Year: 1871

-, xitb Great reluctance from its criticisms upon
-, cont decision Of the supreme Court OF the Omted
sa,es affirming the constuiionany Oh inc heE ionuoI


- I,pderstand however, that such criticisms nave
~ directed against the decision upon the ground


~ ORIGINAL question, the conclusion OF the Court
e'' und but that they are based upon two grounds,
via , i, A..
m law was invalid far as it applied to contracts made
before its passage tha' "eciSioh Snooiu "o' nav


ronsidercd;and ,


eeond: That the two new Judges having already com


ited themselves ether at the bar or upon the oehe'
the decision made my not command the popular conn
oenco and respect. ,,.,..


be principe Of stare deeisis Is freely Acknowledge


nahie rne and the Court should not except In rare
caas and under special circumstances, oveIrue It's own
decions The rule, however, is not universally ADOPTED
but on the contrary the books Of reports are hed with
decisions reconsidcred, modified and oyerruec py the


anne Court Alter the Supreme Court had declared the
validity of the law creating National Bank called Ihe
po,N of tho United States the same Court with Chief
Intieo Marshall presiding consented 10 hear the same
mint reoreed In another The ground on which
prior decision is sometimes Overrucd Is, not that the
law itself Is thereby changed. for the Court always dis
claims the right 20 change the law but that the law was
nsntcrpreted and that its enunciaon by the
Court should be, therefore, corrected


The pTincipal reason why the former decision Is rarely
disturbed Is that contracts made. property acquired
and business transacted In fun reliance upon this author
tatve exposition Of the law and that If the decision
should afterward lie changed, great confusion uncer
tspty derancement Of business, and pecunary detri-
nent would In the Legal Tender case however
90 such consequences could possibly follow the recon
Grafton and reversal Of the prior decision Thatuee~Vn
merely declared that the law void as TO all contracts
made before It's passage and those contracts had aeauy
been fulfilled and hence there was ntte any, danger
Of serious Inconvenience resulting from overruhng tho
former Judgment In the present instance there were
special circumstances existing which servo to distin-


sh the case from others where the question OF adher
ing TO former decisions has arisen There were one or


two vacancies in the Court itself and the former decision
WAS made against the views OF powerful and vigorous
minority Another important consideration which en-
tered into the case was, that the question involved re-
lated to Interpretation Of the organic law itself upo'


point which might hereafter affect II the views OF we
minority were correct the existence aud perpetty OF
the Government Nor the fact wholly unworthy OF
notice that the majority embraced Chief Justice Chase
Who as Secretary the Treasury bound by his oath to
support the Constitution had approved Of the law at the
time OF its passage.


The Courts have uniformly refused to declare law OF
Congress unconstitutional unless its repugnancy was
clear and unmistakable. This refusal arises nom
proper and natural reluctance to set aside law which
has been adopted by both branches Of the National Leg
stature and has been approved by the President The


law in question had not only been passed after full con-
sderatcn and elaborate discussion, but Its validity hau
I-eady been sustained by the decisions OF the highest
Courts in seventeen States Of the Union. while con-
rary decision had been made by the highest Court in
single state.
with such a weight Of authority in favor OF the law
sp il he seriously claimed that the uneonstitutionaity
D, the law was from doubf Ii is not my purpose 10
discuss the grave questions that were necessarily involved
in the discussion Of the constitutional points They have
been fy and thoroughly argued in the opinions OF tue
Courts none OF which more exhaustive ana abie
han those pronounced IN own Court OF Appeals
But before We censUe the majority Of the judges who
r.f,od ne decision


brethren we rust forget that ney regarded the ex-
sence OF the power pass such law as necessary to
preserve the very life of the nation The power TO make
something legal tender beside gold and silver Is
one Which, In cases. has been eXerciedb every
civilized nation in Europe. As under our Government
This pocr lad been denied TO the States Il could not
exist unless it belonged to Congress If Congress have
10 such power this essential attribute of sovereignty is
denied 70 the United States and 20 no other member OF
he family Of nations 1t appears also, nOw that the
same judges decided that the law was void as to
,orser contracts also regarded it equally void In
reference to contracts made since its passage mus
lime and occasion only wanting for the Court TO
declare that as all contracts whatever, nothng Dnt
gold and silver could 10 made legal tender The DIS
,stous consequences Of such decision can scarcely be
,veres.i,ated and the country has only been saved
rom the losses and arrangement in business which
ould have followed by the wisdom. at least by the
armness Of the present majority


No injury can result from the present decision have



l 1or laws were passed TO the Union and our
,ennlicau Institutions This extreme power VIII never
be exercised except when the strongest necessity eXts
and may safely he cft for the representatives OF the


nation 10 determine the existence OF such necessity III
fact Think IT is a subject of the most profound satisfac-
on that the Court been able TO uphold this law Like
be recent Act of Congress investing the Chief Magistrate
with the power to suppress the KuKax comoHatlons'


the fact that the power been declared TO exist viii
exercise a powerful conservative influence in all future
wars or rebeTions, If any such shall again arise


Nor am able to discover any good reasonfor the other
suggestions Of TIE TRIBUNE. Surely the fact that Judge
Bradley had as lawyer examined the question and dis
eussed IT, or that Judge Strong, Judge Of the state
Court had also considered and decided IT, did not either
dsoualy them or render it improper for them 10 part-
onae I'm the decision On the contrary these facts would
only roye that they had already given special study and
attention to the points involved 1t is generally eonsid-
cred an argument in favor OF new Judge, that In his
ratiee at the bar been able TO acquire extensive
experience and to become familiar with the legal and
constitutional questions which likely to before
him Judges Bradley and Strong both occupied the very
highest positions at the bar, and were universally re-
earled as men the highest learning and integrity
When the Legal Tender act came before them Tor de-
ciso po~ses ne as they did the strongest convictions
on the subject bound by their official oaths to support
tbe Constitution aud discharge their official duties to
the best OF their ability how could they as honest men
and independent urts fail TO act according to their
own convlctonsi No doubt they differed from their as
sociates with great reluctance but they could not as
true men, fail to act as they have done.


AS an humble member OF the legal profession, honor
the Judges for their late decision and believe that an
overwhelming majority Of the profession throughout the
country will rejoice at IT, Decisions made by tAe supreme
Court ON constitutional questions have not always been
regarded as so infallbe that they must not be cha
11pced Cen Jackson would abide by the Judgment
OF the Court ~ Iayor OF no pa nc atiGu Sustained