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cuits or states, and no appeal lies from them to one court, the law applied to similar combinations of facts will vary with the circuit or state in which it is applied. An instance of this may be seen in the conflict and confusion among the decisions not subject to appeal of the Supreme Courts of the various states, upon points of law depending upon like principles. When statutes of the United States have to be applied in such courts, they sometimes receive contrary constructions from different tribunals. Another instance is to be observed in the administration of the Bankruptcy Act. Congress enacted “uniform laws on the subject of bankruptcies throughout the United States,” — laws somewhat ambiguous in their provisions, but still uniformly applicable throughout the country. Their administration was intrusted to local courts, from which appeals lay to the Circuit Courts, but no farther. The consequence has been what might naturally have been expected: the provisions have received different constructions in different circuits, and there is no branch of the law in which there is greater confusion and uncertainty than in the law of bankruptcy; and the “uniform laws” have in one part of the country an effect directly opposed to that which they have in another. The great evils of this state of things are that the legal rights of men depend on the place where they happen to be drawn in question, and that those who are subject to the laws, and bound to regulate their actions in accordance with them, are without any authority to determine what those laws are. The advantage of a court of appeal is in preventing these evils, by securing to the parties a uniform application of the law to their cases, and by declaring the principles and reasons of its décisions for guidance in the future under similar circumstances. If it were possible to establish a court of appeal in each state or circuit, composed of judges of the requisite ability and learning, still they could not accomplish the purpose

of a single court, because there would be no means of securing uni

1 As a recent example of this, compare Central National Bank v. Pratt, 115 Mass. 539, and First National Bank of Whitehall v. Lamb, 50 N. Y. 95.

2 Suits in equity and actions at common law often arise out of matters connected with the proceedings in bankruptcy, and are subject to appeal and writ of error to the Supreme Court; but this is by virtue of the laws which regulate appeals and writs of error in other cases. In proceedings under the Bankruptcy Act, there is no appeal from the Circuit Court. See Morgan v. Thornhill, 11 Wall. 65; Coit v. Robinson, 19 Wall. 274.

formity in their judgments. Law should be administered, not merely that a particular suit may be ended, but also that the certainty of what the action of the court will be may make an application to it unnecessary. Another advantage which should be mentioned is the “ advantage which sometimes arises from a fresh hearing by way of appeal.”] Too little importance is often attached to this. Many matters which are immaterial or irrelevant are relied on at a first hearing, and embarrass both court and counsel, but on appeal are abandoned or summarily disposed of as not affecting the result. The real points of the controversy are then brought out more distinctly, and are discussed and criticised more thoroughly and exactly than was possible before. Besides this, the court of appeal has the assistance of the opinions delivered by the court below. These advantages are lost when the lower courts, in the expectation that either party may appeal, and in order to escape the responsibility of a wrong decision, give judgment as a matter of form so that an ppeal may be taken, without actual consideration or argument.

I. Among the plans proposed to remedy the evils we have mentioned, it has been suggested that the right of appeal should be restricted in two ways: first, that appeals should not be allowed in respect of matters of fact ; second, that appeals should not be allowed, except when the amount involved is very large, and exceeds a fixed limit.

In equity the decisions of the inferior courts upon the facts may be re-examined by way of appeal, as might also decrees in admiralty until recently.3 Although it is easy to understand how the practice may have originated, it is difficult to see any reason for its continuance. Those do not touch it which may be stated in favor of appeal in matters of law. The court which first hears the cause is at least as competent as the court above to decide the facts; and when the evidence before the former is given viva i Bridges v. North of London Ry. Co., L. R. 7 H. L. at p. 239, by Lord Cairns.

In Bain v. Fothergill, L. R. 7 H. L. 158, had the Exchequer Chamber affirmed a judgment of the Exchequer, no arguments being heard, as it was the intention of the parties to appeal to the House of Lords. The appeal being brought to that House, Lord Chelmsford said (p. 205), “ The plaintiffs in error declined to argue the present case in the Exchequer Chamber, as the authorities on the subject could only be freely reviewed by a higher tribunal. The case therefore comes to your Lordships' House without the advantage of the opinions of the learned judges of that Court."

3 By St. 1875, c. 77, s. 1, the review by the Supreme Court of decrees in admiralty is limited to questions of law.

voce in open court, it has an advantage which is never possessed by the latter. The right is really a right to a second or third trial, and resembles an appeal from one jury to another, a proceeding which strangely enough was allowed in Massachusetts about forty years ago, and even now, we believe, obtains in Rhode Island. It is said that these cases are an immense addition to the work of the court; and one can hardly suppose that it would be otherwise, when he remembers how voluminous the evidence in them usually is. The labor thus laid upon the Supreme Court brings no particular advantage, either to the parties or to others; and the practice might well be abolished in equity, as it has been in admiralty. Equity and admiralty would then stand upon an equal footing with the common law as regards appeals, a rehearing being allowed by the higher court on questions of law, but not on questions of fact.

The limitation of appeals by the amount in controversy involves other considerations. Originally the amount must have exceeded $2000, and this continued to be the limit until the first of last May. It was once thought that it was high enough to prevent trivial matters from being brought to the Court; and it would be hard to contend that the matters which it has admitted have been of too little pecuniary importance for consideration. It would be still harder to show that they have not involved questions, the determination of which was as important to the parties and the public as those involved in controversies concerning the largest values ; there are reasons for believing even that more questions which affect the general interest are contained in litigation about moderate amounts. The limitation of appeals, therefore, to suits involving very large sums would deprive the Court of its usefulness in those instances where there is the greatest chance of its being useful; at the same time it would not in the least discourage frivolous appeals, the temptation to which is perhaps increased with the magnitude of the interests at stake. There is apparently but one object in restricting appeals to such suits, and that is to reduce the business to be transacted by the court to an amount which it can dispose of conveniently. But this is not the object which ought to be aimed at. The work imposed upon courts is not provided in order that they may have something to do, and its amount is not to be measured by their convenience or adjusted to their capabilities. It is of course to

be determined, as a question by itself, what cases are proper to come before particular courts, and what cases should be subject to appeal; but when the work to be done is ascertained, the courts should be adapted to its performance. Undoubtedly appeals are far too numerous; but the fault is in our judicial machinery, which has brought the law into its present confusion and uncertainty, not in the allowance of appeals. The remedy is to make the machinery adequate to the work, not to declare that the work, or a considerable part of it, shall not be done at all. There is the further objection to the positive limitation of appeals by the amount involved, that the expedient would be likely to have but a temporary effect; the value which will exclude all but a few cases now, will admit a great many a short time hence; it will then have to be raised again, and so on continually until the appellate jurisdiction is confined to a small class of matters which are as far removed from the general interest of the public, as those which come before the Court of Claims. By the Act of 1875, c. 77, s. 3, the value of the matter in dispute necessary to give a right to appeal must exceed $5000, instead of $2000, as forinerly. If this act restricted only the absolute right of appeal, and provided for appeals in proper cases by leave of court, it might not only be unobjectionable, but highly advantageous. The power to judge of the propriety of an appeal would then be in the hands of the judges, with whom we think it might safely be trusted. The limit of $2000 had an evil effect in making it impossible, except in a few particular instances, to have the judgments of inferior courts reexamined by the Supreme Court. The laws which did not allow appeals in bankruptcy and other proceedings had a like effect, for the same reason; and that will be the effect of this act in a greater degree. In our opinion, however, the evil would be entirely remedied, if it were provided that, in all cases where there is not an appeal as of right, an appeal may be had by leave of the court before which the matter is heard. The necessity of obtaining leave of court would be a sufficient check against frivolous appeals. At the same time it would be possible to have points of law determined by the highest court whenever it was desirable and right.

II. The removal of appeals in matters of fact from the jurisdiction of the Supreme Court would relieve it of a great quantity of work. Probably, however, it would not be able, by this means

alone, to give to the hearing and determination of matters brought before it as much time and attention as might be wished ; and it certainly could not do so if its other business should increase hereafter. Therefore it should be considered whether any improvement is possible in its practice, which may produce the desired result, without depriving the Court of jurisdiction in matters which are proper for it to determine. But little change has been made in its organization or mode of proceeding since it was established. Originally it consisted of six judges, four of whom were necessary for the transaction of business; it is now composed of nine judges, and six of them are required to be present; in practice, all, or nearly all, sit together for the hearing of appeals. The President, in his message at the beginning of the last session, suggested the necessity of two more circuits, and intimated that this might require the addition of two judges to the Supreme Court. But, whatever may be the result of enlarging the Court, it certainly has never had the effect of improving it as a court of appeal.

If experience can be trusted, it teaches that a court of nine judges, sitting together at a hearing, is not likely to do its work better, or to arrive at a more satisfactory conclusion, than a court of three or four. It is desirable that appeals should be considered from the points of view which suggest themselves to different persons who have the necessary learning and experi

This is secured by the presence of three or four judges, and the employment of a larger number is a waste of strength. The Supreme Court was not increased in size for the sake of any advantage to it as a court of appeal; but the formation of new circuits made necessary the appointment of more judges, that there might be one for each circuit, and they were added as a matter of course to the Supreme Court, where they naturally took part in the hearing of appeals. But, with so many judges, a subject cannot receive so full a discussion as with a smaller number, without consuming a great deal of time; and, if all take an equally active interest in it, the probability of reconciling differences of opinion is lessened. In ordinary cases also it is more likely that the strength of numbers will diminish the feeling of individual responsibility ; sometimes, too, the practice arises of assigning cases to single judges, and adopting their opinions as the judgments of the court, which has actually been done in some courts.

ence.

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