o 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