CONGRESS, UNITED STATES. 



189 



the act they propose to muzzle, ay, sir, to 

 muzzle the Supremo Court. While that court, 

 from 1789 to the year of grace in which I am 

 now speaking, has been ruling all questions, 

 constitutional and otherwise, by the simple law 

 of a majority which governs all judicial tribu- 

 nals which are not the creatures of statute law ; 

 while it has been ruling all sorts of questions 

 relating to property, relating to life, relating to 

 liberty, relating to the Constitution by the 

 simple law of majority, this Congress now, for 

 purposes which, I submit, are neither honorable 

 nor praiseworthy, proposes to muzzle the Su- 

 preme Court to the end that that court may 

 not interfere with the will of this Congress 

 with respect to the reconstruction measures." 



Mr. Wilson, of Iowa, said: "Mr. Speaker, I 

 believe the first section of this bill has not 

 been challenged by any gentleman who has 

 addressed the House in opposition to this bill. 

 That being the case, the whole principle of the 

 bill is conceded by them. The first section 

 provides that five judges shall constitute a 

 quorum of the Supreme Court. Has any gen- 

 tleman challenged that as being in conflict 

 with the Constitution of the United States? 

 If so, I have been unable to detect it in the 

 confusion which has attended this debate. 



" And does any gentleman upon the opposite 

 side of the House challenge the constitution- 

 ality of the present law determining the num- 

 ber of justices who shall constitute a quorum 

 of the Supreme Court? I have heard no such 

 thing. And yet what is a quorum of the Su- 

 preme Court at this time? It is declared by 

 law to consist of six judges. How many judges 

 are there now on the Supreme Bench ? Eight. 

 So that the present statute violates the prin- 

 ciple for which the gentleman from Pennsyl- 

 vania (Mr. Woodward) contends, the common- 

 law rule, that a majority shall constitute a 

 quorum. The law as it now exists, making six 

 judges a quorum in a Supreme Court of eight 

 judges, violates that rule. Who questions its 

 constitutionality ? 



"The gentleman from Pennsylvania (Mr. 

 Woodward) says that we cannot interfere with 

 the judicial power; that we cannot pass any 

 law that shall interfere with that power in any 

 way. The gentleman from Cnnnecticut (Mr. 

 Hubbard) says that the Supreme Court is not 

 the creature of Congress, but it is the creature 

 of the Constitution of the United States. Well, 

 sir, what kind of a creature is it, as declared 

 by the Constitution ? 



The judicial power of the United States shall be 

 vested in one Supreme Court, and in such inferior 

 courts as the Congress may from time to time ordain 

 and establish. 



"Can we determine how many judges shall 

 constitute the Supreme Co art? The gentle- 

 man says that court is a creature of the Consti- 

 tution. The Constitution declares there shall 

 be a judicial department, and in that judicial 

 department there shall be a Supreme Court. 

 But it leaves entirely to Congress to determine 



the number of judges which shall constitute the 

 court. This of itself controls in no inconsider- 

 able degree the question of how many mem- 

 bers of the court shall constitute a quorum." 



Mr. Hubbard, of Connecticut: "The Con- 

 stitution of the United States provides that the 

 judges of the Supreme Court shall be nomi- 

 nated and appointed by the President, by and 

 with the advice and consent of the Senate; so 

 that the persons who are to go into that court 

 as judges are not subject to Congress." 



Mr. Wilson, of Iowa : " That is all very true, 

 that the persons who are to go into that court 

 as judges shall be selected in a certain way, 

 and that way we cannot interfere with. But 

 will the gentleman say that we cannot deter- 

 mine that the Supreme Court shall consist of 

 one hundred judges, or that it shall consist of 

 only five judges ? And if that power is given 

 to us, do we not control the quorum by the ex- 

 ercise of the power to determine how many 

 judges shall be upon the Supreme Bench ? If 

 the majority rule is insisted upon and you have 

 one hundred judges, the quorum will consist 

 of fifty-one judges ; if, on the other hand, we 

 provide that five judges shall constitute the 

 Supreme Court, the quorum would be com- 

 posed of three judges. 



" Then, as by the action of Congress, by the 

 legislative department of the Government, the 

 number constituting a quorum is changed ; by 

 fixing the number of judges we have the whole 

 power so far as that question is concerned un- 

 doubtedly, for what we may do indirectly we 

 may do directly in this respect, and I have 

 never heard it questioned before, nor do I be- 

 lieve it has been since the organization of the 

 Government down to this day. Acts have 

 been passed from time to time by Congress, 

 changing the number of judges on the Supreme 

 Bench, and in all such instances the law has 

 declared what shall constitute a quorum of the 

 court. 



" Now, sir, if we are to be deprived of this 

 power by the common-law rule as to what 

 should constitute a quorum, and again, by the 

 principle contended for by the gentleman from 

 Pennsylvania (Mr. Woodward), that a quorum 

 constitutes the court, and with which we can- 

 not interfere in any way, by direction or indi- 

 rection, and that the court thus organized is 

 bound as a court to decide every question pre- 

 sented to it to decide, I want him to harmo- 

 nize this doctrine with that other principle 

 which he affirms, that a majority of a quorum 

 may exercise this judicial power and decide 

 any question presented to the court. He says 

 a majority constitutes a quorum ; that with that 

 we cannot interfere ; that the quorum consti- 

 tutes the court ; that it is the duty of the court 

 to decide. How can this be unless a number 

 equal to a quorum concur in the opinion an- 

 nounced ? If a quorum is the court, then the 

 quorum is the unit ? How can that be divided 

 and a judgment rendered by a part of this unit ? 

 How, under the doctrine for which he con- 



