Litchfield enquirer., 1868-01-30
The Supreme Court.

field Sentinel.
 It has been rumored that both of these editors lof the Litchfeld ENQUIRER and Bridgeport Stand Grd1 were formerly members of the legal profes sion, but we presume this must be error. fol we cannot believe that any ono whose name had ever been enrolled among that host of illustrious men could so debase himself and degrade his pro- fession as to give utterance to such sentiments. Il cannot be possible that any man could read the legal utterances of the iustrious Marshal, Kent Story, Fancy and other men who have rendered American jurisprudence glorious, and then con- sent that the Supreme Judicial Tribunal of his country should be muZzled to accomplish some temporary and paltry partizan purpose: In mark ed contrast with these confessedly selfish party views IS the following honest utterance of the New Haven Journal, the leading Republican paper of the State:-BridgepoT Fd7ner.
 The foregoing are fair specimens of Dem ocratic manners as well as of Democratic arguments. The chief business of that party has so long been the vituperation O Congress and its chief members, that they seem, at last, to have become incapable O.
 any other style of discussion
 Now we will say, in our own justification, that 1t was because, as lawyer, we had be- come acquainted with similar legislation, in our own State, that we saw nothing rev olutionary in the proposed act of Congress requiring the assent of two-thirds of the Supreme Court judges to any decision de- We supported our views so conclusively, last week, by citations from the Connecti- cut Statutes, that the editor of the .Sentiuez seems to have been utterly unable to reply He selects, however, an article in pre- vious Enquirer, commences with the fore going personal attack, labors painfully at misunderstanding what we said regarding 'the decision of bench of James Buchan- ans," cites the opinion of the N. r. Times as that of particularly conscientious Re- publican paper, and concludes with re- hash of Mir. R. D. Hubbard's late speech in Congress; so that his paper has quite the air of being engaged in an argument with somebody. Inasmuch, therefore, as we do not wish to dispel this illusion in any un- kind way, and as we have few words of reply to Mir. Hubbard, and as, moreover, the views of that gentleman are quite clear ly and concisely stated in his own language. we take the liberty of quoting the following from the original speech instead of the Sentiners version:-
 Now, how is the Supreme Court constitutedp If consists of those judges, and those only who may De appointed by law 10 sit on that bench How many are necessary to render judgement? That question IS easily answered A Majority only by the wel-settled principle of the common law. ia necessary to action in all bodies judicial or other wise. In private tribunal as 6 board of arbitra- tors, for instance, unanimity is required; but in board composed of public officers majority only IS requisite. Now, when the Constitution provided Supreme Court the common law provided that a majority may pronounce the judgement of that court. Ii this be not so, then I ask, may not this congress take away from the citizen the right of jury trial? The Constitution provides that every cltizen snail have this right. What constitutes a luryt Can this Congress determine that five six elgnt, or ten, or any numbes less or more than tWelVe, snail constitute jury? By no manner of means. Why? Because the term iurv had n conn mon-law meaning when the Constitution was fram- ca and adopted. And as the term iury had def- mte common-iaw meaning which required unanim- ny ln It's decSlon so the phrase Supreme Court had involved Tn 1t common-law signifcation and rule which prescribed that law of the body major. lty only was necessary to an award of judgement Such being the fact this Congress cannot alter tho rule applicable to the verdict of a urv I deny therefore, that the legislative power can determine what number IS necessary tO render judgement in oCAoIe lHc supreme court.
 Mir. Hubbard's error lies in comparing bench of judges, whose number and whose duties and powers are by express constitu- tional provision subject to the regulation of Congress, to body of the unvarying number and simple and fixed duties of petit jury. The common law itself was not uniform regarding the proportion of bench necessary to give valid decision. By Connecticut statute of l75O passed lin afiirmance of the common law" as note Ill the revision of 1908 informs us, the presiding judge in our courts was allowed double vote in case of tie. No such casting vote was allowed by the English common law, nor by the act of Congrefs organizing the Supreme Court of the Uni ted State. In our last weeks article. we showed how legislature had taken away this casting vote in 1859 and 1867, how they had imposed on our judges disqualifi- cations wholly unwarranted by the com mon law, and how, in certain cases, they had gone so far as to require an unani- nous decision for the reversal of the judgement of a lower court In fact our Connecticut lawyers have never attemp- ted to interfere with the number compos- ing petit jury, or the unanimity required for their verdict. except by constitutional amendment; while they have always chang ed at pleasure the number sitting on our bench of judges, or the proportion requir- ed for giving their decisions, by simple act of legislature. Not only, therefore, is MT. Hubbard's theory regarding common law limitation of the power of the legislative to regulate the mode of action of the judicial branch of constitutional government. fal- lacious in reasoning, but contrary to the uniform practice of his own state.
 Another and very powerful reason is urged for the proposed law-to which Mir.