The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-05-01

larry referred TO. but they distinctly remember |
that oil pending cases involving the ogal-trndrr
question were included in the order. Tho effect |
OF us We have ever since understood, was that |
hoih tho Court VI Claims cns"s, 50 iar as the |
l,Eal-lcnd.r question was involved, wore 10 |
abide the decision % the cases IN which II was, |
ABOUT the SUM time. directed to hc argued
appears from notes filed siprN the recent Orl"r |
was made. addressed hy Mr.. Carlisle nnd Mr..
Norton 10 the Chief Justice. which hnvc been
submitted to IN" Court with vi"wto induce II
rcnOns liberation oi the order. but without eject
Mr. Carlisle now rcprpsrnis The appellants IN
both cHsrs. but ihen represented the l,pthans
only, while MIR. Mcrriman represented Denilng
Mr. Carlisl, says:
I, uncr.ood aud 80 id Mr. Nc1rirnan. as he hssin
sI me- VA, ge case. ws,g rSm , time TO tm
.cmgnt passed hy The order Of hc I.uTi aud hc .'.ei
lo' 10 abide ilo decision n u lhuin ast Griswold upon
tile principal point involved In them
since the abolition of the Office Of Solicitor ~
the Court Of Claims by the at " juno %. 1868,
the Government has been usually repre- -cntcd
upon ordinary apnra,s from that Court 3y ih9
tho linc " the first cotton of this Court In re-
gard t. the casoS new Spoken q. was r.prr-
itor OF the United States Tor the Court II" says:
"In the month o March isds the ca-cso fnihanis aud
ir ~. to cansi'tirni ,t,, ~. t,, So IT, s.,r local
mm wa, inv'cd m 'hcY VA question wa, e. abide
bronson ny Rrirs cacs witch had been ordered to to
Attorney Gcnorartoacar behalf OF the United States
The formal order TO which Mr.. Norton refers
was mndc on the ID Of March. 1863. and Is Of
record. The cnscs Of Bronson al,t. ROdes and
Hepburn agt. GriswOld were specially assigned
for argument on the first Tuesday 81 tho nest
December term. 1SGS-GO. and leave was given to
The Attorney -ucnernl To appear in behalf OF the
United States. Leave WIS given also to the
counsel III several other OF the cascs named to
drEuc any question in them common to them
iid io the two cascs specially assigned.
by this order ample opportunity was afforded
! fer argument Of the lcgal-tonder question in
| every aspect to which the attention wi the Court
| had been called and special provision was made
| by the leave given to the Attorney General for
Argument in behalf Of the Government This
| leave was necessary. because the Government,
| though represented in the Court OF Claims
| cases. was not represented In Bronson agt.
| Rodcs. or Hepburn agt Griswold. and the leave
| was given TO the Attorney General because the
| Court desired that. upon u question OF 50 much
| importance the Government should be- repre-
scented by Us highest law oillccr.
| Under this leave the Attorney General tMr.
| Eyarisl argued. in behalf of the Government.
| the logal-icndcr question fully and thoroughly.
| His argument and those Of the other counsel in
the various cases extended through three days.
| from tho sth TO the 18th OF December. 1865, botn
| inclusive.
Two Of the questions thus argued were do
| cidcd not long aftcrward. Tho question rs 10
| the dues for taxes was decided IN the case ~
| Lane county agt the State of Oregon on tho
sih of February, 1869. and the question ~ 10
| specific contracts, stpulnting Tor payments IN
| coin. WINS determined in Bronson alt. Ipdcs on
! the 18th Of the suiue month Tho question a- to
| the applicability of the legal-tendcr clauses 10
! contracts male before the passage of the acts,
| 0NtHhlhtiAA s'N lN).h'ill' III ANttAiNs bh' .t''
| specifying coin. and as 10 the constitutiouUlity
! ~ the act II held 20 auihorzc satisfaction II
| such dehts by tender of United States notes,
were held under consideration for several
| months. and were determined in conference
Nov. ~ 1861. The opinion in the case WAS pre-
pared hv the Chief Justice. and was agreed to
ON tn" ooh of January. 1870. by five Justices
against three. aud would have been rend I'M reg
ular course on the 3lst while Mr.. Justice Grirr
was yet upon tho bench: hut Tn" readiug of 1t
was delayed for aweck to give time Tor the prep
araton of the dissenting opinion.
Subsequently,. the Court OF Claims cascs. in
der were involved, wore called ON several orra-
sions and it was again stated 10y the chief jus
tico from the brnch that tho legal-tender ques-
tons. having been determined in the other
cases. would not Toe again heard IN them.
Thus the question Of LEGAL tender IN these
cases was in TACT decided by the Judgments in
Bronson ngt. Rodes and Hepburn AIT Gr-wold.
just rs finally and absolutely decided ms if those
decisions had been pronounced. not in those
cascs. but in the cases OF Lathams az. tho
United States and Demins agt the United
1t was not known to either Of US TINT any
member Of the court suppos 81 tho question
open for reNrgumnni In these two cnses until
after the personal constitution OF tho court had
been changed by now appointments.
Within two DAYS after this change had been
Effected. the ATTORNEY: General moved that these
two eases. which had been passed under tie
order already stated be- set down for argument.
and suggested that the legal-tender question
might be- rcconsidered in thom. And then. Cor
the first time, We heard 1t insisted that tho legal
tender question hat not been argued and de-
cided IN those identical cases and might thero-
for" he rcarguod in them.
1t wa unnecessary 10 take this ns IL scoms TO
~. narrow ground Ia avoid ia" effect OF th" -'t-
tied rule ot TIE court announced In 1892 and
very recently reiterated. " that up rcar-uu. nj
will he granted in any case unless member ~
~" cour, who concurred in the Judgment de-
sres il"
In our Judgment this rulc is not avoided. It
applies. as We think, 10 the rcargument II the
lesa-tender question in the ensrs from the
Court 81 Claims not only in spirit but IN letter;
and wa are obliged To- regard the order OF ming
that question for rcargumcnt a. made not only
IN dlsr gard oi inc settled practce OF the court
but in clear violation Of its positive rule.
Aside from the statement ot counsel ON both
sides we think i moons stent with the previous
action IF the Court These statements show
that II Is equally Inconsistent with the una 'r-
standing OF counsel. II has he"n noHr the
close ~ the lahorious term during which the
decision. which II Is now sought to review was
pronounced. II has been made against the re-
monstrance Of every Justice on the bench who
eoneurred IN that decision. II las been made
10y i've Justices against four; two ~ the MAORI
~ having rec"ntlv become members 81 the
court. not thoroughly acquainted. ccrtaiuiv
with its course .nl practice. and necessarily. 10
ton Of the Court in reference TO these particular
cascs. II Is an ore! er wholly without precedent.
The experience ni ono Of us extends through
twenty-five years 9f service; that of another
through twelve. and no similar instance is with
in the recollection Of oither nor is any known
to either Of US 10 exist upon the record, or in
tho history OF the court. Nor are we aware ol
any public benefit TO be promoted 10y the order
We cannot be- mistaken, we think IN the heli"i
that the decisions in Bronson igt. kodcs. an A
Hepburn agt. GrswOld have contributed largely
20 revival IT confidence in public faith and in
shat these advantages viii be lost 10y the order
which gives room for apprehension that either
T Of those decisions may be reversed.
For those reasons we are constrained 10 enter
our earnest dissent from the order which re-.
opens the great question of legal tender. In
, these cases. Al this time. and under unprcce,
denied circumstances
,uTeEuI,Ny9