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President vs. Supreme Court ? An Ancient Feud ? IIL By ELMO SCOTT WATSON ROM the nation-wide furore over President Roose velt's plan for judicial reform, including the so-called "packing" of the Supreme court, one might assume that all this were something new in our history. But the fact is that the issue of President vs. Supreme court is an ancient feud which began during the ear liest days of the republic and has flamed up at one time or another during the last century and a quarter. There is a curious analogy between the first of these instances and the latest. The first was back in 1800 when Thomas Jefferson was elected President as the can didate of the Republican party (the ancestor of the present Democratic party) and was preparing to give the country the F1 * 31 first "New Deal" administra- < tion after eight years of rule by the Federalists. In those days the Supreme court consisted of a chief justice and five associate justices, provided for under the judiciary act of 1789 which also prescribed the JOHN MARSHALL duties and jurisdiction of the tribunal. It also provided for three circuit courts to be held twice a year, each composed of two justices of the Su preme court sitting with one district court judge, and for 13 federal district courts. When members of the Su preme court protested against these circuit riding duties, the house of representatives ordered an investigation of the situation. Edmund Randolph, Washing ton's attorney-general, conducted it and reported against the cir cuit riding duty, so in 1793 con gress provided that only one jus tice need attend each circuit, thus making six justices available for circuit riding duty. Although this Improved the situation somewhat it (till worked a hardship on the justices. In 1799 President John Adams again brought the matter before congress. The result was the second judiciary act, passed on February 13, 1801 which elim inated entirely circuit riding by members of the Supreme court, created 16 new circuit judges for the six circuits and expanded the power of the federal courts to their full constitutional limit. It also provided that after the next death of a member of the Su preme court, the membership of that body should not be more than five. The Republicans Protest. Immediately the Republicans raised a terrific uproar. They ?aw in the bill an attempt by the Federalists, who had lost the Presidency and congress in the election of 1800, to entrench them selves firmly within the judiciary, ?specially in the provision for limiting the membership of the Supreme court to five. Sixty-nine year-old Justice William Cushing was in poor health and not ex pected to live. If he didn't, Jeffer son, under the provisions of this new act, would not be able to appoint his successor, thus keep ing the membership of the court I solidly Federalist. During the next 13 days, Adams sent to the senate nomina tions for the new judgeships. (They were chosen almost entirely from among the Federalists and many of them for purely political reasons. By March 2 the senate had confirmed the last name of these "Midnight Judges," as the Republicans called them because many of their commissions were filled out by Adams on the last day of his term in office. Two days later Jefferson was ?worn into office by his fellow Virginian but political enemy, John Marshall, who had been Adams' secretary of state and whom the President had ap pointed Chief Justice of the Su preme court late in January, One of the bitter issues of the campaign had been the Alien and Sedition laws, passed during the Adams administration to re strain the vicious attacks of Re publican editors on the President and bis followers. These laws .wars bow made an issue in the fight on the Supreme court. The Republicans declared that the court should have declared the Sedition act unconstitutional as a violation of free speech. Jefferson first proposed to declare it null and void in a message to con gress. Finally, however, he just decided not to enforce it against offenders arrested before the ex piration of the act on March 3, 1801 and to pardon prisoners then in jail for violating it. But his followers were not con tent with this example of the Chief Executive taking upon him self the function of the Supreme court. They had been enraged by the stump speeches delivered by Federalist judges when in structing juries and they were especially bitter against Justice Samuel Chase of the Supreme court who had been especially severe in denouncing Republican principles from the bench. "The modern doctrines . . . that all men in a state of society are entitled to enjoy equal liberties and equal rights" he had said, "will . . . certainly and rapidly destroy all security to personal liberty" ? this from a man who, as a delegate to the Continental Congress from Maryland, had signed the Declaration of Inde pendence ! A Vote to Impeach. The house of representatives voted his impeachment and John Quincy Adams said that it "un questionably intended to pave the way for another prosecution which would have swept the judi cial bench clean at a stroke." "Now we have caught the whale, let us have an eye to the shoal" said Jefferson, indicating that Adams' change was a valid one. But in the senate, where the im peachment trial was held, the Federalists were strong enough with their nine senators out of the total membership of 34 to >-v w ? SAMUEL CHASE prevent the necessary two-thirds vote for Chase's removal. Although defeated in their at tempt to oust Chase, the Repub licans moved at once to repeal the odious "Midnight Judges bill" of March 13, 1801 and thus get rid of the new district judges ap pointed by Adams. Of course, the Federalist senators raved against this "assault upon the judiciary." They declared that judges were entitled to a life tenure and that the repeal of the law would wreck the Constitution. But the Repub lican majority nevertheless re pealed the law on March 8, 1802, thus guaranteeing six judges on the Supreme court bench. Then, ironically enough, the Supreme court, composed almost entirely of Federalist judges, upheld the constitutionality of the repeal act which had the effect of restoring the much disliked circuit riding system. Incidentally, Justice Cushing did not die, as had been expected. He continued to serve until 1810, so Jefferson did not have an opportunity then to ap point a justice. His opportunity did not come until 1807. In that year the de mand for another circuit in the rapidly-growing new West led to the establishment of one compris ing Kentucky, Tennessee and Ohio and the addition of a sev enth associate justice on the Su preme court bench. Then Jeffer son had an opportunity to appoint three justices, two for vacancies and one for the newly-created as sociate justiceship. But he soon found himself balked by his own appointees. One of them, Justice William Johnson, rebuked him for his embargo acts and the others joined with Chief Justice Marshall in strengthening the federal government in opposition to J effer Ionian ideals. A cartoon in Frank Leslie's Weekly printed at the time of Grant's alleged "packing" of the Supreme court. For it was during this period that John Marshall, with his inter pretations of the Constitution, in creased the authority of the judi ciary and elevated the Supreme court to the prestige which it has enjoyed ever since. In the cele brated Marbury vs. Madison case in 1803 he laid down for the first time in the name of the en tire court the doctrine that the judges have the power to declare an act of congress null and void when, in their opinion, it violates the Constitution. Jefferson Views With Alarm. This doctrine caused consterna tion among Jefferson and his sup porters. Exclaimed the President: "If that idea is sound, then in deed is our Constitution a com plete felo de se (legally a sui cide). For, intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one too, which is unelect ed by and independent of the nation . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judi ciary which they may twist and shape in any form they please . . . A judiciary independent of a king or executive alone is a good thing ; but independent of the will of the nation is a solecism, at least in a republican govern ment." But Marshall's idea pre vailed and in this first feud be tween the President and the Su preme court, the latter was com pletely victorious. In 1837 two more justices were added to the Supreme court. Soon after Lincoln became President there were three vacancies in the Supreme court ? two resulting from death and a third from the resignation of a Southern sym pathizer. At first the new Presi dent did not seem to be in a hurry to fill the vacancies. But with cases challenging the North's blockade of Southern ports coming up, it seemed ad visable to do so. Then on March 3, 1863 congress added Oregon to California to form the tenth circuit and provide an additional justice for the Supreme court. Three days later Lincoln ap pointed Stephen J. Field to the new post and on that day the court upheld the legality of the federal government's blockade. It is not clear whether there was any connection between the doubt over what the court's decision would be in this case and the appointment of the tenth justice. But as it turned out, Field's vote wasn't needed. For the court, by a five to four vote, upheld the government. Then in 1864 Chief Justice Roger Brooke Taney died and Lincoln named Salmon P. Chase, his secretary of treasury, as Ta ney's successor. This appoint ment had an interesting after math. i * In 1866 the number of justices was reduced to eight. In April, 1869, the house passed a bill pro viding for a ninth. It had origi nally included in this bill a pro vision similar to that proposed by President Roosevelt for the ap pointment of additional justices for incumbents over seventy years of age. This was inspired in part by the fact that Justice Grier, then seventy-?ix years old, was in a feeble condition, mental ly as well as physically. In the fall of 1869 the other justices of the court sent to Grier a sugges tion that he should retire. The senate, however, refused to concur in the house proposal for appointment of additional judges and as a compromise it was pro vided that any federal judge who wished to retire after reaching the age of seventy years and serving 10 years on the federal bench could do so with pay. This bill would have permitted President Grant to make only one appointment to the Supreme court ? since the membership had not fallen below eight since the passage of the 1866 act. When it became effective in Decem ber, 1869, the Supreme court was engaged in deliberating on the legal tender cases. The first con ference of the court on the case resulted in a four to four deci sion. Grier suddenly shifted his position, after an inconsistency was pointed out to him, and the court ruled five to three adversely on the legal tender acts. Rejecting His Own "Baby". One of the justices who voted against the act was Chief Justice Chase. As secretary of the treas ury in Lincoln's cabinet he had inaugurated the policy of issuing paper money and now as Chief Justice he held that his own "fi nancial baby" was illegal! On December 15, 1869 Grier submitted his resignation to take effect on February 1. Meanwhile President Grant nominated Eben ezer Hoar, his attorney general, to one of the Supreme court va cancies. But he was rejected by the senate ? before the legal tend er decision became known. Grant also named Edwin M. Stanton, his secretary of war, to Justice Grier's place but Stanton died four days after Uie nomination was sent to the senate. On February 7, 1870, as the Su preme court was announcing its adverse decision in the legal tender cases, Grant sent to the senate the names of William Strong of Pennsylvania and Jos eph P. Bradley of New York for the two vacancies on the court. It was this coincidence, plus the subsequent events which gave rise to charges that Grant had "packed" the court to get a re versal of the legal-tender deci sion. Four days after the con firmation of Strong and Bradley, Attorney General Hoar moved for argument of two other legal-tend er cases and the earlier decision finally was reversed by a five-to four vote on May 1, 1871, Strong and Bradley voting with the pre vious minority. Although Grant has been charged with deliberately "pack ing" the court, historians gen ' V SALMON P. CHASE erally absolve him from that charge. They point out that Grant had no advance knowledge of the nature of the decision, and that, since virtually every state court (except Kentucky) and every prominent Republican lawyer held the view that the legal tender act was constitutional it would have been impossible for thte President to find any state Judge or any lawyer of his own party who differed from Strong and Bradley in the view which they later expressed on the Su preme bench. ? *Mn Ntwtpapar Unkm. Keeping Up cience C Science Service. ? WNU Service. Spodumene Now Made Available for Many Uses in Industry Method for Reduction Devised by Scientists New York. ? Few people prob ably ever heard of the little known, little-used lithium min eral called spodumene, but through a process which United States bureau of mines experts described here the mineral may soon help cool your home, im prove the dishes from which you eat, improve the produc tion of lithia water you may drink, help start your motor car and make a special extra tough glass. At the annual meeting of the American Institute of Mining and Metallurgical Engineers, Oliver C. Ralston and Foster Fraas of the bureau's scientific staff told of the simple method by which spodumene can be separated from other min erals with which it is associated in nature. Lack of use of the mineral has, in the past, been due to the ab sence of such a separating process. Easily Reduced in Lime Kiln. Heating the mineral in a lime kiln, it has been found, reduces the spodumene to a chalky white mass which can be crumbled in the fin gers while the remaining minerals in the ore remain strong. Even farmers and miners with home made kilns can use the method with considerable success. The fine dust resulting from this treatment is about 80 to 90 per cent pure, and from many localities this product will be of acceptable purity. It is much better adapted to use in making lithium chloride than the original hard, dense spodu mene. It is also ready to be used in a glass batch, unless nature happened to put magnetic iron min erals in the ore, in which case a preliminary removal of iron min erals would be needed. The pottery makers have desired to use spodumene, but it has been unacceptable because of the fact that at the temperature of a lime kiln it tended to expand and tear pottery to pieces. The beta spodu mene formed by the heating and now to be sifted out of the heated ore has already been expanded and does not have this disadvantage. Therefore potters are urged to for get ordinary spodumene and to try beta Spodumene. Temple Carved in Solid Rock Is Found in Mexico MEXICO CITY. ? Buildings chopped from a single piece of solid mountain form the strang est ancient ruins ever found in 1 Mexico. They cover an entire summit overlooking the present town of Malinalco, whose name means Place of Twisted Grass, and which is in the state of Mexico, westward from Mexico City. One structure completely excavat ed now ? the usual temple - topped pyramid ? has broad stairs on one side, the steps and wide stone bal ustrades likewise part of a single piece. Only here and there, where the rock would not reach some far corner of the projected building, did the ancient mason have to All in na ture's lack with artificially cut stone block. Door Is a Snake's Mouth. A number of features make this building unique. One walks into the temple on top through an uninvit ing door formed by the yawning mouth of a giant stone snake. The temple itself is round, a shape rare in Mexico and one generally asso ciated with the Wind God. A low stone bench follows the wall around inside. The roof, probably of per ishable stuff like wood, is gone. For trimming, this one - piece structure has mainly tigers, snakes and eagles. A carved stone tiger sits on a pedestal by the side of the stairs, his head missing. On either side of the snake-mouth door are carved Mgle and tiger-knights, such as represented the two old Mexican Indian military orders. The one is on a huehuetl, or wood en war drum ; the other, on a snake's head. In the middle of the round room inside are eagle-head carvings. Further excavations are now be ing made at this novel site of Malin alco. These are under the direc tion of Jose Garcia Payon, Mexican archeologist, who is finding various other buildings like this one. Some of the stairways still have traces of ancient paintings. Source of Prophecy Lies in Careful Study of Nature Example Is Found in Chemical Reactions VARIED, indeed, are the ways in which man's appe tite for prophecy manifests it self. The gypsy fortune teller, the spiritualistic seance, the scientific laboratory, all are motivated in part by man's de sire to lift thgt persistent veil which obscures the future. Gradually man has come to re alize that the only reliable source of prophecy lies in the disinterested study of nature herself. Laboriously collecting facts, he formulates laws. As to Chemical Reactions. One of the more difficult realms of scientific prophecy is that of chemical reactions. A chemist" knows that if certain chemicals can be made to react a needed sub stance will be created. But will the chemicals react? Usually no one knows until someone tries it. Now the chemicals have a quality which is analogous to un-happiness in the romantic illustration. The chemist calls it "free energy" and knows that if a reaction between two chemicals will lessen their free energy ("thermodynamic unhappi ness") then and only then will the reaction occur. So, in order to make a prophecy concerning the likelihood of a chem ical reaction, a chemist has to cal-' culate the free energy of the com ponents before and after the re action. If it turns out that the free energy is greater in the combined state it means that the chemicals are happier single, and can never be induced to unite. Calculating Free Energy. The calculation of the free en ergy of a substance is sometimes no easy task. Often involved is the "third law of thermodynamics," a law whose 'validity is still subject to discussion. Recently, however, two scientists at the University of Cal ifornia, Dr% C. C. Stephenson and W. F. Giauque, have published re sults which prove that for certain substances the third law is accurate ly valid. In order to know how much free energy a substance has, another ab stract quality called "entropy" must be known first. The third law states that, at the absolute zero of temperature, any crystalline solid has zero entropy. Knowing this, the chemist can calculate how much entropy the substance accu mulates as its temperature rises to the value he is concerned with. Odd Statistics About Widowed and Divorced New York. ? Widowed and divorced men are more likely, on marrying again, to marry spinsters than widowed or di vorced women are to marry bachelors. These observations, which do not necessarily imply personal prefer ences, are based on a study of mar riage data collected in New York state exclusive of New York City for the years 1932, 1933, and 1934. Analysis of the marriage figures ap pears in the statistical bulletin of the Metropolitan Life Insurance com pany. Divorced persons, more often than widows or widowers, take for sec ond consorts persons not previously married. Divorced men who do not take spinsters for second wives are more apt to marry divorcees than wid ows. Divorced women, on the con trary, if they do not marry bach elors are more apt to choose a wid ower than a divorced man. Those who go in for many mar riages are distinctly less likely to marry a single person than are those who have been married only once before. Causes of Plant Cancer Are Sought in Bacillus New York. ? A phosphorus containing material, relatives of which are found in the hu man brain and liver, has been isolated by Drs. Erwin Char gaff and Michael Levine of the College of Physicians and Sur geons at Coli^mbia university and Montefiore hospital from the body of ? bacillus that causes tumors in plants. In plants there is a well-known disease, the crown-gall, which bears a slight resemblance to tumors in animals. It is produced by the ba cillus tumefaciens. Using the chemical methods de veloped by Dr. R. J. Anderson of Yale university, who recently puri fied an acid from tubercle bacilli which produces symptoms of tuber culosis itself when injected into an animal, they are engaged in analyz ing the crown-gall germ. Their first results show that it contains a phos phatide which stimulates rapid cell multiplication in plants. The Girl Who Wa? Plain By ETHEL HEWEY c McClure New?p?per Syndicate. WNU Service. 1SJ ORMAN HARDY opened the 1 ^ door to B. N.'s office, stuck his head in, and remarked: "I saw that girl." B. N. looked up over his spec tacles. "How is she? Do you think she is all right?" "No." Norman was extremely in different. "No, she's a dumb-bell. I didn't hire her. She's as homely as a rail fence." "I don't care what she looks like if she can do the work," B. N. muml bled. Norman closed the door and went upstairs to his office, where his own girls were anxiously awaiting his return with the verdict. For Bessie? their beloved Bessie ?had just married and gone away to live, and her place had not yet been filled. It had come to the point, however, where they must have a girl for Bessie's chair. Norman had interviewed a dozen or more applicants who came in an swer to his "ad" in a morning pa per. All of these applicants had been sent away. Then came a letter from Julia neatly penned, carefully worded' brief, concise. * Norman had taken it to B. N. im mediately and B. N. suggested that Norman call on Julia on his way back from lunch. "There's your } 6"ess," he had prophesied. That letter sounds like business.1' But one look at Julia had con vinced Norman that she was not the girl. Back in his office, all eyes were focused on him. Lenora's question ing eyes followed him till he felt compelled to answer. "Absolutely nothing doing," he told her in an undertone, but Jes sie s straining ears had caught the words. "Didn't you hire her? What's the' matter? What does she look ?feu s asked, all in one breath. She is the ugliest creature I ever saw," Norman said. "Her face is a mess, and her clothes don't hang together; she's fat and sloppy. way""* WeU' 1 didn>t hire her' a"y' ?Tm glad you didn't," Leonora said, sympathetically. "We'd all hate the sight of her, I'm sure. We ^ybody w here, who isn t good-looking, do we, girls'" Meantime, B. N? who, as office manager, claimed the privilege of or firing as he saw fit or ? Jn6 Urge'Tt?ok " UP? himself to call upon Julia Foster. Julia had said in her letter that a graduate comptometer th^ rr,./^ Sn(Lthat WaS J"84 What the cost department needed to keep up their extensive records which re quired so much computation. j?und Julia. He hired her. What did it matter if Norman didn't Mte to look at her? Perhaps he'd put more time on his work if he glr.nS arhoaundhSSnmany For Norman was young, and Nor man was fond of good-looking girls. He couldn t, or, at least, he didn't, conceal the fact. ^ ,,So Monday morning Julia was wT ^ ?ir!S of the whole office 10011 one look and dis appeared, to gather, as if by some silent call, in the dressing room where they discussed Julia in ex mln V0'.ces- ,She was all that Nor man said, and more. Julia did look dumb! There's no question about it. Norman was a little overcome when he was informed that she was zznt lud by the time " "*ed,h.e had recovered his aplomb desk ronmrr?ge1 f?r her t0 have aesk room at a long table in th? tnhearstairsmPty r??m at the head * made no comment at this, ficientlvan Atertl,WOrk quietly and et nciently. At the comptometer shu was a clipper. Neither Norrn^ ?r the girls was willing to admit her D^ethCy' a"d aU with one accord piled the worn on to her. All com g.venW0/ ?TT t*? figures were given her to do, and the Door *irl Sl?at machine almost un ceasingly from morning till night her shoulders sagged and her eyelids drooped. She wS unmistakably tired. But she wm plain homely, born to work. That's rtL Ho ??i u ' 80 why shouldn't she do all she could of that? Not fessed to't W0U,d hay" jealousy, yet any one of " d have K'ven half her Julfa h^d P0SS<fSS 0,6 abUity that Day after day, for nearly three weeks, they continued to persecute her. Not once during this time did she utter a word of complaint. No matter what they brought her she did it and said nothing. One day, however, Lenora's sense of justice came to the surface. She informed Norman that Julia wasn't so bad looking when one got used to her. "She is really not so bad, you know. She seems pleasant, in spite of her plainness." "And you know as wen as I do," she added, "that she is doing all the hard work of this department. It would be more fair of us to give her a chance at something else." "You win," sighed Norman. "It isn't fair to Julia, I know, and t am getting used to her plainness. She has brains, anyway." The next morning Julia occupied Bessie's chair.
The Alamance Gleaner (Graham, N.C.)
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April 8, 1937, edition 1
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