The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1873-08-22

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which it still never tires of repeating,
was one that the Administration had
packed the Supreme Court to obtain a
decision in favor of the Legal-tender
act. Nothing more insidious and moth
ing more false than this accusation
could be imagined. 1t was of the fami-
ly of falsehoods which is, and always
has been, favored by the political
scandal-mongers. 1t related to the mo-
tives of the Executive and the Senate.
Being impossible to prove, even if true,
it could be safely repeated, without the
shadow of proof to sustain it. AS the
nominations to the Senate of the Judges
of the Supreme Court are made to and
considered by the Senate under a pledge
of secrecy, it was not necessary to go
counter to any public record in making
the charge. The Supreme Court being
the highest tribunal in the country
being, in fact, one of the coordinate
branches of the Government itself-any
stain upon its character that could be
laid to the account of the Administra-
ton was sure to attract attention, and
was likely to bring discredit. The
Legal-tendeT act being, moreover, a
very extreme measure, the opposition
might attack the court by which it was
sustained, and through the court the
Executive, with certain appearance of
virtue. At the same time, 1t ran little
risk of being deemed unfavorable to a
paper currency, which the main leaders
of the opposition have always been
ready to carry to much greater lengths
than the Republican party.
III e /,
been many times contradict9d. 1t has
lately, however, been refuted in way
which deserves the special attention of
all respectable men who have ever given
ear to it. Several articles have recent
ly appeared in the Boston Daily Adver-
tiser from the pen of a writer evidently
familiar with the history of the case in
all its bearings. The charge against the
Administration and the Republican
party has taken two forms. One was
that Congress created a judgeship of the
Supreme Court to enable the President
toappoint to it some one who would favora
reversal of the decision against the con-
stitutionality of the Legal-tender act.
The other was that the President filed
the vacancy thus created, and one caused
by the resignation of Judge Grier, with
the intention of securing reversal of
that decision. The writer in the AdUer-
tiser calls attention to the following
facts bearing on this charge, and show
ing its real character
The Legal-tender act was decided to
be unconstitutional so far as its relates
to debts incurred before its passage on
the 9TH of February, 1870. The court
then consistedof seven acting members,
and there were two vacancies. The act of
Congress making the whole number of
Judges nine, is the one which is said to
enabling the President to pack the
court, and secure the reversal of this
decision. Yet this act was passed i'll
April, 1869, ten months previous to the
decision it is alleged to have been meant
to affect Plainly, therefore, it is i'm
possible that in its first form the charge
can be correct.
1t is not any more so In its second
form, which is that the President Sc
cured the reconsideration and reversal
of the decision by extraordinary means.
The answer to this is, that the practice
of the court, fixed during the Chief JUS
ticeship of the eminent John Marshall,
demanded the course that was taken.
This is established by the language of
Chief Justice Marshall himself, in the
case of the City of New York VS.. Min
g Peters, 11S), as quoted by the writer
in the AdUertiser:
"The practice of the court is not
except in cases of absolute necessity to
deliver any judgment in cases where
constitutional questions are involved,
unless four judges concur in opinion,
thus making the decision that of a ma
iority of the whole court. In the pres
ent case four judges do not concur in
opinion rs to the constitutional question
which has been argued. The Court,
therefore, direct these cases to be rear
gued at the next term, under the ex-
pectation that a larger number of the
judges may then be present.
This sound rule, entirely worthy of
the profound Judgment and delicate dis
erection of Marshall to which the SUI
preme Court owes much of its great au-
thority, exactly applies to the case of
the legal-tender act. That case was ar
gued before court from which one
member was absent, and was heard by
but eight Justices 1t was decided by II
court from which two members were
absent and the decision was considered
only y seven justices. The decision
was rendered by bare majority of this
court, four justices only joining in it.
1t was one of the most important decis
ions ever rendered, and the most i'm
portant at that time possible for the
court to make. 1t affected vast sums of
indebtedness throughout the Union, and
its immediate operation was of the great
est moment. But its relations to the
Constitution were still more so, for it
stripped the Government of a most es-
sential, if not of an Indispensable, war
power, and did this by the action of an
actual minority of the Supreme Court.
Every consideration of policy and jus
tice demanded, therefore, that the we'll
established rule of the court should be
observed, and that the question should
be reargued and reconsidered That it
should be was, moreover, the inevitable
result of the natural operation of the
ordinary method of transacting business
in the court.
There is not, as we have said, shad-
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