carried much further. The Supreme Court has held that taxation of Western Union stock in Massachusetts, graduated by the mileage of lines in that State compared with the lines in all other States, was only a tax upon its property, yet it was in terms a tax upon its capital stock, and might as well have been a tax upon its gross receipts. The present decision holds that taxation may be imposed upon the gross receipts of the company for the exercise of the franchise within the State, if graduated according to the number of miles the road runs in the State." And he closed by saying: "Then it comes to this. A State may tax a railroad company upon its gross receipts, in proportion to the number of miles run within the State, as a tax on its property and may also lay a tax upon these same gross receipts in proportion to the same number of miles for the privilege of exercising its franchise in the State. I do not know what else it may not tax the gross receipts for. If the interstate commerce of the country is not, or will not be, handicapped by this course of decision, I do not understand the ordinary principles which govern human conduct."

Mr. Justice Bradley died on the 22d day of January, 1892, only a few weeks after reading this opinion. The great Chief Justice lived eight years after delivering his dissenting opinion in Ogden v. Saunders. Mr. Carson says that this opinion by Marshall has been termed his master effort; that "prior to that time the steadiness of the movement of the ship of state under the hand of her great helmsman, had been without wavering or shadow of turning;" and that "with the passing of Marshall, the school of strict constructionists marched to power, and the current of decision

was turned into channels, running in a new direction."

It does not seem likely, in the present situation of the country in respect to interstate commerce, that the current of decision on the subject will run in any new direction, or meet with serious obstacles with the passing of Bradley. And yet, within two weeks of his death, he expressed to the writer of this note his fear that such might be the case, and alluding to the judgment from which he had so lately dissented, he said with great earnestness, and evidently with some foreboding, that he hoped to live and retain his faculties for four years more, so that he might finish the work of placing the power of the national government over interstate commerce, in all its forms, on an impregnable basis.

SEPTEMBER 24, 1894.

THE LEGAL TENDER CASES IN 1870.

The recent death of Justice Stephen J. Field of the Supreme Court of the United States releases me from a sacred obligation, imposed by my father, the late Justice Joseph P. Bradley, when on his deathbed and enables me to publish to the world the true and heretofore unknown history of the controversy in the secret conferences of the Supreme Court, which led up to and resulted in the famous Legal Tender decision of that Court,-the reversal of the decision of the U. S. Supreme Court in Hepburn v. Griswold, and to vindicate the memory and reputation of my father, by refuting the slanderous charge that Judge Strong and Judge Bradley were appointed to the bench with the distinct understanding that they would vote to reverse the first decision of the Court on that question-the constitutionality of the Legal Tender Act.

The obligation above referred to was that I should not permit the documents herewith printed to become public, "as long as any Justice who was on the bench at that time was still living," and being given me by my father at such a solemn moment and reinforced by the personally expressed wish of Justice Strong, I have religiously conformed to it, but not without great effort, in the face of repeated statements published by distinguished writers, in which they have accepted a mere political rumor of the day, as a fact and have referred to the incident as the "packing" of the Court.

Paul L. Ford, in the "Introduction" to his edition of the "Federalist" so refers to it, and J. W. Shuckers in his elaborate "Life and Public Services of Salmon Portland Chase" (Chief Justice Chase), devotes a whole chapter to the subject, pointedly and suggestively intimating that it was a prearranged scheme, if not a corrupt bargain between the then Executive, Gen. Grant, and the two appointees, Strong and Bradley.

Ex-Secretary of the Treasury, Charles S. Fairchild, in a public address at Boston a few years ago, repeated the charge, and this at last, induced Senator George F. Hoar, of Massachusetts, to publish a refutation of it, based on historical facts and dates, but more particularly in defense of his distinguished brother, Hon. E. R. Hoar, at the time Attorney General, and who had warmly supported and urged the appointment of Judges Strong and Bradley. But the real history of the action of the Court itself is contained and only contained in the "Statement," now given to the public.

The original paper, prepared by Mr. Justice Miller, at the request of the majority of the Court, and signed by them (now in my possession), was kept by him until his death, when Mr. Justice Bradley obtained it and preserved it till the day before he died, at which time he consigned it to my keeping with the injunction before mentioned. This was done with the knowledge and consent of Mr. Justice Strong, the surviving signer of the paper.

It is now given to the public, not only as a vindication of these two great and honorable judges, but in the hope that it will definitely and for all time