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_.
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