188 



CONGKESS, UNITED STATES. 



to the bill itself, so far as a two-thirds vote is 

 concerned, it is an attempt on the part of the 

 legislative department to dictate to the judicial 

 department as to the manner in which they 

 shall exercise their judicial power. That you 

 cannot do. It is as gross an attempt as if the 

 judiciary should dictate to the legislative depart- 

 ment how it shall exercise its powers. _ It is 

 not a question of quorum, it is a question of 

 judicial power. You say it shall not be exer- 

 cised in the manner in which it is exercised. 

 The Constitution says that it shall be exer- 

 cised by that body according to its responsi- 

 bility to the people. 



"Now, sir, I maintain, if the majority of the 

 Supreme Court is competent to decide a ques- 

 tion of property, a question of liberty, a ques- 

 tion of life, it is competent to decide a consti- 

 tutional question; and it possesses the right 

 to decide it upon the same principles or tenure 

 it decides the others. It holds power in both 

 cases by virtue of the fundamental law of the 

 land, and therefore Congress can neither add to 

 nor subtract from it. 



" This is my principal objection to the bill 

 and amendment. Another less important ob- 

 . jection is, that it will be found impracticable. I 

 venture to affirm, if the House passes this bill 

 or this amendment, or both the bill with the 

 amendment, it will be found not only difficult 

 but in some cases impossible for the court to 

 mature its judgments on the principles of this 

 bill. Suppose, sir, there are seven judges and 

 seven sections of an act of Assembly or act of 

 Congress for State as well as Federal law may 

 come before it and one judge thinks it is un- 

 constitutional for what is contained in one 

 section, another judge for what is contained in 

 another section ; you may, if you please, sup- 

 pose every judge shall declare that law to be 

 unconstitutional for separate and distinct rea- 

 sons ; that for his own reasons he holds the 

 law unconstitutional and for the reasons of the 

 other judges he holds it to be constitutional, 

 under this bill how is that court to decide that 

 question ? Is that law unconstitutional under 

 the judgment of that court ? " 



Mr. Hubbard, of Connecticut, said : " The bill 

 as it was reported requires, as I understand, a 

 majority of two-thirds. The amendment of- 

 fered by the gentleman from Pennsylvania 

 (Mr. Williams) requires that there shall be una- 

 nimity of the bench. I agree with the gentle- 

 man who offered that amendment, that, if the 

 bill reported by the committee can be justified, 

 the amendment offered by himself can be justi- 

 fied on just the same grounds. 



"Now, how is the Supreme Court consti- 

 tuted? It consists of those judges, and those only, 

 who may be appointed by law to sit on that 

 bench. How many are necessary to render 

 judgment? Tli at question is easily answered. 

 A majority only, by the well-settled principle 

 of the common law, is necessary to action in 

 all public bodies, judicial or otherwise. In a 

 private tribunal, as a board of arbitrators, for 



instance, unanimity is required; but in a board 

 composed of public officers a majority only is 

 requisite. Now, when the Constitution provided 

 a Supreme Court, the common law provided 

 that a majority may pronounce the judgment of 

 that court. If this be not so, then I ask, may 

 not this Congress take away from the citizen the 

 right of a jury trial ? The Constitution provides 

 that every citizen shall have this right. What 

 constitutes a jury? Can this Congress de- 

 termine that five, six, eight, or ten, or any num- 

 ber less or more than twelve, shall constitute a 

 jury ? By no manner of means. "Why ? Be- 

 cause the term jury had a common-law mean- 

 ing when the Constitution was framed and 

 adopted. And as the term jury had a definite 

 common-law meaning which required unanim- 

 ity in its decision, so the phrase Supreme Court 

 had involved in it a common-law signification 

 and rule which prescribed that as a law of the 

 body a majority only was necessary to an award 

 of judgment. Such being the fact, this Con- 

 gress cannot alter the rule applicable to the 

 court unless it can alter the rule applicable to 

 the verdict of a jury. I deny, therefore, that 

 the legislative power can determine what num- 

 ber is necessary to render judgment in a case 

 before the Supreme Court. 



" And this, I submit, has been the construc- 

 tion that has been put upon this question from 

 the beginning. Among all the acts that have 

 been referred to by the gentlemen who repre- 

 sent the other side of this question, there is not 

 one to be found which is any thing else than a 

 mere declaration of the common law requiring 

 a mere majority to render a judgment of the 

 court. There is not an act to be found that 

 requires more than a majority. And those 

 acts which require majorities are simply declar- 

 atory of the common law. I deny, therefore, 

 that this Congress has any authority to say 

 what shall constitute a quorum of the Supreme 

 Court. 



" But more than that, I submit that it would 

 be both impolitic and inexpedient, even if this 

 Congress were omnipotent in this regard, to 

 attempt to enact such a rule as is embodied in 

 either the bill reported by the committee or 

 the amendment offered by the gentleman from 

 Pennsylvania (Mr. Williams). It is perfectly 

 well known that it is intended to reach a partic- 

 ular case ; and this bill, without being printed, 

 without allowing members of the House an 

 opportunity of ever seeing it, but only of catch- 

 ing it by the ear as it fell from the Clerk, in hot, 

 in indecent haste, is submitted to the House for 

 action, and each one of us is required, to pass ' 

 upon it at the tap of the drum. Why this 

 impetuous haste? Because it happens to be 

 rumored I know not whether truly or not 

 that the Supreme Court by a majority, perhaps 

 by a large majority, are adverse to a particular 

 measure upon which the majority of this Con- 

 gress are disposed to stake their political life. 

 Because they have learned in advance that the 

 judicial mind of the Supreme Court condemns 





