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

upon the persons named in the amendment TO the bin arr
strictly judicial duties. His whole argument is based
upon ihat and yet if understand him. he has no OBJ
lection TO the amendment offered by the honorable sena
tor from Virginia. Let look into this for moment
lie has asked very rumphantiy, it, under the constu.
ton, there any officers known except officers of the
United States reply, by another nterogaoy Is there
any judicial power known under this constitution, bul
the judicial power OF the United States, presume the
answer must be in the negative. Well then, my friend
willing to vote for the provision proposed by the
from Virginia The provision of the constitution is clear
and express that " the judicial power of the United
States, the whole judicial powerthere is no exception
shall be vested IN one Supreme Court and in such ne-
nor tribunals as the Congress may from time to time
dam and establish and that the Judges of all these courts
shall hold their office during good behavior Now if nv
Trend be sIncereand doubt he isthere is nc man
more sincere than he, there no man more generally
correct, but on this occasion be is think sngularly
he be correct in maintaining that the powers
10 be exercised by these commissioners judicial pow
ers must he not admit that they cannot be conferred ey
cept upon court of the United States This is clear
The constitution is imperative Nohuman ingenuity can
make difficulty about, Well now he must take one
side ar the other Ii the power be judicial within the
meaning OF the constitutions he cannot confer it upon the
commissioners; he must confer il upon a court If il
De not judicial within the constitution then the argument
OF the senator falls to the ground He may take either
norm OF the dilemma II is impossible that he can escape
from It, with all his learning and acueness and long ex
PeTenee IN the courts lsa judicial power or it is moi
IN court OF the United States Ii judicial his arg
ment falls for it is based upon that assumption and upon
that only s'. "'.'-.
don understand the senator as denying tina, Congress
may appoint arbitrator So far as know, that has
not been denied By any gentleman who has spoken on
the subject Are not the functions OF arbrators iudi-
cIa? How are they described in the ordinary language
OF the books' An arbitrator, instead of being Judge
appointed by public authority to decide is private Judge
nominated by the parties in the controversy Can any
thing be clearer What the question about the Pea
Patch island
Mr.. BUTLER, Tin his seat) Did the senator ever hear
| OF an arbitrator appointed by party only'
Mr.. BADGER. 1 shall notice that before have done
The senator is something like my honorable friend from
Maryland, who did not survey the whole ground before
he ventued his position The senator's question relates
to the power of appointing. am considering the unc
lions OF an arbitrator Ii is beyond dispute that the unc
lions OF an abtrator are judicial 1t is therefore mani
lest whatever other difficulties may exist, that far
the argument OF my friend from Maryland, which he
brought forward with considerable air of triumph, and
announced conclusive concerned that that
CONCLUSIVE against anything, is against the bill in
both Of the forms contemplated: it excludes commission
ers appointed IN any way and makes necessary that
should establish court with Judges for good behavior
But was about to remark that this unsal mode of in
depreciation would place extraordinary position
MY friend says that TO audit and settle against
ton and that the judicial power cannot BY law be treated
otherwise than AS judicial power Aud yet he admits
mat mat we may authorize any OF our committees, ii we
dence, and TO furnish to and that then can de-
eide the claims and that when have come to a CON
clnsion, we AN act upon it, and pay the money Well
where did Congress get that poweri Where can it be
deyoyed, according TO the plain letter OF the constu-
not adopt his Interpretation of the constitution Ii we
should, what would be the result 1t would not only
make the constitution mischevous, but mpractcable
1t would not only prevent il from operating as benei-
cally as 1t might otherwise but would prevent it from
operating at all If his rule be true the business of
government cannot be carried day Are not claims
Settled, audited. by your Committee of Accounts in
this chamber and, when so settled, paid by disburs-
ing officers OF this body from the contingent fund
placed al our disposal! AS said by my friend
from Kentucky the other day, is it clear and such
must be the effect that to certain extent there pow
ers OF an executive character which exercise, OF a
legislative character that the Judges exercise and of
judicial kind that we exercise! How ascertain
the true boundaries upon the subject hunbly appre
bend, by no other possible rule than that of plain
sense as embodied in the practice of the government
less intend to embarrass ourselves every step by
technical difficulties. We are to interpret the consutu-
lion according to the in which understood by
the wise and plain men who were its authors, and put IT
into execution We are 10 continue to carry il out ii
has been executed hereofore-executed without doubt
expressed from any quarter sufficiently eminent to have
i handed down to US. AS was well said by my friend
from Delaware, Congress is charged with this special
duty OF paying the debts of the United States and is il
not strange and extraordinary Interpretation TO that
Congress may not ascertain the ,lebts of the United
States without calling in the action OF the executive
branch OF the government to ASSIST them That is The
necessary result OF his Argument when pushed to its
treme. We cannot pay the charges against our
contingent fund.- without an appeal TO the Executive if
the argument OF the gentleman from Maryland be sound
The whole government becomes impractcable il such be
the true Interpretation of the constitution
| My friend from Maryland assails the position
Now, what is that poson' 1t is this: that where
power by the constitutions expressly and exclusively
in Congress- Congress has right by legislation pro
vide the mode OF executing that power that, Con-
gress has power to pay the debts of the United States,
that power necessarily draws the whole control as
to the mode OF asceralnng the debts to be pald-he
asceralnnent being a mere incident to the power OF
| payment. This view strikes being clear and
sound What does my friend from Maryland against
| it, He says, if hs be true Congress may the
appointment OF all the officers of the United States, and
states, instance, that we may name general TO
command the army. But the case, so far from inter-
feng with the position OF the senator from Della ware,
tends TO illustrate and support it. We propose to
ascertain debt IN order to its payment, which is the
ercise OF function wholly in us by the constitution
But In the case supposed by the from Maryland,
he has overlooked the fact that, although Congress has
the power to declare war; and therefore,
though some gentlemen do not admit that
cdent to the power of declaring Wharf.-The right to declare
The purpose for which the be waged, yet 1t is
conceded by all that the President of the United States
rs by the constitution commander-ln-chie of the army,
the actual direction of hosties be in his hands
Therefore, ii were to undertake by law TO appoint
officers IN the army, it would be not the exercise OF
power exclusively in us, but the INVASION OF power
plainly in him, commander n-che, to direct, through
mis- suborinaes, the movement OF the troops ana obv
ousy violation of the constitution. lhs is exactly
consistent with the proposition of my friend from Della
ware, which is, that where the power In question is
purely legislative, it follows that Congress has right to
adopt Just exactly the agents tor Its execution that they
deem most proper Where the power IS OF an executive
char acte the officer must be appointed by the President
| NV friend from Maryland conceves that the amend
ment proposed by the committee is exceptionabe
than the original provision of the BILL because The latter