litical tendencies of a body of men whom he
sincerely regarded as a menace to, what he considered, popular
institutions. Thus the ebullition caused by Marshall's acrimony toward
Jefferson, because of Jefferson's strictures on the appointments made
by his predecessor subsided, leaving no very serious immediate mischief
behind, save the precedent of the nullification of an act of Congress by
the Supreme Court. That precedent, however, was followed by Marshall's
Democratic 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