The Portland daily press., 1873-08-12
TERMS $500 PER ANNUMIN ADVANCE

any prospect of success. 1t does seem as II n
determined attempt were about to be made IN
stifie the Republic. The Assembly is omnin-
otent, and if the Assembly is determined TO
restore the monarchy there is not, so far AZ
we can see, any power in France strong
enough to hinder them. MacMahon NAV be
strong enough to play tie role of General
Monk; but The French are a REGULAR people,
and it would not be at AL wonderful, strong
as MacMahon is with the army, if he should
be found counting without his host. France
is evidently on the eve of another crisis, and
it remains to be seen how she will comport
herself. The Republic ought not to go down
without a struggle. A royalist restoration
will not make the Empire impossible, nor will
!. quench the hopes of republicans. The old
factions will remain, and the struggle for su-
premacy will be resumed.
The Times says on the ''alleged packing OF
the Supreme Court by President Grant:
The legal tender was decided to be un-
constitutional so far as it relates to debts in
CURED before its passage on the 7th of Febru-
ary, 1870. The court then consisted of seven
acting members, and there were two vacancies.
The act of Congress making the whole num-
Der of judges nine, is the one which is said 10
have been passed for the purpose of enabling
the President to pack the court, and secure
the reversal of this decision. Yet this act
was passed in April, 1871, ten months pre-
vious to The decision it is alleged to have been
meant to affect. Plainly, therefore, 1t 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 secured the re-
consideration and reversal of the decision by
extraordinary means. The answer to that Is,
that the practice of the court, fixed during the
chief justiceship of the eminent John Marshall
demanded the course that was taken. This
Is established by the language of Chief JUS
tice Marshall himself, in the case of the city
OF New York us Min, Is Peters. 118,) as
quoted by the writer in the Advertiser:
The practice of the court is not (except In
cases OF absolute necessity to deliver any jude-
ment In cases where constitutional questions
are involved, unless four Judges concur in opin-
ion, thus making the decision that of majority
OF the whole court. In the present case four
judges do not concur in opinion as to the con-
stitutional question which has been argued.
The court, therefore, direct these cases to be re-
argued at the next term, under the expectation
that larger number of the judges may then
be present"
This sound rule, entirely worthy of the pro-
found Judgment and delicate discretion OF Mar
shall, to which the Supreme Court owes much
| of its great authority, exactly applies to the
case of the legal-tender act. That case was
argued before court from which one MEM
Der was absent, and was heard by but eight
| justices. 1t was decided by court from
which two members were absent; and the
| decision was considered only by seven Just
| ices. The decision was rendered by bare
| majority OF this court, four justices only join
| ing it. 1t was one of the most important de.
cIsions ever rendered, and the most impor-
| tant at that time possible for the court to
| make. 1t affected vast sums of Indebtedness
throughout the Union, and its immediate op-
Grafton was of the greatest moment. But
its relations to the Constitution were still
more so, for it stripped the govern ment
sable, war power, and did this by the action
of an actual minority of the Supreme Court.
Every consideration of policy and justice de-
manded, therefore, that the well established
rule of the court should be observed, and
that the question should be reargued and re-
| considered. That it should be was, moreover,
the inevitable result of the natural operation
of the ordinary method of transacting busl-
ness in the court.
There is not, as we have said, shadow of
! evidence, much less of proof, that Gen.
| Grants appointment of Judges Bradley and
| Strong was made to effect reversal Of the
| legai-tender decision. The action of the
| court irf the matter was independent and or.
| binary. The only thing in the case which
could Justly affect the reputation OF the court
was the undue haste with which decision
was pushed by the then Chief Justice, who
was known at the time to have political as.
pirations likely to be directly affected by the
decision. This is point which it Is but JUS
tice to indicate, but which entirely escapes
the attention of the critics of the opposition.