in the nature of the case, can never exist again-Pinckney, Webster, Henry Clay, Binney, Choate, Emmet, Oakley, Luther Martin, Sergeant and Alexander Hamilton. Webster argued for forty years in the Supreme Court; Pinckney was in one-half of all the cases in one volume of the Supreme Court reports, and these men were great gladiators. The whole country looked with profound interest to the discussions in the Supreme Court of the United States, when the very foundations of our government were being laid in that august tribunal.

All that has vanished today. A little group of tourists will come into the court and sit there for a few moments and walk out. Otherwise, little public interest is taken in the court by the outside public. The express train method of an hour a side means that counsel hurry through their cases without any grace of expression or without any particular elaboration, stating very briefly what they understand to be the facts and very simply their contention of the law; and quickly the court passes to another case.

The court having not merely the judicial function in private litigation, but a super-judicial and quasi-legislative functionthe function of a constitutional convention in the matter of building up the superstructure of our government-should not be compelled to have such rapid fire methods of argument. I can. only recall two cases that time was given as in the old days. One was the Prohibition Cases (253 U. S. 350); the other was the Insular Cases (182 U. S.), each of which had a week. But for the most part questions of the most profound importance, questions that will affect America for generations to come, are discussed in an hour and a half. Do you think that Gibbons v. Ogden (9 Wheat. 1), McCulloch v. Maryland (4 Wheat. 316), or Marbury v. Madison (1 Cranch. 137), or any of those great decisions, would have been written with the meticulous care that has made them the admiration of successive generations if they had not been argued at the bar of the court with painful deliberation and with all the wealth of scholarship that men like Webster, Wirt, Pinckney, Choate and Binney could command?

The only remedy is to restrict again the jurisdiction of the

court.

To that the court is not averse. The court is asking for it. The hardworking Chief Justice of the United States has offered a good plan to lessen the floodtide of litigation, much of which is too unimportant for that august tribunal.

I believe that as long as the quantitative standard prevails in the Supreme Court, as of necessity it must with the attempt to dispose of so many cases, as against the qualitative standard, which prevailed in the earlier days of the Republic, that court will not maintain as fully as in earlier days its prestige in our system of government.

Therefore the court should not fritter away its great energies in petty private litigation which interests only John Doe and Richard Roe, but has no continuing influence upon the future of America.

My suggestion, as far as I have roughly thought it out, would be this:

I believe that the Supreme Court should be restricted in its jurisdiction to the following cases:

First, whenever the United States is a party to the litigation and the Attorney General of the United States certifies that in his judgment it is of public importance that the United States should have the judgment of the Supreme Court of the United States, a writ of error or appeal ought to be as of right. You may suggest the Attorney General would abuse that right. If he abuses. it, he would be very promptly admonished by the court. But I take it that the United States government, because of this cooperation of which I have spoken in the earlier part of my address, ought to have the right to go into that court in any case in which it is a litigant. But its right ought to be confined to cases where the Attorney General himself, on his personal responsibility certifies the necessity.

All other appeals ought to be by application for leave to appeal, just as applications for leave to appeal are made to the Privy Council, and wherever the Justices find in such an application a jurisdictional question the court should grant that appeal.

Second, wherever upon a like application in private litigation

it appears that there is in substance and fact and not by the ingenuity of counsel a substantial constitutional question, it should be obligatory upon the Supreme Court, if satisfied as to the substantial character of the constitutional question, to allow the appeal.

As to all other cases, now appealable, there should be a right to apply to the court as of grace for a certiorari to determine whether the question is of general importance.

If you could thus restrict the litigation of the Supreme Court to cases that the Attorney General would certify that the government as a litigant had such an interest that that court ought to hear it, and to private cases where a substantial jurisdictional question, or where a substantial constitutional question, is involved, or to exceptional cases of general importance, the calendar of the court would be reduced at least one-half, and even then they would have more cases than they had in the earlier days of the Republic.

By reducing the calendar to a limited number of cases and leaving all others to go to the Circuit Court of Appeals, it is possible the golden days of the court would return. A member of the bar, given a subject for discussion and a reasonable time to make as good an argument as he could, would approximate the arguments of the old days of the court, and it would then become again, as it once was, the greatest forum of intellectual debate in the world.

Let me say in conclusion that if anything that I have said seems to be wanting in respect for the great court of which I have spoken, for which I have so profound a respect, do not regard it so. I decline to attribute to the Supreme Court a juridical infallibility that a good Catholic imputes to the Holy Father in matters of doctrine. It is a very human institution in our governmental system. It is, in my judgment, the noblest court that the world has ever known. I know of none other so free from flaws. I know of no sun so resplendent and with so few spots.

May I conclude by quoting the concluding paragraph in the chapter on the Supreme Court of my recent book "The Constitution of the United States":

The American republic has attempted for over one hundred and thirty years and on a scale unprecedentedly vast to solve the great problem of government by the people. It has been a period of fierce controversy and bitter party strife. Like the ocean, the political life of the American republic is at times placid, with hardly a ripple upon its surface, and then the furious storms of discontent lash the waters into violent and angry seas. But always the Supreme Court stands as a great lighthouse, and even when the waves beat upon it with terrific violence (as in the Civil War, when it was shaken to its very foundation), yet after they have spent their fury, the great lamp of the Constitution-as that of another Pharos-illumines the troubled surface of the waters with the benignant rays of those immutable principles of liberty and justice, which alone can make a nation free as well as strong.

JUDICIAL REVIEW OF LEGISLATION

By Merle D. Vincent, Grand Junction

I am to speak of the power of our Federal courts to declare unconstitutional acts of Congress which conflict with the Constitution; and in particular of the necessity that our courts shall retain and continue to exercise this power.

If I do not make the usual legal argument after the fashion of lawyers when trying a case, it is because I assume that all men who understand our Constitution, and especially lawyers to whom I am now speaking, are already convinced that our courts should continue to have and exercise this power in proper cases. I will therefore use the method and language, so far as I am able and the subject permits, which we usually use and hear in the discussion of other public questions.

I do not distrust the American people nor those who honestly disagree with us on this vital subject. If we are right, they can be convinced by sound reasons stripped of needless legal phraseology and put into plain language. Lawyers should understand this question. At least their training gives them an opportunity to understand it. But too often I fear we assume the airs of superior knowledge when discussing questions of law with the public. A little more humbleness of spirit will not be unbecoming to us. It follows that the matter and manner of it should not be characterized by anything which will arouse antagonism or diminish confidence. Lawyers possess rare privileges under our scheme of government. They alone appear as advocates in the courts. Our judges are necessarily trained lawyers. The courts and the bar need and must possess public confidence. Take this from the courts and their value to the government is undermined. We should not, if we are to retain this confidence, act or speak as a distinct and separate class of persons, but conscious of the superior privileges and opportunities we enjoy, treat them as responsibilities, realizing that public confidence is necessary to their proper discharge.

For the object of argument is to convince.