Salmon Portland Chase. When, in 1869, as Chief Justice he had to consider it in his judicial capacity in Hepburn v. Griswokl, 8 Wall, 603, he came to the decided conclusion that the act was uncon stitutional. As he said at the close of his opinion in that case: "Many who doubted yielded their doubts; many who did not doubt were silent. . . . Not a few who then insisted upon its necessity, or ac quiesced in that view, have since the return of peace, and under the infiunce of the calmer time, reconsidered their conclusions, and now concur in those which we have just announced." Until this decision the Chief Justice had been considered the champion of the legal tenders. No doubt the sluggish ness of the Congress to provide for the re sumption of specie payments had a large influence in directing his final opinion. He looked upon the continuance of legal tender money as a menace to the country, which ought to be removed at all hazards. He failed to realize that the interests involved were so enormous that it was of the first importance to sustain the constitutionality of the Legal Tender Act. It was one of those instances where, like the Mill Acts, the act simply would have had to be supported, even if it had been unconstitutional. I shall not enter here upon any extended narrative of the perfectly constitutional, legal and rightful method by which a majority of the Supreme Court of the United States were procured to overrule Hepburn v. Griswold. At the time of that decision, on February 7, 1870, the Court was in process of reorgani zation. Mr. Justice Grier had resigned before the judgment was announced. On the first Monday of December, 1869, an act of Congress went into effect which provided for eight Associate Justices instead of seven. The Court, which by a bare majority of four to three had decided Hepburn v. Griswold, was quickly increased to the legal number
by the appointment of Mr. Justice Strong and Mr. Justice Bradley. Thereupon, as soon as might be, the Legal Tender Cases, 12 Wall, 457, were argued. The decision by a majority of five to four overruling Hep burn v. Griswold was made on May 1, 1871. The opinions were not delivered until January 15, 1872. In those opinions of the majority and minority there is sufficient and undignified evidence of the great friction among the members of the court. In the opinion of Mr. Justice Strong the Chief Jus tice was charged with having, as Secretary of the Treasury, "represented to Congress the necessity for making the new issues legal tenders, or rather, declared it impossible to avoid the necessity." The reply of the Chief Justice was frank and manly. "Examination and reflection under more propitious circum stances have satisfied him that this opinion was erroneous, and he does not hesitate to declare it. He would do so, just as unhesi tatingly, if his favor to the legal tender clause had been at that time decided, and his opinion as to the constitutionality of the measure clear." He might have gone on and asserted that he had simply returned to the faith of a lifetime, that he saw dangers then from the legal tenders which he had not seen nine years before. But his attitude was unfortunate. It impaired both his reputation and that of his court. Yet his fearlessness was characteristic. His action was that of a strong man, undismayed by the difficulties of his position, conscious of his own recti tude, not afraid to face the imputation of change of opinion. Mistaken though he undoubtedly was, he showed the attributes of a judge. Popular clamor could not swerve him from his path of duty as he saw it. That which brought great abuse upon him seems to me to be the crowning act of his judicial career and of his life. It was an epitome of the man.
