Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

The question of the constitutional power of Congress to make Treasury notes legal tender for all debts, whether incurred before or after they were issued, came up for the decision of the Court when Chase was Chief Justice. It was a question which profoundly interested and excited the public. The Democratic Party, which more lately favored the payment of all debts, public and private, in irredeemable paper money, had assailed the Republican Administration during the war for providing, under an alleged necessity that Treasury notes, called greenbacks, should be legal tender for the discharge of all debts. The constitutionality of that law had been affirmed by the courts of fifteen States. It had been denied by one court only, that of Kentucky, the eminent Chancellor dissenting. There was scarcely a Republican lawyer or a Republican judge in the country who doubted the constitutional power of Congress to impose such a quality upon the paper currency if, in the opinion of Congress, the public safety should require it.

The question came before the Supreme Court of the United States in the case of Hepburn v. Griswold, and was decided by that Court in December, 1869.

The Court were all agreed that Congress has power under the Constitution to do not only what the Constitution expressly authorizes, but to adopt any means appropriate, and plainly adapted to carry in to effect any such express power. So the two questions arose: First, Was the power to issue legal tender notes an appropriate, and plainly adapted means to any end which the National Government has a right to accomplish? Second, Who are to judge of the question whether the means be so appropriate, or plainly adapted?

There were then seven Justices of the Supreme Court. Chief Justice Chase, with the three Democratic Justices held the Legal Tender Law unconstitutional, and declared that a law making anything but gold or silver legal tender for debts was neither appropriate nor plainly adapted to carrying on war, or any other end for which the National Government was erected.

He had, when Secretary of the Treasury during the War of the Rebellion, originally advised the issuing of these legal tender notes. He had visited the Capitol. He had called members of the two Houses of Congress from their seats and, by his great urgency, overcome their reluctance to vote for the Legal Tender Law. My late colleague, Mr. Dawes, has more than once told me, and others in my hearing, that he was exceedingly reluctant to resort to that measure, and that he was induced to support it by Mr. Chase's earnest declaration that it was impossible that the War should go on without it, that he was at the last extremity of his resources. A Government note had been formally protested in the city of New York. I have heard a like statement from many public men, survivors of that time. It is not too much to say, that without Mr. Chase's urgent and emphatic affirmation that the war must stop and the Treasury be bankrupt and the soldiers without their pay, unless this 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 law-making 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 Attorney-General 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. Bryan 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.