One of the first major cases to be decided by the Court under Chief Justice Chase was Ex Parte Milligan, in 1866. Members of a secret society in Indiana were charged with plotting to free Confederate prisoners of war held in Illinois and to seize the federal arsenal in Rock Island. Secretary of War Stanton decided that they should be tried before a military commission rather than before ordinary courts. They were convicted, and sought review in the Supreme Court. The majority opinion, written by the Court by Justice David Davis, held that persons who were not in the armed forces could not be tried before a military tribunal so long as the civil courts were open to hear their case. All nine justices agreed on the result in that case, but Chief Justice Chase spoke for a minority of four in criticizing the breadth of the majority opinion.
In the following year, Congress passed several Reconstruction acts, dividing the former Confederate states into military districts and abolishing the right of trial by jury for defendants charged with violating their many prohibitions. William H. McCardle, a newspaper editor in Jackson, Mississippi, was accused of having libeled the military authorities and also with having “impeded Reconstruction” by some of the pieces he had published in his newspaper. He was convicted by a military tribunal and sought review in the Supreme Court on the grounds that under the Milligan case, he, being a civilian, could not be tried before a military tribunal. The case elicited great public interest, and on the motion of McCardle’s lawyer the Court granted expedited review, with arguments scheduled for March 1868.
The spring of 1868 was probably the apogee of the domination of Congress by the Radical Republicans. Andrew Johnson had been impeached by the House of Representatives in late February, and his trial would begin on March 30. If convicted, he would be removed from office, to be succeeded by the president pro tem of the Senate, Senator Ben Wade of Ohio—as radical a Republican as there was in that body.
It was in this setting that the House of Representatives by a parliamentary trick amended an obscure bill modifying the Supreme Court’s appellate jurisdiction to entirely repeal the appellate jurisdiction of the Court as to appeals in habeas corpus cases such as McCardle’s. The Radical Republicans did not want the Supreme Court to pass on the validity of the Reconstruction Acts.
The Court, having heard argument on the merits, now had to consider this new wrinkle in the case. It adjourned its term without reaching any decision and, the following year, acceded to the will of Congress. In a unanimous opinion by Chief Justice Chase, it held that the Constitution gave Congress plenary power to regulate the appellate jurisdiction of the Supreme Court and that the measure passed the previous year had in fact divested the Court of jurisdiction to hear the case.
One of the reasons that Abraham Lincoln had appointed Chase as Chief Justice was his belief that because Chase had played a major part in drafting what was called the Greenback Legislation he would surely vote to sustain its constitutionality as a member of the Supreme Court. In order to finance the Civil War, Congress had made paper currency—not backed up by any promise to pay gold or silver—legal tender for payment of debts. Such a move was undoubtedly desirable so far as financing the war was concerned, but its effects were felt beyond the war; debtors embraced it, and creditors resented it.
In 1867, the Court heard argument in Hepburn v. Griswald,7 which was an appeal from a decision of the highest court of Kentucky upholding the constitutionality of the Legal Tender Act. Only seven of the nine justices participated in the ruling, and by a majority of 4 to 3 they ruled that the Legal Tender Act was unconstitutional. The opinion was written, much to people’s amazement, by none other than Chief Justice Chase, who held that the power to make such laws was neither expressly conferred on Congress nor incident to any express power.
But at the very moment that the opinion was being handed down, President Grant nominated two additional justices to the Court—William Strong of Pennsylvania, and Joseph Bradley of New Jersey. One year later, the Court heard a second case involving the question—Knox v. Lee 8—and in the spring of 1871 handed down an opinion holding that the Legal Tender Act was, after all, constitutional. The two new justices—Strong and Bradley—joined with the three justices who had dissented in the first case—Swayne, Miller, and Davis—to support the new ruling. The justices who were in the majority the first time—Chase, Nelson, Clifford, and Field—quite bitterly dissented.
There were public complaints that Grant had deliberately named the two new justices in order to reverse the first decision, but this is not borne out by the facts. The effect on the public was nonetheless unfavorable—a complete turnaround from one case to another within a period of two years, and the two new justices making the decisive votes in the second case to overturn the first.
Salmon P. Chase died in the spring of 1873; Grant now had the opportunity to appoint his successor. He proceeded to make a complete hash of the process, not only diminishing the office of President but that of Chief Justice as well. Grant does not deserve personal blame for much of the corruption which occurred during his eight years in office, but he did often operate on the basis of personal whim. In an effort to find a new Chief Justice, he behaved like a child playing the parlor game of pin the tail on the donkey, in which all of the participants wear blindfolds.
Grant waited for six months—from May until November, 1873—before sending up any nomination at all. He then offered the position to his staunch political ally, New York Senator Roscoe Conkling. Conkling, able and politically ambitious, declined, saying to friends, “I could not take the place for I would be forever gnawing my chains.”9
Three sitting justices aspired to the position: Miller, a remarkably able and clear-headed man; Swayne, whose eagerness for the position quite outmatched his abilities; and Bradley, only four years on the Court. But Grant decided he would not make any “side bench” appointment (i.e., promote a sitting justice to the center chair of Chief Justice).
He then offered the position successively to two Republican senators, Oliver Morton of Indiana and Timothy Howe of Wisconsin. Both declined. Grant next went to Hamilton Fish, his Secretary of State. Fish, perhaps with undue modesty in the light of other candidates being considered, felt that his twenty years away from the practice of law would handicap him; he, too, turned down the offer. Grant then discussed with Fish a possible temporary appointment of Massachusetts lawyer Caleb Cushing, with the secret understanding on Cushing’s part that he would resign before Grant’s term expired. His cabinet opposed this bizarre proposal, and the President again turned elsewhere.
He nominated his Attorney General, George H. Williams, a man not highly regarded in the legal profession, who was open to charges of corruption. He had purchased an elegant landaulet (a coupé with a folding top), as well as liveries for his personal servants, from the contingent fund of the Department of Justice. He had also mingled his personal accounts with those of the department, and his wife was accused of selling immunity from prosecution. Even the President’s staunchest supporters in the Senate made it clear that the nomination would be defeated, and Grant withdrew Williams’ name.
By now it was early January 1874. The bar and the press intensified their criticism of his selection process. As if to defy them, he sent to the Senate the nomination of Caleb Cushing. Cushing was an able, experienced lawyer, who had served as Attorney General in the cabinet of Franklin Pierce. But he had been around the track once too often to surface as Chief Justice in 1874. He was seventy-four years old and was remembered by Republicans as a champion of the southern “fire-eater” faction of the Democratic Party immediately before the Civil War.
The final blow came when opponents uncovered a letter which he had written to Confederate President Jefferson Davis in March 1861, recommending a government clerk for employment with the Confederacy. Though harmless on its face, in post–Civil War Washington it suggested ties between Cushing and the Confederacy. The Washington Chronicle, a newspaper published by Justice Miller’s son-in-law, Robert B. Corkhill, fals
ely stated that the letter referred to the applicant as an experienced worker “in the Ordnance Department at Washington,” who may be “of special service to you.”
A week after his nomination, Cushing requested Grant to withdraw his nomination.
At a cabinet meeting the same day, several other names surfaced, including that of Morrison R. Waite, one of the American counsel at the Alabama Claims Arbitration in Geneva. Waite was a successful lawyer from Toledo, Ohio. He had not played any major part in politics but had served as the president of the Ohio Constitutional Convention in 1872. His participation in the Alabama Claims Arbitration also stood him in good stead.
After Grant had nominated Cushing, The Nation, an organ of Liberal Republican opinion, said: “In the nomination of Mr. Cushing for Chief-Justice, it may be said that the President has at last entered the small circle of eminent lawyers and then with great care has chosen the worst man in it.”10
Now Grant would venture outside that circle. Waite had supporters throughout the country all during the nomination process. Samuel L. M. Barlow, a prominent New York lawyer and a Democrat, began to urge Waite’s nomination in the summer of 1873. Bancroft Davis (the U.S. minister to Germany) and Elihu B. Washburne, who became acquainted with him during the Alabama Claims Arbitration, joined in endorsing his appointment. When Grant decided against making any side-bench appointment from the Court, his Secretary of the Interior, Columbus Delano, who had favored Justice Swayne, supported his fellow Ohioan Waite. On January 19, Grant sent the nomination of Waite to be Chief Justice to the Senate. Three days later, he was unanimously confirmed. The nation was glad to have the search over:
With a sigh of relief, Secretary of State Hamilton Fish picked up his pen and wrote, “we had” “a time” over the Chief Justiceship. . . . It has been a hard parturition—I hope that what has been produced may prove successful. From wise old Gideon Welles, the great diarist of the Lincoln Cabinet, came a similar sentiment. Waite, he allowed, would probably make a good judge. “It is a wonder,” Welles told his son, “that Grant did not pick up some old acquaintance, who was a stage driver or bartender for the place. We may be thankful he has done so well.”11
It was now seventeen years since the Dred Scott decision, and the Court, albeit with some setbacks—the reversal in the Legal Tender cases and the just-described Chief Justice nomination— was slowly but surely being restored to its rightful place as the head of the third branch of the federal government. The Chief Justice would add to its stature during the fourteen years during which he presided over it. But now, three years after the Waite nomination, the justices were being asked to serve as members of an electoral commission whose actions and conclusions were bound to be controversial.
As the House and Senate committees coalesced in their formulation of the Commission plan, public attention naturally focused on David Davis. Most knowledgeable observers believed that not only the congressional members of the Commission would favor the candidate of their own party, but that the four justices named to the Commission would do likewise. The identity of the fifth justice could be decisive.
Davis was born in Cecil County, Maryland, in 1815. His mother, widowed while pregnant with him, lived on her father’s plantation in the northernmost part of Maryland’s Eastern Shore. When the boy was five, his mother remarried and he went to live with his uncle, an Episcopal rector, in Annapolis. For the next few years, he alternated between residing with his uncle and with his mother and stepfather. At age thirteen, he was placed on a stagecoach headed to Kenyon College, in Gambier, Ohio. After graduating from Kenyon in 1832, at the age of seventeen, he began the study of law for three years with an attorney in Lenox, Massachusetts. He then migrated westward to central Illinois and purchased a law practice in Bloomington. In 1838, he married Sarah Walker, to whom he had become engaged while clerking in Lenox.
Davis, already weighing two hundred pounds, began to gain even more weight after his marriage; he would eventually weigh about three hundred pounds. In Illinois, he unsuccessfully sought the office of district attorney of the newly created Eighth District of the state court system, which comprised much of the central part of the state. He enthusiastically supported William Henry Harrison in the presidential campaign of 1840. Only twenty-five years old, he himself received the Whig nomination for state senator from his district. He campaigned on horseback but lost the election to his opponent by a small margin.
Shortly afterward, Davis grew discontented with Illinois, where the hard times prevailing throughout the nation seemed hardest of all. He talked of getting a federal appointment, or
Justice Stephen Field, 1895.
moving to St. Louis. But his law practice in the circuit courts began growing, and in 1844 he was elected as a Whig to the state legislature.
At about the same time, Davis and his partner, Wells Colton, represented an insolvent Bloomington merchant named James Allin. Colton went to Philadelphia with an offer to pay off all of Allin’s creditors at the rate of 25 cents on the dollar, $1,000 in cash, and the balance by conveyance of 1,900 acres of vacant land near Bloomington. The creditors didn’t want the land, but accepted the compromise on the condition that Davis and Colton take the land and execute a two-year promissory note for $1,700 to them. The partners easily repaid the note within two years, acquiring the land for less than $1 per acre. This transaction was the foundation of Davis’ wealth, made by getting land cheaply in a growing state. Davis acquired other land by purchasing tax titles where owners had failed to pay their property tax.
He was a delegate to the state constitutional convention in 1847. That convention revised the geographical configuration of the state’s judiciary. When this revision took place, Davis ran as a candidate for judge in the newly configured Eighth District and won handily. He would remain in that position until Lincoln appointed him to the Supreme Court in 1862. He and Lincoln had become great friends.
With the completion of his circuit the judge had traversed an area, he informed Sarah’s [his wife’s] father, almost as large as the whole State of Connecticut. Travel had been rigorous, living usually miserable, but despite his complaints, he thoroughly enjoyed it. Most of his joy came from his relations with his companions, particularly Lincoln, the only lawyer except the state’s attorney who traveled the entire circuit with him. Their close friendship soon became well known throughout the circuit.12
Davis warmly supported Lincoln in his losing senatorial campaign against Stephen A. Douglas in 1858. Then both he and Lincoln began looking to the Republican presidential nomination in 1860. The Republican convention convened in the Wigwam in Chicago in May 1860. Davis went to the city several days ahead of time and discovered that all of the candidates except Lincoln—William H. Seward of New York, Salmon P. Chase of Ohio, Edward Bates of Missouri, and Simon Cameron of Pennsylvania—had established headquarters. He rented two rooms in the Tremont Hotel at his own expense and became Lincoln’s de facto manager.
Seward, by virtue of his seniority, was the preconvention favorite. Twenty years earlier he had served two terms as Governor of New York, the most populous state in the union. He had gone on to represent that state in the Senate from 1848 until the present. But many of the party faithful thought he was too close to the abolitionist wing of the party to be elected. The Indiana and Pennsylvania delegations were firmly opposed to him. If he became the candidate, they said, the party could not carry their own state elections, which were held in October rather than November.
Davis’ strategy was to antagonize no delegates and to secure from delegations committed to other candidates a promise of support for Lincoln on a second ballot. Lincoln had instructed Davis to make no binding pledges in order to obtain delegates, but he was in Springfield and Davis and his cohorts were in the heat of the Chicago battle. The leader of the Pennsylvania delegation demanded that Simon Cameron, the corrupt party boss of that state, be Lincoln’s Secretary of the Treasury, and that Cameron have sole control of federal patronage in the state. D
avis promised that Pennsylvania would have a place in the cabinet but balked at going further. The issue was finally negotiated, and Pennsylvania committed to Lincoln on the second ballot.
On the first ballot, Seward had 1731⁄2 votes (some states sent sixty delegates, so each had half a vote), Lincoln 102 votes, with the rest scattered. On the second ballot, Lincoln rose to 181, while Seward gained only ten to reach 1841⁄2. On the third ballot, Lincoln bested Seward by a vote of 2311⁄2 to 180. He was only 11⁄2 votes short of the absolute majority required for the nomination. These votes were given to him by four Ohio delegates who switched from Chase to Lincoln. Pandemonium broke out in the Wigwam, and Davis broke into tears. He immediately telegraphed Lincoln:
DON’T COME HERE FOR GOD’S SAKE. YOU WILL BE TELEGRAPHED BY OTHERS TO COME. IT IS THE UNITED ADVICE OF YOUR FRIENDS NOT TO COME. THIS IS IMPORTANT. 13
Davis wanted Lincoln to learn from others of the commitments made to secure his nomination.
Even before Lincoln was inaugurated in March 1861, he was besieged by office-seekers. Among the offices which he had to fill were three Supreme Court vacancies. He nominated Swayne of Ohio and Miller of Iowa to two of them. But what about his home state of Illinois? Surely there was no one to whom Lincoln was more indebted for his presidency than Davis. And in October 1862, he appointed Davis to the Supreme Court. Davis went to Washington to be sworn in, not without misgivings. He confided to William Orme, a young lawyer from Bloomington:
I often doubt, Orme, whether I could sustain myself on the Supreme Bench. . . . I certainly could not without hard study. . . . I have but little legal learning.14
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