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.

The Republican party had full control of the government and was united
in vehement support of the laws. On March 21, the second of the two new
judges received his commission, and precisely ten days afterward the
Attorney-General moved for a rehearing, taunting the Chief Justice with
having changed his opinion on this point, and intimating that the issue
was in reality political, and not judicial at all.

In the December Term following Knox _v_. Lee was argued by the
Attorney-General, and, on May 1, 1871, judgment was entered reversing
Hepburn _v_. Griswold, both the new judges voting with the former
minority, thus creating the necessary majority of one. No one has ever
doubted that what General Grant did coincided with the drift of opinion,
and that the Republican party supported him without inquiring how he had
achieved success.[14] After this it is difficult to suppose that much
respect could remain among the American people for the sanctity of
judicial political decisions, or that a President, at the head of a
popular majority, would incur much odium for intervening to correct
them, as a party measure.

The last example of judicial interference which I shall mention was the
nullification, in 1895, of a statute of Congress which imposed an income
tax. The states have since set this decision asid