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.