such an act is inconsistent with the spirit of the Constitution; and that it is prohibited by the Constitution."

Justice Miller, one of the ablest jurists who ever sat on the Supreme Bench, delivered the opinion of the minority of the court. After quoting Chief Justice Marshall, he said: "With the credit of the Government nearly exhausted and the resources of taxation inadequate to pay even the interest on the public debt, Congress was called on to devise some new means of borrowing money on the credit of the nation; for the result of the war was conceded by all thoughtful men to depend on the capacity of the Government to raise money in amounts previously unknown. . . . The coin in the country . . . would not have made a circulation sufficient to answer army purchases. . . . A general collapse of credit, of payment, and of business seemed inevitable, in which faith in the ability of the Government would have been destroyed, the rebellion would have triumphed, the States would have been left divided, and the people impoverished. The National Government would have perished, and with it the Constitution which we are now called upon to construe with such nice and critical accuracy. . . ."

The court was divided in its decision as handed down, four to three: Nelson, Clifford, and Field

siding with Chase, while Swayne and Davis agreed with Miller. Grier, who had sat with the court when it first came to its decision on November 27, 1869, and had then pronounced in favor of the constitutionality of the act, had resigned before the announcement of the decision on February 7, by unanimous request of the other justices, his senile incompetency having disclosed itself in the mean time through his statement in another case of an opinion inconsistent with his position on the Legal Tender case, and his prompt reversal of his Legal Tender opinion when the inconsistency was called to his attention. There were two vacancies on the bench on the day the decision was handed down. Wayne had died and Grier had resigned. E. R. Hoar, who had been nominated for one of the places, had been rejected by the Senate four days earlier. Edwin M. Stanton, who had been nominated for the other vacancy and promptly confirmed on December 20, had died four days after his confirmation.

It happened that on the very day the decision was handed down Grant sent to the Senate the names of William Strong, of Pennsylvania, and Joseph P. Bradley, of New Jersey. Subsequently, two other cases known as the Legal Tender cases were brought before the court. A decision affirming the constitutionality of the acts and overruling the former

decision was reached and announced on May 1, 1871. The opinion of the court, as read by Justice Strong at the following term, on January 15, 1872, declared that "we hold the acts of Congress constitutional as applied to contracts made either before or after their passage. In so holding we overrule so 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 coincidence of the appointment of these two justices, and the speedy reversal of the attitude of the court on the constitutionality of the Legal Tender Acts, led not unnaturally to the conclusion in many minds, that Strong and Bradley had been named for this specific purpose, and Chief Justice Chase, by indirection, gave color to the charge that the court had been packed in order to reverse the earlier decision in which he had participated. For many years this suspicion lurked in the public consciousness, and the motives of Grant and Attorney-General Hoar, on whose recommendation the appointments were made, have been frequently called in question.

There is no ground whatever for the charge. Senator George F. Hoar, loyally defending the memory of his brother, replied to it conclusively, with great detail of circumstance, in a letter which appeared

in the "Boston Herald" in 1896 and which afterwards was printed as a pamphlet, but it did not require this marshaling of proof to clear the records of the President and his Attorney-General. The vacancies were there; they had to be filled at that time; and there was every reason why a Republican President should fill them with Republicans, as four of the seven justices had Democratic affiliations, Chase having been a candidate for the Democratic nomination for President less than two years before. It would have been hard to find a Republican judge or lawyer of prominence who was less likely than Strong and Bradley to favor the constitutionality of the Legal Tender Acts, and there is not the slightest evidence that, when Strong and Bradley were decided upon by the President and the Attorney-General and approved by the Cabinet, any one of them had an inkling of what the decision of the court was to be. Grant did not "pack the court."

CHAPTER XXXVI

BITTER PROBLEMS - THE SOUTH-THE NEGRO ENFORCEMENT ACTS

Ir was Grant's misfortune to inherit the problem of the negro and the South in its most sordid and repulsive phase. The tragical blunders of Reconstruction, which under the pressure of political necessity he had half-heartedly consented to in their incipiency in Johnson's Administration, bloomed noxiously in his own. He had been sincerely the friend of the South at the close of the Civil War, and he was genuinely in favor of restoring promptly to the conquered Confederates the full rights of citizenship. He was brought by force of circumstances to accept the full measure of negro suffrage as an unwelcome reprisal for Johnson's stubbornness; but he did not regard it as inconsistent with his honest aspirations for a fully reunited country. "Let us have peace" as he penned it was not an empty phrase; yet it fell to him as President to secure what peace was feasible only through apprehension of the sword, to quell internal violence by show of force. Threats of turbulence and bloodshed in the South marked the entire period of Grant's occupancy of the White House; and with