The Ebensburg Alleghanian. [volume] (Ebensburg, Pa.) 1865-1871, 1868-01-30
The Judiciary Question.

The law now before Congress proposing
to require a two-thirds vote of the Judges
Of the Supreme Court of the United States
elicits very general and animated discus
sion. 1t is matter of regret that much of
this discussion is in mere party spirit,
and apparently more with reference to its
possible or probable effect on decision
or two soon to be rendered than to its in
fuence in the future. Such measures, as
mere party measures, should never be re-
sorted to. Aside from their bad influence
in lessening the reverence of the people
for the laws aud customs of the country,
they are very apt to react some time or
other upon those with whom they or;gi-
nate. In this case, while circumstances
might make the act at present somewhat
dlsadvantageous to the Democratic party,
their lease of power IN the nation even for
single Congress might easily cause it to
enure to their benefit. But advantages or
disadvantages 20 parties, as such, are not
worthy of consideration in cases of this
kind.
That the present measure is constitu-
tional, we do not regard as admitting
successful denial. That instrument ex-
pressly enjoins on Congress the establish
ment OF Supreme Court, aad authorizes
it to form inferior jurisdictions. In dis
charging these duties, discretion must
necessarily be used by Congress in many
respects, such as the times of holding
Courts, the nunlber of circuits aud the
extent of each, and the number of judges
to compose each court. No man doubts
the authority and power of Congress fer
any of these purposes. Yet some vehe-
mently deny that Congress may declare
the number of judges necessary to over
turn enc of its laws. 1t is tGis point we
wish more particularly to consider.
On the first institution of the Court,
six judges We're placed On the bench, OF
whom the law required that four should
concur in pronouncing a decision over
turning an act of Congress. 1t was only
when the number of judges was increased
that In point Of fact the tw o-thirds rule
was abolished The requirement that
two-thirds of a Court shall concur in up
setting law is not an anomaly to our
Constitution. In case of the impeach-
ment of the President, the Senate sits as
the highest Court in the land, the Chief
Justice presiding. The trial is conduct
ed according to the forms and rules o.
law. The Senate emphatically conEti-
! tutes a Court of law. Yet neither the
| President nor any other officer impeached
can be convicted unless two-thirds of the
members present concur.
In every District and County Court in
this State, two out of three judges are re-
quired to agree in pronouucing decls-
ior In case of jurieF, the verdict must
be unanimous. Ii is argued oy some that
in case of jury, the requirement of una
nimity is as favorable TO one as to another.
But now so? The presence of one cor
rupt jurymau will set a clearly proven
cul 2rit loose upon the community. Or it
dishonest man obtains possession OF
another mans land or other species of
property, one corrupt juryman will enable
him to retain it.
1t is also argued that the proposed
change is unconstitutional, by reason of
the common. law which requires but IA
majority decision. We venture to say
the common law has no case analogous to
this, or if analogous, is in its favor. The
only measure of English law is whether
or not it is part Of the common law or an
act of Parliament. If either of these, all
the judges of England cannot overturn it.
Where, then, is the analogy? An una
nimity of the English judges dare not
| overturn solemn act Of the Legislature.
Their whole business is to construe and
to apply it. The authority of our judges
to declare a law unconstitutional is not
derived from English law, but from the
peculiar nature of our own institutions.
We do not regard our Judges as gen.
orally partisan. OF course, there are
some such, but, we are prone to believe,
uGt many. Yet in certain cases, it may
be very nearly guessed beforehand what
will be the decision of a JuudGe from a
knowledge of his politics. But why p
Because he is partisan? No. The diff
terence between the two great political
parties, in some respects at least, is fuuda-
mental A strict constructioaist of the