Relief of Suitors in Federal Courts

“ READING with a hop, skip, and a jump ” is a phrase invented by a great jurist to describe his method of scanning the pages of the multiplied law reports of the present time; but perhaps it is more descriptive of the method winch laymen adopt in glancing at any article relating to a legal topic. I wish to arrest the attention of such readers by saying at the outset that this paper is prepared for the laity, upon the express assumption and with the deep conviction that there are imperative reasons why all good citizens should concern themselves about the subject. “Although,” as the late Justice Matthews said. “it excites little public interest, yet it involves great public interests.”

The question maybe asked : “If there are abuses in the administration of justice, why do not the lawyers have them rectified ? They have a great, frequently a controlling influence in legislation. Why do they not attend to the matter? ” I answer briefly : The bar is composed of two classes, — working lawyers and those who are in politics. Archbishop Whately has pointed out with admirable precision the partial disqualification of the former for law reform in “the constant habit of fixing the thought on what the law is, and withdrawing it from the irrelevant question of what the law ought to be.” The professional intellect becomes subdued to what it works in, like the dyer’s hand. Lawyers of this class are proverbially conservative. They have no strong reason, as business men, to put themselves to trouble in the matter of securing expedition in the administration of the law. While it is true of most judicial controversies that both sides believe they are in the right, it is also true that one side or the other distinctly prefers the policy of delay, and recognizes an advantage in it. When, therefore, the lawyer hears the curses, loud and deep, of his impatient clients, the preferences of other clients, perhaps equal in number and value, who are fighting with Fabian tactics, make a complete standoff; and he feels that the law’s delay is both had and good. As for the political lawyers, they have their hands full of politics, and have no time, if they had inclination, to bestir themselves in behalf of law reform.

The result of these facts has been injurious to the legal profession. Professor Bryce, whose general accuracy in his account of our institutions is so freely admitted, traces a decline in the standing and influence of the profession since the days when De Tocqueville wrote of the aristocracy of the bar. The chief reason of this decline is doubtless to be found in the fact that the American people — with a certain amount of justice — hold the legal profession responsible for the delay and failure in the administration of law; or if they do not distinctly apply the doctrine of responsibility, yet the bar has suffered in public estimation from the inevitable association of ideas connecting it with the inefficient administration of justice. Few things in America have escaped the glorification of Fourth of July sentiment; hut if any forlorn, sporadic patriot has ever “ pointed with pride ” to the celerity and cheapness and certainty of our judicial procedure, I have never heard of him. It is not gratifying to national or professional complacency to find Lord Coleridge, on the occasion of his visit to this country, expressing his amazement at the universal concession that justice went faster in England than here.

The grievance of public opinion against the administration of the law is not the miscarriage, but the delay, of justice. It is a significant fact that in Magna Charta the pledge against the sale, the denial, and the delay of justice is given concurrently, as if the three abuses were of equal enormity. And are they not, in fact, equal ? The sale of justice involves greater corruption than its delay, and the denial of justice implies greater outrage; but they result alike in the defeat of justice. To delay justice is but to deny it by keeping the promise to the ear, and breaking it to the hope. To delay justice to one suitor is but to sell it to his adversary. It is perhaps a more significant fact than the conjunction of this guaranty against the three abuses that the delay of justice forms the climax of the demand of the barons at Runnymede: “Nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam.” It is possible that they regarded the last as the chief of the three evils, because they sawthat it was the most likely to occur, and the least likely to be redressed. If this be true, it was a curious confirmation of their prescience that the sale of justice by Bacon and the denial of justice by Jeffreys brought indignant protest and timely rebuke, while the suitor-cide delays of Eldon were endured for a quarter of a century. So, in this country, corruption or maladministration in judicial procedure would be followed by swift-handed retribution ; but delays which amount to positive injustice, and which are so serious as easily to be used by one litigant to force his adversary into a surrender of his rights, have been permitted by public indifference to exist for the last twenty years in the highest and greatest court of our country. The Supreme Court is not responsible for them and cannot help them. The judges have done faithfully and with utmost assiduity as hard work as their great capacity, high training, and unremitting diligence render possible within human limitations. Chief Justice Waite, in his last public utterance, protested against giving to the measures designed to remove the existing causes of delay the name of “ Relief of the Supreme Court.” “ That,” said he, “ is a most deceptive misnomer.

. . . What is needed is relief for the people against the ruinous consequences of the tedious and oppressive delays which, as the law now stands, are necessarily attendant on the final disposition of very many of the suits in the courts of the United States, because of the overcrowded and constantly increasing docket of the Supreme Court. It is the people that need relief, not the court.”

“Justice,” said Webster, “ is the greatest interest of man on earth.” The American people may base a demand upon their law-makers for a rational, efficient, and timely administration of justice upon grounds wholly disconnected with the interests and rights of individual suitors, and wholly independent of the possible selfish interest which every citizen necessarily has in such a demand on account of the fact that he may at some time have a personal stake in some litigation. This ground has been admirably stated by Mr. Depew: “As the country increases in population, in wealth, in crowded communities, in vast combinations of labor and capital, in the elements which, in any disintegration of society from wrongs or corruptions, come together for the overthrow of existing institutions, the salvation of our lives and property, of our families and homes, of our rights and liberties, of our civilization itself, depends more and more upon a judicial system which commands the respect and confidence of the masses.”

The platforms of all the organizations that represent existing disaffection and agitation contain protests against the “ unjust delays and technicalities of the law.” The lawyer usually regards such utterances with a fine scorn. “ Technicalities,” he declares, “ are great principles in the disguise of concrete forms.” But two recent publications, in which certain absurd technicalities of the common law procedure in criminal cases are pointed out as serious obstructions in the administration of law, are worthy of note. These strictures emanate, not from Jack Cade redivivus, but from Benjamin H. Brewster and Augustus H. Garland, in their official reports as Attorney-Generals of the United States. It is not well when the weapons with which disaffection can assail the administration of justice are forged by hands such as these. But Congress has never paid the slightest attention, so far as the calendar or the statute-book shows, to their weighty recommendations.

The chief evil of a purely public character in the existing condition of affairs is the fact that the Supreme Court of the United States,—the most august tribunal, not only of our country, but of the world, coördinate with the legislative and executive departments of the government, the cynosure of the nation’s eye, the one American institution which is the admitted envy of English and Continental publicists, — this grand tribunal is coming to represent in the popular mind, not the majesty of the law, but its inefficiency and paralysis. The people at large cannot discriminate so clearly as to avoid the natural association of the idea of delay in the court with the court itself. This not only brings a grievous injustice upon the judges themselves, but it is an unspeakable misfortune that the wholesome and conservative influence which should be exerted by this great court upon popular opinion is thus impaired, if not wholly lost.

In his address on Truth at the Bar, Chief Justice Bleckley delivered a solemn warning when he declared : “There is a clamor abroad for justice, — for justice of substance; and legislators, the courts, the bar, and the people may prepare to administer it on a system of procedure adequate to modern demand, or else to witness, in stolid imbecility, attempts, more and more numerous, more and more desperate, to clutch it by the rude hand of violence.”

In the storm and stress of pending social agitations, the American people will have need to appeal to the sentiment of “ reverence for law.’ Woe unto us if disaffected agitators can retort with truth, “Your law is not worthy of reverence ” !

Assuming that demonstration has been made of the public nature of the interests involved, it is gratifying to be able to point out certain conditions which are favorable to the redress of the existing grievances. The celebration of the centennial of the organization of the Supreme Court, in February, attracted general attention to this ordinarily unobtrusive department of government. Its function as the living voice of the Constitution, its utility as the balance wheel of the government, its distinction as the unique and crowning glory of republican institutions, were all impressed upon the public mind in the masterly presentment of eminent speakers; and along with all this was the ever-present recognition of the fact that the delays of causes upon the overcrowded docket of the court had become so grievous as to be oppressive. Mr. Justice Field, who represented the court in the principal address, insisted earnestly on the necessity of some relief for suitors. He said: —

“The calendar of the present term exceeds 1500. Something must be done to prevent delays. To delay justice is as pernicious as to deny it. One of the most precious articles of the Magna Charta was that in which the king declared that he would not deny or delay to any man justice or right. And, assuredly, what the barons of England wrung from their monarch the people of the United States will not refuse to any suitor for justice in their tribunals.”

The other favorable condition to which reference was made is the existing state of political parties. Without doubt, the political reason has been the chief obstruction in the way of necessary legislation up to the present time. So long as the Senate and the President were Republican, the Senate was energetic in the matter. At every session bills were framed, and several times were passed. But they met indifference and death in the Democratic House. However, when the House and the President were in political accord, the Representatives became at once keenly alive to the urgency of the situation, and put the necessary legislation in shape ; but the Senate had now forgotten all about its former convictions, and ignored the subject. This would be amusing if it were not scandalous ; but there is one valuable compensation in this chapter of the history of parties, namely: both parties have placed themselves in such an attitude towards the subject that each stands committed to the legislation whenever political harmony of the Executive, Senate, and House makes it possible to secure it; and the adversary party in such case has cut itself off from the opportunity of objection. With what show of fairness or consistency, for instance, could the Democratic lawyers who were so eager to organize and equip the new courts necessary to secure relief now oppose the measure ? In legal parlance, they are estopped. Doubtless they relish the situation which relieves them from political pressure and partisan considerations ; for all true lawyers are trained to be lovers of justice, and feel in their hearts that the right to have justice is higher than any question of party advantage.

It would therefore seem that circumstances have conspired to make the necessary legislation possible, and to some extent probable. But the competition for the attention of Congress is exceedingly fierce. Matters standing upon merit alone are likely to be crowded aside for those in which private interests and party policy bring to bear the pressure of urgent insistence. The suitors whose rights and interests are directly involved are too few to make themselves felt among sixty millions of people. They are scattered and unorganized, so that no unity of action among them is conceivable. Hence there is a vital importance in enlisting public opinion in behalf of the necessary legislation upon those broad grounds of public welfare which have been stated in this plea for the quickening of non-professional thought.

The judicial power of the United States is vested by the Constitution in one Supreme Court, and such inferior courts as Congress shall from time to time ordain and establish. The inferior courts established in pursuance of this power are District and Circuit Courts. The country is divided into sixty-five judicial districts and nine judicial circuits.

The federal judicial power extends to cases arising under the Constitution and laws of the United States, and treaties made under their authority; cases affecting ambassadors and other public ministers and consuls; cases of admiralty and maritime jurisdiction ; controversies in which the United States shall be a party; controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under the grants of different States, and between a State, or the citizens thereof, and foreign states, citizens and subjects. The Supreme Court has original jurisdiction (by which is meant that cases are brought in the first instance into that court) of all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party. Of all other cases the Supreme Court has only appellate jurisdiction from the inferior courts, with such exceptions and under such regulations as Congress may make.

An analysis of the class of cases to which the federal judicial power extends shows the existence of two distinct grounds upon which that jurisdiction was conferred: (1.) The nature of the question involved. (2.) The status of the parties. In the former class belong the cases arising under the Constitution and laws of the United States ; in the latter, as one instance, cases between citizens of different States. The jurisdiction in the former class of cases rests upon the fact that the federal tribunal is the fit and proper tribunal for the determination of federal questions. In the latter, it rests upon the fact that, by reason of local influence or prejudice, the non-resident suitor might not obtain justice before a court or jury of the vicinage.

The jurisdiction growing out of the judicial power of the United States is distributed as follows: The District Courts have cognizance principally of cases of admiralty and maritime jurisdiction, and of certain offenses against the laws of the United States. The Circuit Courts have original jurisdiction of all other cases to which the judicial power of the United States extends, and certain appellate jurisdiction from the District Courts. It will be seen that the Circuit Courts are the principal sources of original jurisdiction ; and hence Circuit Courts have been established in nearly all of the judicial districts. Hence, also, inasmuch as there are only nine Circuit judges, it is necessary that the District judges should be empowered to hold the Circuit Courts. A term of the Circuit Court may he held by a District judge alone, or a Circuit judge alone, or by the Supreme Court justice assigned to the Circuit; or by any two or by all three of these judges. (Not much can be said for the coherency of a system which permits such variations.) In point of fact, the Supreme Court justices are engaged for so long a period each year in holding the term of the Supreme Court that they are able to do very little work in the Circuit Courts. The Circuit judges have such immense territories that they can at best bestow only a limited attendance upon the most important of their courts. The result is that, practically, the business of the Circuit Courts is done by the District judges sitting alone. Their decisions as such are not reviewable as a matter of right by the Circuit judge or Circuit justice; and in cases involving less than the jurisdictional amount ($5000), and not involving a federal question, are not reviewable at all.

In order to ascertain the facts upon this and the kindred topics discussed in this paper, I prepared a circular letter, containing various inquiries, and addressed it to the clerks of the Circuit and District Courts. The responses to the letter were general, indicating a willingness on the part of the officers of the courts to furnish all the information within their power. They were fairly representative, having been received from all parts of the United States, and from courts in which the business was large as well as those in which it was small.

One question in the circular was: “ Estimating the number of weeks your court is in session, what proportion of that time, during the last five years, has the Circuit judge presided in the court with the District judge ? During the same period, make the same answer as to the Circuit justices.”

The average of all replies shows that the Circuit judges are present one ninth of the time. Many answers are like these : “ The Circuit judge has not been here in four years.” “ The Circuit judge has been here eight days since 1870.” “ The Circuit judge is here three or four days per annum.” The answers relative to the Circuit justices of course show still less frequent attendance at the Circuit Courts.

Another question in the circular was as follows ; “ In what proportion of cases, involving less than $5000, tried by the District judges sitting alone as a Circuit Court, does the Circuit judge or the Circuit justice preside in motions for a new trial ? In few or many ? In one tenth ? One fifth ? One half ? ”

The average of replies received shows that the Circuit judge presides in about one tenth of such cases. Only one answer in the entire series states that the Circuit judge presides in as many as one half of the cases. A careful examination of the first twenty volumes of the Federal Reporter shows that more than one half of the cases in which citizenship gives jurisdiction involve less than the jurisdictional amount for an appeal. So that, putting the facts together, one judge administers the law in eight ninths of all the cases in the lower Federal Courts, and is the final arbiter of the rights of parties in nine tenths of more than one half of all such eases.

Now, the right of parties to a rehearing, on appeal or by writ of error, before some other tribunal than that by which cases are heard in the first instance, is a part of the common law. It has become an American right by universal adoption in the judicial systems of the States. There is no State that does not provide an appellate court for the review of causes tried in the inferior courts (almost invariably by one judge) upon the record of the trial. All lawyers and all judges are agreed that such a reëxamination is one of the most indispensable steps in judicial procedure ; and the hold which this part of the judicial system has upon the people may be inferred from the fact (already stated) of its universal incorporation into the legal procedure of the various States. This right is denied in the federal judicial system as now administered; not by the judges, but denied necessarily for the want of judges and the absence of any provision for a review in such cases. Legislation is needed which shall recognize and provide for this important right in the inferior courts, and at the same time relieve the overcrowded docket of the Supreme Court. This latter topic is now to be considered.

The progressive increase of the Supreme Court docket will appear from the following table : —

Term. Cases on Docket. Term. Cases on Docket.
1803 55 1850 253
1810 98 1860 310
1820 127 1870 636
1830 143 1880 1202
1840 92 1888 1567

The average number of cases of which the court is able to dispose, since the pressure of the recent accumulation has stimulated its utmost exertion, is 415, which includes a considerable number of cases dismissed by the court and withdrawn by compromise. The thoroughness with which every cause is investigated — each judge examining the record, and the court reaching a decision after full consultation —partly accounts for the smallness of this number as compared with the larger clearances of their dockets by state appellate courts. Many of the latter have adopted the pernicious practice of appointing one of their number to “take” certain cases and reach conclusions in which the other judges acquiesce. The Supreme Court will best retain the confidence and esteem of the people and the bar by refusing, under any stress of emergency, to adopt the “ assignee method ” of deciding cases.

From the foregoing figures, the results are : (1.) About three years and a half elapse from the perfecting of an appeal to the time when a case is reached on the docket of the Supreme Court. (2.) The excess of cases returned at each term over cases disposed of is annually increasing, so that at the present ratio of accumulation another year will be added to the above-stated period by 1892.

While this state of things continues, the Supreme Court cannot be an auxiliary to, but on the contrary is an obstruction in the way of, the administration of justice. The condition of the docket is used every day as an engine of oppression and wrong. Ruinous sacrifices are extorted from suitors under the name of compromise. What is this but confiscation under forms of law?

Mr. Justice Miller says : “ The speed and rush with which business is now carried on, as compared with what it was even fifty years ago, can hardly be realized ; and it leaves no time for the man immersed in the pursuits of life to sit down and await the event of a protracted litigation, though it may involve his all. He can better afford to compromise or abandon a claim, in which he has been sustained by a judgment in his favor, than to waste time or to do without the money until it can be decided again.”

One of the questions in the circular referred to above was as follows : “ Do not parties in many cases which might go to the Supreme Court make compromises based chiefly on the delay that will intervene before a decision can be reached in the court ? ”

Two thirds of the replies to this question were in the affirmative. The other third were to the effect that the writers did not know. There were none which answered positively in the negative.

The picture has been seen of a poor inventor bursting into tears upon being told, after winning a case, that his powerful adversary could prevent his reaping the advantage of his victory by an appeal that would last four years. A railroad employee, maimed for life, who has recovered a judgment for injuries, may starve to death, while the railway company, which has removed the cause into a Federal Court, prosecutes its appeal, with the comforting assurance that if he dies his right of action, being a personal one, perishes with him. The nation cannot longer afford to aid and abet such injustice.

The remedies which have been proposed all come within two groups : (1.) Those which divide the Supreme Court into sections or committees. (2.) Those which provide an intermediate appellate court between the Supreme Court and the inferior courts. For the former class there are two plans. One proposes the division of the court into three sections, to sit separately at Washington. The other provides that the whole court shall hear cases involving federal questions at Washington, and divide itself into three branches, to be called Courts of Appeal, and sit in three principal cities to hear other cases. Neither of these plans purports to give any relief to suitors in the inferior courts, who are now denied the right of a competent review. This fact alone is a serious deficiency in these schemes. But there are other grave objections : (1.) The constitutional provision for one Supreme Court. Commenting on this, Chief Justice Waite said, “ Certainly such a provision, in such pointed language, carries with it the strongest implication that when this court acts it must act as an entirety, and that its judgments shall be the judgments of a court sitting judicially as one court, and not as several courts.” (2.) The weakening of the authority of the decisions of the court and the impairment of its public influence. (3.) The manifest insufficiency of the plan, when the facts and figures are accurately observed, to secure the relief of the Supreme Court docket.

The average number of cases disposed of during the last twenty years is 415 per annum. This includes a considerable number of cases dismissed for want of prosecution and withdrawn by compromise (showing how largely the present condition of the docket invites groundless appeals). The average number of cases adjudicated for the last ten terms is 290 per annum. From these figures the physical capacity of the court to adjudge the weighty issues coming before it, with due regard for their importance, appears to be limited to about 300 cases annually. But there were returned to the October term, 1887, 470 cases; to the October term, 1888, 550 cases ; and (will be returned, estimating same ratio) to the October term, 1889, about 650 cases. A future annual increase is visibly assured by the conditions of our expanding civilization.

It is evident from the mathematics of the case that the plans now under consideration offer no solution of the problem of this annual surplus of business ; nor of the equally grave problem involved in the 1567 cases already docketed, which will require four years, under the present system, for their disposition, even if no new cases arose within that period.

The plans for an intermediate appellate court are of two sorts: those which establish a new Court of Appeals, and those which transfer all the original jurisdiction to the District Court, and make the Circuit Court an appellate court. The latter has the merit of simplicity, and of making available existing machinery and organization. By both plans two new Circuit judges are to be appointed, and the appellate court is to be held in each Circuit. Such a court will provide a review for cases not now reviewable, and cut off a large number of cases from the Supreme Court.

The vice in all the bills heretofore drafted to carry out this general plan is that they would bring into the appellate court from the inferior courts such a volume of business that it would be immediately overburdened. The result would simply be to transfer the existing congestion from the docket of the Supreme Court to that of the appellate court, which would not, in any sense, better the case.

The precise terms of the problem, then, are these : (1.) To reduce the extent of business in the Supreme Court to the physical capacity of that court to handle it, which requires a considerable segment of its present appellate jurisdiction to be cut off, and a large portion of the present accumulation on the docket to be transferred. (2.) To provide an adequate reviewing tribunal for the cases thus eliminated and the cases not heretofore reviewable, without submerging that tribunal in an overflow of business.

The key to the whole situation is in the distinction already made between federal and non-federal cases, and the application of that distinction to legislation. Since some cases must be withdrawn from the appellate jurisdiction of the Supreme Court, and since Congress has the power to subtract what it will, every consideration of fitness and propriety suggests that those cases which involve federal questions should be retained, while those in which jurisdiction is conferred solely by the citizenship of parties, and those which, although arising under federal laws, involve purely questions of municipal law, should be diverted to some other appellate tribunal. For cases of the latter class, the Supreme Court is no more appropriate tribunal than any other federal appellate court. Congress will have done its full duty toward all such cases, and will have satisfied both the spirit and the letter of the Constitution, when it shall have provided for them an adequate reviewing tribunal deserving the confidence of suitors, and giving them the protection of the federal judicial power against local injustice. To such a court, if now organized with a virgin docket, might be at once transferred from the Supreme Court docket all cases of this description ; and the immediate relief of the Supreme Court would thereby be secured.

A careful examination of all the cases in the Supreme Court reports, from volume 106 to 127 inclusive, shows that in more than one third of all the cases adjudicated the jurisdictional element was solely the citizenship of the parties ; while probably one half of the remaining number involved no strictly federal questions. Hence, legislation based on the distinction here insisted upon will reduce the present annual return of about 650 cases from the inferior courts of original jurisdiction to probably 375, which represents about the average annual disposition of business. The cases thus designated by inherent fitness for final adjudication by the Supreme Court should go to that court direct from the inferior courts of original jurisdiction. This is right and proper, because if these cases went into the Appellate Court they could reach the Supreme Court only after the delay and expense of a second appeal; while philosophic justice and practical experience unite to show that one appeal secures the best advantages in legal procedure. But it is more than fitting; it is necessary, because if these cases involving federal questions must go, along with all other cases, into the Appellate Court, it would at once be choked with business.

There are a few special cases in which provision should be made for a review by the Supreme Court of the non-federal cases decided in the Appellate Court. They are the cases where possible divergent decisions in the Circuit Appellate Courts might require a final decision of the Supreme Court to preserve the harmony of the system, in which cases a review should be a matter of right; and the cases where the Appellate Court (irrespective of the amount involved, — an unpopular and unjust basis of limitation) should certify that the importance of the question required a final determination by the Supreme Court.

The present condition of the federal judicial system is fast assuming the proportions of a national disgrace. For the removal of this reproach, two successive Presidents, representing different parties, have urged legislation ; the Supreme Court, speaking through its members, has appealed for it; three Attorney-Generals have recommended it; the Bar Associations have petitioned for it; and suitors have sent up their despairing cry against the intolerable delay of justice.

To heed these appeals is a high public duty and a constitutional obligation. The gravity of the issue ought to lift it above the plane of partisan politics, and elevate it to the lofty range of pure patriotism. The provision (which was also a prevision) in the Constitution, that Congress should " from time to time ” ordain and establish such inferior courts as were necessary for the investiture and due exercise of the federal judicial power, means, as construed by Chief Justice Waite, that it is the constitutional duty of Congress to recognize and provide for the present emergency in the condition of the federal judicial system. It is no fanciful use of the word to say that, under a scheme of government in which the executive, legislative, and judicial departments are declared coordinate and equal, it is unconstitutional to cripple and starve and discredit the judicial department by denying to it the necessary judicial force to discharge its functions, and sacrificing the rights of that class of citizens which is entitled to relief within its jurisdiction.

Walter B. Hill.