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well as the rights of the States, and to foster all the great interests of the country.

It is noticeable that upon the new questions that continued to arise under the peculiar circumstances of the civil war and the abolition of slavery, the opinion of the court is generally given by one of the associate judges. It was the custom, in the earlier history of the court, for the Chief Justice to appoint one of the associate justices to deliver the opinion of the court, even when the majority of the judges differed from the Chief Justice upon what the decision of the court should be. It is said that Chief Justices Marshall and Taney took advantage of this privilege, and, while appointing the weakest man of the majority to write the opinion of the court, they themselves wrote the dissenting opinion, which embodied all the force and logic of their peculiar powers to weaken the opinion of the court.

In later times, however, the majority of the court have adopted the plan of choosing whatever judge they wish to write the opinion of the court, and thus the dissenting judges must encounter the opinion of the most competent man of the majority.

Upon the questions that came before the Supreme Court since December 6, 1869, the opinions of the court have generally favored consolidation and the extension of Federal power.

Upon the question of taxation, for example, it has been fully settled that the States cannot tax any of the means used by the Federal government affairs, while Congress can tax all the property of citizens and the salaries of State officials. It has been

carry on its * The Collector vs. Way, 11 Wallace, 113. † 4 Wallace, 3.

decided, however, that Congress cannot tax the salary of a State judge,* although it can tax the machinery of the State courts.

One of the most important cases that came before the Supreme Court in the days of Chief Justice Chase was that of ex parte Milligan.f It involved the very framework of the government and the fundamental principles of American liberty.

Milligan, a citizen of Indiana, was condemned by a military commission to be hanged for acts of disloyalty to the United States government. The United States Circuit Court of Indiana refused to discharge Milligan on a writ of Habeas corpus, and the case was appealed to the Supreme Court.

After a thorough argument and careful consideration, the court decided, among other things, that the guarantee of trial by jury contained in the Constitution was intended for a state of war as well as a state of peace, that while the Federal courts were open for the trial of offences and the redress of grievances, the usages of war could not under the Constitution afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service by a military tribunal for any offense whatever, that even when the privilege of the writ of Habeas corpus is suspended, a citizen cannot be tried, convicted or sentenced otherwise than by the ordinary ! courts of law.

The opinion of the Chief Justice, in which he maintained the power of Congress to create a military

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commission to try offenders during war, is an example of the extent to which a liberal construction of the war powers contained in the Constitution may go. Happily, the majority of the court did not think that Congress has the power to set aside the courts and try men by a picked set of commissioners.

The case of ex parte Milligan defined the three kinds of military jurisdiction known to onr government. Military law is the acts of Congress providing for the government of the national forces. Military government partially supersedes the local law, and is exercised by a military commander under the direction of the President, with the express or implied sanction of Congress. Martial law is the will of an individual, becoming the law of a locality where ordinary law no longer secures the public safety and private rights. It is called into exercise by the President or Congress in times of peril.

In the case of ex parte Garland,* the prohibition upon Congress, of passing bills of attainder and ex post facto laws, were enforced. Congress passed a law preventing attorneys from practising law in the United States courts unless they should have taken what is known as the “iron clad oath.” But, said the Supreme Court, the act partakes of the nature of a bill of pains and penalties, and is included in the prohibition against the passage of bills of attainder. The act, too, was held to add a new punishment to that before prescribed for treason, and thus was an ex post facto law.

* 4 Wallace, 333.



The Legal Tender cases form an important chapter in the history of the Supreme Court. On the 7th of February, 1870, Chief Justice Chase delivered the opinion of the court in the case of Hepburn Griswold, in which the acts of Congress making notes or bills of credit a legal tender in payment of preexisting debts, were declared unconstitutional.

The grounds of the opinion were that the words, "all laws necessary and proper for carrying into execution powers expressly granted or vested, have in the Constitution, a sense equivalent to that of the words "laws not absolutely necessary, indeed but appropriate, and the legal tender acts are not a means appropriate, plainly adapted or really calculated to carry into effect express power vested in Congress, but are inconsistent with the spirit of the Constitution and are prohibited by it;" that, prior to the 25th of February, 1862, all contracts for the payment of money not expressly stipulating otherwise, were in legal effect contracts for the payment of coin, and under the Constitution the parties are bound to pay the sums due in coin, notwithstanding the acts of Congress, which make United States notes a legal tender in payment of such debts.

The decision in the case of Hepburn vs. Griswold, in which a debt payable in dollars was held to be payable in coin, surprised and alarmed many. The very Chief Justice who delivered the opinion had been Secretary of the Treasury when the legal tender acts were passed, but upon the return of peace he

* 8 Wallace, 626.


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appears to have given his decision as a judge after the most careful and honest deliberation,

Before the December term of 1870, the President appointed Wm. Strong, of Pennsylvania, and J. P. Bradley, of New Jersey, Associate Judges of the Supreme Court, whereupon two cases involving the constitutionality of the legal tender acts were ordered to be re-argued.

Mr. Justice Strong, on the 15th of January, 1872 delivered the opinion of the court in which the opinion in the case of Hepburn vs. Griswold was over-ruled after an existence of nearly two years.

“We over-rule,” † said Mr. Justice Strong, much of what was decided in Hepburn vs. Griswold as ruled the acts unwarranted by the Constitution, so far as they apply to contracts made before their enactment."

The law is now settled that an Act of Congress making promise-to-pay dollars as legal a tender as coined dollars in payment of pre-existing debts, is a means appropriate and plainly adapted to the exercise of powers expressly granted by the Constitution.

Thus by the resignation of one judge-Mr. Grier —and the appointment of two new ones, the powers of Congress were upheld in its control of the finances of the nation.

The Federal courts have jurisdiction of all admiralty and maritime cases, and let us glance at their decisions in such causes. The admiralty law,

like equity proceedings, not having its origin in the Eng

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Knox vs. Lee and Parker vs. Davis.

Wallace, 7.

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