The daily union. [volume] (Washington [D.C.]) 1845-1857, 1848-09-09

that IN writ OF error, brought 10 OutBwry
II was not surnised al whose suit the party out
aWed-
sand all the Justices said strange writ and n
cerainy supposed thereby But when the court was in
Their opinion and awarded the writ good and resolved th
common course aaSes ac athonS now. as II was Their
sld perhaps reason one The c0Airdryj bat then the Jus
rlces said, we cannot change the law now. ..
And again, we learn FROM Coke: Ell
"When the precedents judicial, TO wit: where tn
justices by divers succession oil ages have given Judgme
IN actions there brought shall be intended thar some
the counsel with the defendant OF the Justices be
tore whom the action tried and the record read wou'
have excepted against IT, FIN their Judgment the action wa
not mantanabc.'
And therefore such precedents allowable, although
they may seem 10 be against common law and reason
These, then, the great principles upon which courts
OF justice act recognising authority by which he
judicial conduct is controlled, not only aiudged by
themselves and by other Judges but the constant
OF Judicial practice without becton made; and though
upon examination IT may appear that perhaps reason
weth the contrary of what has been adindged OF done
they cannot for that disregard its obligation They
must intend that If there had been just foundation for Oh
lection, il would have been taken by some OF The counse
or judges and therefore, the course of practice without
objection has the weight and authority express
adjudication. This inevitable rule, dictated by the
necessities of mankind, and be observed onl,
by the courts but by the Legislature ITSELF when called
on to determine the meaning OF the fundamental law
Notwithstanding what may be said by gentlemen In the
Dry, and said with great sincerity it said by the
senator from Virgnia-and know that what he speaks
here and elsewhere he speaks sincerelyyet, in point OF
government without habtual reference to the precedents
established bythose who have gone before author
ty to guide us
Now sir what is the amount and nature of the author
y which urge in support OF the power of Congress
name the commissioners for adjusting these claims and
which the senator from Virginia wishes to disregard
| We have the solemn judgment of most respectable
court in the first term of Washngton's administration,
affirming the powers and series of legislative enact
ments, from that time to this, in which such power has
been exercised without objection from any quarterbe-
ing IN effect the general consent OF all departments OF the
government for than half century. In my judg-
ment, this does not settle the point nothing can.
now beg the attention OF the Senate to what was said
by my friend from Maryland in order TO escape the force
OF the decision OF the judges in 1922 and let me say
that what was ruled by Them, Is OF paramount import
ance both account OF the persons who ruled it, and the
time when it was ruled. That eminent person. Chief JUS
lice Jay who presided in the circuit court, and aided
by two learned Judges not only entitled all conf
dence and respect account of the most pure and unsu
lied inegryntegrty surpassed by that possess
ell by any human beIng-no only account of his emf
nent legal learning and high mental powers, but because
It happened that besides being contemporaneous with
the adoption OF the constitution and the discussions upon
it, he was OF the authors OF work upon the cons
tuition, which commands universal respect and is held
little short of authoritative exposition of that nsru
men He had studied it in all its parts and the time
when this decision was made, was Immediately after the
constitution was put into operation There party
excitement; heats to distract the judgment mislead
the proper exercise ct the understanding dstrst of
the great and good man then at the head Of this nation
as he stood prominently before the world at large 1t
was question decided simply upon It's intrinsic merits
! Well, now let what decided. My friend from
Maryland and myself do not agree to the decision
The Judges held that the duties devolved upon them by
that act not judicial But why' My friend from
Maryland says because the Judges were 10 do nothing
but to collect testimony and report ii TO the head of de-
partmen; which, he says, ministerial function
But my friend is entirely mistaken as TO what the enact
men was. The Judges not merely to collect and
transmit tesmony for the second section of the act d
reefs that the circuit court upon receipt OF the proofs
shall forthwith proceed to examine, etc., and having
ascerained. etc, shall transmit the result OF their
inquiry" together with their opinion in writing" etc
They were, therefore, not merely to take testimony
but to form and delivera written opinion Thisis clearly
the direction of the law and, what is important
the present occasion, the judges understood it for they
declare that the duties assigned them not judicial
not because my friend from Maryland supposes they
were merely to collect testimony but because the act
the words of the judges, subjects the decisions of these
courts, made pursuant to those duties first to the consd
Grafton and suspension OF the Secretary OF War; and then
to the revision Of the legislature"
They understood If to be act under which they
not merely to take testimony but to form opinion and
certify decision The honorable senator from South
Carolina Mr.. CALHOUN shakes his head. He will have
an opportunity when have conclu led to show that am
in The words of the act | have read and they
sustain me in the view which have taken
Mr.. CALHOUN shook my head because the practice
of the Office is quite the contrary.
| Mr.. BADGER. What odice?
Mr.. CALHOUN. Tn, Pension Office, under the direc.
tioa of the War Department The practice is entirey
different.
Mr. BADGER | have not said one word about the
practice of the Pension Once. 1t may be anything or
| nOtnlng
Mr. CALHOUN The senator spoke of the decision of
the judges as being final in the pension cases.
Mr., BADGER. stated no such thing. said, as per-
nent to the senator from Maryland, that the
Judges of the circuit court of the United States did
consider that they were dscharging ministerial
function III collecting testimony, but that they
come to opinion and certify their decision; and their
objection to the act was that their decision hna
but subject 10 review BY executive officer and by
Congress. The Judges say that they decline to ex-
ecute the duties imposed upon them. The duties i'm
nj nIIrIa and tba larIaln
ture did not contemplate them TO be judicial What,
them did the Judges do This is the real point OF the
matter This is act of Congress, which says that
the Judges of the circuit shall exercise certain
functions The Judges say Congress has right either
to compel to exercise these fuactons confer them
upon Judges" So far as the act was an attempt
to confer anything upon the Judges, Judges it was,
so far as the opinion went, annuled. What do the
Judges say ncx' That they will understand the act
appointing them commissioners by official instead of per-
sona description For instance, the judges say that they
will understand the that in the State of New
York John Jay and the other two Judges named shall be
commissioners. Then the lud yes assume that Congress
could have appointed three commissioners by name for
the ground upon which they act is, that Congress have
appointed three Individuals officers, but describing
them by their official instead of personal description
They say 1t Is tender OF Office to them for they
say: GAS therefore the business assigned this court
by the act is not judicial, directed be performed
Iudlclay, the act can only be considered appoint
ling commissioners for the purposes mentioned in it
by official instead OF personal description The judges
regard themselves the commissioners designated
by this act; and therefore, being liberty accept
or decline that office; and what did they do Why
they proceeded to accept the office and discharge the du
ties of 1t; and with extreme solicude TO show that