Year: 1868

with good reason. How else can thls


measure be viewed than as an attempt


to influence the decision of the Courts
in the interests of Radicalism'


Its immediate effect would he TO make
a minority of the Court all-powerful to
sustain any unlawful scheme Congress


might devise. No matter how revolution
ary that scheme, if more than one-third
of the Court approve it, it is sustained.
A minority Congress, representing
minority of the people, is to be protect
ed by a minority of the Court in mea-
sures that assail the liberties and the
peace of the entire couAtry.


Has Congress the power under the
Constitution to say that any greater
number than majority shall determine
the decisions of the Courti If there
are any plain provisions of the Consti-
tuition they arc those which place judi
eial decisions beyond the reach of the
legislative or executive departments,
That instrument declares that "the
Judges shall, at stated times, receive for
their services a compensation which
shall not be diminished during their
continuance in Office"


Why this provision of the Constitu-
tioni Plainly to make the judiciary,
in their decisions, independent of Con-
gressional action. Why the Constitu-
tional clause, "the judges both of the
Supreme and inferior courts shall hold
their offices during good behavior"
Clearly to prevent the control of their
decisions by coordinate branches of
the Government.


Saws the WOrld:


The pending bill seeks to do precisely
the very thing which the COnstitu-
ton has taken such scrupulous pains to
prevent; it seeks to control judicial de-
cisions by legislative action. There
are two methods by which, in the alb
sence of constitutional restraints, Con-
gress might accomplish the result it aims
at. If it could displace one or two
Judges, say Judge NELSON, Judge GRIER,
or both, it would lin its own estimation)
increase the chances of decision in ia
vOr of the Reconstruction acts. For, on
the superstition that the Court would
stand five to three against their consti-
tionality, the removal of two judges
would destroy the majority and make
the Court stand three to three; thus
preventing an adverse decision. This
would accomplish the intended
result by method which flies in
the very teeth of pruviS-
ion of the Constitution intended to
prevent legislative control of judicial
decisions. But is it credible that the
Constitution is like foolish farmer
who in builaing an eight-rail fence to
keep the cattle out Of his corntield,
should leave wide gateway Enclosed I
The provisions against depriving judges |
of their offices is utterly futile and nu-
gatory, if the decisions of the Court
can be controlled by the perfectly |
equivalent process of neutralizing the
presumed adverse opinions of certain
Judges, by requiring two on the adverse
side TO balance one on the other. 1t is
evident that the last of these methods
is just as glaring an attempt to control
the decisions of the Court as tho first
would 5c. But to exclude such control,
to shut it out entirely, is one of the
chief aims of the Constitution.


If the right of Congress to alter the |
established rule of Courts in settling
judicial questions be admitted, the re-
suit must be dangerous, if not ruinous.
If that body to-day may require two
thirds to concur in setting aside its in
valid acts, tomorrow it may insist upon |
and the next day upon
decisions or none. If its
present position be right, it Will not be
wrong in requiring unanimity to decide,
and in empowering one judge to pre-
vent any obstacle being thrown i'll the
way of a Congressional decree to over
throw the Government and establish n
monarchy in its stead.


The claim is set mp that bare major
ity is insufficient to determine these
grave matters. To remedy this, it is |
proposed to give an Insignificant minor
ity the power to determine the
very same questions. If a major
ity is incompetent to decide one
way why should twO-ffths be com
petent to render decision in the other
direction The question is SO plain as
scarcely to need argument. The pur-
pose of Congress is too clear to need
p ointing out.