These cases taken together illustrate some of the most important features of our constitutional and political life, and connected as they are at several points with decisions running back in an unbroken line for nearly a century, they offer us an excellent example of our methods of solving difficult constitutional questions, and admirably illustrate the principles of constitutional interpretation which underlie our whole system of law and politics.

They show forth in a clear light, for instance, the great influence which the executive and legislative may have on the attitude of the court toward constitutional questions, even though they may not exercise their undoubted privilege of affecting the make-up of the court by adding new men. If, for example, it had been possible to get the court to express its opinion of the constitutionality of such legislation, before it had been actually made, i. e., in advance of the pas

has lately retired from active duty with universal respect-a model of the judicial character. I suppose the general voice of the profession and of his brethren of the bench would place Judge Bradley at the head of all living American jurists. It would have been difficult, if not impossible, to have found a republican fit for that high judicial position who was not of their way of thinking on the legaltender question. The Supreme Court of every Northern State where the question was raised, and that was nearly all, had held the same way, as had the eminent Chancellor of Kentucky.

Judge Hoar, General Grant's Attorney-General at the time of the nomination of these two judges, on whose advice they were selected, stated some time since in a public letter, that he knew when the nomination was made that Judge Strong, in an opinion delivered when on the Supreme Bench of Pennsylvania, had upheld the legaltender act; but that he knew nothing of Judge Bradley's views, except that as counsel for a railroad, he had advised them that they were bound in honor to pay previously contracted debts in gold. I am, yours very respectfully,

GEO. F. HOAR.

sage of the legal-tender laws, it is possible that we have never had a court which would have held such legislation to be constitutional. Whereas, after the laws had been actually passed, and been in force for years, we found a court to decide that they were constitutional as war measures, and fourteen years later another one which declared them to be constitutional, no matter whether passed in times of war or peace.1

The reason for this is obvious. If it had been possible to get the opinion of the court beforehand, the latter would have been bound to be sure that the proposed laws were constitutional before it could say so, i. e., it must have been positively sure beyond a reasonable doubt. In other words, it would then have occupied the position which every legislature should take. On the other hand, when the bill came up before them as an accomplished fact, it came with all the prestige that accompanies the act of another and coordinate branch of the government. The presumption is in all such cases in favor of its constitutionality. The courtesy due a separate and independent branch of the government requires great care and caution in treating such cases, or as Justice Chase puts it in that first decision, declaring the legal-tender laws unconstitutional, so far as applicable to debts contracted before their passage: "The court always approaches the consideration of questions of this nature reluct

1In some of the States notably, Maine, New Hampshire and Massachusetts, the Governor, council, or either House of the Legislature may call upon the Supreme Court to give their opinions upon important questions of law or upon solemn occasions. If this were allowed by the Constitution of the United States, it would be possible to get the opinion of the court beforehand, and it is probable that the course of our constitutional development would have been somewhat different.

antly, and its constant rule of decision has been, and is, that acts of Congress must be regarded as constitutional, unless clearly shown to be otherwise.'

Justice Strong puts it still more emphatically in the second legal-tender case:

"A decent respect," he says, "for a coördinate branch of the government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgress of powers by Congress, all the members of which act under the obligation of an oath of fidelity to the Constitution. Such has always been the rule. In the case of Commonwealth vs. Smith (Binney 4, 123), the language of the court was: 'It must be remembered, for weighty reasons, it has been assumed as a principle in construing constitutions, both by the Supreme Court of the United States, by this court, and by every other court of reputation in the United States, that an act of the Legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for a reasonable doubt.' It is incumbent therefore upon those who affirm the unconstitutionality of an act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt."1

"A reasonable doubt," says Judge Cooley, "in summing up a discussion of this subject, must be solved in favor of the legislative action and the act be sustained." (Constitutional Limitations, p. 218). If an act may be valid or not, according to circumstances, a court would be bound to presume that such circumstances existed as would render it valid. (Talbot vs. Hudson, 16 Gray. 417.) This is of special interest in connection with the third legal-tender case in which it was decided that if Congress could pass a legal-tender law as an exigency law, the court would be bound to assume an exigency when such a law was passed.

Harris, J., New York Court of Appeals, 17, N. Y. 235, declared: A legislative act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. Before proceeding to annul by judicial sentence what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption.

It is reasonable to expect that where a construction has once been placed upon a constitutional provision it will be followed afterwards,

It is evident that so long as this continues to be the attitude of the court, and that will doubtless be as long as the court shall last, the legislative branch has a great vantage ground in deciding what shall be the interpretation put upon the various clauses of our constitution, since by adopting any given interpretation, as evidenced by the passage of a particular law, they thereby raise a presumption in favor of an interpretation which maintains the contitutionality of action already taken.

All this is, of course, entirely aside from the influence which the legislative branch may exercise by adding new members to the court whose opinions are known beforehand. The first legal-tender case was argued in the December term of 1867, and was then postponed for a fuller argument until the December term of 1868. During the pendency of the cases two vacancies occurred on the bench, one by resignation of an existing member, and one by a law of Congress providing for an additional justice.

even though its original adoption may have sprung from deference to legislative action rather than from settled convictions in the judicial mind. (Cooley, Const. Limit., p. 220; People vs. Blodgett, 13 Mich., 127).

So strong is this legal principle that the court (in the case of Rogers vs. Goodwin, 2 Mass., 475; Cooley's Limitation, p. 84), said of a certain construction: "Although if it were now res integris it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which has so long and steadily prevailed." The Supreme Court of Massachusetts, 14 Allen, 389, held that the constitutionality of the act of Congress making treasury notes a legal tender, ought not to be treated by a State Court as an open question after the notes had practically constituted the currency of the country for five years. (Cf. Cooley, Constitutional Limitations, p. 218.)

The decision declaring the legal-tender laws unconstitutional was read February 7th, 1870, and was supported by a majority vote of two in a court of eight justices. The resignation of Justice Grier, together with the new position, left two places to be filled. To these Justices Strong and Bradley were appointed. Justice Strong had already in Pennsylvania rendered an elaborate opinion from the Supreme Bench of that State in favor of the constitutionality of this legislation, and it was claimed that the sentiments of Justice Bradley were also know to be in favor of this side of the case. However this may be, the whole thing shows how easily this conjuncture of affairs could have been used for just such a purpose, and it is noteworthy that one of the immediate results of the new appointments was a reconsideration of the matter in the case of Knox vs. Lee, and a reversal of the opinion of the court by a majority of one in a court of nine justices.

Another remarkable feature of these cases, or rather decisions, is the almost unanimous character of the last, and most sweeping one of all, as compared with the close votes of the court on the preceding cases. Five to three stood the first vote. Five to four the vote that reversed the first decision and rested the right of Congress to pass such laws on the war powers of the constitution; while the last, which decided that Congress had such power also in times of peace, was rendered by a vote of eight to one. This phenomenon can hardly be explained by the supposition that the court was slowly but steadily packed for this special purpose in the way indicated above as a possible one.

Equally noteworthy is the entirely different char