in
fact, is occasionally revived in later years, that the Court
was packed by appointing two new Judges to reverse the decision.
The decision in Hepburn _v._ Griswold was announced in the
Supreme Court February 7, 1870. The court met at twelve o'clock.
The decision was read by the Chief Justice after several opinions
had been read by other judges, so that the afternoon must
have advanced considerably before it was promulgated. It
had not been made known to the public in advance by the press,
and President Grant and Attorney-General Hoar both affirmed
that they had no knowledge of the decision and had no expectation
of what it would be before it was announced. I myself had
a conversation with Attorney-General Hoar in the afternoon
of that day. He had just heard the decision from the Chief
Justice with great astonishment and surprise.

Four judges concurred in the decision. There were two vacancies
in the court--one occasioned by the withdrawal of Mr. Justice
Grier, and one by the Act of Congress of the previous Session
providing for an additional judge. At twelve o'clock in the
morning of that day, before the decision in Hepburn _v._ Griswold
was made known, President Grant had sent to the Senate, and
the Senate had received the communication nominating Messrs.
Strong and Bradley to these vacancies. They were regarded
as the ablest lawyers in the circuits where they dwelt. By
common consent of the entire profession they are among the
ablest judges who ever sat on the Supreme Bench. In my opinion
Mr. Justice Bradley has had no superior, save Marshall alone,
on that court, in every quality of a great judge. I doubt
if he has had, on the whole, an equal, save Marshall alone.
They have both joined in opinions since their appointment
in very important political questions, in which the policy
of the party to which they belonged was not sustained. An
offer to them of these vacancies in their circuits was the
most natural and proper thing that could have been done.
There was no Republican lawyer in the country, of any considerable
prominence, so far as I know, who questioned the constitutionality
of the Legal Tender Act, of distinction enough to make him
thought of anywhere for a place on the Supreme Bench. So
far as I now remember, there is but one instance of an appointment
by the President of the United States to the Supreme Court
of a man not belonging to his own political party. That is
the case of Mr. Jus