The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1868-02-08
The Supreme Court Outrage.


ington, on the cath ut, in the course of q
speech by Mr. MARSHALL, Of Illinois, against
the bin to radicalisc the Supreme Court, the
following passage at arms took place between
him and Mr.. BINGHAM, of Ohio
Mr.. BINGHAM VIII the gentleman allow nc
to make an enquiry of him.
MIR. MARSHALL. Certainly
Mr.. BINGHAM. desire to know of the gen.
tleman whether he is not aware of the fact that
this bill, as reported by the chairman of the COM
mittee on the Judiciary Mr.. Wilson, of Iowa.
proposes to do as much az, and no more than, was
required by the original Judiciary act of 1889,
under the administration of President Washing
ton? @
Mr.. MARSHALL. To what provision of toat
act does the gentleman refer?
Mr.. BINGHAM. That nothing short of what is
required by this bill could pronounce any such
Judgment.
Mr.. MARSHALL. What is the provision !?
Will the gentleman turn toit?
Mr.. BINGHAM. l will give the gentleman the
provision. 1t is as follows:
"The supreme court Of the United States
shall consist of the chief justice and the five as
sociate justices. any four of whom shall be a
quorum, shall hold annually at the seat of gov
ernment two sessions" dc.
AS tliaJ court was constituted OE the ACT OF
1883, it must be apparent to the gentleman from
Illinois Mr. Marshall and to every gentleman
in this house who has listened to his speech,
that Washington and the congress of 1850 were
guilty of an attempt TO polute this high tribunal
of justice when they framed a law which upon
its very face shows that in no case could that
court pronounce Judgment, if the court were
full, affecting anybodys rights, much less affect
ing the right of the American people to legislate
in congress assembled, without the concurring
assent of two-thirds of that court.
Mr. MARSHALL. Of three out of Ave
Mr.. BINGHAM. OF four out of six, and the
gentleman knows it.
Mr.. MARSHALL. Suppose there were but Ave
present; what then!
Mr.. BINGHAM. The court was 80 framed as to
make it necessary, without express words, by the
operation of the statute that two-thirds of the
court as then constituted, whether quorum was
four or six, must concur in the Judgment.
Mr.. MARSHALL. l prefer to resume the floor,
as the gentleman will not attend to the questions
PROFOUND to him.
Now, Mr.. Speaker, I have great deal of re-
spect for the ability of the distinguished gentle
man from Ohio; but this is one of the most pal
pable and manifest lodges and if / had not so
much respect for the gentleman I would say one
Of the most shameful dodges--of proposition
and argument brought before the house that |
have at any time heard attempted to be imposed
upon the house or the country. There is in the
Judiciary act of 1889 nothing of the character
that the gentleman referred to in the question
proposed. This is simple enactment erganiz-
ing the court, providing the number OF judges
necessary to constitute quorum thereof. There
is no attempt to fetter the court in its action or
to dictate to it what its Judgment shall be in any
case. 1t has not one OF the Objectionable fca.
lures of the bill | am now combating. And it
Is impossible to believe that any intelligent gen.
tlenan can be candid is asserting that there is
any analogy whatever between the law read and
the bill now before the house.
Mr.. BINGHAM If a quorum were present as
provided in the law, there could be no decision
court. / say that is the philosophy of statute,
though the gentleman may call it u dodge"
Mr.. MARSHALL. II was the result of the W.
ganization of the court. It required four to con-
stitute Il majority, and this majority, as it hap
pens, was also two-thrds of the whole. But
the concurrence of two-thirds was necessary for
decision in favor of the constitutionality Of an
act as well as for decision against it. It was
not proposition to fettcr the action of the court
in any respect whatever. There was no provis-
sion such as that proposed here that an act of
the federal congress should stand although the
court might be of opinion that it was void
That is the proposition now brought before the
country Tor the first time There was nothing
of that character in the act organizing the court
and nothing that has the slightest resemblance
to it. 1t has no analogy whatever to the propo-
sition before the house ut this time; and, sir,
am astonished that gentleman so distinguished
as the gentleman from Ohio should attempt to
palm off upon the house and the country the
idea that there is any analogy between tho act
organizing the supreme court and the bill now
before the house