pertain to a just and fair view of the proposition which is embraced in this report. I claim that it is entitled to some consideration, if from no other fact, because it has occupied the attention of the Judiciary Committee for months, and is the result of their deliberate conviction. Ido not know why the gentleman from Philadelphia (Mr. Woodward) should have undertaken, so early in this debate, to say that this is the report of the gentleman from Lycoming, or of the chairman of the committee. He is greatly in error, and I totally disclaim any further interest in this report than that which appertains to every citizen of this Commonwealth interested in perfecting the judicial system of the State. So far as the Committee on the Judiciary is concerned, the best evidence that their report has been most carefully considered is the fact that it has developed some diversity of opinion. But these diversities do not extend much beyond a very few and simple propositions, and the dissenting reports which have been submitted may, all of them, be reduced to this very small compass. They amount to this: First. That the committee have reported that the judges of the Supreme Court ought to be appointed by the Governor, by and with the consent of twothirds of the Senate. That is a fair question, open to the consideration of this Convention and to be decided in its deliberate judgment. Second. The next point of dissent embraces the question of whether or not there shall be an intermediate court. That, I apprehend, is the question upon which the largest debate and perhaps a wider diversity of opinion will be found than upon any other matter of the report. There is, I believe, one purpose of the committee in which, so far as I know, the entire Convention concurs; that is, that the Supreme Court shall not be left in the condition in which it now is, to struggle with a burden too heavy to be borne. With a unanimity which, in view of the facts, is not surprising, the Committee on the Judiciary agree that the Supreme Court, as a matter of absolute necessity, and imperatively urgent, must have some relief. The precise mode in which that relief is to be attained is a question of fair consideration. The gentleman from Philadelphia (Mr. Woodward) has a scheme which, although it did not meet the approval of the Committee on the Judiciary, is entitled to the highest consideration of the Convention.

Mr. WOODWARD. It is not likely to get it.

Mr. ARMSTRONG. The gentleman says that it is not likely to get it. If he means by that that it is not likely to be adopted, I agree with him; but that it is entitled to respectful consideration at the hands of the Convention, all members of the Convention, in the Committee of the Judiciary and out of it, agree.

Other schemes have been presented, all of which propose the one purpose, which is to relieve the Supreme Court, and which is the primary purpose of the intermediate court as recommended by the committee. It is not a matter of any great importance by what name it may be called, whether it be a superior court, or a circuit court, or an appellate court, or whether it be called a branch of the Supreme Court. By whatever name it may be designated, the purpose of it is to devise a practical and thorough relief to the Supreme Court, whilst we are careful to deny to no suitor the right to be heard in the court of last resort, if there be in his case anything which, after hearing in the intermediate court, shall present any question upon which competent judicial minds can reasonably doubt. And even this limitation upon the right of appeal to the highest court of the State is fixed at a point which is liberal and cannot be oppressive, and which, in the judgment of many men of good judgment, is more liberal than is expedient. I know very well that the name "circuit court" has some savor of disapprobation in this State, for the reason that many years ago a circuit court by name was established by law, which proved to be a failure, and which, in my judgment very properly, was abolished—a scheme which, I think, never ought to have been adopted, and which, from its essential organization, never could be a success. After a few years of patient trial, it failed; and being abolished, it has left in the minds of the profession a sense of distrust of any scheme which bears the name of circuit court.

Now, I wish to call the attention of the Convention to this distinction. The eircuit court recommended by the committee has two distinct and separate funetions. At this point I will digress to state that it had been my purpose to review, at some greater length, this entire scheme, as it has been called, or as it is more appropriately called, this report of the committee; but as the amendment now pending raises the single question whether or not there shall be an intermediate court, I prefer to limit myself within the strict

line of debate, and confine myself to that question alone. Other questions will arise in the course of the debate, as various amendments may be suggested, which will claim deliberate consideration.

The circuit court proposed is distinctly divided into two branches as thoroughly distinct and separate as the Supreme Court and court of common pleas. The one proposes a circuit court of appellate jurisdiction, which is in aid only of the Supreme Court. The other proposes to invest the same court with certain defined original jurisdiction. Each of these propositions stands alone; and they may stand or fall together; they nay both be adopted, or either may be adopted, or neither; and all these questions are completely within the discretion and judgment of the Conven

tion.

Let me now, first, call the attention of the committee to the court of appellate jurisdiction, and I beg the Convention to bear this distinction distinctly in mind during the discussion. If the circuit court of original jurisdiction does not commend itself to their approval, strike it out, for it is so distinctly separate that, by a single amendment in the second section and by the omission of the ninth and tenth sections, it is wholly eliminated from the report, unless where, by reason of the omission, an occasional verbal amendment may be necessary.

Iaddress myself, then, to the consideration of the circuit court of appellate jurisdiction. Is there a necessity for it? I have taken some pains to procure a statement in reference to the present condition of the Supreme Court, but have not thought it worth while to go back beyond five years. The same difficulty in disposing of the business, and a gradual increase in the number of remanets, has been apparent for years in the Supreme Court, long before 1869; but for the purposes of this discussion, I felt that to be far enough. In 1869, in the Western district, the whole num

ber of cases was two hundred and sixty

five, of which there were sixty-four remanets; in the Middle district in the same

year there were one hundred and forty-one cases, and ten remanets; in the Eastern district, one hundred and sixty-two cases and fifty-four remanets. Thus, for the year 1869 there were five hundred and sixty eight cases, of which four hundred and forty were disposed of, and one hundred and twenty-eight remanets, or twentytwo and five-tenths per centum of the entire number of cases.

In 1870, in the Western district, the total number of cases was two hundred and sixty-eight and eighty-one remanets; in the Middle district, one hundred and twenty-six cases and sixteen remanets; in the Eastern district, three hundred and thirty-three cases and ninety-six remanets. The total number of cases for the year was seven hundred and twenty-seven, of which five hundred and thirty-four were disposed of, leaving one hundred and ninety-three remanets, or twenty-six and five-tenths per cent. of the whole number of cases.

In 1871, there were, in the Western district, two hundred and ninety-nine cases and sixty-six remanets; in the Middle district, one hundred and twenty-one cases and nine remanets; in the Eastern district, three hundred and sixty-two cases and one hundred and twenty-nine remanets; total, seven hundred and eightytwo cases; five hundred and seventyeight disposed of and two hundred and four remanets, or twenty-seven and thirtyseven one-hundredths per centum of the whole.

In 1872, there were, in the Western distriet, two hundred and forty-nine cases and fifty-nine remanets; in the Middle district, ninety-six cases and two remanets: and in the Eastern district, four hundred and thirty-three cases and one hundred and seventy-four remanets. The total number of cases was seven hundred and seventy-eight, of which five hundred and forty-seven were disposed of, and two hundred and thirty-one remanets, or twenty-nine and seventy one-hundredths per cent. of the entire number.

In 1873, the argument list of the Eastern district contained five hundred and nine cases, of which two hundred and fifty were disposed of, leaving two hundred and fifty-nine remanets, or fifty and eighty-seven hundredths per cent. of the is still in session, and the Middle district will not be heard till May, so that the

whole. In the Western district the court

total number of cases and remanets in the State for this year cannot now be accuratedoubt the ratio continues to increase, can be no ly ascertained, but there

and it is said that in the Western district it the remanets alone will engage the court is quite possible, and even probable, that for its entire session.

Now look at these figures: In 1869 the pecrentage of remanets was twenty-two per cent.; I leave out the fraction; in 1870, twenty-six per cent.; in 1871, twenty

The Supreme Court of Pennsylvania, from all the comparisons I have been able to make, is working more industriously and doing more work than the court of appeals of the State of New York or any of our sister States. It was stated, without contradiction, in the debates of the Convention in the State of New York, that for the year 1862, the cases in their court of appeals were five hundred, and that the most that that court was able to dispose of in any one year, including motions and calendar causes, was three hun dred and twenty-eight; so that, by this comparison, and others to which I might refer, the work, the industry and the efficiency of the Supreme Court of Pennsylvania compares favorably with that of any court in any part of the land. The cases disposed of by our Supreme Court in 1869, were four hundred and forty; in 1870, five hundred and thirty-four; in 1871, five hundred and seventy-eight; and in 1872, five hundred and forty-seven. The judges of that court are overworked in body and in mind, and it is a marvel of persistent energy and endurance that they perform their work to the extent and as well as they do.

1 appeal to the intelligent judgment of every member of this Convention, can this state of things continue with fairness and justice to the judicial administrationof the State? Is there not a continuing ratio of increase? Do not the remanets increase, year by year, by a rapidly increasing percentage? The Supreme Court themselves have declared, without the least hesitation, upon all occasions, publicly and privately, (for I have heard it stated from the bench of the Supreme Court over and over again,) that the

court is entirely swamped; and the slightest consideration of these figures shows that it is so, and they further show that it is not the fault of the Supreme Court. They work as many days and as industriously, as persistently, and as efficiently as any court in the country anywhere.

Now, how is the Supreme Court to be relieved? Various modes have been suggested. I do not know what has prompted the gentleman from Philadelphia (Mr. Woodward) to suggest, I will not say unkindly, but with a manner almost offensive, that this measure is the scheme of the chairman. I utterly disclaim it in any other sense than that I assisted to make it and cordially approve it. I say again, I have no further interest in this question than any other lawyer on this floor; I may say than any other citizen of the State. If any gentleman here can suggest a better means of relief it will meet with my cordial approbation. I will vote for any plan that, in the judgment of this Convention, will efficiently relieve the Supreme Court from the necessities which press upon it, and which are crowding this part of the judiciary at the present time into such a condition that they are becoming helpless in the presence of their work. Why, sir, it is extraordinary that gentlemen should attempt to defeat a great project like this by the suggestion that it is or is not the suggestion of any man. I present it here as the deliberate conviction of the committee, and it is a reflection upon every member of that committee to say that it is submitted here, not as the report of the committee, but the report of the chairman.

Enough of these personalities. I never seek such controversies, and I never shrink

from them; but if the ground of this debate is to be changed from a fair and just consideration of this proposition upon its merits to a matter of mere personal assault, "lay on, Macduff.”

Now, Mr. Chairman, what does this report propose? I cannot say that the gentleman from Allegheny (Mr. S. A. Purviance) has presented it in its fullness or made any effort to do so, and I will not say that he has presented it unfairly; but I will say that he has failed to present to this Convention, or to answer the strong points which, in my judgment, commend it to the approbation of the Convention. The circuit court as proposed to be organized by the report is an independent court. It is proposed that it shall be composed of eight judges, who, with one judge from the Supreme Court, shall constitute the circuit court of appellate jurisdiction. The Supreme Court judge sits only as its Chief Justice when convened in banc, and can in no case exercise any part of its proposed original jurisdiction.

At this point I may say, further, that if the original jurisdiction is taken from this court, then I should think the number too large, for five would be ample to do all the appellate business of that court, and such an amendment ought then to prevail. But that does not touch the merits of the proposition, which is, shall there be a circuit court, or in other words, an intermediate court? If this intermediate court were proposed as a court which must necessarily take within its grasp all the legal cases of the State before any of them could reach the Supreme Court, I should unhesitatingly oppose it, because such a scheme would be unwise, would be dilatory-expensive and useless as to a vast number of cases; but the committee have thought that it would be reasonable to fix a limitation beyond which the circuit court shall not have jurisdiction, and be yond which cases shall go, as they now go, into the Supreme Court by direct appeal.

This intermediate court, then, cannot affect in the least the right of any litigant to take his case directly into the Supreme Court whenever the subject matter of the controversy exceeds $2,000, and that amount is to be ascertained as may be directed by law. The committee did not think it was wise to fix the limitations here in detail, for these can be better done by the Legislature and can thus be changed when necessities arise.

Mr. H. W. PALMER. I ask that the gentleman have unanimous consent to proceed.

The CHAIRMAN. If there be no objec tion the gentleman from Lycoming will proceed. The Chair hears no objection, and the gentleman will proceed.

Mr. ARMSTRONG. 1 am obliged to the committee for its courtesy.

Mr. BIDDle. I hope, Mr. Chairman, that the chairman of the committee will be allowed the amplest time. This is a most important subject, and I trust he is not to be restricted in any way in opening this subject.

The CHAIRMAN. The gentleman from Lycoming will proceed. There is no limit now upon his time.

Mr. LILLY. I desire, with his permission, to say, as I have been objecting heretofore, that I do not object now.

Mr. ARMSTRONG. I trust, Mr. Chairman, that I shall not encroach too far upon the courtesy of the committee. I do not feel that, as touching the present amendment, it would be appropriate for me to cover the entire ground of this report, because as the amendinent has been moved it brings up a single question; and when other amendments shall be moved, as, for instance, to strike out that part from the section which proposes the appointment of the Supreme Court judges, it will bring up that particular part for discussion, and I do not object to that mode of discussing the report. The amendment now moved brings up a single question, and I do not propose to transcend parliamentary rules. I will endeayor, with the permission of the Convention, as the various questions arise, to present the view of the committee as I understand it. To return to the discussion of the intermediate court. Various schemes have been suggested. One of them is to increase the number of judges of the Supreme Court to eight, or even ten has been suggested, and to divide that court into two branches, one to sit east and one west, and that when these judges are unanimous separately, their judgment shall stand as the judgment of the court, but when they divide they shall all come together, and the whole ten shall decide. Without entering now into a detailed discussion of it, I cannot believe that a double-headed court of that kind would be a judicious thing to establish in the State of Pennsylvania as a court of last resort. Another proposition was to estab

the judges of the several courts of com

mon pleas within specific districts, to assemble in banc for the revision of the cases within such district.

Then there was the scheme of the gentleman from Philadelphia, on my right, (Mr. Woodward.) I do not mean nor desire to forestall his own statement of his plan, but, very briefly stated, it is this: That the State shall be divided into a convenient number of circuits, not exceeding twelve; that in each one of those districts a circuit judge shall be appointed-for his scheme contemplates the appointment of all judges, from the highest to the lowestthat all cases tried within the district shall be passed in review by the circuit court thus established, consisting of the circuit judge and not less than two of the common pleas judges, the quorum being three of any particular district, who shall pass contested cases in review, ordering a new trial if they please or affirming the case, and then it comes through that court into the Supreme Court. The committee could not approve of that plan. I confine my. self at this time to a very brief discussion of it, simply desiring to present it in its skeleton,because the gentleman and others who favor these various schemes will doubtless present them for themselves, and fully. The scheme of the gentleman from Philadelphia (Mr. Woodward) proposes that in any given district, composed, if you please, of five judges-there might be more a circuit court with the right of appeal and review shall consist of the circuit judge and not less than two of the common pleas judges.

No judge may pass upon a cause decided by himself; but he may sit with the court as an "assessor." The court is itself in constant rotation. Judges A and B may sit in the circuit court at this term, and Judges C and D may sit at the next; it lacks stability; there is no certainty in its decision, even within itself. But the evil becomes greatly aggravated, when you consider that there are many such districts; and the gentleman himself proposes twelve. Then you have substantially twelve separate distinct intermediate courts, all making their own decisions in their own way, diverse and different from one another, and none of them of authority anywhere beyond its own district, and not of much authority there, for the judges within each district will consider that one is as able to decide as another, and it might frequently happen that a case which was decided by two judges, a majority of a quorum in the same circuit,

might be reversed by three or four judges the very next term, and in the same circuit, and thus no certainty could be had within itself, and its decisions could command no respect beyond it, further than a well considered opinion, new from a judge of the court of common pleas of recognized ability, is entitled to respectful consideration, not as authority, but as the opinion of a lawyer entitled to respect.

Another suggestion urged upon the committee is that the Supreme Court need no relief; and this is suggested by my friend from Delaware, whom I do not now see in his seat, (Mr. Broomall;) and he thinks that all the relief the Supreme Court needs is to write shorter opinions, to sit a little longer, to work themselves a little harder, and with a little more discretion and good judgment; the cases will be finished and all things will be lovely.

No one of these plans commended themselves to the judgment of the committee. Their report proposes an intermediate appellate court, which, perhaps, unhap pily we have called a circuit court, but it is a court which is independent of all other courts, for I take it that a court to be efficient, a court to make such decisions as will stand the test of time, must not only be independent of the people, but the judges must be independent of each other; and no plan, in the judgment of the committee, can be wise and judicious which makes one judge dependent upon another for the mutual sustaining of decisions.

See how it would operate. You have one judge of good ability and judgment reversed to-day by his brethren. That man may be out of the court to-day, and in it to-morrow, and it would be contrary to all human judgment and human experience of human frailty if there be not a remembrance in many cases treasured in the heart and, to a greater or less extent, carried by one and another of the judges into the decisions of the court. Men who think strongly do not easily surrender their opinions, and the judges of the Supreme Court afford some striking illustrations of the frailties to which even these high judges succumb. Wherever the system has been tried, as in Ohio and elsewhere, it has proved a failure. It must sooner or later breed animosities, heartburnings and bitterness. I do believe it would disturb the harmony of the rela tions of the common pleas judges, and in