142 



CONGRESS, UNITED STATES. 



of this commission. Nobody, probably, wonld 

 criticise the propriety of this mode of selec- 

 tion, if you are to say that the commission is 

 to be composed at all of members of either 

 House, for the whole world is to know how 

 each individual Senator and how each individ- 

 ual member of the House of Representatives 

 has performed his responsible duty in the selec- 

 tion of a person who is to become the sworn 

 judge in as great a dispute as probably ever 

 existed in the world under the law. 



"These ten Senators and members of the 

 House of Representatives selected in that way, 

 with five of the associate justices of the Su- 

 preme Court of the United States, are to com- 

 pose a commission of fifteen. The judges of 

 the Supreme Court of the United States, as we 

 all know, are composed now of nine persons; 

 and in order that there might be a certain 

 symmetry of equipoise, of relation, it was 

 thought, after much consideration by the com- 

 mittee, that it was advisable to take an equal 

 number of Senators and an equal number of 

 members of the House of Representatives and 

 an equal number of the persons composing the 

 justices of the Supreme Court to form this 

 commission. So five came naturally to be the 

 number referred to. If it had been thought 

 wise to have made the total number of the 

 commission less, nine for instance, as had been 

 suggested, then there would have been three 

 Senators and three members of the House of 

 Representatives and three judges of the Su- 

 preme Court ; but it appeared to us, after much 

 consideration, that fifteen was, on the whole, 

 the best number, so large as to produce every 

 variety of intellectual capacity and learning, 

 and as to produce confidence against any pos- 

 sible attempt that might be made scarcely 

 conceivable, to be sure to unduly influence 

 any one or two or three of this whole num- 

 ber by any of the motives that sometimes, as 

 we know in the history of the world, have been 

 led to influence people who are called upon to 

 discharge high trusts, and at the same time 

 to leave the commission so limited in numbers 

 as that it should be capable of prompt, effec- 

 tive consultation, and deliberate and orderly 

 procedure and decision. 



" Then the next step was to ascertain in 

 what manner these five gentlemen out of the 

 nine all, of course, preeminent in legal learn- 

 ing and in legal experience ; all, of course, pre- 

 eminent in their knowledge and study of the 

 Constitution and the laws of our country; all, 

 of course, equal in that deep respect which 

 they receive from the people of every part of 

 the Union, as in every part of it and for every 

 part of it they daily administer law should be 

 selected. Of course it was a difficult task, be- 

 cause to select a particular five by name might 

 seem to imply that there was some reason, 

 personal or other, that the other particular 

 part, four, should not be selected. And so, in 

 analogy to what has always been a wise custom 

 in this good Government of ours, it appeared 



to us that a distribution of these gentlemen to 

 the various parts of the republic would be a 

 just reason for particular selections. So one 

 named, the justice of the first circuit, comes 

 from the far-off borders of New England, the 

 northeastern part of the country ; another, the 

 justice of the third circuit, has his residence 

 and exercises his judicial functions in the cen- 

 tre of the great commercial populations of our 

 Union ; a third, he who administers justice in 

 the eighth circuit, has his home and residence 

 in the great Northwest; and the fourth, the 

 justice of the ninth circuit, has had his habi- 

 tation and has administered justice for many 

 years (except, of course, when attending here 

 and administering justice in the Supreme 

 Court) on what has been said to be the golden 

 slope, that great far-off portion of our repub- 

 lic so rapidly growing in wealth and in every- 

 thing that makes the material prosperity of a 

 self-governing people, We name them to 

 compose four. Then there was the odd num- 

 ber to be obtained ; and in order to guard 

 against prejudice and I beg Senators to ob- 

 serve my words to guard against prejudice 

 in the minds of these ten millions of active 

 voters in what has taken place, not to guard 

 against prejudice in judges, not to guard 

 against prejudice in Senators or members, but 

 to do that wise and wholesome thing, to leave 

 no fault-finder in the country a right to com- 

 plain, we say these four men shall choose the 

 fifth from among their own associate numbers. 

 In the intense criticisms that have been made 

 upon this bill, in the very few days that it has 

 been known, by the extreme upholders of 

 party wishes upon both sides, I have never 

 observed any criticisms upon the absolute fair- 

 ness and justice of such a mode, provided we 

 could get over the constitutional objections 

 that these newspaper writers and intense poli- 

 ticians seem so suddenly to have discovered 

 and with which no doubt they are so very fa- 

 miliar. 



" That then composes a commission of fif- 

 teen persons to whom these double returns are 

 to be referred. The bill provides, as we think 

 with great fitness, that the oldest of these as- 

 sociate justices in commission the venerable 

 Judge Clifford it will be if the bill should pass 

 shall be the president of it ; and it then pro- 

 vides what also I hope that partisans as well 

 as Senators and Representatives will carefully 

 consider, that 



The members of said commission shall respec 

 lively take and subscribe the following oath : 



I, , do solemnly swear (or affirm, as 



the case may be) that I will impartially examine and 

 consider all questions submitted to the commission 

 of which I am a member, and a true judgment give 

 thereon, agreeably to the Constitution and the laws : . 

 so help me God. 



"Having thus constituted the tribunal, we 

 have committed to them this duty : After pro- 

 viding for cases of vacancy, etc., that I need 

 not take your time to speak of, we have com- 

 mitted to them this duty : Objections having 



