measure were adopted, it never could have passed Congress.

Notwithstanding this, Mr. Chase puts his opinion in the Legal Tender Cases on the ground that this was not a necessary, or plainly adapted means to the execution of the unquestionable power of carrying on a great war in which the life of the Republic was in issue.

The question whether this necessity existed was a question of fact. Now questions of fact cannot be determined by the courts. If the fact be one on which depends the propriety of legislation it must be determined by the lawmaking power. Of course, where facts are of such universal or general knowledge that the court can know them judicially, without proof, like the fact of the time of the rising of the sun, or the laws of mechanics, or the customs prevailing in great branches of business, the court may take judicial notice of them. But how could Mr. Chase, as a judge, judicially declare as a fact that the issue of legal tender notes was not necessary for carrying on the war, when he had, as Secretary of the Treasury, having better means of knowledge than any other man, so earnestly and emphatically declared such necessity? How could he, as a judge of one court, determine as of an unquestionable fact of universal knowledge that the issue of a legal tender note was not necessary for maintaining the Government in that terrible war, when fourteen State tribunals, and a minority of his own court, had declared the fact to be the other way?

This decision gave rise to an attack upon the Administration of President Grant and especially upon Judge Hoar, then Attorney-General, which, although it has no foundation whatever in fact, is occasionally revived in later years, that the Court was packed by appointing two new Judges to reverse the decision. The decision in Hepburn v. Griswold was announced in the Supreme Court February 7, 1870. The court met at twelve o'clock. The decision was read by the Chief Justice after several opinions had been read by other judges, so that the afternoon must have advanced considerably before it was promulgated. It had not been made known to the public

in advance by the press, and President Grant and AttorneyGeneral Hoar both affirmed that they had no knowledge of the decision and had no expectation of what it would be before it was announced. I myself had a conversation with Attorney-General Hoar in the afternoon of that day. He had just heard the decision from the Chief Justice with great astonishment and surprise.

Four judges concurred in the decision. There were two vacancies in the court-one occasioned by the withdrawal of Mr. Justice Grier, and one by the Act of Congress of the previous Session providing for an additional judge. At twelve o'clock in the morning of that day, before the decision in Hepburn v. Griswold was made known, President Grant had sent to the Senate, and the Senate had received the communication nominating Messrs. Strong and Bradley to these vacancies. They were regarded as the ablest lawyers in the circuits where they dwelt. By common consent of the entire profession they are among the ablest judges who ever sat on the Supreme Bench. In my opinion Mr. Justice Bradley has had no superior, save Marshall alone, on that court, in every quality of a great judge. I doubt if he has had, on the whole, an equal, save Marshall alone. They have both joined in opinions since their appointment in very important political questions, in which the policy of the party to which they belonged was not sustained. An offer to them of these vacancies in their circuits was the most natural and proper thing that could have been done. There was no Republican lawyer in the country, of any considerable prominence, so far as I know, who questioned the constitutionality of the Legal Tender Act, of distinction enough to make him thought of anywhere for a place on the Supreme Bench. So far as I now remember, there is but one instance of an appointment by the President of the United States to the Supreme Court of a man not belonging to his own political party. That is the case of Mr. Justice Jackson, who was appointed by President Harrison on my own earnest recommendation. There has never been made in any quarter, so far as I know, a statement or pretence that there existed any evidence that President Grant made

these appointments, or that any member of his Cabinet advised it because of its possible effect on the Legal Tender Law. Yet this foolish and dirty charge has found extensive credit. I read it once in the London Times. It was, however, in a communication written by a degenerate and recreant American who was engaged in reviling his own country. It was also referred to by Mr. Bryce in his book on the United States. I sent him a copy of a pamphlet I prepared on the subject, and received from him a letter expressing his satisfaction that the story was without foundation. It is the fashion still, in some quarters, to speak, in spite of the decisions of the Supreme Court and the numerous State courts, to which I have referred, as if it were too clear for argument that Congress had no right to make the Government notes a legal tender. The gentlemen who talk in that way, however, are almost universally men of letters, or men without any legal training or any considerable legal capacity. They are of that class of political philosophers who are never trusted by their countrymen to deal with authority with any practical question either legislative, administrative, or judicial.

While saying this, I wish to affirm my own belief that, while it may be in some great emergencies like that of our late Civil War essential to the maintenance of the Government that this power which I believe Congress has, without a shadow of a reasonable question, should be exercised, yet I should hold it a great calamity if it were exercised except on such an occasion. It is a dangerous power, like the power of suspending the writ of Habeas corpus, or the power of declaring war, or the power of reckless and extravagant public expenditure, never to be exercised if it can possibly be helped. I think the American people have, in general, settled down on this as the reasonable view, in spite of the clamor of the advocates of fiat money on the one side, and the extreme strict constructionists on the other.

CHAPTER XX

ADIN THAYER

THE political history of Massachusetts from 1850 until 1888 cannot be written or understood without a knowledge of the remarkable career of Adin Thayer. When I was first nominated for Congress, he was my earnest opponent. That was due, so far as I know, to no dislike to me, but only to his strong friendship for Mr. Bird. After my election, he became my stanch friend. Our friendship continued without interruption to his death. The name of Adin Thayer is dear to my memory and to my heart.

I have often said that there were four men who honored me with their friendship, whose counsel I liked to get under any difficult public responsibility, and that when these four men approved or agreed with anything I myself said or did, I did not care what the rest of mankind thought. It would have been better to say that, although I did care very much what the rest of mankind thought, I knew that when these men were on my side, the wisdom and conscience of Massachusetts would be there also.

One of them was John G. Whittier. He added to the great genius which made him a famous poet the quality of being one of the wisest and most discreet political advisers and leaders who ever dwelt in the Commonwealth.

Another was my own brother, Judge Hoar, of whom I will not now undertake to speak. He was the last friend of mine who always performed the act of friendship to which Adin Thayer was never unequal, that of telling me my faults and mistakes with much more thoroughness and plainness of speech than he ever used in praising any of my virtues.

The third was Samuel May, who died in an honored old age at Leicester, his sunset hour cheered by the memories

of noble service and the consciousness of having borne his full share in the greatest achievement of human history accomplished by mere political instrumentalities-the freedom of the slave.

The fourth was Adin Thayer, a man quite as remarkable in his way as either of the others in his. Each of them gave high and brave counsel in great emergencies. Each of them had a great part in the overthrow of the political forces that were on the side of slavery, and in the triumphant overthrow of the combination which would, if successful, have corrupted Massachusetts and made of her the worst instead of the best example on earth of republican self-government.

There is hardly room here for more than a sketch of Adin Thayer. He was a very striking, original and picturesque figure in the history of the Commonwealth. He was a strong, brave, wise, unselfish man. His life, so far as he took part in political affairs, was devoted to objects wholly public, never personal. He was the greatest organizer of righteousness in his generation. We must go back to Sam Adams to find any one who deserves to be compared with him in this respect. I cannot now undertake to tell the story of his important services to the Commonwealth at some very critical periods, or to narrate the history of all the political events in which he bore so conspicuous a share. The time to do this has not come. It can be done only when the correspondence, the inner personal life of men who were the leaders of Massachusetts during the stormy period through which she has lately passed, shall be given to the world.

Worcester County, from the day of Rufus Putnam until to-day, has in every generation contributed eminent persons to the service of the Commonwealth. But the service of none of them has been in the same field as his. Indeed, as I have just said, we must go back to the days of the Revolution to find a conspicuous character who united so completely absolute disinterestedness of character, inflexible integrity, passionate love for Massachusetts, devotion to the