arranging the circuits, to leave the circuit courts to be holden as at present in each district with a justice of the Supreme Court as a member by law of the circuit court, devolving the whole of the original business of that court, whether civil or criminal, upon the district judge as in the third plan, and all the appellate business in equity and fact, and requiring only writs of error, exceptions and appeals in matter of law to be heard in presence of the justice of the Supreme Court.

This plan is subject, in a still greater degree, to one class of the objections to the preceding one, namely, that of augmenting unduly the labor and responsibility of the district judges, who were not appointed in view of such large and exclusive functions.

Besides which, each of these two last named plans, while enlarging the geographical range of the circuit duty of the judges of the Supreme

Court, would not in reality give them correspondent relief in other respects, which the public interest requires, in order that they may have time for the discharge of the higher inevitable duties of the Supreme Court.

This consideration acquires additional weight from the fact that the new territories, which the United States have acquired by treaty with foreign powers, devolve, of late years, a vast amount of special duty on the Supreme Court, in the adjudication of land claims from the former provinces of Louisiana and Florida, and especially from California.

In regard to California, and the three other States at least, which are soon to exist on the Pacific side of the Union, it is difficult to see how any plan is to be carried into effect, requiring judges of the Supreme Court to hold circuit courts there; and very grave objections arise to the maintenance of a peculiar and anomalous organization of the courts in the Pacific States, and the continued exclusion of them from the general judicial system of the Union.

In this relation, there is another important class of considerations. When Congress came to perform, as regards the judicial system, the legislative duty devolved upon it by the Constitution, it established proper subdivisions of the system, and organized them fitly upon the subsisting facts, but did not so arrange the details as to be fully capable of adaptation to successive changes in the amount of judicial business and in the number of the States.

At first, two judges of the Supreme Court were to attend each circuit court. But this arrangement was very soon found to be impracticable, and only one justice of the Supreme Court was required to attend. This also proving inconvenient, circuit judges were appointed; but that plan failed, by reason, in part, of the new judges being appointed in the last moments of an expiring administration; and the preexisting arrangement was restored. But in doing this, Congress felt itself compelled to provide that either of the judges, namely, the justice of the Supreme Court alone, or the district judge alone, might hold the circuit court; but, if held by the district judge alone, he could not decide a case of writ of error or appeal from the district court; and all such cases have had to go over until another term and the attendance of a justice of the Supreme Court. Here, therefore, the system began to lose its unity and symmetry of proportions, even before the occurrence of any considerable augmentation of the number of States. But, when these began to increase, the system broke down altogether; and it became necessary to erect district after district, excluded altogether from the circuit organization. Thus we have the complicated evil, first of many circuit courts which are so in name only and not in truth, consisting of the district judge sitting alone in the absence of a justice of the Supreme Court; and of many districts in which there is no circuit court proper. This anomaly must grow more grievous every day in presence of the great expansion recently impressed on the Union.

On the other hand, if circuit judges be appointed, then the adaptation of the system to new States becomes an easy and an ordinary fact. As each new State comes in, it has only to be adjoined to a circuit; or