Whenever a bill originating in one house is amended in the other, it must be returned to the first for reconsideration, and for adoption or rejection as amended. If, at last, the houses are unable to agree upon a measure, a regular occurrence in the case of important bills, it is the practice for the presiding officer of each body to appoint representatives to a conference committee, as it is called, authorized to discuss the differences, to come to some agreement upon the disputed points, and report back to the respective houses their agreement, or their inability to come to terms. As a general principle the conference committee, in coming to an agreement, should introduce no new matter into the measure which it has under consideration that is, no provision that has not been already adopted by either the Senate or the House. It is, of course, not easy to determine whether new matter has been introduced into a long and complicated measure. Certainly the conferees are not limited in their action to the adoption of the provisions as actually passed by one house or the other. They may, and often do, draft a compromise proposition, perhaps midway between the extremes demanded by the two houses, and in drafting this compromise proposition they may, of course, change the language of the bill. When a conference committee report is submitted, each house adopts it, or rejects it as a whole; it does not amend.

Securing Information for Legislative Action

In the exercise of its legislative functions, Congress frequently makes use of some special committee of investigation. For example, it instituted by an act of June 18, 1898, an industrial commission consisting of five members of the House of Representatives, five Senators, and nine persons appointed by the President the last to be paid salaries. This commission was instructed to investigate questions appertaining to immigration, concurring) that, etc.; or, Resolved, by the Senate (the House of Representatives concurring) that, etc. From the beginning of the government it has been the uniform practice of Congress not to present concurrent resolutions to the President and to avoid incorporating in such resolutions any matter in the nature of legislation. The concurrent resolution is frequently used in ordering the publication of documents, in paying therefor, and in incurring and paying other expenses, the moneys for which have been appropriated and set apart by law for the use of the two houses.

labor, agriculture, and business, and report to Congress and suggest desirable legislation upon these subjects. This commission made a long and exhaustive investigation and reported to Congress a voluminous mass of testimony and many proposals for legislative action. More recently, in February, 1907, Congress created a joint commission on immigration, consisting of three Senators, three members of the House of Representatives, and three persons (appointed by the President) charged with the duty of making a full investigation into the subject of immigration. A generous sum of money was placed at the disposal of this commission; it established headquarters; employed a large corps of investigators; sent a sub-commission to Europe, and in short made a most searching inquiry into the whole problem of immigration.

Sometimes, in conducting investigations, Congress, by a joint resolution, authorizes executive officers of the government to conduct inquiries and report on specific matters subject to legislation. For example, on February 12, 1906, by joint resolution, Congress instructed the Interstate Commerce Commission to make examinations into the subject of railroad discriminations and monopolies, and to report on the same from time to time. Furthermore, Congress has required certain federal courts to compel witnesses to testify before the Interstate Commerce Commission, and the Supreme Court has held this law constitutional. The Court declared that it was clearly competent for Congress to invest the Commission with an authority to require the attendance and testimony of witnesses and the production of books, papers, and documents relating to any matter legally committed to that body for investigation. In considering, however, the question as to whether the Commission itself could be authorized to compel obedience to its orders by a judgment of fine or imprisonment, the Court said: "Except in the particular instances enumerated in the Constitution . . . the power to. impose fine or punishment in order to compel the performance of a legal duty imposed by the United States, can only be exercised under the law of the land by a competent judicial tribunal having jurisdiction in the premises."1

Whatever may be the theory as to the power of Congress to

'Hinds, Precedents, Vol. IV, pp. 114 ff.

investigate the working of executive departments,' there is as a matter of fact a long line of precedents showing that both houses from time to time assume the right of investigating the conduct of executive business. For example, in 1818, the House of Representatives appointed a committee to inquire whether any clerks or other officers in any of the departments or in any office at the seat of the general government had conducted themselves improperly in their official duties, and authorized the committee to send for persons and papers. When it was contended that this resolution assumed a power over executive departments that belonged to the President alone, and would thus impair executive responsibility, it was answered that the House was like a grand jury to the nation and that it was its duty to inquire into the conduct of public officers. A year later the House asserted that, having the constitutional right to concur in the appropriation of public moneys, it also had the right to examine into the application of appropriations for the purpose of discovering whether they had gone into the proper channels. From that day to this, it has been a frequent practice for both houses to make investigations into the various branches of the public service.

1 See above, p. 209.

CHAPTER XV

THE FEDERAL JUDICIARY

THE Constitution of the United States makes only slight reference to the structure of the federal courts.1 It merely provides that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. It is thus within the power of Congress to determine the number of Judges in the Supreme Court and to create any additional tribunals which may be deemed necessary for the transaction of federal business. It is true, the Constitution seeks to secure a certain degree of independence for the judiciary, by prescribing that the Judges of both the Supreme and inferior courts shall hold office during good behavior and receive for their services a compensation not to be diminished during their continuance in office; but in reality the federal courts are largely creations of the legislature.2

While Congress may not remove the judges of an inferior court, except by the process of impeachment, it may get rid of them by abolishing the court altogether. This was actually done in 1802, during Jefferson's administration, when the Republican Congress repealed the law of the preceding year creating sixteen circuit judgeships which President Adams had filled with Federalists on the last night of his term. The constitutionality of this action may be questioned, but the precedent stands. Of course, Congress cannot abolish the Supreme Court, remove any of its Judges except by impeachment, or reduce their salaries during their respective terms of service, but it may by political methods "pack" the Supreme Court very much as the House of Lords of England can be packed if it should refuse to adopt a measure passed by the Commons. It may, if it chooses, re

1 Readings, p. 273.

2 Burgess, Political Science and Constitutional Law, Vol. II, p. 321. In collusion with the appointing power the President and Senate.

duce the number of Judges by providing that, on the death or resignation or removal of any Judge, the particular judgeship shall be abolished. Again, it may increase the number of Judges in order to secure the appointment of men known to entertain certain views as to the constitutionality of any particular measures. Congress may furthermore influence, in a way, the judicial department by refusing to provide the requisite number of inferior courts or adequate processes. However, the judiciary, save in two or three instances, has not been controlled by any of these methods, and it therefore enjoys, for practical purposes, a high degree of independence from legislative interference.

The framers of the Constitution evidently contemplated an independent judicial system and, while the constitutional provision with regard to the judiciary is not self-executive, an imperative mandate is certainly laid upon Congress to organize the Supreme Court and to create inferior courts. As Senator Spooner has put it, it would be revolutionary for Congress to omit the organization of the Supreme Court and the establishment of inferior courts. Indeed, Senator Stone has gone so far as to say that the inferior courts are established as a public necessity and in pursuance of a public policy outlined in the Constitution, and cannot be arbitrarily abolished. "Congress has power to create," he declared, "but has no power to destroy. Congress cannot destroy the judiciary any more than the judiciary can destroy Congress. . . . If to-day Congress should pass an act abolishing all the circuit and district courts of the United States without substituting other tribunals in their stead, can there be any doubt that the Supreme Court would declare the act to be unconstitutional and void?" It is difficult to see, however, what the Court could accomplish by declaring such a law void.

The Federal Courts

All federal Judges are nominated by the President and appointed by and with the advice and consent of the Senate. With regard to the inferior courts, this mode of appointment is

This was actually done in 1866 to prevent President Johnson from filling vacancies.

2 Congressional Record, Vol. XL, part 5, pp. 4115-4117.

3

Ibid., Vol. XL, part 5, p. 4772.