successor.  And nothing can better illustrate the inherent vice of the American constitutional system than that it should have been possible, in 1853, to devise and afterward present to a tribunal, whose primary purpose was to administer the municipal law, a set of facts for adjudication, on purpose to force it to pass upon the validity of such a statute as the Missouri Compromise, which had been enacted by Congress in 1820, as a sort of treaty of peace between the North and South, and whose object was the limitation of the spread of slavery.  Whichever way the Court decided, it must have fallen into opprobrium with one-half the country.  In fact, having been organized by the slaveholders to sustain slavery, it decided against the North, and therefore lost repute with the party destined to be victorious.  I need not pause to criticise the animus of the Court, nor yet the quality of the law which the Chief Justice there laid down.  It suffices that in the decade which preceded hostilities no event, in all probability, so exasperated passions, and so shook the faith of the people of the northern states in the judiciary, as this decision.  Faith, whether in the priest or the magistrate, is of slow growth, and if once impaired is seldom fully restored.  I doubt whether the Supreme Court has ever recovered from the shock it then received, and, considered from this point of view, the careless attitude of the American people toward General Grant’s administration, when in 1871 it obtained the reversal of Hepburn v.  Griswold by appointments to the bench, assumes a sombre aspect.

Of late some sensitiveness has been shown in regard to this transaction, and a disposition has appeared to defend General Grant and his Attorney-General against the charge of manipulating the membership of the bench to suit their own views.  At the outset, therefore, I wish to disclaim any intention of entering into this discussion.  To me it is immaterial whether General Grant and Mr. Hoar did or did not nominate judges with a view to obtaining a particular judgment.  I am concerned not with what men thought, but with what they did, and with the effect of their acts at the moment, upon their fellow-citizens.

Hepburn v.  Griswold was decided in conference on November 27, 1869, when eight justices were on the bench.  On February 1, following, Justice Grier resigned, and, on February 7, judgment was entered, the court then being divided four to three, but Grier having been with the majority, the vote in reality stood five to three.  Two vacancies therefore existed on February 7, one caused by the resignation of Grier, the other by an act of Congress which had enlarged the court by one member, and which had taken effect in the previous December.

Chief Justice Chase held that the clause of the currency laws of 1862 and 1863 which made depreciated paper a legal tender for preexisting debts was unconstitutional.  No sooner had the judgment been recorded than all the world perceived that, if both vacancies should be filled with men who would uphold the acts, Hepburn v.  Griswold might be reversed by a majority of one.