PRACTICE. 151
This great evil is not far distant. It is already at our doors. It is breaking the backs of the ' old soldiers of the legion ' whose mandes are soon to fall upon the shoulders of the younger members of the profession. As things now stand, it is not only a legal but a human impossibility for us to have any sub- stantial uniformity in the practice of the various courts in these United States. Our situation is very different from that in the mother country. There one tri- bunal is the head, and the path through all other tribunals leads directly to that head. Whatever may be necessary there, can be modified by an act of Parliament ; but here both the State and Federal Constitutions stand in the way, and we have, in a general sense, two entirely distinct systems of jurispru- dence, operating upon the same territory, upon the same persons and the same property.
Many a magnificent structure has fallen from the immensity of its own weight, as did the great Roman F^mpire from which we have derived so much that is wise and good in our law.
The very framework of the government under which we live, and the body of the law itself, are in even greater tlanger from the same cause, than the forms of practice.
The great men who framed the Federal Constitution were not perfect, but they were men of long experience, of great practical sagacity, and masters of the two great systems of law to which we owe so much.
As a whole their work was the grandest creation of human hands. But every candid reflecting man knows that some of its most important provisions have utterly broken down, in a practical sense, under the immense weight of the union and the gigantic interests that have grown up under its protecting aegis.
The clause providing for impeachment, as respects every man who has any practical shrewdness or is a partisan, has become a dead letter. It does not even rise to the dignity of a "scare-crow," as Jefferson once called it.
In general, a commissioner, a district, a circuit, or a supreme court judge, is responsible to nobody, and this is especially true of the first three. Each within his domain is a Turkish Cadi, nominally guided by the law, but really controlled by his own sweet will. That many of these have had a becoming sense of the great trust committed to their keeping, and that the white sheep have been more numerous than the black, is nothing to the purpose. The evil is in any system which, no matter how high sounding in theory, practically commits our lives, liberties and property to the control of any one man who can neither be impeached, removed from office or controlled if he chooses to abuse his trust.
If it should be made the duty of the federal supreme court, to revise the doings of all these inferior tribunals, as our own supreme court may ours, the legislation would be worse than useless for that court has already broken down with the immensity of the work thrown upon it.
To magnify its labors a thousand fold would be simply to add a thousand impossibilities to one, while without its supervision, it would be simply impossi- ble to bring about uniformity in practice. That court has now nominally nine judges. To increase the number would be a remedy worse than the disease. No court of last resort should ever have more than three, five, or at most seven judges. When the number gets above seven — and as a rule when more than five — it becomes a cross-between a committee and a town-meeting for whose acts no one is responsible, instead of a court, and is apt to be split into cliques and cabals, where log-rolling instead of law controls the decisions. If the cases are not assigned — they never ought to be — three judges can decide faster than five, five faster than seven, seven faster than nine, and so on ad
�� �
