CONGKESS, UNITED STATES. 



187 



both Houses of Congress to the necessity of 

 some such provision as this, intended, as it is, 

 to defend the legislative power, which is the 

 true sovereign power of the nation. Suppose 

 the Supreme Court do make the decision ap- 

 prehended, what will be the result? It will 

 be the law in that individual case and no more. 

 And a bill passed by the two Houses, upon full 

 consideration, well matured as it ought to be, 

 and which I take it this is not, can be enacted 

 in time to prevent any further mischief to the 

 country, if any mischief can be inflicted now 

 by a decision of that sort." 



Mr. Pruyn, of New York, said: "We have 

 here to-day propositions of a most extraordi- 

 nary character. First, we have had a proposi- 

 tion to strip ten States of every remaining evi- 

 dence of their sovereignty, and the Executive 

 of his constitutional power ; and now we are 

 startled by another measure calculated virtually 

 to rob the Supreme Court of the United States 

 of the authority which has given it influence, 

 dignity, and strength before the country and 

 before the world, and which has been conceded 

 to that tribunal from the inauguration of the 

 Government to the present time; and this 

 measure is proposed, as the gentleman from 

 Pennsylvania (Mr. Williams) has admitted, in 

 view of the fact that that court may possibly 

 make a decision which will come in conflict 

 with the views and opinions of a majority of 

 the members of this House. I am sure that 

 this open, bold, daring avowal will strike the 

 country with surprise ; and I am glad to find 

 that even the gentleman from Pennsylvania 

 falters when he approaches this point, and 

 wishes to have the measure considered with 

 more care and more deliberation than the ma- 

 jority of this House seem" disposed to give to 

 it. I cordially agree with him, if any thing is 

 to be done, if any outrage of this kind is to be 

 perpetrated, it should be done at least with 

 that regard to decency of form and time and 

 action which will give its authors at least some 

 pretence for inflicting it upon the country; and 

 I trust, sir, without entering into any extended 

 debate in reference to this matter, because it 

 has come upon me most unexpectedly, that the 

 suggestion of the gentleman from Pennsylvania, 

 (Mr. Williams) to postpone this discussion to 

 a future time, will receive the sanction of the 

 House." 



Mr. Spalding, of Ohio, said: "The question 

 with me is, is action of this sort on the part 

 of Congress by itself constitutional? That 

 is, have we a right under the Constitution to 

 provide that, in adjudicating upon constitu- 

 tional questions, two-thirds of the Supreme 

 Court shall unite in their opinion before an 

 act shall be pronounced unconstitutional ? If 

 we have not the constitutional power thus to 

 legislate, our action will be futile, because this 

 same tribunal will scan it closely and pass 

 upon it, and they may pronounce it unconsti- 

 tutional. Even though it has the concurrence 

 of both branches of Congress and the approval 



of the President, the court can still declare it 

 unconstitutional. 



"Now, Mr. Speaker, I do not propose to take 

 up much time in discussing this question ; but 

 I say that, if I were qualified for a seat upon the 

 supreme bench of the United States, and had 

 by any possibility arrived at that honor, noth- 

 ing would gratify me more than the passage 

 by Congress of the measure that is here intro- 

 duced to-day by the chairman of the Judiciary 

 Committee. I do not believe, now, at this 

 moment, that any judge of that high tribunal 

 would object to a requisition on the part of 

 Congress that, in order to declare a nact of 

 Congress unconstitutional, it shall require two- 

 thirds of their number to pass upon the ques- 

 tion. Why, it relieves them from very great 

 responsibilities. It makes the decision more 

 satisfactory to themselves and far more satis- 

 factory to those whom the decision affects. It 

 is not to be made by a single voice when the 

 court consists of seven, three on one side and 

 three on the other, and one man turns the 

 scale. But it requires the united opinion of 

 two-thirds of all the members of the Supreme 

 Court to pronounce an act of Congress uncon- 

 stitutional. 



"Now, sir, I object to the amendment which 

 requires that every judge shall assent to the 

 decision, because I think that is requiring too 

 much. It will not do to assume that the bench 

 of judges of our country are perfect, any more 

 than that the Senate and the House of Eep- 

 resentatives of Congress are perfect. I grant 

 you that there is less likelihood of their giving 

 way to passion and caprice, because they are 

 selected for their wisdom and experience and 

 supposed stability." 



Mr. Wilson, of Iowa, moved to amend the 

 amendment of the committee by adding there- 

 to the following : 



Provided, however. That if any circuit or district 

 court of the United States shall adjudge any act of 

 Congress to be unconstitutional or invalid, the judg- 

 ment, before any further proceedings shall be had 

 upon it, shall ho certified up to the Supreme Court 

 of the United States and shall he considered therein ; 

 and, if, upon the consideration thereof, two-thirds of 

 all the members of the Supreme Court shall not affirm 

 said judgment below, the same shall ho declared and 

 held reversed. 



Mr. Woodward, of Pennsylvania, said : " The 

 part of the bill to which I object is that 

 part which requires two-thirds of the court, 

 and the amendment the unanimous opinion of 

 the judges, to declare an act of Congress uncon- 

 stitutional. The amendment, as I once heard 

 it read, requires the unanimous vote of the 

 court, but the bill itself, as moved by the gen- 

 tleman from Iowa, requires two-thirds. It is 

 to that part of the bill I am here to object. 

 The gentleman from Ohio (Mr. Bingham) may 

 be very adroit in substituting another point, 

 diverting our attention to that, but I am deter- 

 mined to keep my eyes steadily upon what I 

 conceive to be the real objection to this bill. 

 I say, in reply to the amendment and in reply 



