The Canton advocate. [volume] (Canton, D.T. [S.D.]) 1877-1897, 1881-01-06
A Chapter In Supreme Court Annals
A Decision that Saved the Country.


the loyal states know, when the court
was in private consultation on this
question in the early part Of the year
1868, that our national existence was
depending upon the decision Of nine
judges, and that it was saved by the
vote of one man. That page in the
history of the rebellion has never been
written, and propose to write it now,
because it is full of solemn warning to
the people against an impending dan
ger which it is in their power to avert
on Tuesday next.
The supreme court of the United
States, at the December term Of 1862,
was composed Of nine judges, as fol
lows: Chief Justice, Roger B. fancy
Of Maryland; justices, James NJ.
Wayne, of Georgia; John Catron, of
Tennessee; Samuel Nelson, Of New
York; Robert c. Grier: Of Pennsylva-
MIA; Nathan Clifford, of Maine; Noah
NJ. Swayne, of Ohio; Samuel F. Miller,
of Iowa; David Davis, of Illinois.
President Lincoln, as the chief exec
utive of the government and COM
mander-in- chief Of the army and the
navy, had declared and notified a
blockade of the ports in the seeded
states in the month of April, 1861. Not
long afterward an English bark, a
observation-disclosures, and two vessels OWL
ed in Richmond, Va, were severaley cap
tured by ships of the United States
government, and brought into port as
prizes. They were libeled, together
with their respective cargoes, on behalf
of their captors and Of the United
States, and in each case there was de-
cree Of condemnation in the distr ct
court. The claimants of the vessels
and cargoes appealed to the supreme
court, and thus the questions were
raised touching the validity of the
blockade and the rights of the govern
ment in the war then pending.
Every judge on the bench knew and
appreciated the momentous import
ance of these questions. They knew
that a decision adverse to the claims
Of the government would almost Ger
tainly result in the irretrievable ruin Of
the country. 1t would be declara-
ton to all the world by the supreme
court of the United States, from whose
judgments there was no appeal, that
the court was on the side of the rebel
lion: that the war was only an insur-
rection which was to be suppressed by
the application of the necessary force
against the individuals concerned in it,
and not war in the legal or technical
sense. drawing after it the belllgerent
rights recognized by the laws of na-
tons, and that the declaration of the
blockade Of the southern ports was an
unauthorized and lawless act of Presi-
dent Lincoln, which foreign govern
ments were not bound to respect
This was all the south wanted. 1t was
all that anybody wanted from the SUI
p1eme court who desired to see the
union finally and forever destroyed
and an independent empire of slavery
and cotton controlling the comnf0fce
and destiny Of what an English states
man was pleased to designate during the
war as :'the late United States"
When the nine judges met in secret
consultation, after the argument of
counsel, the fact was developed that
Chief Justice fancy, Justice Catron,
Justice Nelson, and Justice Clifford
were prepared to decide the questions
against the government. They were
ready with an opinion, written as the
opinion Of the court, without the knowl-
edge of some of their associates, that
President Lincoln had no power to rec
ognize the existence of the rebellion as
a war within the meaning of the law of
nations; had no power to blockade the
southern ports, and that the captures
for breach of blockade or as enemies
property were consequently illegal AMI
void, and that the DEGREES Of condemn
alton should be reversed and the yes
sells and cargoes restored to their own
ers. (See pages 6SS-9 of the volume
cited. Justice Wayne, being a southern
man, they expected him, as matter
of course, to concur in their opinion.
But he was a personal and intimate
friend of Justice Grier, of Pennsvlva-
MIA, who was northern democrat, 10y
al to the constitution and his country.
That intimacy saved the nation. Just
ice Wayne voted with his friend, and
the count stood FIVE in favor of the
government and four against it.
Defeated and vexed by this unex-
pected result, the chief justice sought
to secure the final adjournme nt
of the court of the term with
out an announcement of its decision.
He persuaded Justice Wayne to con-
sent to it; and his vote in its favor
would carry the scheme through. But
before that question was settled Jus
tice Wayne told his friend what he had
agreed to do. Justice Grier immediate
ly and earnestly denounced the pro-
posed suppression of the opinion of the
court, pointed out the fatal results to
the national cause which would almost
certainly flow from it, and induced Jus
tlce Wayne to retract the promise he
had made to the chief justice. Thus
the device to withhold the decision
from the country for nearly nine
months was finally defeated.
1t only remained now to appoint a
member of the court to write and de-
liver the opinion. The chiefjustice as
signed Justice Wayne to that duty. He
was an aged man, in very feeble health,
and whatevery may have been the mo-
tive that inspired the appointment, it
was neither kind nor a proper one.
Justice Grier came to his rescue. He
reminded the chief justice that, as he
was not in accord with the majority
the court. it was not his place to say
who should write the opinion; that
Justice Wayne was the senior associate
in the majority, and it was for him to
say who should perform that duty. By
his appointment, the opinion was writ
ten by Justice Grier, indicating the
course of President Lincoln, and con
firning the claim ofthc government to
the rights of a belligerent without a
formal declaration of war against the
states in rebellion.