USA > Ohio > Bench and bar of Ohio; a compendium of history and biography, Vol. II > Part 3
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appellate tribunal final. The minority of the committee included E. J. Phelps and William M. Evarts. They expressed the confident opinion that the constitutional objection to the division of the Supreme Court into parts for all hearings but those in constitutional cases had no weight. They argued strenuously that to entrust to nine different Courts of Appeal final decisions in all cases involving less than $10,000 was to make the Supreme Court the court for corporations and the wealthy, and the Appellate Courts the last resort of the poor man, and was to deny to the latter the benefit of the ability, legal learning and absence of local prejudice which so distinguished the Supreme Court. They expressed grave doubt whether the ability and learning and professional standing of those circuit judges who would sit constantly as mem- bers of the Courts of Appeals would be such as to command the greatest respect, and felt much apprehension lest such local Courts of Appeal might be swayed by local prejudice in a manner which it was the very object of the founders of the Constitution in providing for a Federal judicial system to avoid. The minority seemed also to be much impressed with the additional expense involved in the appointment of eighteen new circuit judges required by the Davis bill as a serious objection to its enactment. The association adopted the majority report by a vote of thirty-nine to twenty-seven, and from 1883 until 1891, when the Court of Appeals act was passed, had a stand- ing committee charged with the duty of bringing before each Congress the necessity for the passage of the Davis bill or a similar measure. In 1885, Howell E. Jackson, then a senator in Congress from Tennessee, introduced a bill for the amendment of the Federal judicial system which, actual experi- ence has demonstrated, was in its main features the best solution of the difficulties present in the system as it then existed. It provided for the appointment of two additional circuit judges in each circuit, established a Court of Appeals, to consist of the three circuit judges, and abolished the Cir- cuit Courts, transferring all their jurisdiction and pending business to the existing District Courts. It limited the reviewing power of the Supreme Court as much as did the Davis bill. Before the bill could be passed, its author was appointed to be the United States circuit judge for the Sixth Cir- cuit. In 1887 Congress passed a judiciary act which did not change the judi- cial system, but which very much cut down the business of the Federal courts by increasing from $500 to $2,000 the minimum limit of the amount which must be involved in a controversy before it can become subject to the Federal judicial jurisdiction. The real necessity for such a change was not apparent, and as no case could be taken to the Supreme Court unless it involved $5,000, the aid which the change afforded to that court was not percepti- ble. It only cut off from the inferior Federal courts jurisdiction of cases which could not under existing laws be carried to the Supreme Court in any event. The Congress which met for the first time in December, 1889, took up the judiciary problem in earnest, and during the session of 1889-90 the House of Representatives passed what is called the Rogers bill. It was introduced by Mr. Rogers of Arkansas, a Democratic member of the Judiciary Commit-
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tee. Mr. Ezra Tavlor of Ohio, the chairman of the Judiciary Committee, was understood to have assisted the gentleman whose name the bill bore, in its preparation. The bill was framed on very much the same lines as the Jack- son bill. It established the intermediate Appellate Court in each circuit, to consist of the existing circuit judge and two other circuit judges to be appointed ; it abolished the existing Circuit Courts and transferred their jurisdiction and pending business to the District Courts. It provided for a review of every case in the new District Court by the new Court of Appeal. It made the decision of the Courts of Appeal, final in all cases jurisdiction of which depended on diversity of citizenship, in all patent and admiralty cases and in revenue and criminal cases. It provided for a direct review by the Supreme Court of all cases involving the construction of the -Constitution and treaties of the United States and in all questions of the jurisdiction of the District Court. It contained an important provision transferring all the busi- ness of the Supreme Court then undisposed of, and which by this act came within the final jurisdiction of the Courts of Appeal, to the docket of the latter courts. When the bill reached the Senate, it was referred to the Judiciary Committee, at the head of which was Mr. Edmunds, who was not very friendly to the general plan and much preferred a division of the Supreme Court into parts. Mr. Evarts was also a member of the Judiciary Committee and to a sub-committee of which he was chairman was referred the House bill for con- sideration. It will be remembered that Mr. Evarts had signed the minority report of the special committee of the American Bar Association which opposed intermediate Courts of Appeal and favored a division of the Supreme Court. The substitute for the House bill which Mr. Evarts reported from the Judiciary Committee to the Senate, however, did not depart from the general plan of the House bill, but the changes which it made were all for the worse, as the sequel has shown. It provided for only one additional circuit judge in each circuit, instead of two, and it made the Court of Appeals to consist of the circuit justice and the two circuit judges, and in the absence or disability of either a district judge was to be designated to sit. It did not transfer the heavy Supreme Court docket of nearly 1,400 cases to the Courts of Appeal, but left that to be removed by the Supreme Court, so that an interval of seven years was required to elapse before the condition of business in the Supreme Court should be as the bill intended it to be.
This latter change has continued the burden upon the Supreme Court, so that the justices have been unable to give more than a few days in each year to the business of the Courts of Appeals, and has made it necessary to call into those courts different district judges, and to change the personnel of those courts at every session. By another change the absurdity of a Circuit Court and a District Court with distinct organizations in each district has been maintained. By an amendment in the Senate the direct appellate jurisdiction of the Supreme Court was extended to every criminal case involving a possi- ble imprisonment for more than a year, and thus the Supreme Court has come to be a court of crown cases reserved. Action in the Senate upon the Evarts bill
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was so long delayed that it became manifest after it passed the Senate and went into conference that unless the House took the bill exactly as it passed the Senate, the bill must fail. But for such an unfortunate condition of affairs the House would certainly have succeeded in modifying some of what may be called the uselessly conservative changes in the bill. As it was, the vote by which the bill passed the House came very near disclosing the lack of a quorum. The Democratic party in the House attempted by filibustering to defeat the bill, but there were enough members of that party, including Mr. Rogers of Arkansas, and Judge Culberson of Texas, to rise above petty party considerations to vote on the question and for a bill, the public necessity for which was a crying one. President Harrison recognized the fact that the bill owed its passage to Democratic support by making two of the nine appoint- ments made necessary by the act from the Democratic party. This is the first instance in the history of the country of a President's crossing party lines to make his judicial appointments.
It was not the last ; for the same president appointed Judge Jackson to the Supreme Bench. It is to be hoped that his example may often be followed.
It is not too much to say that most of the changes from the Rogers bill contained in the Evarts bill were the result of that conservative spirit seen so frequently in English reforms, which finds great comfort in maintaining the old forms while the substance is entirely changed. The admission contained in the bill that the Supreme Court needed relief, and the postponement of it for six years by refusing to transfer the congested docket to the Courts of Appeals, was a grudging mode of conferring a benefit and enacting a reform of which many counterparts can be found in English history. The only reason that ever could have been given for the separate maintenance of the Circuit and District Courts established by the Judiciary act of 1789, was that it was necessary to have an intermediate court to review cases within the exclusive jurisdiction of the District Court, and yet by the Evarts bill all appellate. juris- diction of the Circuit Court was abolished. The clumsiness and the expense of having two such courts with separate court organizations would seem plain enough to any one, while not a single advantage of such a system can be sug- gested. The reluctance of the Senate, while establishing a new court, to pro- vide judges enough for it, is an instance of that penny wise and pound foolish policy that is sometimes also called conservative. Changes which experience shows to be necessary are being gradually made in the act, and each amend- ment tends toward the original plan of the Rogers bill. In each of four of the circuits, the 2nd, 7th, 8th and 9th, there are now three circuit judges who hold the Court of Appeals. Bills to increase the number in the other circuits have been recommended by the President and the attorney-general, and have passed the Senate. It is reasonably certain that in the next decade there will . be three circuit judges in each circuit to hold the Court of Appeals, as there ought to be. Bills have been introduced to abolish the Circuit Courts and to give all their jurisdiction to the District Courts, and if the views of the present chairman of the Senate Judiciary Cominittee, Senator Hoar, are any indication,
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such a bill is likely to pass. Another provision of the Court of Appeals act which interfered with the main object of the act, to wit, the furnishing of a quick and inexpensive review of cases from the Circuit and District Courts, was that which required the costs in the Courts of Appeals to be the same as those of the Supreme Court. The costs of the latter court were fixed by the court itself at a time when the court was naturally anxious to discourage the increase of business, and were quite heavy.
An act has been recently passed which enables Courts of Appeals to fix their own costs at not exceeding the Supreme Court costs. This will much reduce the expense of the litigant in the Courts of Appeals. The clause of the Court of Appeals act which made the Supreme Court a court of criminal appeals has now been amended so that only capital cases go to that court, and the great body of criminal appeals will now go to the Court of Appeals, where they can be quickly disposed of.
The main object of a great tribunal of last resort like that of the Supreme Court of the United States is not to give every litigant a chance to have his cause reheard before it. It is to declare in an authoritative way what the law is in cases of a number, variety and importance sufficiently great to cover in a general way the whole field of Federal and general jurisprudence. The indi- vidual litigant is quite sufficiently provided for when he has the absolute right to have two impartial courts pass on his case, one in the first instance and the other by way of review. It follows that the only motive the law-maker should have in defining cases which may be appealed to the Supreme Court should be a desire to secure a decision by that court of cases the judgments in which are likely to add something either to the science of jurisprudence and public law or to the certainty in the construction of our Constitution. With the exception of that for appeals in criminal cases, the provisions of the Court of Appeals act in dividing the appellate jurisdiction between the Supreme Court and the Courts of Appeals are admirably adapted to make the Courts of Appeals the courts where reviews are given to prevent individual hardships from judicial errors, and the Supreme Court the tribunal for declaring the law and keeping it uniform for the benefit of the Nation and all the people. There is no money limit to the jurisdiction of the Supreme Court except in a single unimportant instance. It has absolute jurisdiction in constitutional cases, which all will concede should be considered by it, and in cases of jurisdiction which, because they mark the line between the Federal and State judicial power, should cer- tainly be committed ultimately to the decision of the supreme tribunal of the Nation. Cases involving the construction of treaties are of such public moment that no doubt can exist of the wisdom of committing them to the decision of the Supreme Court in every instance. In substantially all other cases of Fed- eral jurisdiction, the Supreme Court may get jurisdiction in one of two ways ; first, by certificate of the Court of Appeals, second, by certiorari by the Supreme Court. In this way every case which is so important and so doubt- ful that the Court of Appeals finds it difficult to reach a satisfactory conclu- sion, and every case which the Court of Appeals does not find doubtful but
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the Supreme Court regards as belonging to that class of cases in which it would be well to settle the law more clearly, will reach the Supreme Court, and that court will remain, as it has always been, one of the world's great authorities on commercial and general jurisprudence. By these features, the most serious objection to giving Courts af Appeal final jurisdiction in all cases save those involving jurisdiction, the Constitution and foreign treaties, is removed. It is a favorite argument of those who urge that there should be a review by the Supreme Court of all felony cases that one ought to have the same right to carry to the highest court questions involving his life and liberty as those involv- ing money or property. The answer to this, so far as it concerns the present Courts of Appeals act, is that the act gives no opportunity as of right to carry questions concerning money or property to the Supreme Court, except as the Appellate Court or the Supreme Court may deem thein unsettled and of gen- eral public importance, and the same thing is true of those criminal cases of - which the Court of Appeals has final jurisdiction. On the other hand, before the recent amendment every felony case could be carried as of right to the Supreme Court, and now under the act as amended every capital case can be. Such a provision is imposing a burden on the Supreme Court merely for the purpose of giving another chance to the defeated defendant, and not to sub- serve the proper purpose of such a court to declare authoritatively what the law is on questions of general importance. Because the life or liberty of one charged with crime may be at stake in a cause, it by no means follows that questions upon which the correctness of the trial court's ruling turns are either doubtful or of general importance. One jury trial and one review before three judges of experience and impartiality are all that any practical and useful code of criminal procedure should allow. The opportunities afforded, by over- nice and over-technical judges and by emotionally weak legislatures, to hard- ened criminals to delay the execution of the law upon their crimes have brought the administration of the criminal law in this country into just reproach and should be eliminated as far as possible from Federal legislation.
So hasty were the final steps in making the Evarts bill a law, and so necessary did it become not to risk defeat by the delay of amendment, that as it was passed on the 3rd of March, 1891, it provided for the organization of the new Courts of Appeal in the preceding January. It was necessary to avoid several mistakes of this character by a joint resolution, which fixed the 1st day of July, 1891, as the day for the organization of the court and the day after which appeals and writs of error from the Circuit and District Courts should be taken to the Courts of Appeal under the act. In spite of the defects in it, the Court of Appeals act has worked well. The Supreme Court has been much relieved. The docket of that court is becoming less burdened each year, and it is already certain that in less than two years, the cases docketed each year will not be too many for the court to dispose of in the same year. Nor is there any ground for fear that the Supreme Court will run out of work, or that it will lose its importance as the highest tribunal for declaring what the law is in all its branches. The judicious use of the writ of
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certiorari, as already explained, will prevent this. Of course litigants and lawyers defeated in the Courts of Appeal are prone to complain of the defi- ciencies of the Courts of Appeal, and continue to storm the Supreme Court with their grievances rehearsed in motions for certiorari, but that court, follow- ing truly the spirit of those who framed and passed the Court of Appeals act, has refused to hearken to such complaints except in cases in which the principles involved are such that it will serve the public interest to have them stated and expounded by the tribunal of highest authority. In most of the circuits it has become possible, provided counsel wish it and take steps to secure such a result, to have a cause begun in the court of first instance and concluded by a judgment in the Court of Appeals, all in the period of one year. Greater expedition than this in the settlement of important controversies is hardly consistent with careful preparation by counsel and due consideration of the interests involved by the courts. It may be said confidently that the system inaugurated by the Court of Appeals act is the only satisfactory solution of the difficulties which had become so formidable before its passage.
And now as to the Circuit Court of Appeals for the Sixth Circuit, which it is the especial object of this article to discuss. The Sixth Circuit embraces the four great States of Michigan, Ohio, Kentucky and Tennessee. It reaches from Lake Superior to Lookout Mountain and embraces within its jurisdiction nearly all the differing types of American manhood. Its population is great, and its commercial, farming, manufacturing and mining interests are enormous. Though rich in itself, much of the wealth of the Eastern States is invested within its borders, and this circumstance leads to litigation of great magnitude " in its Federal courts by reason of their jurisdiction over controversies between citizens of different States. With its extensive shore line on four of the great lakes, the maritime interests within its jurisdiction are very heavy and the admiralty business of its courts is second in importance only to that of the Second or New York Circuit. The manufacturing done in Ohio and Michigan leads to much patent litigation in those States, while the large production of whisky, legal and illicit, and the immense growth and manufacture.of tobacco in Kentucky and Tennessee, bring many Federal revenue cases, civil and crim- inal, into the Federal tribunals of those States. As all cases in the Federal courts of first instance may be reviewed in the Circuit Court of Appeals, it is easy to see why it is that the docket of that court for the Sixth Circuit is considerably heavier than that of any other circuit except the Second or New York Circuit, and the Eighth or St. Louis Circuit.
The Circuit Court of Appeals for the Sixth Circuit was organized at Cin- cinnati on July 1, 1891, in accordance with law. The judges in attendance were Mr. Justice Henry B. Brown, of the Supreme Court, Circuit Judge Jack- son, and Judge Sage, district judge for the Southern District of Ohio. Walter S. Harsha, of Detroit, was appointed clerk and Thomas Claiborne, of Ten- nessee, was appointed marshal of the court. In October, 1891, the court, similarly constituted, met and heard some five cases. In January, 1892, in the necessary absence of Mr. Justice Brown, Judge Swan, the district judge for
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the Eastern District of Michigan, was called in and the court was then made up of Judges Jackson, Sage and Swan. In March, 1892, President Harrison's appointments to the new circuit judgeships were confirmed, and William H. Taft, resigning his office as solicitor-general of the United States, became the additional and junior circuit judge for the Sixth Circuit. The Court of Appeals met in June, 1892, with Mr. Justice Brown presiding and Judges Jackson and Taft in attendance. Thereafter, the sessions of the court, because of the increase of business, were lengthened so much that the circuit justice was able to be present at comparatively few of the sittings, and the permanent court came to be made up of the two circuit judges and such one of the seven district judges of the circuit as could absent himself from the court work of his own district.
By designation, Judge Ricks of the Northern District of Ohio, and Judge Key of the Middle and Eastern District of Tennessee, have sat as members of the court for one session and in emergencies. In March, 1893, Judge Jack- son was appointed and confirmed a justice of the Supreme Court, and Judge Horace H. Lurton, till then Chief Justice of the Supreme Court of Tennessee, was appointed by President Cleveland to succeed him. Since Judge Lurton's appointment, it has been the custom to designate a district judge for a year to sit in the Court of Appeals. Under such a designation, Judge Severens of the Western District of Michigan sat for one year, Judge Hammond of the Western District of Tennessee for another, Judge Sage for a third year, and Judge Clark, the successor of Judge Key, is about beginning a year's work in the court. Judge Severens has done much more work in the Court of Appeals than any other judge except the circuit judges, by reason of having * supplied the place of other judges disqualified. After Justice Jackson was upon the Supreme Bench for a year he was assigned to the Sixth Circuit, and Mr. Justice Brown went to the Second Circuit, but owing to his bad health, Mr. Justice Jackson never presided as circuit justice in the Circuit Court of Appeals for the Sixth Circuit, save in one case heard at Nashville. Upon his death in the summer of 1896, Mr. Justice Harlan was assigned to the Sixth Circuit, and still is the circuit justice and presiding officer of the Court of Appeals of that circuit. The dependence of the Court of Appeals upon justices and judges owing their first allegiance to other courts has much interfered with the smooth working of the system. No court can preserve a satisfactory uniformity in its decisions when its personnel is constantly chang- ing, and while the two circuit judges are present in nine-tenths of the cases heard, the variation in one-third of the court is a detriment. More than this, the circuit judges can not fairly invite a district judge to aid them in the Court of Appeals without rendering assistance to him in his circuit court work, and each of them is thus obliged to devote to circuit work time really owing to cases on appeal. Several earnest efforts have been made to secure legislation providing a third circuit judge in this circuit, and though they have thus far failed, there is good reason to believe that this relief will be given at an early day.
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The court meets at Cincinnati, where it has a very fine court room and commodious quarters for its judges. Its law library is larger and more con- veniently housed than that of any other Circuit Court of Appeals. For one year the court held one of its three sessions in each State of the circuit, merely to acquaint the Bar of each State with the court, but its home is and is always likely to be in Cincinnati.
The court, in its five years of active business, has had before it many cases of great pecuniary magnitude and its members have had to devote much labor to keeping its docket clear. The official reporter has published six vol- umes of the court's decisions down to July, 1896, and there is material enough for another volume in the decisions rendered between that date and October 1, 1897. The six volumes are the 6th, 16th, 22nd, 31st, 37th and 43rd of the United States Appeals Reports.
Of the standing of the court among its brother Courts of Appeals, and with the Bar of the circuit and the country, it is too soon to speak. It takes much longer than a decade before the calm and unbiased judgment of a court's virtues and shortcomings can be had. Of the professional fitness and the personal characteristics of its individual members now living, the writer of this article cannot with propriety say anything.
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