Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1868-02-05

/ Supreme Court.
n Some time ago, the Ohio Stcte Journal
Iprotested with considerable force against
1.-THE bill Congress is seeking to enact into a
Haw requiring concurrence of two-thirds
of the Members of the Supreme Court Of
the United States to invalidate an act Of
FCongress. The Journal stirred up some ol
Its .co-laborers with this protest. They
don't like it, because it is calculated, doubt
less, to disturb the harmony of the party
.A Republican Editor" the Sandusly Reg.
lister and Jackson sStandard were given 9
|hearing in the columns of the Journal, in
(which the Journal subjoins the following
brushing rejoinder, which we lay before
lour readerst to show the enormity of lone o1
1.-The usurpative acts of Congress as proven
by Republican editor:
In addition to the above. the Dagton Jour.
nal, Springfield Morning Advertiser, and other
Journals, have taken exception to our arti-
lcle,s without entering upon the argument
Without attempting to reply in detail tc
these numerous articles, we shall endeavor
to examine briefly the whole ground, with
such incidental references to the articles
above quoted as may naturally fall in the
way OF this examination.
The spirit of candor with which the sub.
ject has been treated relieves the discussion
bfs half it's difficulties. With no precon.
ceived stheories. to support, we approach
the subject to ascertain first, simply the
intent of the Constitution; and after that
the true policy of Congress, in accordanc,
herewith. Every partisan feeling, anC
every friendly bias from whatever cause
shQuld be excluded from the consideration
IF subjects like. these. We may be vel
convinced of the policy Of any temporary
txpedient, a little out of the course of pre-.
;edent and settled principles; but who car
say what crooked, gnarly, unmanageabls
timber may grow from these slight bends
IF seemingly unimportant twigs in ouI
The first object of inquiry is. to ascertain
the constitutional power of Congress oyeI
the Supreme Court. So far as the Supreme
Court derives its powers directly from the
Constitution. is is beyond the control so
! Congress. So far as the Constitution dele
gates to the Congress powerov the Court
Congress has the Court within its regula-
ton and supervision. AS to its. original
powers, derived directly by grant from the
Constitution, the Court is of CO -ordinate
authority with the other Departments OF
the government, and is not subject to their
restraint. regulation, or supervision. Fed
l,eralist, No. IS. first three pages; and Nos.
| l.
l = 1897. The same view is taken by Kawle,
| Kent, Tucker, and every elementary writer
on the subject, and is sustained by author
I ity. Some Of the cases may be found in
Story.
An independent national judiciary was
| one of the great wants of the old Confeder-
alton, and the section providing for the
tSupreme Court in our present Constitution
passed in Convention unanimously. on
- zcO ~. m NJ
137, 1856. Much farther back, in the mother
country, it had been found by the people
tie greatest obstacle in the way of security
in their rights, that the Judges held office
at the pleasure of the King and it was not
until the statute of 13 Will. III. eh. estab-
lished that the commissions of the judges
OF the courts of common law should not be
as formerly, during the kings pleasure, but
during good behavior, and their salaries be
ascertained and established, that Justice
was administered without fear or favor, by
an independent judiciary, AID the English
Courts becamesthe admiration of the world
The trainers of our national Constitution,
were not Ignorant of these facts. They de-
termined, therefore, to establish a Judicial
ry department which should be OF co-or-
dinate powers with both executive and
legislative, independent in its administra-
tion of Justice, but with checks from each,
as they each respectively were subject to
like checks from the other coordinate
branches of the Government, The SUI
preme Court was, therefore. established BY
the CONSTIPATION, and ''the judicial power
of the United States" the sohole Judicial
po,oer. story I592)-was vested there
in, and In such interior courts as Congres
may establish, by direct constitutional
grant. The Legislative department. has
the power to fix the number of judges !;
the Executive appoints them. subject to
confirmation by the Senate. They may be
impeached for bad behavior, and removed
And SO forth. We find, therefore, that the
Court is created by the Constitution. aud
it is not the creature Of Congress. And
that the judicial power of the United
States is vested in it by the Constitutions,
and Congress cannot divest it Of that. Is
Before proceeding to the consideration of
the second section, let us revert to our for
merzarticle. as Co the meaning of the term,
1.-The Court" We hold the meaning to be
established by the uninterrupted usage of
ages--that the.opinion of amaiority: of the
Court is the Opinion of the Court; and that
the judgment of a majority of the Court
is the Judgment O. the Court; and that ma
jority of the Court is The Court. We hold
that this is the determinate meaning of the
words, and that this meaning has thus be-.
come part of the Constitution : and that
whatever power is vested by the Constitu-
tion in the Supreme Court, is vested, by
the meaning er uttermini of these words, in
a majority Of whatever number of Judges
is competent to do business. or of the num-
Der sitting, If more than quorum are
present. t1r se155t Y slssiEy.' z : $3.50 ,, 80
Most of the argument against this view
is addressed to objections to the fact, rather
than to attempts TO show that our conclu-
sion is incorrect; thus the jackson Stand
ard. .endeavors to show. (and we may admit,
does show.) that it stoould be better ii, two-
thirds, or even all, the judges were required
to consentto certain decisions. But it does
not show, what we would be glad to have
it show,-that the Constitution Re quires, or
gives Congress authority to require, two
thirds or unanimous vote. And in the alb
sence of such requirement, Orsuch authori-
cation we are obliged to take the terms of
the Constitution as they drs,-not as they
might be, or even ought to be. '.i :.
Our correspondent, whose letter isprint-.
ed at the head OF this article, takes much
the same view. The major part OF his let
ter Is answered so fully and conclusively
in Alexander Hamilton's articles on this
subject in the Eederdlist, that we must re-
fer him to them for his answer. His fear
that the Judiciary may obtain undue pow
er in the Government is not novel or
unique. and the Federdlist has. we think,
effectually disproved its reasonableness.-
With John MOrrisseys, and Fernando
Woods, and Bill Mungens, and Saulsburys,
and political tricksters of all grades and
degrees always in Congress; with the heat
and bitterness of party spirit warping the
judgment of even the purest and best men
with the people themselves carried away
frequently in the ardor of partisan warfare,
and the Executive Department. struggling
with the Legislative for supreme control,
it cannot be dangerous to the liberties
OF the people that Judiciary-se.ected
from the wisest and best of the country, if
the Executive and Congress do their duty
stripped of the sword and of the taxing
power,-with the terror of impeachment
for bad behavior before them-should be
entrusted with the mere power of iudg-