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THE SUPREME COURT 
IN UNITED STATES HISTORY 



Volume Three 



ROGER BROOKE TANEY 
From the portrait by G. F. A. Hoaly. 



THE SUPREME COURT 

IN 

UNITED STATES HISTORY 



CHARLES ^^REN 

rononLT ^Miaiun ATTOBmr-ourasu. or tu unitio btatk 



IN THEEE VOLUMES 

Volume Thbeb 

1856-1918 



BOSTON 

LITTLE. BROWN, AND COMPANY 

198S 



Oopiffight^ 199$^ 
Bt Lnru, Bbowh, and Compaitt. 

AUrighUtuvrveA 
Pabliihed May, 192S 



PEomD or TBI rirmD Statm or AKniOA 



CONTENTS 



VoLUMB Three 



TAGM 

Abbreviationb of Titles of Books Fbequbntlt Cited iz 

CHAPTBR 

XXVI. The Deed Scott Case . . . 1 

XXVII. The Booth Case» and Congressional At- 
tacks 42 

XXVm. Civil War and Chief Justice Chase . • 80 

The Miluoan Case 140 

Reconstruction 177 

The Legal Tender Cases .... 220 

The Slaughterhouse Cases and the 

Death of Chase ^5 

Chief Justice Waite and the Foxtrteenth 

Amendment 284 

The Civil Rights Acts .... 822 

XXXV. Increase of Nationalism .... 844 

XXXVI. Expansion of Judicial Powebs . . 885 

XXXVn. Chief Justices Fuller and White . . 418 

XXXVni. CoBOfERCE AND THE POUCE PoWER .451 

Appendix: List of Pebsons Nominated as Chief Jus- 
tice AND AS Associate Justice of the Supreme Court 

OF THE United States, 178^1921 479 

Index 485 



ILLUSTRATIONS 



Volume Thrbb 



ROGER BROOKE TANEY . . . . FronHapiece 
From the portrait by G. P. A. Healy. 

TAQM 

THE SUPREME COURT IN 1865 .... 182 

Davis, Swayne, Grier, Wayne, Chief Justice Chase, 
Nelson, Clifford, MiUer, Field. 

THE SUPREME COURT IN 1882 .... 844 

Wood, Gray, Harlan, Blatchford, Bradley, Miller, Chief 
Justice Waite, Field, Mathews. 

THE SUPREME COURT IN 18»9 .... 480 
Peckham, Shiras, White, McKenna, Brewer, Harlan, 
Chief Justice Fuller, Gray, Brown. 

THE PRESENT COURT-ROOM, FORMERLY THE 
SENATE CHAMBER 474 

From "The History of the United States Capitol" by 
Glenn Brown, F. A. I. A. 



v9 



ABBREVIATIONS OF TITLES OF BOOKS 

FREQUENTLY CITED 

[For the purpose of conciseness in the citation of books most frequently 
quoted, the following abbreyiations have been used in the notes.] 

J, Q, Adamsy Memoirs of John Quincy Adams (1874-1877), edited 

by Charles Francis Adams, 12 vols. 
/. Q. Adams* WrUingSy The Writings of John Quincy Adams (1913- 

1915), edited by Worthington Chauncey Ford, 7 vols. 
Clay, The Works of Henry Clay (1904), edited by Calvin Colton, 

Federal edition, 10 vols. 
Curtis, The Life and Writings of Benjamin Bobbins Curtis, LL,D. 

(1879), edited by Benjamin B. Curtis, % vols. 
Hamilton, The Works of Alexander Hamilton (1904), edited by 

Henry Cabot Lodge, 12 vols. 
Hamilton (Lodge's ed.). The Works of Alexander Hamilton (1885- 

1886), edited by Henry Cabot Lodge, 9 vols. 
Hamilton (J. C. Hamilton's ed.). The Works of Alexander Hamilton 

(1850-1851), edited by John Church Hamilton, 7 vols. 
Iredell, Life and Correspondence of James Iredell (1858), edited by 

Griffith John McRee, 2 vols. 
Jay, The Correspondence and Public Papers of John Jay (1890- 

1898), edited by Hemy Phelps Johnston, 4 vols. 
Jefferson, The Works of Thomas Jefferson (1904-1908), edited 

by Paul Leicester Ford, 12 vols. 
Jefferson (A. C. Lipscomb ed.), The Writings of Thomas Jefferson 

(1903-1904), edited by Andrew C. Lipscomb, 20 vols. 
Jefferson (H. A. Washington ed.), The Writings of Thomas Jeffer- 
son (1853-1854), edited by Henry Augustine Washington, 

9 vols. 
King, The Life and Correspondence of Bufus King (1894-1900), 

edited by Charles Ray King, 6 vols. 
Madison, The Writings of Jamss Madison (1900-1910), edited 

by Gaillard Hunt, 9 vols. 
Madison (1865), Letters and Other Writings of James Madison 

(1865), published by order of Congress, 4 vols. 
MarshaU, Life of John Marshall {}%\f^\^\9), by Albert Jeremiah 

Beveridge, 4 vols. 



X ABBREVIATIONS OF TITLES OP BOOKS 

MasoUy Memoir and Correspondence of Jeremiah Mason (187S)» 

edited by George S. Hillard. 
Monroe, The Writings of James Monroe (1898-19QS), edited by 

Stanislaus Murray Hamilton, 7 vols. 
Story, Life and Letters of Joseph Story (1851), by William Waldo 

Story, 2 vols. 
Sumner, Memoir and Letters of Charles Sumner (1877-1893), by 

Edward Lillie Pierce, 4 vob. 
Taney, Memoir of Roger Brooke Taney (1872), by Samuel T^ler. 
Ticknor, Life, Liters and Journals of George Ticknor (1876), 2 vols. 
Washington, Writings of George Washington (18S4-18S7), edited 

by Jared Sparks, 11 vols. 
Washington (Ford's ed.). Writings of George Washington (1886- 

1893), edited by Worthington Chauncey Ford, 14 vols. 
Webster, The Writings and Speeches of Daniel Webster (1903), 

18 vols. 
Wirt, Memoirs of the Life of William Wirt (1849), by John Pen- 
dleton Kennedy, 2 vols. 



THE SUPREME COURT 
IN UNITED STATES HISTORY 



THE SUPREME COURT 
IN UNITED STATES HISTORY 



VOLUME THREE 



CHAPTER TWENTY-SIX 

THE DRED SCOTT CASE 
1856-1857 

At this critical juncture, when at the North the faith 
of the general public in the Court's impartiality had 
been seriously weakened by the undeserved attacks of 
the anti-slavery press and politicians, the famous case of 
Dred Scott v. Sandford^ 19 How. 393, came on for argu- 
ment in the spring of 1856. In attributing wholly to 
Chief Justice Taney's opinion in this case the passionate 
hostility towards the Court which followed its decision 
in 1857, historians have too largely overlooked the fact 
that the undermining campaign directed against the 
Court, preparatory to this overturn in the hearts of the 
people, had been carried on for nine years. The Dred 
Scott Case had been first docketed in the Court in De- 
cember, 1854, at the same time when the appeals in the 
Booth Cases from Wisconsin were filed. While the 
former case has received more attention from jurists and 
historians, it was the latter which aroused the greatest 
attention and excitement at the time when they were 

pending. Of the Dred Scott Case little was generally 
VOL. ni — 1 



2 THE SUPREME COURT 

known until shortly before it came on for argument in 
February, 1856. Although charges were made later 
that the case had been " fabricated'* by the slavery 
party in order to secure a decision by the Court, the 
absurdity and falsity of the suggestion was apparent, 
when all the facts as to its history became known.* 
In the autumn of 1846, and hence before the power of 
Congress over slavery in the Territories had become 
a vital issue, a negro, Dred Scott, began a suit against 
the widow of his former master, in the State Circuit 
Court in St. Louis, based on the ground that his former 
master. Dr. Emerson, had taken him into Illinois, and 
thence into the Louisiana Territory (now Minnesota), 
and that thereby, under the Northwest Territory Ordi- 
nance of 1787 and under the Missouri Compromise Act, 
he had become a free man, which status still affected 
him, when later his master took him back into the slave 
State of Missouri. In January, 1850, he obtained a 
verdict ; but on appeal, the State Supreme Court held, 
in 1852, that under the laws of Missouri he resumed his 
character of slave on his return, irrespective of his sta- 
tus while out of the State. In November, 1853, noted 
anti-slavery lawyers in St. Louis instituted in the 
United States Circuit Court, on his behalf, a suit for 
trespass ; and in order to vest jurisdiction in this Federal 

^ These charges were made and rdtenited in the spring and winter of 1856 ; lee 
the New York Tribune and the New York Courier, Dec. 18, 19, 1856, March 16, 
1857 ; Independent, Jan. 1, 1857 ; Ohio Stateeman, April S, 1857 ; and oounter-cfaargee 
that the case was instituted and appealed by the anti-slavery party. Reverdy 
Johnson said. March 16, 1858: "The Senator's insinuation that the case was 
made by the master for the purpose of obtaining a decision by the Supreme Court 
is so far from being true, that the suspicion, at the time, wa/i that the political 
friends of the Senator — the abolitionists — had had it instituted and brought here 
with that ezdusiye end. But that was equally unfounded, as was stated by Mr. 
Blair in open Court." S6th Cong., 1st Sees. 

Prof. John W. Burgess in The Middle Period (1896), 449 et eeq., gives a detailed 
account of the origin of the case, obtained Irom A. C. Crane of St. Louis, a clerk in 
the office of Dred Scott's counsel, Roswell M. Field, and says : "There is certainly 
not the slightest evidence in the history of the case that the case was anything but a 
genuine proceeding, from beginning to end conducted by anti-slavery men." 



THE DRED SCOTT CASE 8 

Court on the ground of diverse citizenship, a fictitious 
sale of Scott was arranged by Mrs. Emerson (who had 
then become the wife of a strong abolitionist member of 
Congress from Massachusetts, Dr. C. C. Chaffee) to 
her brother, John F. A. Sandford of New York (a son- 
in-law of Pierre Chouteau of St. Louis).* In this suit, 
a verdict was found against Scott, on May 15, 1854, on 
rulings of law, and on writ of error the case was taken 
to the United States Supreme Court. At this stage, it 
seemed probable that its decision might call for an 
expression of opinion by the Court as to the hotly de- 
bated question of the power of Congress to exclude 
slavery from the Territories. Before the case was 
docketed, however. Congress had passed the Kansas- 
Nebraska Act, on May 30, 1854, repealing the Missouri 
Compromise Act by specifically enacting that it was 
"inoperative and void", and declaring that it was the 
true intent and meaning of the present Act, "not to 
legislate slavery into any Territory or State nor to 
exclude it therefrom.** By this legislation, the power of 
Congress over the subject was denied, and the long- 
continued efforts of the Free-soilers to exclude slavery 
from the Territories by Congressional enactment seemed 
permanently defeated. Had the slavery party been 
responsible for the institution of the Dred Scott Case, it 
is clear that it had little to gain by risking a ruling from 
the Court on a point which Congress had already 
effectually decided, for itself. The anti-slavery party, 
on the other hand, had an interest in prosecuting the 
appeal ; for an adverse judicial decision would not make 
their position any worse than it was under the Kansas- 
Nebraska Act, and a favorable decision might give 

^ Sandford becftme inaane before the case waa decided; and it was said that the 
appeal was fought in the United States Supreme Court contrary to his wish; see 
N0W York Courier, Dec. 18, 1856, Blarch 16, 1857. The Court costs were paid by 
Taylor Blow of St Louis, son of the man who sold Scott to Dr. Emerson. 



4 THE SUPREME COURT 

their cause an effective moral impetus. The case came 
on for argument on Monday, February 11, 1856. "It 
involves questions of much political interest," said the 
newspapers. "They are first, whether a free black 
man is a citizen of the United States, so as to be com- 
petent to sue in the Courts of the United States ; second, 
whether a slave carried voluntarily by his master into a 
free State and returning voluntarily with his master to 
his home, is a free man by virtue of such temporary 
residence ; thirdly, whether the eighth Section of the 
Missouri Act of 1820, prohibiting slavery north of lati- 
tude 36' SO", is constitutional or not." Arguments 
were made for the negro by Montgomery Blair of St. 
Louis (who had been retained by the local Missouri 
counsel, Roswell M. Field )^ and for the alleged owner, 

^ An interesting account by Blair of the manner in which he happened to argue 
Uie caae appeared in the National Inielligeneer, Dec. 24, 1856 : " From an imperfect 
knowledge of the circumstances attending the suit for freedom before the Supreme 
Court, prosecuted by Dred Scott (a negro) several correspondents of the New York 
press have made suggestions tending to mislead public opinion. One intimates 
that the suit was a contrived case to operate on the late Presidential election by 
bringing under the review and judgment of the Supreme Court the questions which 
have so stirred the public mind since the repeal of the Missouri Compromise. 
Another surmises that selfish motives influenced certain distingubhed members of 
the Bar in declining the request to lend me their assistance in behalf of my client's 
cause ; and a third seems to suspect my own in conducting it alone. As the peculiar 
attitude of political affairs at this moment gives much interest to the case, I will 
be pardoneid for giving a brief narrative of it. . . . As I perceived that 
the cause involved important issues which might possibly be engulphed in the 
great political controversy then just emerging in relation to the power of Congress 
over the territoiy of the United States, I felt it my duty to seek assistance, es- 
pecially as when I found arrayed against me the Senator from Missouri, and the 
late Attorney-General, among the first men of the profession of the East and the 
West. I sought to obtain the support of one of the ablest men at the Bar in the 
South, and he had almost consented to yield it. His inclination was surrendered, 
not, I wdl know, from the selfish motive given in the press. I then applied to 
leading members of the profession in the North, and with the same result. The 
mercenary motive imputed for the reluctance shown to engage in it is equally un- 
just to all. The truth is, while some gave it up because th^r previous engagements 
interrupted* and others because the late application did not give time to make 
preparation, all perceived that, from the nature of the case, it must assume an aspect 
more or less affecting the party struggles impending, and were unwilling on all 
accounts to add to this embarrassment of the cause or that of the party with which 
they stood coimected, by implicating either themselves or it by their action in the 
result. Wliile I do myself deprecate the state of things which brings a political and 



THE DRED SCOTT CASE 5 

Sandford, by Henry S. Geyer (then Senator from Mis- 
souri) and Reverdy Johnson. On February 1 8, the Wash- 
ington correspondent of the New York Tribune^ James 
S. Pike, stated that a judgment was expected within a 
fortnight, and that though nothing could be positively 
known as to its character, ^^ there is a speculation abroad 
which almost amounts to conviction that the decision 
of the Circuit Court will be affirmed, and principally 
upon the pretext that Scott voluntarily returned to the 
State of Missouri, by which act the authority of the 
owner was restored and the condition of slavery was 
resumed/' ^ On February 28, Pike wrote that there 
were '^some indications that a direct issue may be 
evaded, on the ground that Scott, being a colored man, 
is not a citizen of Missouri in the legal point of view, and 
therefore cannot bring an action properly. This judg- 
ment would deny the jurisdiction of the Supreme Court, 
and possibly prevent the expression of dissenting opin- 
ions on the constitutionality of the Missouri Com- 
promise ; an eflFort will be made to get a positive decree 
of some sort, and in that event, there is some hope of aid 
from the Southern members of the Court." These 
mere surmises as to the Court's probable action were 
surprisingly in accord with the facts. The Court, after 
adjourning during the month of March, reconvened on 
April 1 ; and Pike writing to the Tribune^ April 7, stated 
that the Court had held two consultations on the case, 
that McLean, Curtis and Grier would probably concur 
in favor of the slave, that Nelson's attitude was un- 
certain, that sectional sentiment would unite the other 
five Judges from the South and that there was "a mani- 

a partiflan influence to act upon the public mind in connection with this caae, and 
while willing to avoid it as much as possible, I yet felt it was my duty to call to its 
support all the aid I could command. When I first opened the case, therefore, I 
announced to the Court the regret I felt in not having prevailed in getting an asso- 
ciate in the cause." 
1 New York Tribuw, Feb. 18, 20, 26, 20, April 0, 10, 11, 12, 1850. 



6 THE SUPREME COURT 

fest disposition to avoid the real issue by the intro- 
duction of a question affecting the jurisdiction of the 
Court." The next day, he wrote that four of the 
Judges had ah*eady united in admitting the jurisdiction ; 
that there was hope that the decree might be made upon 
the merits; and that the final consultation would be 
held on the next (Wednesday) night. On Thursday, a 
correspondent wrote that it was understood that a 
majority had declared in favor of jurisdiction — Mc- 
Lean, Curtis, Grier, Campbell and Catron against 
Taney, Wayne, Nelson and Daniel; but that Catron 
and Campbell would join with the minority in denying 
freedom to the slave on the merits of the case ; and that 
McLean and Curtis, with Grier concurring, would give 
dissenting opinions sustaining the constitutionality of 
the Missouri Compromise; "the decree will be de- 
livered next week and the opinion will make a sensa- 
tion." ^ That this was merely a guess upon the part 
of the newspapers is seen from the fact that at this very 
time. Judge Curtis wrote to his uncle in Boston, George 
Ticknor, in strict confidence, April 8, that "the Court 
will not decide the question of the Missouri Compromise 
line — a majority of the Judges being of opinion that it 
is not necessary to do so."* And the incorrectness 

> Another correspondent, writing Thursday, April 10, 1856, said : '*The majority 
of the Court will decide against him. But there is such a thing as a minority left 
on the Bench notwithstanding the Court has been denounced as the Citadel of 
Slaveiy; and unless all impressions are erroneous, Judge McLean will fortify their 
position with an opinion that cannot fail to confound those who are prepared to 
repudiate the judgments of Southern Courts and the practice of Southern States. 
Judge Curtis it is believed will also contribute a powerful exposition of the case and 
of all the incidental questions connected with it, and Judge Grier will concur with 
both. Of course, the South will go in a body and probably carry Judge Nelson 
with them." 

* Curtis, 1, 180. Curtis continued : "The one engrossing subject in both Houses 
of Congress, and with all the members, b the Presidency ; and upon this everything 
done and omitted, except the most ordinary necessities of the country, depends. 
Judge McLean hopes, I think, to be a candidate for office. He would be a good 
President, but I am not willing to have a Judge in that most trying position of being 
a candidate for this great office." 



THE DRED SCOTT CASE 7 

of the newspaper's statement as to the line-up of the 
Judges was later proved by Judge Campbell's account. 
It api)ears that the Court was divided on the question 
as to whether the jurisdictional point as to citizenship 
was properly before them — Taney, Wayne, Daniel, 
Nelson and Curtis considering it to be so, but McLean, 
Catron, Campbell and Grier taking the contrary view. 
Nelson, however, entertaining doubts asked for a re- 
argument, which was ordered. May 12, 1856.^ As 
the Presidential campaign was to occur in the fall of 
1856, the sentiment very generally prevailed that the 
Court had acted wisely in not giving a decision on this 
delicate question prior to the election. And as the 
New York Courier said, in praise of the Court's action : 
"The great tribunal to which the country has been 
taught for nearly three quarters of a century to look up 
for the dispensation of justice upon the principles of 
law, is not prepared to rush into the political arena, and 
ruffle its ermine in the strife of politicians and the 
squabbles of demagogues." The Court, however, was 
assailed by the New York Tribune^ which said that " the 
black gowns have come to be artful dodgers." 

For six months, while the Presidential campaign was 
being fought, little notice of the case appeared in the 
press or elsewhere. Its existence on the Court's docket 
had hardly been known to the public, prior to its first 
argument. In all the exhaustive debates in Congress 
on the slavery issue throughout the years 1855 and 1856, 
the case was not even adverted to. But by the time 
when it was reached for its second argument, in Decem- 
ber, 1856, the immense effect which a Court decision 
upon the power of Congress might have, in connection 
with future legislation as to slavery in the Territories, 

^ See Campbell's statement at the meeting of the Supreme Court Bar on the 
death of Benjamin R. CurUa, Oct. 18, 1874» 20 Wall, x, xi. 



8 THE SUPREME COURT 

was thoroughly realized. ** Taking into consideration 
the state of the country ... it may well be regarded 
as the most important that has ever been brought before 
that tribunal/' said the New York Courier. "Never 
has the Supreme Court had a case before it so deeply 
affecting its own standing before the Nation. • . • 
The issue is of vast importance in itself, but there is 
another problem connected with it of far greater con- 
sequence. It is, whether the Supreme Court is a po- 
litical Court made up of political judges. . . . While 
yet reeking with the passions of the political arena, this 
question is transferred to that tribunal, which of all 
others is supposed to be clearest of passion — a tribunal 
which has, in time past, challenged the deference of 
the country for its lofty impartiality and serene in- 
dependence. How will the Judges abide the test now 
before them ? . . . The Court, in trying this case, is 
itself on trial — a trial as vitally involving its char- 
acter before the American people, as a confidence in 
its impartiality is vital to its authority. . . . The 
Court has thus far disappointed the hopes of the 
agitators, and vindicated its own high and conserva- 
tive character. It refused to throw any opinion into 
the political arena, last summer.'' ^ 

The second argument was made before the Court on 
December 15, 16, 17 and 18, 1856, by Blair, Geyer, John- 
son and by George Ticknor Curtis of Massachusetts 
(who had been retained by Blair, after the case was 

^ New York Courier, Dec. 18, 28, 1856; New York Tribune, Dec. 19, 1856; Alexan- 
der H. Stephens of Georgia, Dec. 15, 1856 (the date on which the second argument 
began) wrote : " I have been urging all the influences I could bring to bear upon the 
Supreme Court to get them to postpone no longer the case on the Missouri Restric- 
tion before them, but to decide it. They take it up today. If they decide, as I 
have reason to believe they will, that the restriction was unconstitutional, that 
Congress had no power to pass it, then the question — the political question — as 
I think, will be ended as to the power of the people in their Territorial Legislatures. 
It will be in effect a re-adjudication." L^fe qf Alexander E, Stephem (1888), by 
Richard M. Johnson and William H. Browne. 



THE DRED SCOTT CASE 9 

begun, to argue the constitutional point involved). 
Of the arguments, a Washington correspondent wrote : 
"'Mr. Blair is a close, logical reasoner, a man of dili- 
gent and careful research, strong power of thought, 
but a very poor pleader. His manner is awkward, his 
gesticulation particularly painful, and his utterance 
slow and with the appearance of being obstructed. But 
his argument would read well. Reverdy Johnson, 
Esq., is an old stager in the elocutionary list, and drew a 
crowded chamber to listen to his plea. . . . The 
learned barrister entered into his argument, with all the 
fervor and power of appeal that has characterized the 
most ultra-Congressional and stump speeches for slavery 
to which it had been my misfortune to listen. The 
passions of his audience, the prejudices of the Judges 
were appealed to, until I came to the realization of the 
fact that our Supreme Court is composed of men, mere 
men after all, with the like passions and prejudices of 
the masses. . . . The closing argument of Mr. Curtis 
of Boston was able, clear and, to me, conclusive. It 
lacked in one feature — it was too brief. . . . This, 
however, was not the fault of the learned counsellor, 
but that of the Court, which limited him to one hour 
and a quarter." * Of Curtis* argument, his brother. 
Judge Curtis, wrote that it was made "in a manner 
exceedingly creditable to himself and to the Bar of 
New England. Judge Catron told me it was the best 
argument on a question of constitutional law, he had 
heard in the Court — and he has been here since General 
Jackson's time"; and the New York Tribune said that 
it "commanded marked attention from the Court, and 
attracted the largest audience from Congress that has 
yet assembled, as well as a number of the most distin- 

^ Independent, Jan. 1, 1857; see alao BoeUm Poet and New York Tribune, Dec. 16, 
17, 18» 19, 1856, for full descriptions of the arguments of all the counsel. 



10 THE SUPREME COURT 

guished jurists " ; that it was " happily conceived in style 
and manner. The admission was general and frank 
on all sides that Mr. Curtis acquitted himself with em- 
inent ability. . . . He was congratulated warmly and 
by several Southern Senators.*' ^ Of Johnson's argu- 
ment, the New York Courier said that it would rank 
with the finest efforts made at the Bar; that since 
Webster's death Johnson had no superior ; but that his 
argument against the constitutionality of the Missouri 
Compromise was not convincing. The New York 
Times said that while "well considered and compact, 
it was about as remarkable for what it did not contain 
as for what it did" ; the Tribune said that it "partook 
more of the character of a stump speech than that of a 
jurist. It was brilliant, eloquent and witty, of course; 
but in dealing with the grave question of human 
freedom or slavery and the status of slavery under the 
Constitution, the learned gentleman substituted sar- 
casm and ridicule of opposing views for the logic, which 
alone can convince a mind, seeking to know the truth." ^ 
At the close of the argument, the grave effect of the 
coming decision upon political conditions was again re- 
flected by Pike in the Tribune ^ saying : "The Court may 
think it wise, under the existing circumstances of ex- 
citement on the topic throughout the country, to place 
a decision of the case upon a subordinate issue. Yet 
the urgency of the slave-power is great — the temper 
of the slave holders within the Bar and without 
the Bar, to say nothing of the Bench, is raised to 
crush the rebellious spirit of the North ; and a decision 
of the Supreme Court is eagerly desired which shall 
promote this end. Prudence may, however, prevail, 

^ The NaHonal ItiMigenoer, Jan. I, IS57, published the "oonfesaedly very able 
argument" of Curtis. 

* New York Courier, Dec. 18^ 19, 1856; Nffw York Time$, Dec. 80, 1856; New 
York Tribune, Dec. 17, 18, 19, 20, 82, 24, 1856. 



THE DRED SCOTT CASE 11 

and the Court refrain from enunciating a decision which 
would neither enhance its reputation nor strengthen its 
influence/' No one, he further said, could " have failed 
to observe, in the growth and development of the ideas 
which underlie the case now under adjudication, that 
our judicial decisions upon constitutional questions 
touching the subject of slavery are rapidly coming to 
be the enunciation of mere party dogmas; that the 
country is dividing geographically upon questions of 
constitutional law ; and that, in the process of time, if 
we continue a united people, what the law of the 
country and the Courts is, will depend upon the 
political ascendancy for the time being of the doctrines 
of freedom or slavery/' * 

The pendency of the Dred Scott Case first became the 
subject of attention in Congress, when, on January 12, 
1857, Benjamin Stanton of Ohio introduced a resolu- 
tion in the House for legislation to reorganize the Court 
"so as to equalize the population and business of the 
several Circuits and districts and give to all sections of 
the Confederacy their equal and just representation on 
the Supreme Court/'* In an elaborate speech, he 
pointed out the disproportionate representation of 
the South, and contended that unless this should be 
changed, the Court's decision "can have no moral 
power and cannot command the confidence of the 
people" and he added : 

^ ATtfto York Tribune, Dec. 20, 1856. For a reply to attacks of this nature, see 
BotUm Pott, Dec. 27, 1856. 
*S4tk Cong., Sd Sess., Jan. 12, 1857. The white population in the Circuits was: 

1st (Maine, N. H., Mass., R. I.) 2,028,594 

2d (N. Y., Conn., Vt.) 8^724,826 

8d (Pa., N. J.) 2,728,669 

4th (Dd., Md., Va.) 1,888,912 

5th (AU., La.) 682,005 

6th (No. Car., So. Car., Ga.) 1,894,163 

7th (Ohio, Ind., Dl., Mich.) 4,178,809 

8th (Ky., Tenn., Mo.) 2,110,258 

9th (Miss.,Arit.) 457,907 



12 THE SUPREME COURT 

li the Supreme Court is to be called in to aid in the settle- 
ment of the great political questions which agitate the 
country, its organization becomes a matter of paramount 
importance. If the South choose to preserve its present 
partial and sectional organization, for the purpose of se- 
curing its aid in the political contests of the day, they will 
find they may destroy the Court, without aiding the party or 
section in whose favor it decides. ... It is my delib- 
erate conviction that nothing could do so much to weaken 
the bonds of this Confederacy, and destroy the confidence 
of the people in the Federal Government and the value of 
the Union, as a decision of that Court that Congress has no 
sovereign power over the Territories, and that it cannot 
legislate for them, either for the exclusion of slavery, or upon 
any other rightful subject of legislation. 

He concluded his speech by contending for the right 
of a State, as proclaimed by the Virginia-Kentucky 
Resolutions of 1798-1799, to refuse obedience to any 
law which it deemed to be *'a plain, palpable and de- 
liberate violation of the Constitution", and to disre- 
gard a decision of the Court sustaining such a law. 
These sentiments from an Ohio Whig were contro- 
verted by a Virginia Democrat; and an anti-slavery 
paper noted that "the domineering sectionalists of the 
coimtry already begin to see the value of Union, and 
nullifying South Carolina already denounces the move 
as ^an assault upon the integrity of the Supreme 
Court.' " 1 

The Court did not meet for conference as to its de- 
cision in the Dred Scott Case, until late in February; 
for, as Judge Curtis wrote to his brother : " Our aged 
Chief Justice, who will be eighty years old in a few days, 
and who grows more feeble in bocjy, but retains his 
alacrity and force of mind wonderfiilly, is not able to 
write much. Judge Wayne has been ill much of the 

^ Nw York Evening Post, Jan. 18^ ISB7. 



THE DRED SCOTT CASE 13 

winter. Poor Judge Daniel has been prostrated for 
months by what was a sufficient cause ; for his young 
and interesting wife was burned to death by her clothes 
accidentally taking fire, ahnost in his presence. So the 
rest of us have been kept at the par, as Judge Story used 
to say ^double tides/ '* ^ But in spite of the fact that 
there had been no conference, the newspaper corre- 
spondents in Washington filled the columns of their 
papers with detailed rumors as to the alleged decision 
which the Court had reached ; and all agreed that the 
decision would be adverse to the plaintiff, though they 
differed as to the probable grounds on which it would be 
based.* The Tribune correspondent wrote on Jan- 
uary 5, 1857 : "The rumor that the Supreme Court has 
decided against the constitutionality of the power of 
Congress to restrict slavery in the Territories has been 
commented upon in the most unreserved manner at this 
metropolis. It is very generally considered that the 
moral weight of such a decision would be about equal 
to that of a political stump speech of a slaveholder or a 
doughface. Many have expressed the opinion that the 
question would not be met 'by the Court, and numbers 
are still of that way of thinking. It makes but little 
difference to slavery whether it gets a decision in its 
favor now or after the public mind shall have had time 
to cool. . . But it would be best for anti-slavery that 
the decision should come now, while the popular heart is 
in a fused condition. The impression it would thus 
make would be deeper and more distinct, and the whole 

1 Curiu, I, 192, letter of Feb., 1857. 

« New York Tribvns, Jan. 4, 5, 7, 8, 9, 1857; New York Courier, Jan. 7, 1857; /n- 
deyenderd, Jan. 8, 1857. As early as January % 1857, the Tribune's Washington 
corvespondent wrote that there was a rumor in Washington that the Court, 
with two dissenting, had reached a decision adverse to the constitutionality of the 
Missouri Compromise, and said that there was no truth in the statement, but that 
" whenever judgment shall be rendered it will be found, it the real merits of the case 
are considered, that the tribunal will be nearly divided, unless extraneous influ- 
ences should prevaiL*' 



14 THE SUPREME COURT 

series of pro-slavery aggressions and triumphs would 
then be burned into it together. The Congress, the 
Court, and the Executive would then take their proper 
position of joint association, in the mind of the people, 
as confederates in the work of extending the intolerable 
nuisance of slavery. It is, therefore, to be preferred 
that the judicial department shall now put itself actively 
upon the side of the slaveholders, while the mind of the 
country is warm and burning, rather than wait and do it 
by and by, when apathy shall have again overspread 
it. • • . Judicial tyranny is hard enough to resist 
under any circumstances, for it comes in the guise of 
impartiality and with the prestige of fairness. If the 
Court is to take a political bias, and to give a political 
decision, then let us, by all means, have it distinctly, 
and now. The public mind is in a condition to receive 
it with the contempt it merits.** 

It is evident that the views entertained by the Court 
were very generally discussed around Washington. 
Alexander H. Stephens wrote to a friend, January 1, 
1857, a summary which, though purporting to contain 
information obtained ^'svh ro8a*\ was, at that date, an 
inaccurate statement of the decision then arrived at by 
the Court : "Today I send you the speech of Curtis on 
the Dred Scott Case before the Supreme Court. The 
speech I think chaste, elegant, forensic ; but I do not 
think it convincing. The case is yet undecided. It is 
the great case before the Court, and involves the great- 
est questions, politically, of the day. I mean that the 
questions involved, let them be decided as they may, 
will have a greater political effect and bearing than any 
others of the day. The decision will be a marked 
epoch in our history. I feel a deep solicitude as to how 
it will be. From what I hear, avh rosUy it wiU be ac- 
cording to my own opinions on every point, as abstract 



THE DRED SCOTT CASE 15 

political questions. The restriction of 1820 will be 
held to be unconstitutional. The Judges are all writing 
out their opinions, I believe, seriatim. The Chief 
Justice will give an elaborate one. Should this opinion 
be as I suppose it will, * Squatter Sovereignty speeches * 
will be upon a par with ^ Liberty speeches * at the North 
in the last canvass.** Montgomery Blair wrote to Van 
Buren, February 5, that : ^^ It seems to be the impression 
that the opinion of the Court will be adverse to my 
client and to the power of Congress over the Terri- 
tories, but I am assured that the Court has not yet held 
a conference on the case." * 

It was not until February 15, that the Judges first 
met in conference. An agreement was then reached 
that the Court should give no opinion upon the con- 
stitutionality of the Missouri Compromise Act, but 
should decide the case upon the point that, whatever 
effect the negro's residence in Illinois and in the North- 
west Territory had upon his status there, his status in 
Missouri, after his return to that State, must depend 
upon the law of Missouri; and that Missouri, by its 
law as laid down by its Supreme Court, regarded him as 
a slave, and hence incapable of maintaining suit in the 
Federal Circuit Court. To Judge Nelson was assigned 
the duty of writing the opinion of the Court. Within a 
few days, however, it was found that the two dissenting 
Judges — McLean and Curtis, intended to write opin- 
ions discussing at length and sustaining the constitu- 
tionality of the Compromise Act. This action forced 
the majority of the Judges to reconsider the necessity 
of discussing that point as well, themselves. Judge 
Wayne (as he himself said in conversation, and as 



> lAf4 of AUxandm E. attphstu (1888)» by Riduurd M. Johnaon uid Wmiam H. 
Browne, 818; Van Buren Paptf M88, letter of Bkir to Vui Boren, Feb. 5, 
1867. 



16 THE SUPREME COURT 

Judge Curtis stated later) "became convinced that it 
was practicable for the Court to quiet all agitation on 
the question of slavery in the Territories by affirming 
that Congress had no constitutional power to prohibit 
its introduction. With the best intentions, with en- 
tirely patriotic motives, and believing thoroughly that 
such was the law on this constitutional question, he 
regarded it as eminently expedient that it should be so 
determined by the Court/' ^ Accordingly, Wayne 
succeeded in persuading Taney, Campbell, Daniel and 
Catron that the assignment of the opinion to Judge 
Nelson should be withdrawn, and that the Chief Justice 
should write the opinion of the Court, covering all the 
points involved. It appeared, however, that Judge 
Grier was still averse to expressing an opinion on the 
constitutional question; and consequently Judge Cat- 
ron took the unusual course of writing a confidential 
letter to Buchanan, the President-elect, February 19, in 
which he informed Buchanan that the constitutional 
question would be decided by the Court (though he 
gave no statement as to the way in which it would be 
decided), and in which he asked Buchanan to "drop 
Grier a line, saying how necessary it is, and how good 
the opportunity is, to settle the agitation by an affirma- 
tive decision of the Supreme Court, the one way or the 
other. • • • He has no doubt about the question on 
the main contest, but has been persuaded to take the 

1 CurHt, I, 806, 884, 235, 238. G. T. Curtis sUted : "I never heard Judge Cur- 
tis .. . impute to Judge Wayne or the Chief Justice any motive, but the mis- 
taken supposition that the public excitement in regard to slavery in the Territories 
could be quieted by a judicial decision adverse to the power of Congress to prohibit 
its introduction. I think that he regarded this as Judge Wayne's motive, and with 
good reason ; and that he was satisfied that Judge Wayne imparted this conviction 
to the Chief Justice. But I do not think that he ever, for an instant, imputed to 
Judge Wayne that he was influenced by Mr. Buchanan to do what he did, nor do I 
myself believe that such was the fact. Indeed, I do not imagine that Mr. Bu- 
chanan was a man who would tamper with the administration of justice, and I am 
sure that the Chief Justice and Judge Wayne would never have brooked such an 
attempt." See also Taney, 87^392. 



L 



THE DEED SCOTT CASE 17 

smooth handle for the sake of repose." ^ Buchanan 
apparently complied with Catron's request, and wrote 
to Grier, who replied, February 23, in an interesting 
letter, giving to Buchanan, in strict confidence, a full 
statement of the manner in which the Judges had de- 
cided to treat the case. Such a letter would not at the 
present time be regarded as one of strict propriety; 
but at the time it was written, it was not an infrequent 
occurrence for the Judges to impart, in confidence, to an 
intimate friend or relative the probable outcome of a 
pending case. Judge Curtis had so written to his uncle, 
as to this very case, during the previous year; Judge 
Story frequently indulged in the habit ; and it seems to 
have been regarded as a proper practice, provided the 
seal of secrecy was imposed.* Grier's letter was as 
follows : 

Your letter came to hand this morning. I have taken the 
liberty to show it, in confidence, to our mutual friends. 
Judge Wayne and the Chief Justice. 

^ Works of James Buchanan (190S-1011), X, 106. The letter was as follows: 
'*The Died Scott case has been before the Judges several times since last Satur- 
day, and I think you may safely say in your Inaugural: 'That the question in- 
volving the constitutionality of the Mbsouri Compromise line is presented to the 
appropriate tribunal to decide : to wit, to the Supreme Court of the United States. 
It is due to its high and independent character to suppose that it will decide and 
settle a controversy which has so long and seriously agitated the country, and 
which must ultimately be decided by the Supreme Court. And until the case now 
before it (on two arguments) presenting the direct question, is disposed of, I would 
deem it improper to express any opinion on the subject.' A nuijority of my breth- 
ren will be forced up to this point by two dissentients. WiU you drop Grier a line, 
saying how necessaiy it is, and how good the opportunity is, to settle the agitation 
by an affirmative decision of the Supreme Court, the one way or the other. He 
ought not to occupy so doubtful a ground as the outside issue — that admitting the 
constitutionality of the Missouri Compromise Law of 1820, still, as no domicile was 
acquired by the negro at Fort Snelling, and he returned to Missouri, he was not 
ttee. He has no doubt about the question on the main contest, but has been per- 
suaded to take the smooth handle for the sake of repose." 

' It is evident that Judge Campbell was ignorant of this correspondence, for he 
wrote to Samuel Tyler (Tank's biographer), Nov. 24, 1870 : "I have not the slight- 
est information of any connection between Mr. Buchanan or any other person, with 
the discussions in the Court or the conference, or with the preparation of any opin- 
ion ol either of the Judges, save the Judges themselves." 



18 THE SUPREME COURT 

We fully appreciate and concur in your views as to the 
desirableness at this time of having an expression of the 
opinion of the Court on this troublesome question. With 
their concurrence, I will give you in confidence the history 
of the case before us, with the probable result. Owing to 
the sickness and absence of a member of the Court, the case 
was not taken up in conference till lately. The first question 
which presented itself was the right of a n^gro to sue in the 
Courts of the United States. A majority of the Court were 
of the opinion that the question did not arise on the pleadings 
and that we were compelled to give an opinion on the merits. 
After much discussion it was finally agreed that the merits 
of the case might be satisfactorily decided without giving 
an opinion on the question of the Missouri Compromise; 
and the case was committed to Judge Nelson to write the 
opinion of the Court affirming the judgment of the Court 
below, but leaving these difficult questions untouched. But 
it appeared that our brothers who dissented from the ma- 
jority, especially Justice McLean, were determined to 
come out with a long and labored dissent, including their 
opinions and arguments on both the troublesome points, 
although not necessary to a decision of the case. In our 
opinion both the points are in the case and may be legiti- 
mately considered. Those who hold a different opinion 
from Messrs. McLean and Curtis on the power of Congress 
and the validity of the Compromise Act feel compelled to 
express their opinions on the subject. Nelson and myself 
refusing to commit ourselves. A majority including all the 
Judges south of Mason and Dixon's line agreeing in the re- 
sult, but not in their reasons, — as the question will be thus 
forced upon us, I am anxious that it should not appear that 
the line of latitude should mark the line of division in the 
Court. I feel also that the opinion of the majority will fail 
of much of its effect if founded on clashing and inconsistent 
arguments. On conversation with the Chief Justice, I have 
agreed to concur with him. Brother Wayne and myself 
will also use our endeavors to get brothers Daniel and Camp- 
bell and Catron to do the same. So that if the question must 
be met, there will be an opinion of the Court upon it, if 
possible, without the contradictory views which would 
weaken its force. But I fear some rather extreme views may 



THE DRED SCOTT CASE 19 

be thrown out by some of our southern brethren. There 
will therefore be six, if not seven (perhaps Nelson will re- 
main neutral) who will decide the Compromise law of 1820 
to be of non-effect. But the opinions wiU not be delivered 
before Friday the 6th of March. We will not let any others 
of our brethren know anything about the cause of our anxiety 
to produce this result, and though contrary to our usual 
practice, we have thought it due to you to state to you in 
candor and confidence the real state of the matter. 

As has been well said, these letters of Catron and 
Grier were "obviously inconsistent with, and tacitly 
refute, the charge that the Dred Scott Case was the re- 
sult of a * conspiracy' in which the Kansas-Nebraska bill 
was the first step. As the facts are narrated by Mr. 
Justice Grier, the action eventually taken in the case 
seems to have been brought about by the activity of the 
minority, rather than of the majority of the Court.** ^ 
So far from being anxious to decide the constitutional 
question involved, the majority of the Judges appear 
to have tried to avoid committing themselves upon the 
point, until forced to do so by the insistence of the 
minority in expressing their views upon it. 

On March 4, 1857, the new President, James Bu- 
chanan, came into office, and in his Inaugural Address, 
after reciting the fact that Congress had applied " to the 
settlement of the question of domestic slavery in the 
Territories . . . this simple rule that the will of the 
majority shall govern", and after saying that **a dif- 
ference of opinion has arisen in regard to the point of 
time when the people of a Territory shall decide this 
question for themselves", he proceeded to state : "This 
is happily a matter of but little practical importance. 
Besides, it is a judicial question which legitimately be- 
longs to the Supreme Court of the United States before 
whom it is now pending, and will, it is understood, be 

1 Works of Janie$ Buchanan (1910), X, 106-108, note. 



90 THE SUPREME COURT 

speedily and finaUy settled. To their decision, in 
common with all good citizens, I shall cheerfully sub- 
mit, whatever this may be, though it has ever been my 
individual opinion that, under the Kansas-Nebraska 
Act, the appropriate period will be when the number of 
actual residents in the Territory shall justify the for- 
mation of a Constitution with a view to its admission as 
a State into the Union/' ^ 

On the same day, Attorney-General Cushing ad- 
dressed the Court for the last time in his official ca- 
pacity, the new President having appointed Jeremiah 
S. Black as Attorney-General ; and in his valedictory, 
Cushing paid the following eloquent tribute to the 
Court and to the confidence reposed in it by the coun- 
try. "In the complex institutions of our country,'* he 
said, "you are the pivot point, upon which the rights 
and liberties of all. Government and people alike, turn ; 
or rather, you are the central light of constitutional 
wisdom around which they perpetually revolve. Long 
may this Court retain the confidence of our country 
as the great conservators, not of the private peace only, 
but of the sanctity and integrity of the Constitution. 
• . • To you and your venerable Chief, venerable 
not more in years than in accumulated wisdom of a 
long life of high duties, to you, I say, worthy successors 
of the judicial Fathers of the Republic, our country 
looks with undoubting confidence, as the interpreters 
and guardians of the organic laws of the Union.*'* 
How little Cushing foresaw the storm which was to 
break upon the Court's head, within three days after his 
remarks, and how little the anti-slavery party was 
inclined to accept Buchanan's statement that the 

^ It is interesting to compare this with the statement suggested by Catron to be 
included in the Inaugural Address, in Catron's letter to Buchanan, swpra. 
* National InMigencer, March 6, 1857. 



THE DRED SCOTT CASE 21 

question of slavery in the Territories was about to be 
"finally settled'*, by a decision of the Court, may be 
seen from the editorial comment of the New York Trib- 
une, on the day after the Inauguration. "You may 
'cheerfuUy submit', of course, you will,'* it said, ad- 
dressing itself to Buchanan, "to whatever the five 
slaveholders and two or three doughfaces on the bench 
of the Supreme Court may be ready to utter on this 
subject. But not one man who really desires the tri- 
umph of Freedom over Slavery in the Territories will 
do so. We may be constrained to obey, as law, what- 
ever that tribunal shall put forth ; but happily this is a 
country in which the People make both laws and Judges, 
and they will try their strength on the issue here pre- 
sented." Surmises as to the nature of the forthcom- 
ing decision were made in a letter from the Tribune's 
Washington correspondent, written March 5 (but not 
published until March 9), in which he stated that the 
Court had held a final consultation that morning, and 
would reach its opinion the next day. " No doubt now 
exists as to the character of the decree. A large ma- 
jority will hold that the recent decisions of the Supreme 
Cpurt of Missouri • • . determine the case . • . Judges 
McLean, Curtis and Grier will deliver dissenting opin- 
ions. • • The expectation is entertained that this decree 
will satisfy the country, and Mr. Buchanan referred to 
it with confidence in his inaugural, yesterday, founded 
upon a knowledge of the foreshadowed purpose."^ 
This letter has often been cited as evidence that there 
was a "leak" as to the Courtis decision ; but the letter 
itself proves the contrary, for its statement of the 
ground on which the Court would rest its decree was 
erroneous, and similarly inaccurate was the statement 
as to Judge Grier's dissent. 

^ Nrno York Tribune, March 5, »» 1857. 



22 THE SUPREME COURT 

Owing to the illness of the Chief Justice, due to ex- 
posure at the Inauguration ceremonies, the decision 
was not rendered until Friday, March 6. On that day, 
Chief Justice Taney read the opinion of the Court, Dred 
Scott V. Sandford, 19 How. 393, and Judge Nelson and 
Judge Catron read separate opinions. " The delivery 
of Taney's opinion,'* said the National Intelligencer^ 
"occupied about two hours, and was listened to with 
profound attention by a crowded Court-room; and 
whether as a decision of the Supreme Court, or for the 
constitutional arguments on which it stands, will work 
a powerful influence throughout the United States." 
On Saturday, March 7, Judges McLean and Curtis 
delivered their elaborate dissenting opinions, and sep- 
arate opinions were read by Judges Daniel, Grier, 
Campbell and Wayne — "these opinions were listened 
to with eager interest and profound respect by the Court 
and Bar and a larger number than usual of attentive 
auditors/' ^ 

While pamphlet after pamphlet, article after article, 
by lawyers and laymen alike, poured forth from the 
press, at the time, regarding the legal points involved 
in the opinion of the Court and of the various Judges, at 
the present date the technicalities of the case are of no 
particular interest ; and the interminable discussion as 
to whether the Court was justified in deciding on the 
merits of the case, after holding that the Circuit Court 
had no jurisdiction, is now of very slight interest. It 
will suflSce to say that six of the Judges — Taney, 

^National InMigmcer, March 7, 9, 1857; New York Tribune, March 7, 1857; 
for able diacussions of the law, see Legal Renew cf the Dred Seott Cote, by John 
Lowell and Horace Gray» Law Reporter (June, 1857), XX ; The Dred Scott Case, by 
Tunoihy Tamr, North Amer, Rev, (Oct., 1857), LXXXV; for excellent descrip- 
tions of this case, see PoLiHeal BiHory cf Secession, by Daniel W. Howe (1914) ; 
Legal and Historical Status cf the Dred ScoU Case (1900), by Elbert W. H. Ewing; 
see also Note on the Dred Scott Case, by Hampton L. Carson, Amer. Law, Rev, 
(1902), XXXVI; Decisive Battles cf the Law (1907), by Frederick T. HilL 



THE DRED SCOTT CASE 2S 

Wayne, Catron, Daniel, Grier and Campbell — con- 
curred in holding, not only that a negro could not be a 
citizen of the United States, but also that Congress had 
no power to exclude slavery from the Territories; 
Nelson confined himself to the opinion which he had pre- 
pared to be read as the opinion of the Court (before his 
Associates had decided to pass upon all the questions 
involved in the case), and decided only that the Court 
was bound to follow the law as laid down by the Mis- 
souri Supreme Court, with reference to the appellant's 
status as a slave; McLean and Curtis, in dissenting, 
delivered voy long and elaborate opinions taking the 
contrary position on all three points involved.^ 

^ The final outcome of tlie case so far as the appellant himself was concerned is 
cnrioas. During the argument of the case, the fact became public (theretofore not 
generally known) that the negro was actually still owned by Mrs. Emerson, who had 
become the wife of Calvin C. Chaffee, an abolitionist Congressman from Massachu- 
setts (see New Hampshire Patrioty June 8, 1857, stating that the Springfield (HI.) 
Arffue " first exposed this fact to the world "). The New York Courier, Dec. 19, 1856, 
stated that Sandford, the reputed owner of the negro, intended to liberate him, 
whatever mi^t be the result of the suit. The New York Trtbuns, March 17, 1857, 
published a letter from Dr. Chaffee denying that he had any control over the negro 
or over the course of the suit. On April 28, 1857, the Washington Union said : 
"Dred Scott — This doughty gentleman of color has become the hero of the day, if 
not of the age. He has thrown Anthony Bums, Bully Bowlegs, Uncle Tom and 
Fred Douglass into temporary, if not everlasting oblivion, annihilated the Missouri 
Compromise and almost healed the wounds of bleeding Kansas." About the same 
time, a St. Louis paper described the negro as follows (see Washington Union, 
April 11, 1857) : '*The distinguished colored individual, who has made such a noise 
in the world in connexion with the celebrated case of SeoU v. Sandford and who has 
become tangled up with the Missouri Compromise and other great subjects — Dred 
Scott — is a resident, not a dtixen of St. Louis. He is well known to many of our 
citiiens and may frequently be seen passing along Third Street. He is an old in- 
habitant, having come to this city thirty years ago. Dred Scott was bom in Vir- 
ginia where he belonged to Capt. Peter Blow, the father of Heniy T. Blow and 
Taylor Blow of this city. . . . Dred was at Corpus Christi at the breaking out 
of the Mexican War, as the servant of Captain Bainbridge. On his return from 
Mexico, he applied to his mistress, Mrs. Emerson, then living near St. Louis, for 
the purchase of himself and family, offering to pay part of the mon^ down and give 
an eminent dtisen of St. Louis, an officer in the Army, as security for the payment 
of the remainder. His mistress refused his proposition. . . . The suit was 
commenced about ten years ago, and has cost Dred $500 in cash, besides labor to a 
neariy equal amount. It has given him a 'heap o' trouble*, he says, and if he had 
known that 'it was gwine to last so long*, he would not have brought it. . . . 
Died does not appear to be at all discouraged by the issue of the celebrated case, 
although it dooms him to slavery. He talks about the affair with the ease of a 



24 THE SUPREME COURT 

It is evident that the Judges did not realize, in the 
slightest degree, the effect which their decision was to 
have, or foresee the course which the public at the 
North would pursue towards it. " On the principles of 
the Dred Scott decision,'* wrote Alexander H. Stephens, 
five months later, "depended, in all probability the 
destiny of this country ; *' but he, like the Judges, sup- 
posed that the Court's decision would be accepted by 
the country. Other Democrats seemed to have a fatuous 
confidence in the Court's power thus to settle the slavery 
issue, expressed by Judge Wayne in his opinion as fol- 
lows: "The case involves private rights and consti- 
tutional principles of the highest importance, about 
which there had become such a difference of opinion 
that the peace and harmony of the country required the 
settlement of the(n by judicial decision." No one on 
the Court comprehended the fact that the intensity 
of feeling at the North on the subject of slavery was 
such that it would not tolerate the settlement of 
the issue "by judicial decision"; and that such an 
attempt at settlement would only serve to enflame 
rather than to extinguish. The effect of the decision 
upon the country, and especially upon the North has 
been so frequently and fully described by historians 
that it would be a work of supererogation to detail it 
here.^ The whirlwind of abuse which swept upon 

veteran litigant, though not exactly in technical language and \a hugely tickled at 
the idea of finding himself a personage of such importance. He does not take on 
airs, however* but laughs heartily when talking of ' de fuss dey made dar in Washing- 
ton 'bout de ole nigger.* He is about fifty-five years old, we should think, though 
he does not know his own age." See also Frank Leslie* 8 Weekly, TV, June 27, 1857, 
for detailed account of Dred Scott, with pictures of him and his wife and children. 

In May, 1857, Died Scott was conveyed by Dr. Chaffee and Mrs. Emerson to 
Taylor Blow of St. Louis for the purpoee of emancipation, and he was set free in 
Missouri, within three months after the Court denied him to possess any rights as a 
free man. 

^ The views of the anti-slavery men in general, and the effect of the decisions 
upon Northern sentiment, are well iUustrated in the letters received by Judge 
McLean, highly praising his opinion. John McLean Papere MSS; letters of 



THE DRED SCOTT CASE 25 

the Court, the loss of conJBdenee theretofore entertained 
in it, and the ensuing damage to its reputation, were, 
however, in reality, due more largely to misunder- 
standings of the decision, and to falsehoods spread 
relative to Taney's opinion, than to the actual decision 
itself. While the Court was bitterly assailed for ren- 
dering any decision upon the constitutional point, after 
holding that the Circuit Court had no jurisdiction, the 
correctness of its action in so doing was, after all, a 
purely legal question.^ The most serious attacks 
upon the Court arose from a gross and willful perversion 
of a sentence in the Chief Justice's opinion, which 
certain violent anti-slavery papers of New York spread 
throughout the country, — the charge, reiterated again 
and again, that Taney had stated in his opinion that 
the ^' negro has no rights which the white man was 
bound to respect/* These newspapers never printed 
the corrections of this false charge, inmiediately and 
persistently made by supporters of the Court, who 
pointed out that Taney had never stated this sentiment 
as expressing his own view, but had merely recited it 
historically as the view held by men in general, in the 
eighteenth century.* By the brazen propagation of this 
lie the country was long deceived ; and the prejudices and 
passions aroused against the Court and its decision 
were due far more to Taney's aUeged statement than to 
the point of law decided by him. It was not until the 

J. H. Martindale of New York, March 21, John Allison of Ohio, March 21, Oliver 
H. Browning of Illinoie, March 23, Jacob CoUamer of Vermont, April 1, C. C. 
Bradley of Vermont, April 20, 1857. 

^ The Washington correspondent of the New York Courier wrote, March 12, 1857 
(see issue of March 16) : "I discover that lawyers are disposed to take a very prac- 
tical and professional view. . . . They say there was but one point decided, 
namely that of the citizenship of the colored man. Beyond that, all is ' leather and 
prunella. ' . . . The stump speech of the Chief Justice was entirely gratuitous, 
without one partide of auUiority." 

' See example of correction of this falsehood, Ohio 'Statesman, May 18^ 1857. 
''B^ubUcan Lie No. 1." 



26 THE SUPREME COURT 

year 1886 that the Independent^ of New York, which 
had been the chief offender in spreading the falsehood, 
recanted and said : " It is but just to the memory of 
Chief Justice Taney, as well as to the Supreme Court, to 
note the fact that the whole language, including these 
words, is simply that of historical narration. . • . 
Chief Justice Taney did not say it in 1857, and the 
Supreme Court did not say it. What Chief Justice 
Taney said was by way of narrative, relating to a period 
prior to the adoption of the Constitution.'* ^ 

The manner in which the sentiment of the country 
was aroused by the Northern press may be gathered 
from a few fairly illustrative extracts from the most 
influential anti-slavery papers. Immediately after the 
decision, the New York Tribune commenced an on- 
slaught, which it continued practically every day for a 
month.* On March 6, its Washington correspondent 
wrote that : "The whole slavery agitation was reopened 
by the proceedings in the Supreme Court today, and 
that tribunal voluntarily introduced itself into the 
political arena. . • • Much feeling is excited by this 
decree, and the opinion is freely expressed that a new 
element of sectional strife has been wantonly imposed 
upon the country." The next day, he wrote that its 
character as an impartial judicial body had gone. " If 
the action of the Court in this case has been atrocious, 
the manner of it has been no better. The Court has 
rushed into politics, voluntarily and without other 
purpose than to subserve the cause of slavery. They 
were not caUed upon, in the discharge of their duties, 
to say a word about the subject. . • • The vote 
stood seven to two — the five slaveholders and two 



^ Independent, April S, 1886. 

< See New York Tribune, especially March 7, 9, 10, 11» 12» 10, 17, 19, 20, 21, 25, 
1857. 



THE DRED SCOTT CASE 27 

doughfaces making up the seven. Their cunning chief 
had led the van, and plank by plank laid down a plat- 
form of historical falsehood and gross assumption, and 
thereon they all stood exultingly, thinking, or feigning 
to think, that their work would stand during the re- 
mainder of their lives at least/* Another correspond- 
ent wrote that the decision "has been heard and com- 
mented upon here with mingled derision and contempt. 
If epithets and denunciation could sink a judicial body, 
the Supreme Court of the United States would never 
be heard of again. Chief Justice Taney's opinion was 
long, elaborate, able and Jesuitical. His arguments 
were based on gross historical falsehoods and bold 
assumptions and went the whole length of the Southern 
doctrine/' Editorially, the Tribune said that: *'The 
long trumpeted decision . • . having been held over 
from last year in order not too flagrantly to alarm and 
exasperate the Free States on the eve of an important 
Presidential election, ... is entitled to just so much 
moral weight as would be the judgment of a majority 
of those congregated in any Washington bar-room. It is 
a dictum prescribed by the stump to the Bench." Three 
days later, it said : '*No wonder that the Chief Justice 
should have sunk his voice to a whisper, conscious, as 
he must have been, that the decision which he promul- 
gated had been arrived at on grounds totally different 
from those indicated in the opinion — that opinion 
being but a mere coUation of false statements and 
shallow sophistries, got together to sustain a foregone 
conclusion, — knowing that he was engaged in a pitiful 
attempt to impose upon the public. However feeble 
his voice might have been, what he had to say was still 
feebler." The next day, it said: "Until that remote 
period when different Judges sitting in this same Court 
shall reverse this wicked and false judgment, the Con- 



28 THE SUPREME COURT 

stitution of the United States is nothing better than the 
bulwark of inhumanity and oppression." Equal with 
the Tribune in its influence on the anti-slavery senti- 
ment of the North was the New York Independent, 
which reached the great Congregationalist community, 
and whose colunms were filled with invective against 
the Court.* On the day after the decision, its Wash- 
ington correspondent wrote: "If there be not aroused 
a spirit of resistance and indignation, which shall wipe 
out this decision and all its results, as the lightning 
wipes out the object it falls upon, then indeed are the 
days of our Republic numbered, and the patriot shall 
see light only beyond the storms of revolution and 
blood. . . . The Missouri Compromise was a defeat 
of freedom. The Compromise of 1850 was a yet more 
humiliating surrender ; but it was left to the Supreme 
Court to complete the utter subjugation and exter- 
mination of all that remained of the protesting voice of 
liberty. ... In all this, I counsel no revolutions. 
... I invoke only in the name of Truth, which yet 
lives, that force of public sentiment which makes and 
unmakes Courts and decisions, as easily as it makes and 
unmakes Presidents and Legislatures. ..." Edi- 
torially, it inveighed against Taney's "stump speech 
spoken for political eflfect" and the wickedness of the 
decision — the attempt "to foist this new and atrocious 
doctrine into the Constitution" ; " this vain attempt to 
change the law by the power of Judges who have 
achieved only their own infamy." It said that : "The 
reverence for the Supreme Court, which has been so 
widely cherished, is a reverence for law. It is a rever- 
ence which assumes that the Judges of a tribunal, so 
far removed from the shifting winds of popular excite- 
ment, and so carefully guarded against the intrusion of 

^ Independent, March 12, 10, 26, Dec 17, 1857. 



THE DRED SCOTT CASE 29 

factions and political influences, will be under no violent 
temptation to betray their trust'* ; and that the Judges 
now having debased themselves, the question had arisen 
as to whether Judges ought not to be chosen by popular 
election. Later, in an editorial headed, "The Decision 
of the Supreme Court is the Moral Assassination of a 
Race and Cannot be Obeyed", it said: "The moment 
the Supreme Judicial Court becomes a Court of injus- 
tice, a Court to carry schemes of oppression against 
classes of men, by forced constructions of the Constitu- 
tion, that moment its claim to obedience ceases. The 
moment it becomes the Court of a political party, and 
not of the United States, and promulgates falsehoods, 
that moment its decisions cease to be binding, and 
impeachment, not obedience, belongs to it. . . . The 
decision is a deliberate iniquity. It is not a mistake 
. . . but it is a deliberate, willful perversion, for a 
particular purpose, and that purpose, the sanction 
and perpetuity of human slavery. If the people obey 
this decision, they disobey God." The New York 
Evening Post said that the consequences of the decision 
" are beyond the reach of human calculation", and that 
"the moral authority and consequent usefulness of that 
tribunal, under the present organization, is seriously 
impaired, if not destroyed. ... A majority of its 
members have consented to become parties to a com- 
bination with the Administration to transfer the political 
control of the government to the hands of the slave 
oligarchy." ^ The New York Courier published a 
series of attacks, but of a less extreme character.* On 
the day after the decision, its owner, General Webb, 
wrote from Washington of the "sectional mummeries of 

1 New York Evening Poet, March 7, 10, 11, 12, 18, 14, 26, 1857. 

' New York Courier, lee editoriala and letters from Washington by its owner. Gen. 
James Watson Webb, and by "Inspector", Biarch 7, 9, 10, 11, 12, 18, 16, 17, 19, 
1857. 



so THE SUPREME COXJRT 

a Court which had become a mere party machine", and 
said that while all good citizens would submit to the de- 
cision, yet Congress and the people must prevail. Later, 
he wrote that the Court, which had been hitherto 
"considered the mainstay of order and conservatism in 
the country, has been seized by an unreasoning and 
desperate fanaticism on one subject, which renders it 
blind to precedents, to the well-established principles of 
law, to justice and humanity" ; and that henceforward 
it could never be spoken of "with that veneration and 
respect which the Nation has delighted to accord it." 
On March 11, the Courier said that the South would 
find no benefit from the decision which would only 
multiply agitation on the slavery question. "The 
volunteered, sectional and partisan opinions . . . 
are in all respects unfortunate — unfortunate for the 
reputation and authority of the Court — unfortunate 
for the harmonious relations of the Free and Slave 
States — and unfortunate for the character of the 
country . . . fraught with immense mischief." On 
March 12, it expressed a fear lest the Free States should 
assert their sovereignty to the extremest limit, and said 
that if this injured the Slave States, the latter "will 
only have slavery-devoted and innovating Judges to 
thank for it." On March 13, it urged that the compo- 
sition of the Court and the Circuits be remodeled. 
After pointing out the great preponderance of white 
persons in the four Free-soil Circuits as compared with 
the five Slavery Circuits, it said: "In its present sec- 
tional form, it is necessarily the object of suspicion. To 
believe implicitly in its perfect candor and impartiality 
of judgment upon questions of a sectional bearing re- 
quires an effort, which, however the heart in its charity 
might allow, the understanding, with its appreciation of 
human nature as it is, utterly refuses. Among a free 



THE DRED SCOTT CASE SI 

people, the authority of a tribunal of law resides more in 
its moral power than in the civil force which stands at 
its back, and the very first requisite to the possession of 
this moral power is complete confidence in its impar- 
tiality." 

The anti-slavery press throughout the North and 
Central West followed the example of these leading 
New York papers and indulged in even greater scurrility 
and abuse. 

In most histories of the period, the eflfect of the Dred 
Scott decision has been portrayed in a somewhat dis- 
proportionate and exaggerated manner by omitting 
reference to the large body of newspapers which sup- 
ported or defended the decision. Moreover, some papers 
like the TimeSy Herald^ Commercidl Advertiser and 
Journal of Commerce^ in New York, took a conservative 
stand ; and while impressed with the seriousness of the 
issue thrust upon the country by the Court's decision, 
they deplored the violence of the Tribune and its 
imitators.^ The Times said, March 8, that while all 
looked with respect and some degree of reverence 
on the Court, ^'the circumstances attending the present 
decision have done much to divest it of moral influ- 
ence and to impair the confidence of the country. 
• . . Among jurists, it is not considered to settle 
anything more than the denial of jurisdiction. . • . 
But it exhibited the eagerness of the majority of that 
tribunal to force an opinion upon the country and to 
thrust itself into the political contests." The next day, 
it said that while there would be no forcible opposition, 
the doctrines of the decision would germinate " the seeds 
of discontent and contest and disaster hereafter. • . • 
It has laid the only solid foundation which has ever yet 

^ New York Times, March 8, 9, 1857; New York Herald, March 7, 8» 12, 18» 14. 
15, 17» 1857 ; New York Journal qf Commerce, Biaich 11, 12» 1857. 



32 THE SUPREME COURT 

existed for an Abolition Party, and it will do more to 
stimulate the growth of such a party than has been 
done by any other event/* The Herald said, March 7, 
that the decision would be accepted as the law, but "it 
will profoundly affect the public mind in regard to the 
general question of slavery/* The next day, it termed 
the decision a "bombshell from the Supreme Court**, 
which, "of vital importance ... at a single blow 
shivers the anti-slavery platform of the late great 
Northern Republican party into atoms. . . . The 
supreme law is expounded by the supreme authority, 
and disobedience is rebellion, treason and revolution." 
Later, it said that some of the anti-slavery journals, 
"stunned by these late tremendous blows from the 
Supreme Court, are counseling an organized resistance. 
But that is folly, treason and rebellion.** And it 
stated that one of the inevitable party issues, on which 
every Presidential contest would turn, would hencefor- 
ward be — the reformation of the Supreme Court, so as 
to reverse the majority. The New York Commercial 
Advertiser very candidly said that, while it dissented 
from the opinion, "no one had a right to impugn the 
motives of the Court, and to do so is alike unjust and 
unwise. Least of all is it patriotic to endeavor to bring 
the highest tribunal of the republic into contempt, be- 
cause it pronounced decisions at variance with our views 
or wishes. Such a course, though it may be congenial 
with our temper at the moment, is sadly perilous to the 
common weal, the interest of freedom and free govern- 
ment being always best upheld by maintaining respect 
for the oflScers of the government, especially those of 
the Judiciary.*' The New York Journal of Commerce^ 
a strong Democratic paper, attacked the " indecent and 
contemptible calumnies** of the abolition press, and 
deplored the impugning of the "honesty and purity of 



THE DRED SCOTT CASE SS 

the great constitutional lawyers" on the Bench. It 
stated that '^outside the limited circle of disappointed 
factionists, whose vocation it is to foment strife and 
discord to subserve individual and selfish ends'^ the 
decision would be respected, honored and obeyed ; and 
that this *' authoritative and final settlement of the 
grievous sectional issues" would be hailed with satis- 
faction by all, "except the demagogues who wish to 
kindle flames of discord and fanaticism." 

Other Democratic papers in the North were vigorous 
in support of the decision, and deplored the virulence of 
the "Black Republican press, brimful of elements of 
sedition, treason and insurrection." ^ "The Tribune 
may rave, and fanaticism make earth hideous with its 
bowlings, but all in vain," said the Pennsylvanian. 
"There are certain points which are settled and beyond 
the reach of the fanatics of the Nation. • . . The de- 
cision is a closing and clinching confirmation of the 
settlement of the issue. . . . Whoever now seeks to 
revive sectionalism arrays himself against the Consti- 
tution, and consequently against the Union." A 
leading New Hampshire paper said : "The black press 
and pulpit unite in reviling the Court and denouncing 
this decision. . . . The Black Republicans' creed 
and purposes are at war with the Constitution, are 
treasonable, and contemplate the overthrow of the 
Union. . . . Let the patriotic of all parties think of 
the immense consequence of this Court to our National 
peace and harmony, and put the seal of reprobation on 
those who would destroy it or lessen its authority. The 
reflecting will be astonished at the language of the 

> See, for example^ Penmyhanianp March 10» 11» 12» 1867; New Hampihvr$ Pa- 
triot, Bfarch 18, 25, June 3, 1857; MUwaukee Daily Newt (Wise.); Rock leland 
Argue (HI.) ; SfringfiM SUUe Regieter (111.) ; Detroit Free Frees (Mich.) ; Fortland 
Eaetem Argue (Me.) ; Mieeouri Republiean, quoted in Waehington Union, April 7, 
14. 16, May 1, 1857 ; Ohio Stateeman, March li^ 9S, May IS, 14. 16, 1857. 

VOL. in — 2 



34 THE SUPREME COURT 

press as to the tribunal which has performed such 
priceless service, and given so much stability to law and 
strength to our National politics/' "Pernicious and 
anarchical as have hitherto been the * higher law ' here- 
sies," said the Boston Posty "we hazard nothing in say- 
ing that none have been more pernicious or full of 
anarchy than those which a few days have elicited as to 
the Supreme Court." A prominent Illinois paper said 
that : " No decision for a generation has created a deeper 
sensation. . . . This inquisition, blind and mad as it 
is, which has foisted itself into the pulpit and the forum, 
may be soon expected to sit with veiled face, in mocking 
of common sense and common decency, upon the last 
relic of constitutional liberty. A blow aimed at the 
third great branch of the government — the Judiciary 
— is tantamount to a blow struck at the heart of all law 
and order." A leading Ohio paper denounced the Re- 
publican papers for their attack on Taney, "this vener- 
able father in the law, strong in mind but weak in body, 
tottering on the brink of an honored grave, with no 
fame to expect but that which erudition and judicial 
ability have already obtained for him", and for their 
attempt to destroy confidence in the Court. "This 
bulwark of self-imposed law is in the hearts of the 
people. To teach the people to laugh it to scorn is to 
weaken the bastions and mine the fortress." 

The strongest defense of the Court appeared in a long 
series of editorials, during April and May, in the Ad- 
ministration paper, the Daily Uniony of Washington. 
On the day after the decision, it said that it would 
"exert the most powerful and salutary influence 
throughout the United States" ; on March 11, it said : 
"If the sectional question be not now settled, then we 
may despair of the Republic. We believe it is settled, 
and that henceforth sectionalism will cease to be a 



THE DRED SCOTT CASE S5 

dangerous element in our political contests. • • • Of 
course, it is to be expected that fanaticism will rave 
and clamor against the decision of the Supreme Court. 
But fanaticism ceases to be a formidable enemy, when 
it seeks to measure strength with the Union-loving 
spirit of the people, sustained or confirmed by the great 
arbiter of constitutional questions." The next day, it 
said that it was confident that Taney's opinion ** will be 
regarded with soberness and not with passion ; and 
that it will thereby exert a mighty influence in diffusing 
sound opinions and restoring harmony and fraternal 
concord throughout the country.' ' It deplored the 
"unbridled license of the press, and the vilification by 
Northern papers, and reciprocation by radical Southern 
papers." "There must be toleration, there must be 
forbearance," it concluded. Neither toleration nor for- 
bearance, however, seemed possible, in the existing 
bitterness of the political situation — and the Union'' s 
later editorials gave increasing evidence of this.^ On 
March 18, it spoke of the "ribald vituperations against 
the Court which made infamous some of the Republican 
journals." On March 26, in an editorial entitled the 
"Black Republican Crusade", it pointed out the neces- 
sity of retaining respect for, and confidence in, the 
Court — a doctrine which it said, had long been 
preached heretofore in the North; and it asked: "Is 
the whole structure of our government to be subverted, 
because a negro is determined by the highest judicial 
authority of the land not to be a citizen within the 
meaning of the Constitution?" On April 11, in an 
editorial entitled "The Higher Law Against the Con- 

^ See DaUy Union, March 14, 17, 1857, saying that the "Blade Republican press 
literally howl with rage . . . the vile epithets, reproaches in the treasonable 
calumnious papers of the North"; March 21, 1857, defending the Judges from the 
charges of acting politically; March 28, editorial on '*the Supreme Court and the 
New York Tribune" ; April 2, editorial on "What CourU Decide" ; May 1, editorial 
on "The Supremacy ol the Law." 



S6 THE SUPREME COURT 

stitution", it stated that there was now but one alter- 
native — "obedience to the Constitution, or resistance 
to the supreme law of the land/* A few papers ex- 
pressed more calm and patriotic views. The National 
Intelligencer said, on May 29: "That the Supreme 
Court should have been called at all to pronounce upon 
questions involved in political controversy must be a 
matter of regret to all who would desire to preserve 
that high tribunal, not only from the influence of parti- 
san bias in pronouncing its decisions, but from even the 
suspicion of it, on the part of any considerable portion 
of the commimity. . . . Whatever its decision might 
have been, it became inevitable, under these circum- 
stances, that one political party or another, according 
to the views or prejudices of its members, was destined 
to be dissatisfied with the result ; but the duty of ac- 
quiescing in that result, whether equally acknowledged 
by both parties or not, was equally imperative on both, 
and must remain so, as long as the forms of law receive 
that respect to which they are entitled/' And Har- 
per^s Weekly said with great sanity: "The idea that 
any decision of the Supreme Court can reestablish slav- 
ery in the Free States is a bugbear — an absurdity. 
The only result, therefore, that we can arrive at is, 
that, however repugnant the Dred Scott decision may 
be to the feelings of a portion of the Northern States, it 
can have no practical eflfects injurious to our tranquil- 
lity or to our institutions. The subject of slavery will 
be left to be decided, as it ultimately must be, by the 
laws which govern labor and production. It is, indeed, 
most devoutly to be desired that this great question 
should be left to be determined exclusively by those 
laws, free from the interference of the hotheads of 
the press and of the pulpit. If we would but permit 
Nature to have her own way for only a few short years ! 



• • • 



THE DRED SCOTT CASE S7 

When political agitation shall have ceased, 
and the fires of religious fanaticism are burned out, 
these are the points on which this matter must ulti- 
mately be determined. . . . We have no doubt how 
it will finally be decided ; nor have we any doubt how it 
would have been decided, years ago, if every agency 
that human wit can devise had not been systematically 
employed, at once to excite the passions, and blind the 
judgment of those to whom alone the disposition of the 
question rightfully belongs/'^ 

Had the country been influenced by editorials like 
these, rather than by the hysterical, virulent and false 
outpourings of the Tribune and the Independent^ the 
Court's action would have had less efiFect upon history, 
but it was otherwise destined. The surprise with which 
the attitude of the Republican press was greeted by 
the Democrats shows conclusively how little they 
realized the insidious effect upon public sentiment at 
the North produced by the undermining campaign 
against the Court which had been conducted by the 
anti-slavery leaders in Congress for the past seven years. 
And how little Chief Justice Taney himself realized 
the extent of the passions aroused by his opinion was 
seen in a letter written to Ex-President Pierce, August 
29, 1857 : * 

You see I am passing through conflict, much like the one 
which followed the removal of the deposits, and the war is 
waged upon me in the same spirit and by many of the same 
men who distinguished themselves on that occasion by the 
unscrupulous means to which they resorted. At my time of 
life when my end must be near, I should have rejoiced to 
find that the irritating strifes of this world were over, and 
that I was about to depart in peace with all men and all men 
in peace with me. Yet perhaps it is best as it is. The mind 

1 National InMigeneer, May 29, 1857; Harper's Weekly, March 28, 1857. 
> See Amer. Hist, Rev, (1004), X. 



38 THE SUPREME COURT 

is less apt to feel the torpor of age when it is thus forced into 
action by public duties. And I have an abiding confidence 
that this act of my judicial life will stand the test of time and 
the sober judgment of the country, as well as the political 
act of which I have spoken. Your successor has, I think, 
a difficult time before him. Symptoms of discord are al- 
ready appearing. 

While, with the lapse of time, the opinion expressed by 
many earlier historians and statesmen that the Dred 
Scott decision was the most potent factor in bringing on 
the Civil War has been rejected, and the inevitability of 
that conflict has been realized, the really serious eflfect of 
this fatal decision by the Court was that which was 
foretold by a writer in the North American Review^ as 
early as October, 1857 : "The country will feel the con- 
sequences of the decision more deeply and more per- 
manently, in the loss of confidence in the sound judicial 
integrity and strictly legal character of their tribunals, 
than in anything beside ; and this, perhaps, may well 
be accounted the greatest political calamity which this 
country, under our forms of government, could sus- 
tain.'' ^ 

And this view of the case, which will be the probable 
final judgment of history, has been recently well ex- 
pressed by a thoughtful jurist as follows: "The Dred 
Scott decision cannot be, with accuracy, written down 
as a usurpation, but it can and must be written down as 
a gross abuse of trust by the body which rendered it. 
The results from that abuse of trust were, moreover, 
momentous. During neither the Civil War nor the 
period of Reconstruction did the Supreme Court play 
anything like its due r6le of supervision, with the result 

» The Dred Scott Case, by Timothy Farrar, North Atmt. Rev. (1857), LXXXV ; 
see also Partiee and Slatfery (1006), by Theodore Clarke Smith, 208: "The only 
results of the Dred Scott Case were to damage the prestige of the Court in the North, 
and to stimulate a sectional hostility which threatened to recoil upon the Judges 
themselves." 



THE DRED SCOTT CASE 89 

that during the one period the military powers of the 
President underwent undue expansion, and during the 
other the legislative powers of Congress. The Court 
itself was conscious of its weakness, yet notwithstand- 
ing its prudent disposition to remain in the background, 
at no time since Jefferson's first Administration has its 
independence been in greater jeopardy than in the 
decade between 1860 and 1870. So slow and laborious 
was its task of recuperating its shattered reputation.'* ^ 

It must be again emphasized, however, that the loss 
of confidence in the Court was due not merely to the 
Court's decision but to the false and malignant criti- 
cisms and portrayals of the Court which were spread 
widely through the North by influential newspapers, 
and of which no better illustration can be given than to 
quote in full the clever, but venomous, description 
of the members of the Court sent out by the Tribune's 
correspondent, ten days after the decision.* 

"Mr. Wayne is an intelligent, prompt, good looking 
Georgian. He is radical on the slavery question, and 
would dispute the right of any Northern man to have an 
opinion on slavery or its relations, anyway. He en- 
tered with alacrity and vim into Judge Taney's views, 
and would stand by them, and either argue for them or 
fight for them, according to the necessities of the case. 
He is one of the Chivalry, and before he got old, the 
ladies used to be enamored of his flowing locks and 
general beauty of appearance, to which he was him- 
self not wholly insensible. He was very much ex- 
ercised in mind, during the delivery of Judge Curtis' 

^ Ths Dred ScoU Decision in the Light of Cantemporary Legal Doctrine, by Edward 
S. Cdrwin, Amer. Hist, Rcd, (1911), XVII; The Doctrine cf Judicial Review (1914), 
by Edward S. Corwin ; Note on the Dred Scott Case, by Hampton L. Carson, Amer. 
Law Rev. (1902), XXXVI ; The Dred ScoU Case in the Light of Later Events, by 
Morris M. Cohn, ibid. (1912), XLVI ; Did the Decision in the Dred SeoU Case Lead to 
the Ciml War? by Henry A. Forster, ibid. (1918), LII. 

< New York Tribune, March 17, 1857. 



40 THE SUPREME COURT 

opinion, and could not restrain the exhibition of his 
feelings. . • . He commented audibly, both to the 
Chief Justice, and to Judge Daniel who sat on either 
side of him. In fact, both he and the veteran Daniel 
seemed as uneasy, while Judge Curtis was reading, as 
though they were listening to an Abolition harangue. 

"Judge Daniel of Virginia is old, and long, and lean, 
and sharp in the visage, and simply wears the aspect of 
a tremulous and fidgety old gentleman in glasses. His 
politics are those of a Virginia slaveholder and ab- 
stractionist, who swears by the resolutions of *98. Of 
course, he goes to the hilt on any point where the de- 
mands of the Oligarchy are concerned. 

"Judge Catron of Tennessee is a robust, unintellec- 
tual man, advanced in years, whose judgments would be 
inevitably swayed by his political associations, but 
whose erroneous opinions would, as a general rule, more 
often result from obtuseness than from original sin. . . . 
He listened with a good deal of respectful surprise to 
Judge Curtis* exposition of the fallacy of his deduc- 
tions. . • • 

"Of Judge Campbell of Alabama, there is nothing to 
be said, except that on the subject in question he is 
more fanatical than the fanatics, more Southern than 
the extreme South from which he comes. A judicial 
. . . decision from him, where slavery is concerned, 
is of no more value than the cawing of a raven. He is a 
middle-aged, middle-sized man, bald, and possessed of 
middling talents. 

"Grier of Pennsylvania followed his instincts and not 
his convictions, if a man may be said to have convic- 
tions who has not moral stamina enough to distinctly 
avow his real opinions. Grier is a man somewhat mis- 
understood. He is not what we fancy he is generally 
considered to be, a perverse, iron-sided, hard-shelled, 



THE DEED SCOTT CASE 41 

soulless, pro-slavery, old curmudgeon. If anyone en- 
tertains this uncharitable opinion of Grier, we must beg 
to undeceive him. He is no such man. In the first 
place, the Judge is a blonde, of rotund figure. This 
alone intimates a denial of the character suggested, and 
the Judge's real characteristics closely conform to his 
external, physiological delineations. He is of a soft and 
rosy nature. He is facile and easy of suggestion. He 
succumbs under touch, and returns into shape on its re- 
moval. He is ardent and impressible. He is fickle and 
uncertain. . . . He is impulsive and precipitate. Let 
Grier associate with none but honest men, and be placed 
in no difficult or constraining circumstances, and he 
would not disgrace himself or his position. We concede 
to Mr. Grier another merit. If he belonged to a Black 
Republican Court, he would side with the majority. 

"... Of Nelson, it is needless to say more than that 
he is a New York Democrat of the perishing school. 
He hesitated to go with the Southern Judges in their 
revolutionary opinions, yet he had not sufficient virtue 
to boldly stand up against their heresies. 

"... Of Taney's opinion, it will be found to ex- 
hibit all the characteristics that have marked his career. 
It is subtle, ingenious, sophistical and false. It is the 
plea of a tricky lawyer and not the decree of an upright 
Judge. It is a singular, but not wonderful fact in 
nature, that the body to some extent intimates the 
character of the soul that inhabits it. This is the case 
with Judge Taney. He walks with inverted and hesitat- 
ing steps. His forehead is contracted, his eye sunken 
and his visage has a sinister expression.'' 

Such ridicule and abuse, published and republished 
and quoted by other newspapers throughout the North- 
em States, could not fail to weaken the Court's status 
with the people. 



CHAPTER TWENTY-SEVEN 

THE BOOTH CASE, AND CONGRESSIONAL ATTACKS 

1858-1860 

Shortly after the delivery of the Dred Scott deci- 
sion and the adjournment of the Court on March 7, 
1857, Judge Curtis determined to resign. While reach- 
ing this conclusion primarily because of the inade- 
quacy of the salary, he was also influenced by his be- 
lief, regretfully held, that he could no longer expect 
to see the Cotu*t act on constitutional questions, with 
freedom from political considerations.^ When this 

1 CuHis, I, U5, letter from G. T. Curtis, July 3, 1857. Contiderable friction had 
arisen between the members of the Court, over the fact that Judges Curtis and 
McLean had filed with the Clerk, on March 9, their full opinions, which had been 
printed and widely circulated throughout the North, before Taney had filed the 
opioion of the Coiu't, and before the other Judges had filed their separate opin- 
ions. An acrimonious correspondence on the subject ensued between Taney and 
Curtis; see Curtu, I, 211-230; on April 2, 1857, the National Intelligencer re- 
printed a letter from the Washington correspondent of the New York Journal of 
Commerce, dated March 28 : "I called at the Clerk's office of the Supreme Court 
just now and ascertained that there is no mode of procuring official copies or any 
copies of the opinions of the Court in the Dred Scott case, until the Reporter of the 
Coiu't, Mr. Howard, shall have them printed in his series of reports. The volume 
which is to contain them is nearly ready, and is only delayed until he can obtain 
the revised copies of the opinion. The opinion of the Court, as read by the Chief 
Justice, is not yet on file ; but he expected to be ready to file it today. There will 
be no delay, or very little, about the others. The opinions of Justices McLean and 
Curtis were filed on the 9th. . . . These have been published at the North. 
The abstracts published of Chief Justice Taney*s and Justice Nelson's opinions 
were taken in shorthand, and of course are imperfect." From an interesting, 
confidential letter written by a friend, James E. Harvey, to Judge McLean, April 
3, it appears that various Judges modified the form of th^ opinions after their 
oral delivery. Harvey wrote: "There are strong surmises about the manipu- 
lations to which the majority opinions have been subjected. As the Appletons 
wrote to me to get them all for publication, I took some pains to inform myself 
about their status — if you allow that word, when not applied to slavery. Last 
week, they had not been filed and were inaccessible. Taney's had been twice 
copied for revision, and an application from the Intelligencer to publish was refused, 
owing to non-completion. That dause in Catron's, rebuking ihe discussion of the 



BOOTH CASE, CONGRESSIONAL ATTACK 48 

resignation was presented on September 1, 1857, the 
news was received by the Bar of the North with the 
deepest regret.^ Ex-President Fillmore wrote to him 
that his appointment was one **to which I and my 
friends could always point with proud satisfaction", 
and that he regarded the resignation as **a calamity" 
which he feared would "not only impair the confi- 
dence of all good and intelligent men in the stability 
of our institutions, but that the appointment of a 
successor may be most unfortunate. . . . You may 
know who will probably be selected, but I confess, I 
fear the worst." All of Curtis* Associates on the Bench 
(with the exception of Judge Daniel) sent letters of 
deep regret, though that of the Chief Justice was some- 
what perfunctory. Judge McLean wrote despond- 
ingly that the loss was irreparable, and that while, in 
1830 when he took his seat, the ** Court commanded 
the respect and veneration of the country, it can never 
hope to regain so elevated a position in the future", 
and that he had "lost the interest and pride I once 
felt in the tribunal." Some old-line Whigs felt that 
Curtis should have sacrificed his personal feeling and 
remained on the Bench, rather than create a vacancy 
at this time. "How could so wise a man as our friend 
B. R. Curtis do so deplorable a thing as to resign • . . 
at this untimely moment?" wrote Robert C. Winthrop 
of Massachusetts, the former Speaker of the House 
of Representatives. "I may over-estimate the impor- 

merits of the caae after the denial of jurisdiction, has been expurgated. But a 
sin^e copy was printed for his own use. CampbeU*s has been printed privately, 
but not for circulation. He forbade the printer from showing it to anybody." 
John McLean Papers MS8. The opinions were not officially published until the 
end of May, the National Intelligencer printing them first, on May 29. 

> Curtis* opinion entirely revolutionized the former adverse views held regarding 
him by the anti-slavery men. An interesting example of their attitude is seen in 
a letter from Henry L. Higginson, in May, 1857 : " Judge Taney's decision is in- 
famous to the last degree. Ben Curtis for once has been honest.** Life and Letters 
of Henry Lee Higgineon (1921), by Bliss Perry, 110. 



44 THE SUPREME COURT 

tance of his course, and I certainly esteem and respect 
him, but I have never known a resignation which has 
so much the air of desertion. Buchanan will have a 
chance to make the Court still less acceptable to this 
part of the coimtry/' ^ 

The intensity of bitterness aroused against the Court 
in the North was well illustrated by the savage, unjust 
and untrue attacks which were made upon the man 
whom Buchanan now chose to fill the vacancy caused 
by the resignation of Judge Curtis. The President 
had at first been inclined to appoint Isaac Toucey of 
Connecticut, formerly United States Attorney-Gen- 
eral; he had also even considered going outside the 
Circuit and appointing a Southerner, William L. Yan- 
cey of Alabama. Rufus Choate of Massachusetts 
had strong supporters ; John J. Gilchrist of New Hamp- 
shire, who had formerly been Chief Justice of that 
State and was now Chief Justice of the new United 
States Court of Claims, was recommended by Choate 
himself, and by Reverdy Johnson and Charles 0*Conor.^ 
Buchanan finally determined on Nathan Clifford of 
Maine, and submitted his name to the Senate on De- 
cember 9, 1857. Clifford was fifty-four years of age, 
and had served as Attorney-General, both of his State, 
and of the United States (imder Polk). As his later 
career showed, he was amply qualified as a lawyer of 
great learning and powers of research. The moment, 
however, the nomination reached the Senate, it was 
subjected to the most venomous criticism by the radi- 
cal anti-slavery men, particularly by John P. Hale, 

> Memoir of Robert C. Winthrop (1897), by Robert C. Winthrop, Jr. 

* See letter of Howell Cobb to Alexander H. Stephens, Sept. 22, 1857, Amer. Hist. 
Ab9, Rep. (1911), I, 422; letters of J. J. Gilchrist to Pierce, Sept. 16, 1857, Gush- 
ing to Pierce, Oct. 2, 1857, Franklin Pierce Papers MSS; Richard K. Grails wrote 
to R. M. T. Hunter, Oct. 24, 1857, that "I suppose the rumored transfer of Yan- 
cey to the Supreme Gourt Bench is to deprive you of all Gabinet connections.** 
Correspondence qf R. M. T, Hunter, Amer. Hist. Ass. Rep. (1916), II. 



BOOTH CASE, CONGRESSIONAL ATTACK 45 

Senator from New Hampshire. The New York Trtb- 
une^s Washington correspondent wrote that: "The 
President has determined to break down all exclusive 
privileges and monopolies, as anti-Democratic; and 
therefore, as New England has had Story and Curtis, 
upon which they have grown rather presumptuous, 
he has 'determined to bring them down to the level of 
the other Circuits and appoint CliflFord. However, 
Cliflford will be confirmed under party drill, although 
it is well known that the entire Bar of New England 
has protested against it as an outrage. Thus the pro- 
cess of deterioration goes on, and the Supreme Coiu-t 
is gradually becoming a mere party machine, to do 
the bidding of the dominant faction and to supply 
places to reward party hacks.*' * This statement that 
the entire Bar of New England had protested had no 
foimdation ; but it is true that there was considerable 
opposition, based largely on personal grounds. On 
January 12, 1858, nevertheless, the Senate confirmed 
the appointment by the close vote of twenty-six to 
twenty-three.* "Mr. CliflFord owes this appointment 
exclusively to his party associations, unsupported by 
the wishes or recommendation of the Bar of his Cir- 
cuit. His sympathies coincide entirely with those 
which the Court have manifested, and bring the 
strength of his vote to the sectional action of the Court, 
without any independence or great legal ability," said 
the New York Evening Post. "There is perhaps some 
satisfaction in the belief, which this appointment 
strengthens, that the weakness and evident character 

1 See New York Tribune, Dec. 18, 99, 1857, Jan. IS, 14, 16. 1858. 

* The New York Evening Post, Jan. 14, 15, 1858, aaid that the defeat of Clifford's 
nomination had been thought certain, but that by reason of the absence of two 
of his opponents. Senators Charles Sumner and Simon Cameron, and the change 
of mind of Senator Allen of Rhode Island, he was confirmed. "The result is suf- 
ficiently to be regretted, but the negligence through which it was achieyed is de- 
plorable, and occasions great mortification^ not unmixed with vexation." 



46 THE SUPREME COURT 

of the Court, together with the inequality of its com- 
position, will produce an entire remodelling of it;" 
and the New York Tribune also continued its attack : 
"On the principle which seems to have governed the 
selection of Mr. Cliflford, that the proper business of 
the Northern minority on the Bench is merely to fall 
in with and say yes to any extravagances which the 
Southern majority may choose to promulgate, Mr. 
CliflFord is admirably fitted for the place in which he 
has been put. We may be quite sure that he will 
never be driven, by his knowledge of the law and his- 
tory or his logical perception of things, into playing 
the marplot, as Judge Curtis did in the Dred Scott Casey 
tumbling down the decision of the Court about its 
ears, and exposing that grave tribimal to popular deri- 
sion and even contempt.*' To these partisan diatribes, 
Judge Cliflford's distinguished judicial service of twenty- 
three years, until his death in 1881, afforded a complete 
refutal. 

When the Court met for its December Term at the 
end of the year 1857, the newly elected Congress was 
being confronted with the slavery question in its most 
inflamed condition. The wrongs of ** bleeding Kan- 
sas", the question of the admission of that Territory 
as a State, the question of the legality of its two Con- 
stitutions — one framed by slavery men at Lecomp- 
ton, the other by anti-slavery men at Topeka — were 
all the subject of long and violent debates, which lasted 
through the sessions of 1858, 1859 and 1860. In addi- 
tion, in 1859, the John Brown-Harper's Ferry episode 
elicited passionate speeches on this imescapable 
question. In all these debates, covering hundreds of 
pages of the Congressional Globes the opinions of the 
Court in the Dred Scott Case^ and the action of Chief 
Justice Taney and the other Judges formed a con- 



BOOTH CASE, CONGRESSIONAL ATTACK 47 

slant staple for assault and defense. Interminable 
discussions arose, also, as to the legal points involved 
in the case, and as to the applicability of the decision to 
the point at issue in Kansas — the right of a Terri- 
tory to legislate on the subject of slavery. Few of 
these details are of interest now, but in the three years 
prior to the Civil War they formed the chief, almost 
the only, subject of concern in Congress ; and the debates, 
centering as they did around the Court, had a most 
demoralizing effect upon the attitude of the general 
public towards the Judiciary. Illustrative of the general 
Republican attitude in the Senate were the speeches of 
Hale of New Hampshire, Trumbull of Illinois, Fessenden 
of Maine, Doolittle of Wisconsin, CoUamer of Ver- 
mont, Seward of New York, Hamlin of Maine, and 
Wade of Ohio.^ A few of their sentiments were 
as follows. Hale said that he had practically lost 
all respect for the Court since they had "come 
down from their place and thrown themselves into 
the political arena", and "when the excitement has 
passed away, the record of this decision will stand, not 
a monument to the wisdom or to the integrity of the 
Court, but it will stand as one of those imfortunate 
decisions which Courts have frequently made, when 
they have undertaken to mold eternal principles of 
justice and law to suit the purposes of power. ... I 
denounce that opinion on every occasion. I invoke 
the public indignation upon it.*' Trumbull said that, 
by trying by dicta to settle points not before it, the 

^ S5ih Cong,, lit Sets, and App,, speeches in 1858, of Hale, Jan. 18, 20, Trum- 
bull, Feb. 2, March 17, Fessenden, Feb. 8, Collamer, March 2, Wade, March IS, 
Hamlin, March 9, Seward, March 3; in 1859, of Hale, Feb. 23, Pugh, Jan. 3, Feb. 
23, Chandler, Feb. 17; in 1860, of Doolittle, Jan. 3; see also in the House in 1858, 
speeches of Washburn, Jan. 7, Giddings, Jan. 18, Foster, March 10, Abbott^ March 
28, Olin, March 29, Tappan, March 31, Walton, March 31, Bliss, May 6; in 1859, 
speeches of Davies, Feb. 11, Bingham, Feb. 11, Granger, Feb. 17, Brown, Feb. 17; 
in 1860, speeches of Foster, Jan. 12, Gooch, May 3, Washburn, May 19. 



48 THE SUPREME COURT 

Court "was a set of usurpers/' Fessenden cited with 
approval a recent case in the Supreme Court of Geor- 
gia/ in which that Court had stated that it was not 
bound by decisions of the United States Supreme Court, 
especially partisan opinions — a doctrine which, be 
it noted, the Northern Whigs of former days had 
vigorously denounced. The most violent assaults, 
however, were made by Seward, Hamlin and Wade. 
Seward, in an elaborate and picturesque but venomous 
speech, made the direct charge that the Dred Scott 
Case was a dummy suit, manufactiu*ed by Buchanan 
and the slavery interests for their own purposes, that 
the argument was a "'mock debate", that Buchanan 
and the Chief Justice had acted in collusion to cheat 
the coimtry, and that the decision was the result of a 
political bargain between the Court and the President, 
who "alike forgot that judicial usurpation is more 
odious and intolerable, than any other among the 
manifold practices of tyranny." 

It is evident that not one of these slanderous 
assertions was true; they were made, as Senator 
Judah P. Benjamin said in his eloquent reply, "without 
proof of a solitary fact, without the assertion even of 
a fact, on which to base the foul charge. "* And the 
actual history of the case, its date of origin, the par- 



^ Paddford ▼. Savannah (1854,) 14 Gft. 488. 

* Tyler, in his M&moir of Roger Brooke Taney (1872), 880-390, diaciused at length 
Seward's attack and said : "This bungling sketch of an historical scene, by unskil- 
ful literary ambition is an unmitigated calumny from beginning to end" ; and he 
published letters to him from Judge Campbell, Judge Nelson and Reverdy John- 
son to disprove Seward's statements. 

For Seward's charge, see S6th Cong., let Seee., 043. Prof. John W. Burgess in 
The Middle Period (1807), 457, said : " It is almost certain that the charge was an 
unfounded suspicion. The prevalenoe of the suspicion was, however, an ominous 
sign of the danger impending over the land. . . . Both Mr. Buchanan and Mr. 
Taney were men of the highest personal and official integrity and possessed the 
most delicate sense of the requirements and proprieties of the great stations which 
they occupied." 



BOOTH CASE, CONGRESSIONAL ATTACK 49 

ties concerned in appealing it, and the manner in which 
the Judges arrived at the final disposition conclusively 
disprove Seward's statements. Nevertheless, simi- 
lar charges were made by Hamlin, in a slashing speech 
in which he said that the slavery interests had secured 
control of the Legislative, the Executive and the Judi- 
ciary, and that the foreshadowing of the decision in 
the Dred Scott Case by Buchanan in his Inaugural Ad- 
dress was evidence of "political collusion and com- 
plicity" with the Court, whose "object was to rob the 
people and the States of the rights that belong to 
them/' Wade also assailed the "late nefarious deci- 
sion." ** I wish I could entertain a good opinion of the 
Judges of that Court," he said. "I wish I could be- 
lieve they were patriotic, unswerved by political con- 
siderations, or uninfluenced by anything but their 
duty. ... I fear that the Court, swayed by political 
reasons, forgot the rights of Dred Scott, and plunged 
into this political whirlpool in order to control its cur- 
rents." Like so many of their Republican associates 
at this time, both Wade and Hamlin entirely discarded 
the doctrines of John Marshall, and embraced with 
ardor the views of Jeflferson relating to the functions 
of the Court. "I deny the doctrine that Judges have 
any right to decide the law of the land for every de- 
partment of this Government," protested Wade. 
"You would have the most concentrated, irrespon- 
sible despotism on God's earth, if you give such an in- 
terpretation to the decisions of that or any other Court." 
"This is a purely political question, in regard to which 
Thomas Jefferson so early and so ably warned us 
against judicial interference," said Hamlin. "They 
had no more authority to decide a political question 
for us than we had to decide a judicial question for 
them." 



60 THE SUPREME COURT 

Nor were the Republican speeches entirely con- 
fined to invective. Many Senators openly proclaimed 
the intention of their party to strive for a complete 
reformation or reorganization of the Court. Though 
the early accomplishment of this event did not seem, 
in 1858, very probable, since it would require the con- 
trol of Congress and the Presidency by the Republi- 
can Party, nevertheless, Seward proclaimed with great 
earnestness: "Whether the Court recedes or not, we 
shall reorganize the Court, and thus reform its poUti- 
cal sentiments ana practices, and bring them into 
harmony with the Constitution and the laws of nature. 
In doing so, we shall not only reassume our own just 
authority, but we shall restore that high tribunal it- 
self to the position it ought to maintain, since so many 
invaluable rights of citizens, and even of States them- 
selves, depend upon its impartiality and its wisdom." 
And Zachariah Chandler of Michigan, stating that the 
present organization of the Court was "monstrous", 
since three fourths of the business was in the North 
with four Judges, and one quarter in the South with 
five Judges, said that the Republican Party meant 
"to annul the Dred Scott decision, the stump speech 
of Taney, the mere fanfaronade which is not a deci- 
sion at all", by an entire reorganization of the Court. 
To these Republican extravagances of utterance, James 
F. Sinmions of Rhode Island made a sane reply, say- 
ing : "I do not think there needs to be any reconstruc- 
tion of the Court. . . • These decisions are not like the 
laws of the Medes and Persians. The decision of this 
Court in the Dartmouth College Case was thought to 
settle a principle, which induced our banks to refuse 
to pay the tax imposed upon them by the State, and 
the prevailing opinion at the Bar in Rhode Island was 
that the banks would be sustained by the Court. The 



BOOTH CASE, CONGRESSIONAL ATTACK 51 

State brought the question here, and the Court decided 
in favor of the power of the State to tax corpora- 
tions. . • • No such decision of this Court will stand, 
unless it has sound reason and sound law to rest upon. 
This question was decided when the public mind was 
in a feverish state, and the Court may have unwittingly 
been affected by the excitement. . . . We must wait 
until it subsides, and trust that then the errors it has 
occasioned will be corrected." ^ 

On the Democratic side, lengthy and heated argu- 
ments were delivered in defense of the Court by Jef- 
ferson Davis of Mississippi, Stephen A. Douglas of 
Illinois, James A. Stewart of Maryland, Joseph Lane 
of Oregon and Judah P. Benjamin of Louisiana : and 
the latter made a full, eloquent and powerful answer 
to Seward's charges of corrupt bargaining between the 
President and the Court. George E. Pugh of Ohio, 
while not agreeing with the decision, stated that when- 
ever the Court has decided the question as to the limits 
of territorial authority over slavery, "whatever may 
be my opinion as an individual, both as a Senator and 
a citizen, the judgment of the Court must be carried 
into effect. We cannot live an hour under any other 
doctrine. It is more important to the community, 
more important to the cause of good government, that 
a judgment, once pronounced by the appropriate tri- 
bunal, should go into effect, than that it should be 
decided rightly — far more.'* * 

No discussion of the Dred Scott Case^ either in Con- 
gress or elsewhere, had so potent an influence with the 
people as that which took place during the famous 

^ Speeches of Seward, March 8, 1858; Chandler, Feb. 17, 1859; Simmona, March 
80, 1858. 

' See especially speeches in 1858, of Davis, Feb. 8, Douglas, Feb. 8, 21, Stewart, 
March 24, Benjamin, Maich 11; in 1859, of Douglas, Feb. 28, Pugh, Dec. 19, 
in 1860, of Douglas, Jan. 12, Pu^ Jan. 12, Lane, Feb. 15 ; see also speeches in 
the House of Cos, Dec. 8, 1859, Noell, Dec. 12, 1859, Jan. 20, 1860. 



fi2 THE SUPREME COURT 

series of joint debates between Abraham Lincoln and 
Stephen A. Douglas, in their Senatorial campaign in 
Illinois in the summer of 1858. Two years before, 
Lincoln had publicly expressed himself as willing to 
leave to the Supreme Court, the constitutionality of 
the Acts of Congress dealing with slavery in the Ter- 
ritories, and to submit to its decision.^ In 1858, how- 
ever, he stated that he declined to abide by the deci- 
sion when rendered; and his views had a powerful 
eflFect upon the country. It is important, nevertheless, 
to note that Lincoln's position has, in later days, been 
greatly misrepresented by opponents of the Court, 
who cite him as authority for denying the Court's 
right to pass upon an Act of Congress. Such a doc- 
trine was never asserted by him, and his attitude was 
summed up at Springfield, June 26, as follows: ^'Ju- 
dicial decisions have two uses : first, to absolutely de- 
termine the case decided, and secondly, to indicate 
to the public how other similar cases will be decided 
when they arise. For the latter use, they are called 
* precedents' and * authorities.' We believe as much as 
Judge Douglas (perhaps more) in obedience to, and 
respect for, the judicial department of government. 
We think its decisions on constitutional questions, when 
fully settled, should control not only the particular 
cases decided, but the general policy of the country, 
subject to be disturbed only by Amendments of the 
Constitution, as provided in that instrument itself. 
More than this would be revolution. But we think 

^ See Lincoln's speech at Galena, lU., Aug. 1. 1856, when he said : *'I grant you 
that an unconstitutioDal act is not law ; but I do not ask and will not take your 
construction of the Constitution. The Supreme Court of the United States is the 
tribunal to decide such a question, and we will submit to its decisions ; and if you do 
also, there wiU be an end of the matter. Will you ? If not, who are the disunion- 
ists, — you, or we ? " Work* qf Abraham Lincoln (Federal Ed., 1905). II ; see ibid.. 
Ill, Lincoln's speeches at Springfield, 111., June 17, 1858» and at Chicago, July 10, 
1858. 



BOOTH CASE, CONGRESSIONAL ATTACK 53 

the Dred Scott decision is erroneous. We know the 
Court that made it has often overruled its own deci- 
sions, and we shall do what we can to have it over- 
rule this. We offer no resistance to it." This was 
precisely the language which would be appropriately 
used by a lawyer and a statesman who held the Courts 
and orderly legal procedure in due respect; but it in 
no way justified any attempt to disregard or disobey 
the decision of the Court. And again in his Inaugural 
Address in 1861, Lincoln pointed out that while a Court 
decision on a constitutional question did not control 
the political policy which the country would pursue, 
nevertheless, it must be held binding upon parties in 
any suit involving such questions. ""I do not forget 
the position, assumed by some, that constitutional 
questions are to be decided by the Supreme Court," 
he said, *'nor do I deny that such decisions must be 
binding in any case, upon the parties to a suit, as to the 
object of that suit, while they are also entitled to very 
high respect and consideration in all parallel cases by 
all other departments of the Government. And while 
it is obviously possible that such decision may be er- 
roneous in any given case, still the evil effect follow- 
ing it, being limited to that particular case, with the 
chance that it may be overruled and never become a 
precedent for other cases, can better be borne than 
could the evils of a different practice. At the same 
time, the candid citizen must confess that if the policy 
of the Government, upon vital questions affecting the 
whole people, is to be irrevocably fixed by decisions of 
the Supreme Court, the instant they are made in or- 
dinary litigation between parties in personal actions, 
the people will have ceased to be their own rulers, hav- 
ing to that extent practically resigned their Govern- 
ment into the hands of that eminent tribunal. Nor 



54 THE SUPREME COURT 

is there in this view any assault upon the Court or the 
Judges. It is a duty from which they may not shrink 
to decide cases properly brought before them, and it is 
no fault of theirs if others seek to turn their decisions 
to political purposes.** 

While the Republican press and Republican leaders 
in Congress were thus continuing to arouse the senti- 
ment of the country against the Court, the Supreme 
Court of Wisconsin had put itself in a position of open 
rebellion towards it. As has been already described, 
after the conviction of Booth in the United States 
District Court the Wisconsin Supreme Court ordered 
his release on habeas corpus, on the groimd that the 
Fugitive Slave Law under which he had been convicted 
was unconstitutional.* A writ of error had been is- 
sued by the United States Supreme Court on motion 
of Attorney-General Caleb Cushing, returnable in 
December, 1855 ; but though this writ was duly served 
on its Clerk, the State Supreme Court directed him to 
make no return and to enter no order concerning the 
same on his journals or records. The Clerk, however, 
had already given a certified copy of the record to the 
United States District Attorney in March, 1855, be- 
fore receiving any direction from the State Court. Ac- 
cordingly, Attorney-General Cushing moved in the 
United States Supreme Court in May, 1856, to be 
allowed to file this copy. Before granting the motion 

^ One reason for the readiness of the State Courts to issue writs of habeas corpus 
for prisoners convicted in the inferior Federal Courts was the absence of any right 
of appeal to the Supreme Court of the United States for any person so convicted. 
At that period, no Federal statute provided any appeal in a criminal case. Re- 
peated attempts to enact such a law failed in Congress. In August* and again 
in December, 1855, Senator Pugh, of Ohio, introduced a bill for writs of error in 
all such cases prosecuted by indictment in the Federal Courts, but Congress took 
no action. In January, 1859, a bill having been reported by the Committee on the 
Judiciary, a motion by Senator Bayard of Delaware to take it up was defeated. 
35ih Cong^ 2d 8eu,, Jan. 18, 1859. In February, 1860, Pugh again introduced the 
bilL Seth Cong,, lit 8e39„Veh,l^lSeO. 



BOOTH CASE, CONGRESSIONAL ATTACK 55 

the Court decided to issue a special order to the State 
Court Clerk to make return, but the latter still re- 
fusing to comply, and there being thus a complete 
deadlock, the Court, on March 6, 1857 (the very day 
of its opinion in the Dred Scott Case), allowed the mo- 
tion of the Attorney-General to file copy of the record, 
** to have the same effect and legal operation, as if filed 
by the Clerk with the writ of error." The case was 
not reached for final argument, until January 19, 1859. 
Meanwhile, however, a renewed effort was made in 
the abolitionist press and in Congress to weaken the 
authority of the Coiu-t, by a move to repeal the Twenty- 
Fifth Section of the Judiciary Act and to abolish the 
Court's jurisdiction on writs of error to State Courts ; 
and bills for this purpose (originating in Ohio) were in- 
troduced in both the Senate and the House, in the 
spring of 1858.^ While these measures failed of en- 
actment by Congress, their introduction now by North- 
ern statesmen marked a radical reversal in attitude 
towards the Court ; for when similar repeals had been 
advocated in the past, in 1825-1826 and 1830-1833, 
their supporters were found almost entirely in the ranks 
of the Southern Democrats. "Twenty years ago. South 
Carolina denied the paramount authority of the Su- 
preme Court of the United States and flew to arms 
to resist it," said the New York Times, "while Mas- 

^SSth Cong,, IH 8es9.; see bill introduced by Senator George E. Pugii of Ohia 
April 80, 1858, reported adversely by the Committee of the Judiciary, May 24, 
Dec. 16, 1858 ; Philemon Bliss of Ohio introduced a similar bill in the House. The 
only other Congressional attacks upon the constitution of the Court, which had 
taken place, in the twenty-seven years since the serious attack in 1831, were as 
follows: Senator Benjamin Tappan of Ohio had three times (1840, 1842, 1844) 
introduced a bill proposing a Constitutional Amendment to limit the term of office 
of Judges of the Supreme Court and of inferior Federal Courts ; and in 1843, though 
defeated by a vote of eleven to twenty-four, sudi prominent Senators as James Bu- 
chanan, Thomas H. Benton and Levi Woodbury had voted for it ; a similar bill had 
been introduced, in 1847, by Senator Sidney Breese of Illinois ; see S&h Cong,, 2d 
8$$s„ July 8, 0, Dec. 15, 1840; erth Cong., 3d 8es9„ Dec. 12, 1842, Jan. 16, 1843; 
28th Cong., lit Sets., Feb. 20, 1844 ; 29th Cong., 2d 5ms., Feb. 17, 1847. 



56 THE SUPREME COURT 

sachusetts took the lead in asserting the absolute, un- 
qualified duty of every citizen and every State to 
yield implicit obedience to its decisions upon all ques- 
tions of constitutional law. Today, the position of 
these two States and of the sections which they repre- 
sent is likely to be reversed, . • . and this change of 
position illustrates the fact, to which it is due, that 
interest and not reason rules over and regulates the 
action of States, as well as of individuals." ^ History 
had made plain that the North and South were equally 
willing to resort to an attack upon the jurisdiction of 
the Court, and that theories or principles of State- 
Rights or National Supremacy were adopted, or dis- 
carded, by the one or the other, according to the par- 
ticular interests which were likely to be involved in 
the instant case. The change was well illustrated by 
a savage editorial in the New York Tribune at this 
time, in 1858, which said that it repudiated utterly 
**the abominable notion that a handful of political 
subalterns of the Federal Executive, his creatures and 
tools, appointed on partisan grounds and for political 
reasons, are to be permitted to sit in judgment on the 
political rights of great States, where those rights come 
in conflict with the exercise of that same Federal au- 
thority. If the Supreme Court behaves well enough 
to warrant a general confidence in it as a safe deposi- 
tory of private rights, so be it. But a safe depository 
of the political rights of the States, it never can be. . . . 
We rejoice in the hope that the doctrine of State 
Rights is at last to be reared above the mists of Vir- 
ginia abstractionism and planted upon clear, solid 
ground. The theories of ancient Federalism in re- 
gard to the rights and powers of the States, though the 
offspring of wise heads and honest hearts, must give 

1 N9W York rtiMi, Much 9, 1857; Nno York THbtm^ Feb. 18, 1858. 



BOOTH CASE, CONGRESSIONAL ATTACK 57 

way before the advancing footsteps of a radical and 
clear-sighted democratic sentiment." And the bitter- 
ness of feeling towards the Court was expressed in the 
speech of Philemon Bliss, an ardent abolitionist Re- 
publican Congressman from Ohio : ^ 

The spectacle of a gowned conclave, gravely setting aside 
statutes and Constitutions of States; enforcing powers 
not granted in the compact, and against the express reserva- 
tions of the States; with eager zeal reversing the whole 
current of authority and law, to make universal a local and 
exceptional despotism; prompting its ministers to may- 
hem and murder, sure of their iUegal shield, never darkened 
our fathers' vision. Had a tithe of what we stupidly suffer 
been anticipated by them, the Federation would have been 
an impossibility; at least the Court would have been but 
a Hamilton's dream of a life Executive and Senate. . . . 
There never was a more serious mistake. ... In read- 
ing over the 25th Section of the Judiciary Act of 1789, I 
have often wondered at the tameness of the States, thus 
at once made vassals. . . . When from yon mysterious 
vault, the enrobed nine send forth their tomes, befogging 
by their diffuseness, even when announcing the plainest 
principles . • • when essaying some new constitutional 
construction, as they call their attacks upon the rights of 
the States and their citizens, we are taught to bow without ^ 
question, as the faithful to the decrees of the Grand Lama./ 

And Bliss further said, in advocating, not only the 
repeal of the Twenty-Fifth Section of the Judiciary 
Act, but also the repeal of Section seven of the Act of 
March 2, 1833, a bill which had been passed at the in- 
stance of President Jackson to aid in the suppression 
of the Nullification movement in South Carolina and 
which authorized Federal Courts to grant writs of ha- 
beas corpus where a prisoner was confined for acts 

^S6th Cong,, 2d Se$9„ App., 72, Feb. 7, 1809. Blias later became a Federal 
Judge, himself ; he was appointed Chief Justice of Dakota by President Lincoln 
in 1861, and served on the Supreme Court of Missouri from 1868 to 1873; he be- 
came Dean of the Law Department of the State University of Missouri in 1873. 



68 THE SUPREME COURT 

done or omitted in pursuance of the laws of the United 
States : "It is a clear usurpation of Federal authority. 
The States have a right to execute their criminal laws. 
. . . The people are becoming roused to the true 
nature and alarming encroachments of the Federation. 
They look upon the Judiciary as the right arm of these 
encroachments. They will never yield their liberty ; 
and if these things continue without remedy, the Fed- 
eral Courts must fall. I would save them by timely 
remedy." When there was thus presented in Con- 
gress the curious spectacle of a Northern Republican 
advocating the repeal of a measure enacted for the 
destruction of Nullification and the preservation of 
the Union, it is no wonder that conservative leading 
newspapers of the North should have earnestly depre- 
cated speeches of such a nature and should have 
termed the attempt to impair the Federal Judiciary 
— "the great bulwark of our safety" — as a "revolu- 
tionary step towards subverting the great principles 
of our Government."^ 

It was in this atmosphere of distrust and antagonism 
throughout the North, that on January 19, 1859, the 
Court listened to the argument of the Booth Cases by 
the Attorney-General of the United States, Jeremiah 
S. Black, no counsel appearing for the State of Wis- 
consin.^ On March 7, almost exactly two years from 
the date of the Dred Scott decision, the judgment of 
the Court was pronounced by Chief Justice Taney in 
the most powerful ' of all his notable opinions. Un- 
deterred by the opposition to its jurisdiction, or by 
the effect which its decision might have upon the slavery 

^ National IrUelligeneer, Dec. 10, 1858, quoting the New York Journal of Commerce. 

* AhUman v. Booth, Untied States v. Booth, 21 How. 506. The case of Ableman 
V. Booth on which the Wisconsin Supreme Court had made a return to the writ of 
error had been docketed in the Supreme Court of the United States in due form in 
1855, but had been postponed for argument to await the filing of the other case. 
In re Booth, on which the State Court had refused to make return to the writ of error. 



BOOTH CASE, CONGRESSIONAL ATTACK 59 

issue, the Court remained adamant in upholding the 
National Government against all efforts at interfer- 
ence with its lawful functions. The rights asserted 
by the State Court to annul the proceedings of the 
United States Commissioner, said Taney, and to annul 
the judgment of a United States District Court, and 
also to determine that their decision is final and con- 
clusive upon the United States Courts so as to authorize 
a Clerk to disregard and refuse obedience to a writ 
of error issued pursuant to the Federal Judiciary Act, 
were "new in the jurisprudence of the United States 
as well as of the States, and the supremacy of the State 
Courts over the Courts of the United States, in cases 
arising under the Constitution and laws of the United 
States, is now for the first time asserted and acted upon in 
the Supreme Court of a State." The Chief Justice then 
continued with a most vigorous exposition of the suprem- 
acy of the Federal jurisdiction in cases contemplated 
by the Judiciary Act and by the Constitution. The 
judgment of the State Court, he said, "would subvert 
the very foundations of this Government. . . . No 
one will suppose that a Government which has now 
lasted nearly seventy years, enforcing its laws by its 
own tribunals, and preserving the Union of the States, 
could have lasted a single year, or fulfilled the high 
trusts committed to it, if offenses against its laws could 
not have been punished without the consent of the 
State in which the culprit was found." Unless the 
National Government was supreme in its own sphere, 
it was evident that it would be "inadequate to the 
main objects for which the Government was estab- 
lished ; and that local interests, local passions or preju- 
dices, incited and fostered by individuals for sinister 
purposes, would lead to acts of aggression and injus- 
tice by one State upon the rights of another, which 



60 THE SUPREME COURT 

would ultimately terminate in violence and force, un- 
less there was a common arbiter between them, armed 
with power enough to protect and guard the rights of 
all, by appropriate laws, to be carried into execution 
peacefully by its judicial tribunals/' Supremacy must 
be associated with "permanent judicial authority**; 
and serious controversies might arise between the au- 
thorities of the United States and of the States "which 
must be settled by force of arms, unless some tribunal 
was created to decide between them, finally and with- 
out appeal. The Constitution accordingly provided, 
as far as human foresight could provide, against this 
; danger,'* by conferring upon the Federal Courts the 
I supreme power and jurisdiction. "So long, therefore, 
! as this Constitution shall endure,** said Taney, "this 
j tribunal must exist with it, deciding in the peaceful 
forms of judicial proceedings the angry and irritating 
controversies between sovereignties, which in other 
countries have been determined by the arbitrament 
of force.** And he added: "Nor can it be inconsist- 
ent with the dignity of a sovereign State, to observe 
faithfully, and in the spirit of sincerity and truth, the 
compact into which it voluntarily entered when it 
became a State of this Union. On the contrary, the 
highest honor of sovereignty is untarnished faith.** 
With these ringing words in defense of the National 
supremacy, the Chief Justice concluded the opinion 
of the Court and announced the reversal of the judg- 
ments of the State Courts — an opinion which Mar- 
shall himself never excelled in loftiness of tone. 

"He has lived long and done much for honor and 
fame. But here is the summit. He will never sur- 
pass the wisdom and value of his recent opinion,'* 
was the comment of a Washington newspaper.^ "It 

I The States, March 11, 1859. 



BOOTH CASE, CONGRESSIONAL ATTACK 61 

must put an end, for the future, to all contests between 
the United States and States as to the constitution- 
ality of the Fugitive Slave Law; and all attempts 
hereafter by State Courts to interfere with officers of 
the United States in carrying it out will be regarded as 
revolutionary, and treated as such," said a Democratic 
paper in New York. " We trust that it will be read 
with careful, and in the case of men willing to violate 
the law, with prayerful attention, for the sound law and 
truthful doctrines it teaches," said an Ohio Democratic 
paper, which also stated that the Court had well 
termed Wisconsin's action as "totally illegal and vir- 
tually revolutionary/' ^ A leading Republican paper in 
Philadelphia said that : "The conduct of the Wisconsin 
Court was such as to preclude any other decree. They 
refused to allow the record to be sent up, thus setting 
at defiance the established usage, and exhibiting a pur- 
pose to disregard the authority of the tribunal of last 
resort. This is one of the legitimate consequences of 
the extreme theory of popular sovereignty which will 
go on augmenting its demands, until judicial decrees, 
like party platforms, must be subjected to the revision 
of caucuses, conventions and mobs. Then the reaction 
will begin and we shall run to the other extreme." 
On the other hand, the more extreme Republican 
press denounced the decision as destined to be quite 
as notorious as the Dred Scott Case, and as "forming a 
part of the same system of usurpation, tending to the 
concentration of all power in the Federal Judiciary" ; * 
and the New York Evening Post, after commending and 
indorsing the alleged views of Thomas Jefferson and 

^ See New York Herald, Msich 8, 1859; National InteUigencer, March 20, 1809; 
Cleveland National Democrat, May %, Maich 17. April 25, 1859 ; Philadelphia North 
American, March 10, 1^59. 

*Neto York Tribune, March 6, April 1, 1859; New York Evening Poet, March 
«1. 1859. 



62 THE SUPREME COURT 

of John C. Calhoun, as to the danger of encroachment 
by the Federal Courts on the States, said that : " Noth- 
ing more fatal to the reserved rights of the States, 
nothing more dangerous to the securities of the indi- 
vidual, can well be conceived, than the authority 
claimed for it in the recent decision of Judge Taney. 
. • • The process of the Supreme Court is sui>reme 
and final ; and no State law or decision of a State Court 
which interferes with the execution of the Fugitive 
Slave Act has any constitutional force. Now, so far 
as this decision is intended to give strength to the 
Fugitive Slave Act, it is not of much importance ; for 
that Act is very much of a dead letter upon the statute 
book, the moral sense of the community refusing to 
execute it in the greater number of cases ; but, so far 
as it asserts a principle, it is an alarming assumption 
of power. It places the liberty of the citizen, it seems 
to us, wholly at the disposal of the Federal tribunals, 
and supersedes every protection which he might claim 
from the Courts of his own State. . . . No matter 
whether the Legislature of his State, or the Courts of his 
State, shall have pronounced the law under which he is 
arrested, constitutional or not, he is shorn of all guaran- 
ties of security, and must bow in silence to the mandate 
of the Federal officer. The Fugitive Slave Act itself 
was an enormous stretch of Federal power, and an 
abrogation, so far as it was itself concerned, of the 
right of trial by jury; and now we see it compelling 
another overturn of ancient landmarks, in the virtual 
denial of one of the oldest and most sacred muniments 
of jurisprudence.'* Other Republican papers similarly 
raised the standard of revolt, and expressed the hope 
that Wisconsin would not yield obedience to the Court's 
mandate. 
The Wisconsin Legislature almost at once adopted 



BOOTH CASE, CONGRESSIONAL ATTACK 68 

defiant resolutions declaring the ^* assumption of juris- 
diction by the Federal Judiciary" to be "an act of 
undelegated power, and therefore without authority 
void and of no force," "an arbitrary act of power, un- 
authorized by the Constitution, and virtually supersed- 
ing the benefit of the writ of habeas corpus and pros- 
trating the rights and liberties of the people at the 
foot of unlimited power" and further declaring that 
the principle contended for, that "the Greneral Gov- 
ernment is the exclusive judge of the extent of the 
powers delegated to it, stops nothing short of des- 
potism", and that the several States which formed the 
Constitution, "being sovereign and independent have 
the unquestionable right to judge of its infraction; 
and that a positive defiance of those sovereignties, of 
all unauthorized acts done or attempted to be done 
under color of that instrument, is the rightful remedy. " ^ 
The views thus announced were simply a reiteration 
of the notorious Virginia and Kentucky Resolutions 
of 1798-1799 and of South Carolina's Nullification 
doctrine of 1833; and they were so treated in a stir- 
ring editorial criticism appearing in the National In- 
teUigencer: "So far as this declaration of the Wiscon- 
sin Legislature affirms that the mandate of the Supreme 
Court . • . is *void and of no force*, it was doubt- 
less meant to be nothing more than brutum fulmen, 
as we do not permit ourselves to suppose that the Leg- 
islature seriously purpose to raise any practical issue 
which shall have for its effect to try conclusions with 
the judicial power of the Federal Government, as ex- 
ercised through the only tribunal known to the Con- 
stitution. ... As to the second declaration, which 
under some confusion of diction, purports to deny the 
right of the Supreme Court to act as the final and ex- 

> See especially State DoeumentM on Federal Relatioru (1911), by Herman V. Ames. 



64 THE SUPREME COURT 

elusive judge of the meaning and extent of the powers 
granted by the Constitution, we need not say that it 
is but a rehash of the Resolutions of '98 and '99, which, 
after having served their day in Virginia, are found 
reappearing in other quarters. ... By dint of long 
and hard usage, they have come to be somewhat the 
worse for wear, and therefore furnish but an indiffer- 
ent disguise by which to hide the deformity of Nulli- 
fication." ^ The New York Times regarded the sit- 
uation as serious in its possibilities, ^' since questions 
of jurisdiction between the Supreme Court and State 
tribunals are in their nature among the most danger- 
ous which are likely to arise in the practical working 
of our Government." While it apprehended no ac- 
tual forcible conflict in Wisconsin, yet, it said, "simi- 
lar disputes have heretofore been the most disturb- 
ing forces our political machinery has been subject 
to, and what has already occurred may happen again. 
The remedy must be looked for in mutual forbear- 
ance on the part of the Greneral Government from the 
exercise of odious and doubtful powers, and on that of the 
several States, by acquiescence, where no serious injury 
can result." In spite of conservative advice of this 
nature which prevailed generally outside of abolition- 
ist circles, the Supreme Court of Wisconsin refused to 
comply with the mandate of the Supreme Court of the 
United States. On September 22, 1859 — six months 
after Taney's decision — a motion was made and ar- 
gued by the United States District Attorney to file 
with the State Court Clerk the two mandates from the 
Supreme Court. This motion was not granted, since 
Chief Justice Luther S. Dixon and Judge Orsanus Cole 
differed in opinion, and the third Judge, Byron Paine, 

^ National Inielligeneer, April 1, 1859, editorial "The ReMlutioos of *08 bearing 
Fresh Fruit " ; iV«io York TivM», April 11, 1859. 



BOOTH CASE, CONGRESSIONAL ATTACK 65 

declined to act, having previously been counsel for 
Booth and elected a Judge for that reason.* The Fed- 
eral Courts were not so easily to be prevented from 
asserting and enforcing their authority. Booth was 
again arrested by the United States marshal in March, 
1860, and again sued out a writ of habeas corpus in the 
State Supreme Court. **This case brings the ques- 
tion of State-Rights to an issue," wrote young Carl 
Schurz, who had been retained as counsel. "We shall 
now have the final decision of the great contest between 
the State of Wisconsin and the United States District 
Court. It is really dreadful that that rascal Booth is 
involved in this case, and that the great cause has to 
bear the burden of his sins. But the principles that 
must be maintained are of so lofty a nature that all 
other considerations vanish." * The State Court was 
unable to take any action, as Judge Paine felt himself 
disqualified to sit, and the other two Judges differed 
in their opinion. Only with the opening of the Civil 
War was the deadlock broken.' But as Schurz wrote 
later: "The Republican party went to the very verge 
of Nullification, while the Democratic party . . . be- 
came an ardent defender of the Federal power. . . . 
Thus in the North, as well as in the South, men's sym- 

1 In re Booth, 11 Wise. 498 In Von Bawnbach v. Bade (1859), 9 Wise. 559, a 
case in no wise eonnected with the slavery issue, and involving a State mortgage 
Uw, which the Court unanimously held constitutional, Judge Paine in concurring 
again felt it necessary to set forth his view that the State Court was not bound by 
decisions of the United States Supreme Court. 

* Speeches, Correepondenee and Poliiieal Papers of Carl Schurz (ed. by Frederic 
Bancroft, 1913), II, letter of March 2, 1860. 

' The final decision in this Booth episode was rendered after the opening of the 
War, when in June, 1861, the Wisconsin Supreme Court held that the United States 
District Court had legal jurisdiction of a suit brought against Booth, by the Mis- 
souri owner of the slave rescued by Booth, to recover a penalty for such rescue, as 
authorized by the Fugitive Slave Law, and that a judgment for 91946 levied on 
Booth's printing press by the United States marshal, Feb. 24, 1857, was a valid 
judgment, which would not be collaterally attacked in the State Court, on the 
ground that the Fugitive Slave Law was unconstitutional. Arnold v. Booth (1861)» 
14 Wise. 180. 

VOL. Ill — 3 



66 THE SUPREME COURT 

• 

pathies with regard to slavery shaped and changed 
their political doctrines and their constitutional theo- 
ries. In the South, it was State-Rights or the su- 
premacy of the Federal power, as the one or the other 
furthered the interests of slavery; in the North, it 
was State-Rights or the supremacy of the Federal 
power, as one or the other furthered the interests of 
freedom/* ^ 

Meanwhile, a similar disregard of the Court's deci- 
sion was shown in the State of Ohio, where for many 
years conflicts of jurisdiction between the State and 
Federal Courts had taken place in the case of fugitive 
slaves. In the spring of 1859, just after the decision 
of the Booth Case, trials were held in the Federal Dis- 
trict Court for the Northern District of Ohio, of the 
famous Oberlin Rescue Cases — indictments for vio- 
lation of the Fugitive Slave Law. After conviction 
and sentence of the defendants, the Supreme Court 
of Ohio, in deliberate defiance of the decision in the 
Booth CasCy issued writs of habeas corpus for the de- 
fendants then in custody of the United States mar- 
shal, and the State Court proceeded to assume the 
power to decide for itself, the constitutionality of the 
Federal Law involved. Fortunately, its decision was 
rendered in favor of sustaining the validity of the Law ; 
and thus a direct conflict between the Federal and 
State authorities was avoided.* The opinion, coura- 

^ Remimscmcss cf Carl Schurz (1907), II, 105-115. Schun wrote that when he 
published his speeches in 1865, he omitted his speeches in the Wisconsin campaign 
in 1859, "because a more mature judgment had convinced me that, not indeed the 
fundamental theory of democracy, but the conclusions drawn from it as to the func- 
tions and necessary power of Government, were unsound." 

' As to these Oherlin Rescue Caset — Untied States v. Simeon BushneU, UnUed 
States V. Langstan and Ex parU BushneU, 9 Ohio State, 77-825 — see History cf Ohio 
(191£), by Emilius O. Randall and Daniel J. Ryan, IV, and see interesting accounts 
and editorials in Cleveland National Democrat, March 17, April 8, 18, 15, 16, 25, 
86, 28, 29, 80, May 11, 19, 81, June 6, 10, 1859; Ohio Statesman, April 19, 28, 24. 
27, 28. 29, May 8, 4, 28, 29, 81, 1859. It may be noted that because of his deci- 
sion in this case, the very able Chief Justice, Swan, was refused renomination to 



BOOTH CASE, CONGRESSIONAL ATTACK 67 

geously given by a Republican Chief Justice, resulted, 
however, in his defeat for renomination, a few weeks 
later, at the instance of Chase, Wade and Giddings, 
the abolitionist leaders. The seriousness of the sit- 
uation was reflected by the statement, commonly made 
at the time, that had the Court decided otherwise. 
Governor Chase stood ready to use the State troops in 
defense of its jurisdiction against the Federal autiiori- 
ties; and, as a Democratic paper said: '^A conflict 
would have been the consequence, and thus would 
civil war have for a time existed; for they may rest 
assured that, under no circumstances, would they have 
been permitted to carry out their mad, treasonable 
design of nullifying the laws of the United States, and 
substituting anarchy and misrule in the place of law and 
the Constitution." A Republican paper stated, however, 
that the law would be obeyed, but only until such time 
as the Federal Supreme Court should be reformed.^ 

In Congress, the decision of the Booth Case brought 
forth denunciations of the Court, nearly as strong as 
those which, in 1858, followed the Dred Scott Case; 
and many speeches were made in defense of the legis- 
lation of the various States, known as the Personal 
Liberty Laws, enacted for the purpose of nullifying the 
enforcement of the Fugitive Slave Law.* In a debate 
on the subject, Senator Hale stated that for thirty 
years the Court had consisted only of politicians, that 

Uie Bench by the Republican Party at its next spring convention — an interesting 
eiample of the evils of a judicial recall system. 

' CUoeUmd National Democrat, May 81, 1859, and also quoting Dayton RepMi" 
eon Qautte, In i6u2.. May 28, 1859, it was said editorially : "The Okio State Jour- 
nal thinks that we regard the State of Ohio *not as a sovereign State but as a mere 
Province of the Federal Government.' . . . But as a member of the Federal 
Union, the State of Ohio b bound to respect that law. ... It does not become 
the Executive of the State to encourage resistance, nor the Court to meditate its 
nullification." 

' The so-called Personal Liberty Laws had been passed in Maine, New Hamp- 
shire, Vermont, Massachusetts, Rhode Island, Connecticut, Michigan, Wiscon- 
sin, Iowa and Ohio. 



68 THE SUPREME COURT 

it was now a dangerous department of the Govern- 
ment, that ^'its history has verified all, and more than 
all, that JeflFerson ever prophesied of it'*, that its opin- 
ion upon political questions should have no weight. 
"If its encroachments will not be met by Congress they 
must be met, as Jefferson said, by the action of the State 
Governments/' ^ After praising the past action of Vir- 
ginia and Georgia in disobeying the mandates of the 
Court, and after indorsing the alleged views of Jeffer- 
son, Jackson and Buchanan as to freedom of Congress 
from control by the Court's decisions, Hale derided the 
"new doctrine of the infallibility of the Court now en- 
tertained by the Democratic party", which, he said, 
"after fighting a life-long battle against the Court, had 
now become great sticklers for the dignity and binding 
authority of the Court. ' ' Senator DooK ttle of Wisconsin 
also indorsed the rebellious actions of Pennsylvania, 
Virginia and Georgia in the past, and rejoiced that 
the Supreme Court of Wisconsin had followed their 
example. While acknowledging the "distinguished 
ability, industry almost unequalled, honesty of purpose 
and pure and upright personal character** of Taney, 
he stated that the tendency of the Chief Justice and 
of his Court was to absolutism, by the consolidation of 
all power in that branch of the Government, and that 
the questions, whether that Court was to be the sole 
ultimate judge as to the powers delegated by the Con- 
stitution to the Federal Government or reserved to 
the States, and whether upon all constitutional ques- 
tions the Supreme Courts of the States are inferior and 
subordinate to the Federal Courts, had always been 
the battleground of the political contests in this coun- 

1 S6ih Cong., IH Sess, and App,; speeches in 1860 of Hale, Feb. 14, Doolittle, 
Feb. 24, Collamer, March 8, Grimes, Feb. 24, Wade, March 7, Conkling, April 16, 
17; see also speeches of Bingham, April 24, in the Senate and of T. B. Florence of 
April 12, in the House. 



BOOTH CASE, CONGRESSIONAL ATTACK 69 

try. He admitted that the Republicans hitherto had 
espoused, and the Democrats opposed, the "Federal 
doctrine of judicial supremacy''; but now, he asked: 
"For what purpose have the Democrats set up this 
judicial Vatican? Why should the leaders of this 
party interpolate into its creed, this new dogma of 
the supreme, infallible, and irrevocable doctrine of the 
Supreme Court?" And he uttered the prediction, 
that if the power of the Court to decide on the validity 
of laws for all other departments should be continued, 
"the days of the empire will commence soon after." 
Senator Collamer of Vermont said he would not bow 
down to the Court "as to the inscrutable dispensa- 
tion of Divine Providence." In the House, Roscoe 
Conkling, a Republican Congressman from New York 
(who only twelve years later was ofifered appointment 
as Chief Justice), delivered a violent assault on the 
Court and its "imperial assumptions", stating that 
"wherever a decision, in the judgment of Congress, 
is subversive of the rights and liberties of the people, 
or is otherwise hurtfuUy erroneous, it is not only the 
right, but the solemn duty, of Congress to disregard 
it";^ and he also cited Jefferson and Jackson as his 

1 Conkling's speech was directed at the statement by President Buchanan in 
his Third Annual Message to Congress, Dec. 19, 1859, as fcJlcvs : 

"I cordially congratulate you upon the final settlement by the Supreme Court 
€A the United States of the question of slavery in the Territories which had pre- 
sented an aspect so truly formidable at the commencement of my administration. 
The right has been esUblished of every citizen to take his property of any kind 
including slaves into the common Territory belonging equally to all the States of 
the Confederacy and to have it protected there under the Federal Constitution. 
Neither Congress nor a Territorial legislature nor any human power has any au- 
thority to annul or impair this vested right. The Supreme Judicial tribunal of 
the country which is a coordinate branch of the Government has sanctioned and 
affirmed these principles of constitutional law so manifestly just in themselves 
and so well calculated to promote peace and harmony among the States." 

Buchanan, as late as his Fourth Annual Message, Dec. 8, 1860, continued to main- 
tain the correctness and supremacy as law of the Dred Scott decision, saying that 
"such has been the factious temper of the times", that it has been "extensively 
impugned before the people and the question has given rise to angry political oon- 
fiicU throughout the country." 



70 THE SUPREME COURT 

authorities. He advocated *^a reorganization and 
reinvigoration of the Court, with just regard to 
commercial and political considerations. ... It is 
high time that appropriate weight shall be given in 
the Court and elsewhere to all portions of the 
country, not excepting those in which a vast pre- 
ponderance of its wealth, its business and its numbers 
reside/* 

Speeches of this nature were commended by radical 
anti-slavery papers like the IndependenU which spoke 
of the "encroachments" of the Judiciary "at the will 
and instigation of the Slave Oligarchy. . . . The 
Supreme Court, in the defense of slavery, has become 
the great teacher of injustice and iniquity, the sapper 
and miner of our liberties, the great agent of the powers 
of darkness in debauching the conscience of the coun- 
try and thus preparing the people to become the vic- 
tims of the slave despotism.'* ^ 

On the other hand, eloquent defenses of the Court 
were made in Congress. "We have hitherto debated," 
said Senator Robert Toombs, of Geor^a, "the su- 
premacy of the Federal Courts over the State Courts ; 
but Wisconsin has asserted the supremacy of the 
State Courts over the Federal Courts. Nobody ever 
claimed, until Wisconsin, that a State Court, high or 
low, could seize a case in the Federal Courts and re- 
view it. • . . Wisconsin has outstripped all of her 
delinquent sisters in their disgraceful race of infidelity 
to the compact." John W. Noell of Missouri, in the 
House, made a particularly able speech, denouncing 
those Republicans who, like Conkling, "had raised on 
the floor of Congress the standard of rebellion to the 

^Independent, March 1, 8, 1860; S6th Cong,, let Sees,, and App., speeches of 
Toombs, Jan. M, Feb. %7, March 7, 1860, speeches of Noell, April 25, Reagan of 
Texas, Jan. 4, Larrabee of Wisconsin, Jan. 4, 1860. 



BOOTH CASE, CONGRESSIONAL ATTACK 71 

decrees of the Court. Though that Department still 
preserves its ancient purity and firmness, it has not 
kept pace with their progressive fanaticism. Its au- 
thority to decide questions of constitutional law is 
now gravely disputed. . . . These modem Solons 
have discovered a great distinction between questions 
which they call political and those which are not po- 
litical. Every question, while it is pending here is a 
political question, and every question, when it is trans- 
ferred to the Judiciary is a judicial question. No law 
passed by Congress affecting the rights of persons or 
the rights of property but must be decided upon and 
enforced by the Judiciary. . . . No man contends 
that a judgment or opinion of the Federal Judiciary 
can tie the hands of Congress; but every man who 
has read the hornbooks of the profession ought to know 
that, when we enact a law, its validity and constitution- 
ality must be determined by the Judiciary. That de- 
termination in this particular instance can only be 
avoided by rebellion or revolution." 

These years of turmoil in politics and of conflict over 
the Court's decisions affecting the slavery issue, ex- 
tending from 1854 to 1860, were productive of few other 
cases of supreme importance in American legal history ; 
and they may be briefly summarized. 

With the year 1855, there came to an end the long 
series of cases in which, for twenty-five years, the Court 
had been confirming vast numbers of imperfect grants 
made by Spanish ofiScials in Florida, Louisiana and 
Missouri prior to the cessions of those territories ; and 
though many of these claims had been of an extremely 
suspicious character, the Court, in its scrupulous ob- 
servance of the spirit of the treaties with France and 
Spain, had preferred to err on the side of justice to the 
claimant, rather than to give the benefit of the doubt 



72 THE SUPREME COURT 

to the Government.^ But with the disappearance 
of these cases from its docket, there arose the first of 
another series which lasted for a further quarter of a 
century; and in Cervantes v. United States , 16 How, 
619, and Fremont v. United States^ 17 How. 442, gen- 
eral doctrines of law were outlined, on which the Court 
was to decide the many great Mexican land claims 
arising in California, Texas and the Southwest terri- 
tories. In these cases, the Court again showed its 
anxiety to protect, to the utmost, rights originating 
under grants from the foreign government with which 
the United States had concluded a treaty.^ 

On February 19, 1856, in Murray v. Hoboken Land 
and Improvement Co.^ 18 How. 272, the Court, for the 
first time since 1819, interpreted the meaning of "due 
process of law " as contained in the Fifth Amendment.' 
The case, argued with great ability by Benjamin F. 

^ A few daims for very large tracts, where no sufficient identification had taken 
place before cession, were rejected ; see United States v. Kingsley, 12 Pet. 476, five . 
miles square; United States v. DeUspine, 15 Pet. 319, 02, 160 acres; United States 
V. Miranda, 16 Pet. 158, 368,640 acres; United States v. BaisdorS, 11 How. 63, 
a tract of 15 by 40 miles; Doe v. Braden, 16 How. 635, 12,000,000 acres. 

* The case of the claim of John C. Fremont "of unusual public interest" was 
argued Feb. 20, 21, 22, 1855, and was described by the Natumal Intelligeneer, 
Feb. 26, as follows: "The venerable and learned Mr. Chancellor (George M.) 
Bibb followed Mr. Jones on the same side in a dear, comprehensive and argumenta- 
tive address, crowding the merits of the case into the brief space of half an hour. 
Attorney-General Gushing followed on behalf of the United States, and charmed 
a large and brilliant audience, during two hours on Wednesday morning, by a dis- 
course of unusual interest and strength, a good portion of it historical, and having 
the attractiveness of romance, and all of it such as to engross the attention of the 
Court, the Bar and all hearers. The Attorney-General was replied to, and the 
argument of the cause concluded, by Hon. John J. Crittenden. Mr. Crittenden 
brought into the argument, not only legal acumen and research, but all the impas- 
sioned eloquence that has distinguished his most powerful efforts, whether in the 
Senate or before judicial forums, and was listened to with marked attention by a 
crowded audience of the beauty and intellect at present congregated in the city. 
. . . We presume from all we have heard that the eloquent Kentuckian equalled, 
if he did not surpass, any previous effort, forensic or Senatorial; he certainly 
never produced a higher admiration of his powers, or ever received more emphatic 
applause, from the grave members of the Bench, we believe, as well as the Bar and 
crowded auditory." See also ibid., March 11, 1855 ; Philadelphia North American, 
Feb. 21, 1855. 

* See Johnson, J., in Bank of Columbia v. Okdy (1819), 4 Wheat. 235. 



BOOTH CASE, CONGRESSIONAL ATTACK 73 

Butler, George Wood and Edgar S. Van Winkle against 
Ransom H. Gillet, Joseph P. Bradley and A. O. Za- 
briskie, involved the rights of a purchaser of land sold 
under a distress warrant issued by the Solicitor of the 
Treasury against lands of Samuel Swartwout — a 
former notorious collector of customs at New York, 
who had defaulted in the sum of $1,479,000. The 
Court held that such a sununary method for the re- 
covery of debts due to the Government from defaulting 
receivers of the revenue constituted due process, even 
though no Court trial was provided, inasmuch as such 
methods were known to the old English law. 

At the December Term of 1857, in Jackson v. Steam- 
boat Ma^nolia^ 20 How. 296, the Court completed the 
reversal of the former narrow doctrines as to the extent 
of admiralty jurisdiction entertained by Marshall. 
The question involved was whether the Federal Court 
had jurisdiction over a libel for a collision on the Ala- 
bama River above tidal flow and wholly within the 
State of Alabama. The case was twice argued; and 
the decision upheld the Federal admiralty powers in 
the most sweeping manner. It is a "" remarkable" and 
"startling assumption of power", said Judge Daniel, 
again dissenting and fearful of the Court's "indefinite 
and indefinable pretensions" and the "ceaseless march 
of central encroachments." In spite of such fears on 
the part of its dissenting Judge, the Court showed it- 
self zealous to defend the State sovereignty in Taylor 
V. Carryl, 20 How. 583, by holding that a vessel at- 
tached in a State Court could not be sold by a United 
States marshal on an order from the United States 
District Court in a libel for seamen's wages. The case, 
said Judge Campbell, had been regarded in this Court 
as one of importance, but it did not present a new ques- 
tion and "is not determinable upon any novel prin- 



74 THE SUPREME COURT 

ciple. . • . It forms a recognized portion of the duty 
of this Court to give preference to such principles and 
methods of procedure as shall serve to conciliate the dis- 
tinct and independent tribunals of the States and of the 
Union, so that they may cooperate as harmonious mem- 
bers of a judicial system coextensive with the United 
States, and submitting to the paramoimt authority 
of the same Constitution, laws and federal obligation. 
The decisions of this Court that disclose such an aim, 
and that embody the principles and modes of admin- 
istration to accomplish it, have gone from the Court 
with authority, and have returned to it, bringing the 
vigor and strength that are always imparted to magis- 
trates, of whatever class, by the approbation and con- 
fidence of those submitted to their government." ^ 
It is interesting to note that this strong defense of the 
State tribunals was uttered on May 18, 1858, and less 
than a year before the Court's equally strong defense 
of National supremacy in the Booth Case. 

At the December Term of 1858, important questions 
of business law came before the Court. In Covington 
Drawbridge Co. v. Shepherd, 21 How. 112, argued by 
Oliver H. Smith against Richard W. Thompson, the 
question of the power of a Court in equity to appoint 
a receiver for a corporation to collect tolls and hold 
them for creditors, was presented for the first time; 
and though now so familiar a practice, it was then said 
to be a "question of great importance and some diflS- 
culty." The Court, however, sustained the power. 
The first of a tremendously long line of cases involving 
the validity of municipal bonds when held by a bona 
fide purchaser was decided in Commissioners of Knox 
County V. AspinwaU, 21 How. 539; and two years 

^ The caae was twice argued at tluB Term, first on Dec. 14, 1857, and again on 
April It, 18, 14, IS5S, by William M. Evarts against John Cadwalader and Samuel 
Hood. 



BOOTH CASE, CONGRESSIONAL ATTACK 75 

later in this case (24 How. 376) , it was held that such 
bondholders might obtain a mandamus from the Cir- 
cuit Court to compel an Indiana municipality to levy 
a tax to satisfy a judgment rendered in a suit on the 
bonds. This was the first case in a Federal Court in 
which a mandamus was issued against a State official.^ 
Railroad bonds were also for the first time decided to 
be negotiable instruments, in White v. Vermont and 
Massachusetts R. R. Co., 21 How. 575, Judge Nelson 
saying that ** within the last few years, large masses of 
them have gone into general circulation and in which 
capitalists have invested their money " ; and if the qual- 
ity of negotiability were not conceded to them, the 
value of such securities "'as a means of furnishing the 
funds for the accomplishment of many of the great- 
est and most useful enterprises of the day would be 
impaired.'* 

The December Term of 1859 was a long one, the 
Court adjourning on May 4, 1860. The Chief Jus- 
tice and Judge Daniel were both too ill to sit on the 
Bench, and considerable fear was expressed lest the 
former might never return. Talk was rife as to the 
possibility of the appointment by President Buchanan 
of either the Attorney-General, Jeremiah S. Black, 
or the former Attorney-General, Caleb Cushing, as 
Taney's successor;* and the weakened condition of 
the Court gave rise to renewed demand for a relief 
of the Judges from Circuit duty, so that they might 
devote more time to clearing the overloaded docket 
in the Supreme Court. "This reorganization is not a 

* See also AspinwaU v, Dmei— Co,, 22 How. 864 ; BisM ▼. JtfffwmnwiXU, 24 
How. 287; Amey ▼. Allegheny City, 24 How. 864; Juriedietion in Mandamue in 
United Siaiee Courte, by Glendower Evans, Amer. Law Ree. (1885), XIX. 

s New York Tribune, Feb. 14, April 27, 1860; New York' Evening Poet, Dec. 14, 
1860, said that Taney's resignation was unlikely: "He, like Mr. Buchanan, 
takes a sort of mdancholy satisfaction in being the last incumbent d the office he 
holds." 



76 THE SUPREME COURT 

boon to the Judges, but a benefit to the public/* re- 
quired by the demand for justice for litigants.^ At 
this Term, the suits involving California land claims 
continued to occupy a large proportion of the Court's 
time,* and few cases of historical importance were de- 
cided. Two may be noted, however. In Sinnot v. 
Davenportf 22 How. 227, an Alabama shipping law was 
held to be in conflict with legislation by Congress as 
to coasting trade, and therefore imconstitutional ; 
and again the supremacy of the National Government 
was powerfully set forth by the Court. To the argu- 
ment that the State statute was merely an exercise 
of the State police power. Judge Nelson answered that 
State legislation enacted in the exercise of an undis- 
puted reserved power must yield to an Act of Con- 
gress passed in the exercise of a clear power under the 
Constitution. "There has been much controversy, 
and probably will continue to be, both by the Bench 
and the Bar, in fixing the true boundary line between 
the power of Congress under the commercial grant and 
the power reserved to the States. But in all these dis- 
cussions, or nearly all of them, it has been admitted, 
that if the Act of Congress fell clearly within the power 
conferred upon that body by the Constitution, there 
was an end of the controversy. The law of Congress 
was supreme." 

In Alabama v. Georgia^ 23 How. 605, argued on De- 
cember 14, 1859, and decided on May 1, 1860, the sin- 
gular condition was presented of two States of the 
Union, on the very eve of their secession, submitting 

> PkOaddplna North AtMriean, Mftich 14. 1850, Feb. 15, 1860. 

' Among tlie most important cases won by the Govenmient were UniUd States 
y. BoUon, 28 How. 841, involving about 80,000 acres in San Francisco, argued 
April 2, 1860, by Attorney-General Black and William B. Reed of Philadelphia 
against J. Mason Campbell and Robert J. Walker; Ltieo v. United States, 28 How. 
515, involving about 200,000 acres, argued by Caleb Gushing against Edwin M. 
Stanton. See New York Tribune, April 12, 1860. 



BOOTH CASE, CONGRESSIONAL ATTACK 77 

controversies over their boundary line to the Supreme 
Court, for decision under the Constitution which they 
were about to repudiate.* 

Within three days from the date of this decision, 
the Dred Scott Case developed its most potent conse- 
quence, when, on May S, 1860, the Democratic Party 
then holding its National Convention at Charleston 
broke up in dissension, to reassemble six weeks later 
in two irreconcilable wings and to present two nominees 
for the Presidency — Stephen A. Douglas and John 
C. Breckinridge, representing hopelessly irreconcil- 
able views. In thus splitting the Democratic Party, 
the Dred Scott decision had an even greater effect upon 
American history than in solidifying the anti-slavery 
sentiment at the North. When, in 1855, Douglas had 
succeeded, through the passage of his Kansas-Ne- 
braska Bill, in establishing his doctrine of "" squatter 
sovereignty", the party, united and enthusiastic, had 
regarded the legislation as a final and practical solu- 
tion of the slavery question. The language of the 
statute that it was ^'the true intent and meaning of 
this Act not to legislate slavery into any Territory or 
State or to exclude it therefrom, but to leave the peo- 
ple thereof perfectly free to form and regulate their 
domestic institutions, subject only to the Constitution 
of the United States", was believed to fix definitely 
the principle of non-intervention by Congress with 
slavery in the States and Territories, which had been 
adopted in the Compromise of 1850. There was, how- 

^ In 1855, an interesting point of practice had been decided ; in an original suit 
between States to establish a boundary line, Florida v. Oeorgia, 17 How. 478, the 
Attorney-General of the United States was permitted to intervene on behalf of the 
Government and to adduce evidence, examine witnesses and be heard on argu- 
ment; four Judges (Curtis, McLean, Campbell and Daniel) dissented, contending 
that to permit such intervention was to allow a suit against a State by the United 
States which the Constitution did not provide for. It is interesting to note that 
in this defense of the rights of the State, two Northern Judges joined with two 
Soatbem. See for histocy of this diq>ute, e<^M v. OniOMr (1887), 123 U. S. 1. 



78 THE SUPREME COURT 

ever, an unforeseen ambiguity in this language which 
was destined to prove fatal to the Democratic Party. 
The intention of Senator Douglas was to give the peo- 
ple of the Territory the right to decide for themselves 
on the subject of slavery ; but the question soon arose : 
Was this right given to the Territorial Legislature or 
only to the people of the Territory when framing its 
Constitution preparatory to admission as a State? 
It was answered when Chief Justice Taney, in his de- 
cision in 1857, announced flatly that as Congress had 
no power to exclude slavery, so it could not authorize 
a Territorial Government to exercise such a power. 
"It could confer no power on any local government, 
established by its authority, to violate the provisions 
of the Constitution.** This was a body blow to Doug- 
las ' theory of popular sovereignty in the Territories ; 
and thereafter, his attempts to maintain it were in vain. 
Republicans and Democrats alike quoted Taney's 
decision against him. The main body of Southern 
Democrats, after 1857, insisted that their party plat- 
form should embody the exact language of the Dred 
Scott Case^ and should not admit the right of a Terri- 
tory to deal in any way with the subject of slavery, 
except through its Constitution adopted for the pur- 
pose of becoming a State. Douglas, however, con- 
tinued to fight for his pet doctrine, as the only fair 
solution of the question ; and, in 1859, he wrote that 
he could not be the Democratic candidate for Presi- 
dent if the party insisted on the principle "that the 
Constitution either established or forbade slavery in 
the Territories, beyond the power of the people to con- 
trol it as other property." It was on this issue that 
the party divided in 1860 into two opposing factions.^ 

1 See especially A Hidory qf the Ameriean People (1902), by Woodrow Wilson. 
TV; The LaH Cause (1867), by Edward A. Pollard ; Life and Timee of WiUiam 
Loumdee Yancey (1892), by John W. DuBom; PoUHeal Hietory ofSeceeeion (1914). 



BOOTH CASE, CONGRESSIONAL ATTACK 79 

Had it not been for such division, Lincoln's election 
might have been doubtful; for the popular vote for 
the combined opposing candidates in California and 
Oregon far exceeded, and in Ohio, Indiana and Illi- 
nois very nearly equaled, the vote cast for Lincoln ; 
while of the popular vote over the whole country Lin- 
coln received only 1,866,452 as against 2,223,110 cast 
for his Democratic opponents and 590,636 cast for 
John Bell, the candidate of the Constitutional Union 
party. It may fairly be said that Chief Justice Taney 
elected Abraham Lincoln to the Presidency. 

by Dankl Wait Howe; Our PretidenU and How We Mak§ Th$m (1900), by A. K. 
McClure. 

The Dottglas Platform on slavery was as follows: "That the Democratic party 
will abide by the decisions oi the Supreme Court of the United States on the 
questions of constitutional law. That . . . during the existence of the Territorial 
Governments, the measure of restriction, whatever it may be, imposed by the Fed- 
eral Constitution on the power of the Territorial Legislature over the subject of 
the domestic relations, as the same has been, or shall hereafter be, determined by 
the Supreme Court of the United States, should be respected by all good citisens» 
and enlForced with promptness and fidelity by eveiy branch of the General Gov- 
ernment. 

The Bredcinridge Platform was as follows : " That the Government of a Terri- 
tory organized by an Act of Congress is provisional and temporary, and during 
its existence all citizens of the United States have an equal right to settle with 
their property in the Territory, without their rights, either of person or of property, 
being destroyed or impaired by Congressional legislation. That it is the duty of 
the Federal Government, in all its departments, to protect, when necessary, the 
rights of persons and property in the Territories, and wherever else its constitu- 
tional auUiority extends. That when the settlers in a Territory, having an ade- 
quate population, form a State Constitution, the right of sovereignty conmiences, 
and being consummated by admission into the Union, they stand on an equal foot- 
ing with the people of other States; and the State thus organized ought to be ad- 
mitted into the Federal Union, whether its Constitution prohibits or recognizes 
the institution of slavery." 



CHAPTER TWENTY-EIGHT 

CIVIL WAR AND CHIEF JUSTICE CHASE 

1861-1866 

Before the beginning of the December, 1860, Term, 
Judge Peter V. Daniel died on May 30, 1860, after a 
service on the Bench of nineteen years. The South was 
insistent that the new appointee should come from that 
section of the country ; for the Court (exclusive of the 
Chief Justice) was evenly divided — four from the 
North and four from the South. Among those urged 
for the position were William L. Yancey of Alabama, 
and Alexander H. Handy and Samuel S. Boyd of 
Mississippi;^ but the strongest and ablest candidate 
suggested was William J. Robertson, Judge of the 
Court of Appeals of Virginia: "The appointment of a 
successor to Judge Daniel is of very little less impor- 
tance to the South than the election of the next Presi- 
dent," wrote one of Robertson's supporters; and 
another wrote : "The Court is the last line of defense 
which, it seems, is now left us." * On the other hand, 

1 FranMin Pierce Papers M88, see letter of G. M. Davis, Aug. 8, 1860, and S. S. 
Boyd, Aug. 18, 1860; WaekinifUm Star, Dec, 17, ISeO, 

* Correspondence of Robert M. T, Hunter, in Amer. Hist, Ass, Rep, (1916), II. 
Franklin Minor wrote June 5, 1860 : "There may be no danger of a wrong appoint- 
ment, but still I am filled with solicitude by a rumor which I have heard, that James 
Lyons is the favorite of Mr. Buchanan. . . . Our friends all believe William J. 
Robertson of the Court of Appeals is the very man for the place. True as steel 
and firm as a rock, the South may rely on him with the surest confidence. He is, 
moreover, in the prime of life, and nuiy live to serve us long, even until the stormy 
and the evil day may come as it surely will come, if we cannot break our bonds, 
which I fear we cannot yet. To incorruptible fidelity and unfiinching firmness, 
Robertson adds vast stores of legal learning which will make him a great Judge. *' 
William M. Ambler wrote, June 11, 1860 : "The vacancy on the Bench of the Su- 
preme Court has caused almost every man of sound State-Rights principles to turn 
to my friend, William J. Robertson. . . . He is so pnre morally and intellectually. 



THE CIVIL WAR AND CHASE 81 

the Republicans, regarding the Court with suspicion, 
were equally insistent that no further representatives of 
slavery interests should be appointed; and Charles 
Sumner wrote at this time (referring to rumors as to 
Taney's proposed resignation): "I know no man at 
this time who is fit for the oflSce of Chief Justice. The 
man to fill it must appear before he is named, must 
be a messenger, or vox clamantis^ as Marshall was, 
and as Taney was not. The drowning honour of that 
Court is under the water ; it must be plucked up by the 
locks. ... If the next Chief does not lift the depart- 
ment up, it will go to the bottom.'' ^ Prominent Re- 
pubUcan organs presented the more radical, anti- 
slavery attitude towards the Court in the following 
partisan attacks.^ The New York Tribune contended 
that the Court was the instrument of the slave power, 
which, *' knowing that it would ultimately find no 
repose in the Legislative and Executive branches of 
the Government, has long had its eye upon the Supreme 
Court as its final hiding place from the avenging Spirit 
of Freedom. . . . When Marshall died, Benjamin F. 
Butler should have received the appointment. But 
it was given as a compensation to a politician who had 
not scrupled to perform a high-handed act at the dicta- 
tion of the Executive. From that hour, the Court lost 
caste with the country. Calhoun fixed his eagle eye 
upon it, and resolved to make it the subservient hack 
of the negro propaganda. . . . Two new seats were 
created under Jackson. Van Buren filled them with 
Catron and McKinley, both extreme slaveholders — 
the former a respectable jurist, the latter a grovelling 

and far abler than (lugfa as he stands) he b yet known to be." See also letter of 
John Randolph Tucker, June IS, 1860, as to Z. Collins Lee as a candidate. 

^ Sumner, III, 836, letter of June 26, 1860. 

> New York Tribune, March 26, 1850 ; New York Courier, Jan. 22, 1861 ; see also 
PkUaddphia North American, March 15, 1850, Jan. 21, 1860. 



82 THE SUPREME COURT 

partisan. And now the Court consisted of five slave- 
holders and four non-slaveholders with the unscrupu- 
lous Taney at its head. And thus it remains to this 
day. . . . This Court, as now arranged, is scandal- 
ously sectional, grossly partial, a mockery of the Con- 
stitution, a serf of the slave power, and a disgrace to the 
coimtry. A truly National Administration will not fail 
to reform it so as to regain for it the confidence of the 
people, by adapting it to the ends for which it was 
created.'* The New York Courier stated that: "The 
attention of all those of our people who are solicitous 
to hand down to posterity the inheritance of freedom 
we received from our forefathers should be drawn to 
the action of the Supreme Court. Sitting away from 
popular notice in a secluded nook of the Capitol, we 
should see that they are not stealthily burrowing under 
the foundations of the Temple of Liberty. A decided 
majority of them are the appointees of the party that 
five sixths of the American people decided against at 
the last election; and there are no more inveterate 
sticklers for the predominance of that party in the whole 
land.'* It pointed out that three cases involving 
slavery were likely to be argued at the Term beginning 
in December, 1860, — one, an appeal from the Territo- 
rial Court of Kansas, which might require a decision as 
to the right of the people of the Territory to exclude 
slavery therefrom ; the second, involving the duty of the 
Governor of Ohio to honor a requisition from the Gov- 
ernor of Kentucky for a fugitive who had violated the 
slavery laws of the latter State ; the third, the famous 
Lemmon Case^ an appeal from the New York Court of 
Appeals involving the status of a slave brought into 
that State.^ This Republican paper, now citing and 

1 The SUOeB and Union, Jan. 29» 1861, said : "Thit House accepted yesterday the 
Senate amendment to the bill admitting Kansas into the Union. Thus the ulti- 



THE CIVIL WAR AND CHASE 83 

adopting views urged in early days by Democrats like 
John Taylor of Caroline, Jefferson and Calhoun as to 
the dangers of the exercise of its power by the Court, 
contended that it had no authority to determine political 
questions, and spoke of the ** delusion abroad as to the 
power and authority of this Court, that, if continued, 
may become fatal. It is clear that in all political 
questions (and the whole subject of slavery outside of a 
State is such) the decision of the people as to what the 
Constitution means is above the decision of the Su- 
preme Court, and so the Supreme Court ought to 
determine, if it be desirous to respect the Constitution 
and our whole system of government, rather than the 
demands of party and its own esprit de corps. " 

It was with such fundamental misconceptions prev- 
alent at the North that the Court convened on De- 
cember 3, 1860, for the Term which was to end in war 
and in the disappearance of the slavery issue from its 
docket.^ Its first session was held in a new Court- 
room; and no longer could its surroundings be de- 
scribed as they had been by a newspaper correspondent 
the previous year: "You walk along a narrow passage 
lighted with a dim lamp. You enter, and, crowding 
between two walls of old deal boxes, see a distant glass 
door, a general gloom. . . . Descending two or 
three steps, you are ushered into a queer room of small 
dimensions and shaped overhead like a quarter section 
of a pumpkin shell, the upper and broader rim crown- 
ing three windows, and the lower and narrower com- 

mate decision of the Supreme Court will be had upon the question of the right of a 
Territorial Legislature to abolish slavery." 

As to the early stages of the Lemmon Case, see especially WaskingUm Union, 
Jan. 1, 1858; Law Reporter (1860), XXIII. 

^ New York Tribune, Dec. 4, 1860 : "The Supreme Court met in their new cham- 
ber at noon. Chief Justice Taney and all the Associate Justices were present except 
Judge Wayne. The Court shortly adjourned, and the Judges proceeded to the 
White House personally, and paid their respects to the President, and afterwards 
left their cards for the Vice-President. " 



84 THE SUPREME COURT 

ing down garret-like to the floor — the windows being 
of ground glass, the light trickling through them. • • . 
We would not speak disrespectfully of the Supreme 
Court. We recently entered its sacred precincts in 
company with an irreverent Western lawyer. After 
gazing around a moment, he exclaimed : * I don't won- 
der at that decision in the Dred Scott Case. Why! 
What a potato hole of a place, this ! The old men ought 
to be got up above groimd where they can breathe fresh 
air and see real daylight once in a while V"^ The proj- 
ect for the provision of more commodious quarters for 
the Court had been long under consideration ; * and 
finally in 1860, when the new wings were added to the 
Capitol for the Senate and the House, Congress appro- 
priated $25,000 for the alteration and finishing of the 
former Senate Chamber for use as a Court-room, with 
twelve other rooms for the use of the Court, its oflScers 
and records.* 

During this Term beginning in December, 1860, the 
uncertain political conditions throughout the country 
and the approach of war cast a gloom over the session. 

1 New York Tribune, March 16, 1859. 

' In 1850, in a report on the extension of the Capitol by Robert Mills, architect. 
May 1, it was proposed that the Senate should occupy a new Chamber in a new wing 
and that "the Court should be comfortably and elegantly accommodated in the 
present Senate Chamber." It was stated that the members of the Court had 
suffered much from the inconvenience of its Court-room, and from its location, 
which had proved injurious to health. "The deaths of some of our most talented 
jurists have been attributed to this location of the Court-room ; and it would be 
but conmion justice in Congress to provide better accommodation for its sittings. " 
See also 36th Cong., U Sees., 1579, March 2, 1859 ; ilnd., 2829, June 11. 1860. 

Gideon Welles in his diary, March 5, 1863, said : **I subsequently went into the 
Senate Chamber, a much larger but less pleasant room than the old one, which I 
first visited in the last days of the second Adams. If the present room is larger, 
the Senators seemed smaller. My first impressions were doubtless more reverential 
than those of later times." The Diary of Gideon Welles (1911), 1, 244. 

' Act of June 25, 1860 ; by the Act of April 7, 1866, $6500 was appropriated to fit 
up rooms in the basement under the new Supreme Court-room for a consultation 
room for the Court. In a report by the United States Art Commission, Feb. 22, 
1860, it was proposed that the new Court-room "may appropriately be decorated 
with subjects relating to the judicial history of the country.'* Fortunately, this 
proposal was never carried out. Documentary History of the CapUol (1904), 746. 



THE CIVIL WAR AND CHASE 85 

Frequent references to the situation were made by 
counsel; and a striking instance of their forebodings 
occurred in an argument on December 23, 1860, by an 
eminent lawyer from Texas, George W. Paschal, whose 
sentiments as reported in the press *^ produced a pro- 
f oimd sensation and brought many of the venerable bar- 
risters to their feet to congratulate the Texan upon his 
patriotic sentiments '*, when he concluded as follows:^ 

We stand upon the brink of another revolution. . . . The 
probable indication is that, before the mandate of this Court 
goes down, Texans may have decreed, so far as in them lies, 
that this Court has no longer jurisdiction to enforce the Con- 
stitution and the laws under which the cause was tried; 
that the Judge and counsel who tried it and the Germans 
who have been naturalized are no longer bound by the oaths 
which they voluntarily took to support the Constitution of 
the United States, but that all have fallen under a revolution 
said to be necessary to sever the ties which bind us to the 
Union, which Texans voluntarily joined and which they now 
threaten to leave. ... I own that I have argued the case 
under the deep melancholy which such events naturally im- 
pose. . . . Heaven grant that I may be wrong in my appre- 
hensions and may Texas be long preserved as a member of 
the Union in which she has had a colossal growth ! Already, 
she has many monuments which chronicle bloody dramas in 
contending revolutions, and may we find protection for every 
right which the Union was intended to afford ! While we 
have an ultimate appeal here, I should have no fears. 

President Buchanan, having decided to fill the va- 
cancy on the Bench caused by the death of Judge Daniel, 

1 National InieUigeneer, Dec. 29, 1860 ; Chandler v. Von Boeder, 24 How. 224, de- 
cided Jan. 21, 1861. President Buchanan, Dec. 15, 1860, issued a proclamation for 
a day of fasting and prayer on Jan. 4, 1861, in which he stated : "Hope seems to 
have deserted the minds of men" and that "God*s arm alone can save us from the 
awful effects of our own crimes and follies!'* Referring to this proclamation, 
the New York Evening Poet, Dec. 17, 1860, said that Reverdy Johnson made "some 
appropriate remarks in the Supreme Court, in which that distinguished advocate 
prays that Heaven may silence the 'whinings of imbecility now discouraging and 
sickening the honest public heart.* Mr. Johnson is not, it may be remarked, a 
very ardent admirer of the President's." 



86 THE SUPREME COURT 

and having considered the appointment of Caleb Cash- 
ing of Massachusetts, finally, on February 5, 1861, 
selected for the position Jeremiah S. Black of Pennsyl- 
vania.* Black was fifty-one years of age; he had 
served for six years as Judge and Chief Justice of the 
Pennsylvania Supreme Court, Attorney-General of the 
United States from 1857 to 1860, and Secretary of 
State since December 17, 1860. Though a man of hot 
temper, his legal qualifications were eminent ; and had 
the nomination been made a few months earlier, as had 
been expected, it would probably have been confirmed. 
But now, owing to the vacancies in the Senate due 
to resignation of Senators from seceding States, and 
further owing to the bitter opposition of Stephen A. 
Douglas and his followers, confirmation was doubtful. 
The RepubUcans, moreover, were insistent that, as the 
Democrats had turned down Crittenden and Badger 
whose appointments had been made in the closing days 
of Whig Administrations, they should now take their 
own medicine and leave the place to be filled by Presi- 
dent Lincoln. The anti-slavery press was savage in its 
criticism of Black. ^^In all the extensive range of his 
most unhappy selections for office, Mr. Buchanan has 
never hit upon a single nomination more eminently 
unfit to be made,'* said the New York Tribune; and it 
alleged that Black had neither the judicial qualities, 
the vigorous intellect nor the calm or dignified charac- 
ter required for the position, and that the nomination 
was ^'a flight of insolence so extraordinary as to partake 
of some of the most captivating traits of the imagina- 
tion ! " The Senate, by a vote of twenty-five to twenty- 
six, rejected the nomination on February 21 ; and while 
at the very last moment Buchanan considered appoint- 

1 Philaddphia Prest, Jan. 17, 24, Feb. 5, 6, 28, 1861 ; New York Tribune, Jan. 29. 
Feb. 7, 20. 1861. 



THE CIVIL WAR AND CHASE 87 

ing either John M. Reed of Pennsylvania or Joseph 
Holt of Kentucky, he finally decided to take no further 
action.^ 

As soon as President Lincoln was inaugurated, it was 
rumored that he intended to appoint the veteran states- 
man, John J. Crittenden of Kentucky, and this choice 
was hailed as highly felicitous. Not only was Critten- 
den a great lawyer, but he had been recently one of the 
most active supporters of an attempt to avert civil 
war by means of the famous Crittenden Compromise, 
in January, 1861. " His recognition by the Administra- 
tion would be received with joy all through the Border 
States,** said one conservative Republican paper. "As 
a stroke of policy, the appointment of Mr. Crittenden 
at this time will be most fortunate for the future peace 
of the country," said another, "as it could hardly fail 
to disarm the disunionists in the Virginia Convention 
instantly, so far as stripping them of power to work 
future mischief in the Border States is concerned. It 
would be a practical, tangible explanation of the pur- 
pose of the new Administration not to aggress the 
South, which every Southern man would instantly 
comprehend, despite the intrigues of the disunionists 
longer to deceive them on that really now most im- 
portant point." * Opposition to Crittenden, however, 

' ExeeuUice Journal cf the Senate, XI; PkUaddphia Preset March 2; New York 
Timest Feb. 20, 1861. One cause of Black's failure was the opinion which he had 
given as Attorney-General, Nov. 20, 1860, as to the lack of power in the President 
to prevent a State from seceding; see editorial in New York Eeening Poet, Dec. 10, 
1860. 

^Pkiladdpkia Press, March 8, 11, 18, 16, April 5, 0, 1861; Washington Star, 
March 6, 7, 8, 1861 ; New York Times, Feb. 86, March 7, 1861, said : "Nothing 
would so reassure conservative Southern men as the appointment of Crittenden. " 
The States and Union, March 7, said the appointment "would bring considerable 
strength to the new Administration, " and on March 4, it said that the radicals were 
making "a vindictive eflPort to rob the Administration of the honor of so wise an 
appointment" and that Senator TVumbull was Crittenden's most active antago- 
nist." E. M. Stanton wrote to Buchanan, March 10, 1861, that on the day after the 
confirmation of the Cabinet, " Mr. Seward sent for me and requested me to draw 
Up a nomination for Mr. Crittenden for Judge of the United States Court. I did 



88 THE SUPREME COURT 

developed among the more radical, anti-slavery Re- 
publicans ; and the names of Thomas Ruffin of North 
Carolina, Joseph Holt of Kentucky and George E. 
Badger of North Carolina began to be mentioned. 

Meanwhile, the last day of the Court's session on the 
momentous eve of war occurred on March 14, 1861, 
ten days after Lincoln's inauguration. "The Court 
adjourns today. I am now writing in the Supreme 
Court-room. If the Court ever reassembles, there will 
be considerable change in its organization," wrote 
Edwin M. Stanton to Buchanan. "There has been no 
further action in respect to the Supreme Judgeship. It 
is generally understood that Crittenden will not be 
nominated. Judge Campbell has reconsidered his resig- 
nation and will not resign immediately. Judge Grier 
went home sick, two days ago. Judge McLean is 
reported to be quite ill. Lincoln will probably (if his 
Administration continues four years) make a change 
that will aflfect the constitutional doctrines of the Court. 
. . . The Supreme Court has just decided . • . that 
the Federal Government has no power to coerce the 
Governor of a State to return a fugitive from justice, 
although it is his duty to comply with the demand." 
The decision referred to by Stanton as rendered on 
this last day of the Term was Ex parte Kentucky v. 
Dennisarty 24 How. 66, in which the State of Kentucky 
had brought a petition for mandamus in the United 
States Supreme Court to compel the Governor of the 
State of Ohio to honor a requisition of the Governor of 
Kentucky for the surrender of a violator of a State law 
relative to slaves. The Court held that though the 

80 and gave it to him. My understanding was that the nomination would be im- 
mediately sent in. But it has not been sent, and the general understanding is that 
it will not be. The rumor is that the red blacks oppose it, and also many of the 
Democrats, and that Mr. Holt will be nominated. He appears now to be the chief 
favorite of the Republicans. *' Works qf James Buckanatit XI. 



THE CIVIL WAR AND CHASE 89 

Constitution provided that "it shall be the duty" of 
the Governor of a State to deliver up fugitives from 
justice, these words were merely "declaratory of the 
moral duty" and that no power was delegated " to the 
Greneral Government, either through the judicial depart- 
ment or any other department, to use any coercive 
means to compel him." ^ The decision wiU strike 
most people, said the New York Evening Posty "as 
much like that message of Mr. Buchanan's, of which 
Mr. Seward gave so just and pithy a rendering : * that 
a State has no right to secede, but no one has a right to 
prevent it ; and that the laws of the United States must 
be enforced, but there is no authority to enforce them.' 
Justice Taney says, in effect, that the Governor of Ohio 
ought to give up the fugitive, but if he will not, there is 
no authority to make him do so. The real point in 
question, however, is whether a fugitive demanded by 
one State shall be given up by another, when the oflFence 
is no offence against the laws of the State asked to sur- 
render him, or against the law of nations." Though 
the decision gave considerable dissatisfaction to the 
slave States, it was rendered at a date too close to the 
verge of war to have any effect on the development of 
the slavery issue. 

Two other decisions rendered at this time were impor- 
tant as showing that the Court was still to be depended 
upon to sustain the supremacy of the jurisdiction of the 
National Government, which the Chief Justice had so 
staunchly upheld in the Booth Case^ two years before. 
In Freeman v. Howe^ 24 How. 450, property attached 
by a United States marshal in a suit in a Federal Court 
was seized on replevin by a State sheriff on process 
issued from a State Court in a suit by bondholders. 

1 Naiianal InMigencer, Dec. 18, 1860; New York Eoming Paai, March 14, 15, 
1861 ; see also National RepubUean (Wash.). Maich 15, 16, 1861. 



90 THE SUPREME COURT 

The Court, through Judge Nelson, said : *'No Govern- 
ment could maintain the administration or execution of 
its laws, civil or criminal, if the jurisdiction of its ju- 
dicial tribunals were subject to the determination of 
another. • . . It belongs to the Federal Courts to 
determine the question of their own jurisdiction, the 
ultimate arbiter, the supreme judicial tribunal of the 
Nation.*'* In Almy v. California, i4i How. 169, in- 
volving the validity of a State stamp tax on bills of 
lading of all gold transported from within to without 
the State, and argued by Montgomery Blair against 
Judah P. Benjamin, the Chief Justice had occasion to 
render an opinion, rejecting his own unsuccessful argu- 
ment as counsel in Brown v. Maryland in 1827, and 
holding that such a tax was a tax on exports within the 
prohibition of the Constitution.* 

One month from the date of the adjournment of the 
Court, the advent of war by the attack on Fort Sumter 
on April 12 seemed to put an end to all consideration of 
judicial questions or of judicial appointments Never- 
theless, within six weeks after the opening gun was fired, 
the status of the Judiciary as the defender of the rights 
of the citizen, in war as well as in peace, became an 
active issue, when Chief Justice Taney, sitting in the 
United States Circuit Court, was brought into direct 
conflict with the President, by his famous decision in 
Ex parte Merryman. In this case, a prominent citizen 
of Baltimore who had been arrested by the military on a 
charge of aiding the enemy and who had been impris- 
oned in Fort McHenry, had obtained a writ of habeas 

1 In Buok V. Colbath, 8 Wall. 884, the Court said that the Fre&man ▼. Hov>e de- 
dnon " took the profewion generally by surprise, overruling as it did the unanimous 
opinion of the Supreme Court of Massachusetts ... as well as the opinion of 
Chancellor Kent. " 

> See as to this case. Woodruff v. Parham, 8 Wall. 128, 188; Champion v. Ames, 
188 U. S. 821. 849. 



THE CIVIL WAR AND CHASE 91 

corpus from the Chief Justice. The officer in charge of 
the prisoner having declined to obey the writ on the 
ground that he was authorized by the President to sus- 
pend the writ of habeas corpus for the public safety, 
Taney at once issued an attachment for contempt. 
Its service being prevented by the mUitary , Taney pro- 
ceeded to file an opinion holding the suspension of the 
writ by the President to be in violation of the Constitu- 
tion, and ordered the Clerk of the Court to transmit 
a copy of the opinion to the President.* The case 
thus involving the powers of the Executive with respect 
to the liberty of the citizen excited intense interest 
throughout the country.* Once more, as in 1867, 
criticism and denunciation of the harshest kind were 
leveled at the aged Chief Justice ; and many Republican 
papers even questioned his loyalty to the Union. **The 
Chief Justice takes sides with traitors, throwing around 
them the sheltering protection of the ermine," said the 
New York Tribune. "When treason stalks abroad in 
arms, let decrepit Judges give place to men capable of 
detecting and crushing it" ; and it stated that Taney's 
decision tended "to bring the ermine into contempt 
with the great body of loyal citizens. The appropriate 
sphere of this writ is the Courts. It is out of place in 
the camp. Originally intended to secure the liberty of 
loyal men, it would be a gross perversion of its powers 

* tyltx states in his Memoir of Taney that the Chief Justice, as he left the house of 
his SOD* remariEed that it was likely that he should be imprisoned in Fort McHenry 
before night, but that he was going to Court to do his duty. About the same time. 
Judge Treat of the United States District Court in St. Louis issued a writ of habeas 
corpus in the case of Capt. Emmet Biacdonald, who had been arrested and impris- 
oned by Gen. Harvey, on charges of treason, and after lengthy arguments an order 
for Blaodonald's discharge was issued and finally complied with by the Army : see 
especially, Minouri Democrat, Biay 16, 28, 84, 27, 28, 29, June 1, 8, 4, 7, 10, 1861 
NatUnud Intettigeneer, Biay 29, 1861. 

' New York Timse, May 29, 80, 1861 ; New York Trilnme, Biay 29, 80, 81, 1861 
PkOadd'pkia Press, June 5, 6, 1861 ; New York World, May 29, June 5, 1861 ; Mis- 
souri Democrat, June 8, 1861, editorial on "Military Despotism as a Bug Bear' 
New York Eeening Post, May 29» June 4, 1861. 



92 THE SUPREME COURT 

to employ it as the protecting shield of rebels agamst 
a constitutional government. . . . No Judge whose 
heart was loyal to the Constitution would have given 
such aid and comfort to public enemies. . . • Let 
us not be afraid of military despotism. ... Of all 
the tyrannies that affict mankind, that of the Judiciary 
is the most insidious, the most intolerable, the most 
dangerous.'' The New York Times said that no man 
knew better than Taney that he was perverting the 
uses of the writ and prostituting its purposes. "Too 
feeble to wield the sword against the Constitution, too 
old and palsied and weak to march in the ranks of re- 
bellion and fight against the Union, he uses the powers 
of his office to serve the cause of the traitors." The 
New York Evening Post said that Taney was using " his 
authority and position to the advantage of those who 
are armed against the Union,*' and "to serve treason, 
and embarrass and injure the Government." The 
Philadelphia Press said that Taney's opinion bore every 
evidence of having been prepared with intention to 
embarrass the President; and that his sympathies 
were evidently neither with the Union nor with the 
President in his efforts to save the Union. "That 
which curbs tyranny should speed patriotism and crush 
treason. ... If his action is an indication of his 
future course, treason will find a place of refuge, and its 
abettors encouragement and sympathy, in the Supreme 
Court." The Missouri Democrat spK)ke of the "med- 
dling and traitorous efforts to thwart the efficiency 
of the Government in its hour of peril. ... If the 
Government will follow up the suspension of the writ 
of habeas corpus with the dispension of . . . Taney 
it will be a good riddance for the country." 

Derogatory views of this kind were not by any means 
universal ; and many staunch Republican organs com- 



THE CIVIL WAR AND CHASE 9S 

mended Taney's action in behalf of personal liberty.* 
"We are not sorry to see the Judiciary declare its 
opinion, or even enter its protest against acts which it 
believes to be without authority,*' said the Boston 
Advertiser. "If in any point the limits of the Con- 
stitution are overstepped, we desire that the excess 
should not be overlooked, but that it should be entered 
upon the record, to stand as a warning, in more peace- 
ful times yet to come, that here is an act, the necessity 
of which was the justification, and which is not to be 
made a precedent at any time when the public exi- 
gency is less pressing." The Cincinnati Commercial, 
which had in previous years bitterly assailed Taney, 
acknowledged that in this case he had done only what 
the law required of him, and that denunciations were 
now unjustified; and it stated that, while the offense 
committed by Merryman was unquestionably heinous, 
"it does appear to us that he could have been held 
and punished by the civil power, . . . The very fact 
that we are placed in circumstances so critical as to 
render the application of the severest remedies some- 
times justifiable should guard us against resorting to 
military rule. . . . Let us have no dictation from the 
Army, so long as we can have justice administered from 
her customary seat." The Baltimore American took 
the same view of the situation. "The plea of State- 
necessity may be advanced by the President to justify 
himself for so high-handed an act as the suspension of 
the writ ; . . . but it would not be well for the highest 
oflficer of the Government to justify a plain violation of 
the Constitution, while calling out troops to maintain 

1 Badon Daily Aditertiser, May 80, 1861 ; National Intdligencer, May 80, June 4, 
8^ 22, 1861 ; CincinnaH Commercial, May 29, June 8, 1861 ; BaUimore American, 
May 29, June 4, 1861 ; The WaakingUm Star, May 29, 1861, said that the action 
(rf Chief Juatice Taney in this case was probably in accordance with the strict letter 
(rf the law but that it was to be sincerely regretted that he had refused to take into 
consideration the revolutionary state of the country. 



d4 THE SUPREME COURT 

that same Constitution inviolate. ... It is emi- 
nently proper that a Government which is fighting 
to maintain the integrity of the Constitution should in- 
terpose no arbitrary action to suspend or interfere with 
rights plainly guaranteed under it, if it would have the 
support and countenance of its citizens." 

While the legal controversy which raged in 1861 over 
the constitutional right of the President to suspend the 
writ of habeas corpus has never been settled by judicial 
decision or public opinion, the right and the duty of 
the Chief Justice to issue the writ and to consider the 
legal question involved is now universally admitted.* 
And history has recorded as its verdict that (as stated 
by one of his biographers) "there is nothing more 
sublime in the acts of great magistrates that give dig- 
nity to Governments than this attempt of Chief Justice 
Taney to uphold the supremacy of the Constitution and 
civil authority in the midst of arms" ; and (as another 
wrote) : "Taney's action in this case was worthy of the 
best traditions of the Anglo-Saxon Judiciary. There 
is no sublimer picture in our history than this of the 
aged Chief Justice, the fires of Civil War kindling around 
him, the President usurping the powers of Congress, 
and Congress itself a seething furnace of sectional 
animosities, serene and unafraid, while for a third time 
in his career, the storm of partisan fury broke over his 
devoted head, interposing the shield of the law in the 
defense of the liberty of the citizen." • 

President Lincoln, however, steadfastly adhered to 

^ See among maDy publications published in 1801 and 1802 on this subject : 
The PriviUge cf the Writ of Habeas Corpus, by Horace Binney ; article by Reverdy 
Johnson in the Weekly National InteUigencer, June 20, 1801 ; Habeas Corpus and 
the Law cf War and ConfiseaHon, by S. S. Nicholas ; Renew of Binney on the Habeas 
Corpus^ by J. C. Bullitt ; Habeas Corpus and Martial Law, by Joel Parker; and see 
especially Suspension of Habeas Corpus during the War of the RAeUion, by Sydney 
G. Fisher» Pol, Sci. Quar. (1888), m. 

> Roger B. Taney, by William E. Mikell, in Great Ammoan Lawyers {1905), TV, 
188; Ty^, 420-482. 



THE CIVIL WAR AND CHASE 95 

the theory that in time of war the necessities of the 
emergency were supreme; and accordingly, during 
the two years following the Merryman Case, a series of 
steps were taken by the President and by the Secretary 
of War in instituting censorship, military arrest and 
military trial, violative of the principles laid down by 
Taney, and which, while possibly justified by war con- 
ditions, have since been held to have been in excess of 
constitutional authority.* Lincoln's theory was elo- 
quently set forth by him in a letter in 1863 as follows : 
"Thoroughly imbued with a reverence for the guaran- 
teed rights of individuals, I was slow to adopt the strong 
measures which by degrees I have been forced to regard 
as being within the exceptions of the Constitution and 
as indispensable to the public safety. ... I con- 
cede that the class of arrests complained of can be 
constitutional only when in cases of rebellion or in- 
vasion the public safety may require them ; and I insist 
that in such cases they are constitutional wherever the 
public safety does require them, as well in places in 
which they may prevent the rebellion extending as in 
those where it may already be prevailing." • This 

^ See tlie censorship orders of July 8, Oct. 22, 1861, and Feb. 25, 1862, issued by 
the Secretary of War and the Secretary of State: the Executive Order of Feb. 14, 
1862, by the Secretary of War as to military arrests ; the President's Order of April 
27, 1861, and his Proclamation of Sept. 24, 1862, suspending habeas corpus; the 
Suspension of Habeas Corpus Act of March 8, 1868. Congress by the Act of March 
8, 1868, the Act oi May 11, 1866, and the Act of March 2, 1867, attempted to con- 
firm and validate the acts of President Lincoln and Secretary Stanton and of 
military officers acting in accordance with their orders in making military arrests, 
etc These sUtutes were involved in Beard v. BurU, 95 U. S. 484, in 1877, and 
hi Bean v. Beckvriik, 98 U. S. 266, in 1878; but the Court did not pass on the 
question of their constitutionality ; see especially Sprin^fidd RepuUieatit Jan. 9, 

1879. 

' CompUU Works cf Abraham Lincoln (1905), VIII, letter to Erastus Coming, 
June 12, 1868. It is interesting to note that one other Court had the courage to 
deny Lincoln's theories. The Supreme Court of Wisconsin, the very tribunal which 
had so long defied Chief Justice Taney*s assertion of the supremacy of the National 
power in the Booth Case, in January, 1868, rendered an opinion in In re Kemp, 16 
Wise. 859, in which it upheld Taney's views in the Merryman Case as ''unanswer- 
able", and held that the President had no power to suspend the writ of habeas 
corpus ; see The Story of a Qreai Court (1912), by John B. Winslow. 



96 THE SUPREME COURT 

exaltation of the Executive over the law greatly de- 
pressed the aged Chief Justice throughout the remain- 
ing years of his life ; and he wrote, in 1863, that he saw 
no ground to hope that the Court would "ever be again 
restored to the authority and rank which the Constitu- 
tion intended to confer upon it. The supremacy of the 
military power over the civil seems to be established, 
and the public mind has acquiesced in it and sanctioned 
it." The apprehension so expressed as to the trend of 
events was unquestionably shared by many Senators 
and Representatives in Congress, even in the President's 
own party. ^ Yet such is the sturdiness of the American 
Judiciary and the vitality of the American belief in and 
insistence upon the rights of constitutional liberty, 
that, had the Chief Justice lived but four years after 
writing his note of pessimism, he would have seen the 
doctrines laid down by him in the Merryman Case 
strongly upheld. For in Milligan^s CasCy the Court 
composed largely of Republicans, unanimously joined 
in denouncing as highly illegal the Executive establish- 
ment of military tribunals in States where the civil 
Courts were open. Never did a fearless Judge receive 
a more swift or more complete vindication. 

On December 2, 1861, when the Court met for its 
annual session, there were three vacancies ; for Judge 
Daniel's successor had not been appointed. Judge 
McLean had died on April 4, 1861, and Judge Camp- 

^ For a summary of CoDgreasioiial criticum of the President, see Lincoln's Des- 
poUtm, by Charles Warren, New York Times, May 12, 1918. See also The Diary 
qf Qideon WdUs, I, Sept. \5, 1863 : "I think I am not mistaken in my impression 
that Mr. Chase is one of those who has claimed that the President had the constitu- 
tional right to suspend the privilege of this writ, yet he was today sensitive beyond 
all others in regard to it and proposed relying on the Act of Congress (of March S, 
1868) instead of the constitutional Executive prerogative. He feared if the Presi- 
dent acted on Executive authority a dvil war in the Free States would be inevitable ; 
fears popular tumult, would not offend Congress, etc. I have none of his apprehen- 
sions, and if it is the duty oi the President, would not permit legislative aggression, 
but TTn^intAtn the prerogative of the Executive." 



THE CIVIL WAR AND CHASE 97 

bell had, with great reluctance, decided that his duty 
impelled him to follow his State of Alabama out of the 
Union. While believing in secession as a constitutional 
right, Campbell had strongly opposed it as a policy; 
and his efforts through the winter and spring of 1860- 
1861 to avert war had been active and unremitting.* 
With the outbreak of war, however, he felt that it 
was his duty to resign, and that his continuance on 
the Bench would lead to a lack of confidence by the 
public in his opinions. Accordingly, he wrote to the 
Chief Justice, April 29, 1861 : "Some days ago, I sent 
through the mail to the President a notice of my resig- 
nation. ... In taking leave of the Court, I should 
do injustice to my own feeling, if I were not to express 
to you the profound impression that your eminent 
qualities as a magistrate and jurist have made upon me. 
I shall never forget the uprightness, fidelity, learning, 
thought and labor that have been brought by you to 
the consideration of the judgments of the Court, or the 
urbanity, gentleness, kindness and tolerance that have 
distinguished your intercourse with the members of 
the Court and Bar. From your hands, I have received 
all that I could have desired, and in leaving the Court, I 
carry with me feelings of mingled reverence, aflfection 
and gratitude. In the prayer that the remainder of 
your days may be happy and their end peace, I re- 
main your friend." * The loss thus sustained by the 
Bench was noted by the National Intelligencer^ which 
termed Campbell "a learned jurist and a faithful 

^ Stanton writing to Buchanan in May, 1861, said that "the New York Evening 
Pott is very severe on Judge Campbell, and very unjustly so, for the Judge has been 
as anxiously and patriotically anxious to preserve the Grovemment as any man in the 
United States, and he has sacrificed more than any other Southern man, rather than 
yield to the Secessionists. " John Ardribald Campbell (1920), by Hoiiy G. Connor. 
The New York Tribune, Nov. 27, 1860, said : "Every Judge on the Bench is for the 
Union. " See also The States and Union, Jan. 16, 26» 1861. 

* Maryland Hiel. Mag. (1010), V. 

VOL. ni — 4 



98 THE SUPREME COURT 

Judge, who during the entire period of his official ser- 
vice has illustrated the qualities which must adorn the 
exalted position he was called to fill, and who, in his 
retirement, will carry with him the admiration of his 
countrymen." 

President Lincoln hesitated at first to fill these 
vacancies on the Bench. His characteristically just 
attitude towards the South was shown in his first Mes- 
sage to Congress, December 3, 1861, in which he said : 
" Two of the outgoing Judges resided within the States 
now overrun by revolt, so that if successors were ap- 
pointed in the same localities, they could not now serve 
upon their Circuits ; and many of the most competent 
men there would not take the personal hazard of ac- 
cepting to serve even here upon the Supreme Bench. 
I have been unwilling to throw all the appointments 
Northward, thus disabling myself from doing justice 
to the South on the return of peace.*' * 

The gloomy conditions under which both the Court 
and Congress convened at this December Term of 
1861 were impressively alluded to by Attorney-General 
Bates, December 3, in presenting the resolutions of the 
Bar on the death of Judge McLean : 

Since the first organization of this Court, no Term has yet 
been held under circumstances so gloomy and sorrowful. I 
look up to that honored Bench and behold vacant seats. 
Even this august tribunal, the co-equal partner in the gov- 
ernment of a great Nation, the revered dispenser of our 
country's justice, shares with us in feeling the common sor- 
row, and suffers in the common calamity. It is shorn of its 
fair proportions, and weakened and diminished in its strength 
and beauty, by the present loss of one entire third of its 
competent members. And where are the wise, learned, and 

^ Lincoln pointed out at the same time that the whole judicial system ought to be 
revised, and that Wisconsin, Minnesota, Iowa, Kansas, Florida, Texas, Califorma 
and Oregon should be brought within some judicial Circuit, and provided with 
Circuit Courts. 



THE CIVIL WAR AND CHASE 99 

just men who used to fill those seats? Gone from this 
theatre of their fame and usef uhiess, while all of us remember 
them with respect and gratitude, and mourn the loss of their 
valuable services. Two of them have been peacefully 
gathered to their fathers, and have left their fame safe and 
unchangeable beyond the reach of malice, and secure against 
accident, embalmed in history, and narrowed by the grave. 
And one of them, in the ripe vigor of his manhood, and in 
the pride of a noble and highly cultivated mind, has been 
swept away from his high position by the turbulent waves of 
faction and civil war. And this is not all. Your lawful 
jurisdiction is practically restrained; your just power is 
diminished, and into a large portion of our country your 
writ does not run and your beneficent authority to adminis- 
ter justice according to law is, for the present, successfully 
denied and resisted. I look abroad over the country and 
behold a ghastly spectacle; a great nation, lately united, 
prosperous* and happy and buoyant with hopes of future 
glory, torn into warring fragments ; and a land once beauti- 
ful and rich in the flowers and fruits of peaceful culture, 
stained with blood, and blackened with fire. In all that 
wide space from the Potomac to the Rio Grande, and from 
the Atlantic to the Missouri, the still, small voice of legal 
justice is drowned by the incessant roll of the drum, and the 
deafening thunder of artillery. To that extent, your just 
and lawful power is practically annulled, for the laws are 
silent amidst arms. . . . Now, indeed, we are overshadowed 
with a dark cloud, broad and gloomy as a nation's pall ; but 
thanks be to God, the eye of faith and patriotism can discern 
the bow of promise set in that cloud, spanning the gloom 
with its bright arch, to foreshow the coming of a day of sim- 
shine and calm, and to justify our hope of a speedy restora- 
tion of peace, and order, and law. 

At this Term, few cases of importance were decided, 
other than California land claims.^ In Jej^erson Branch 

1 See especially United States v. VaUejo, 1 Black. 541 ; United States v. CasHUero, 
2 Blackp 1, involving the title to the rich quicksilver mines in New Almaden, Cali- 
fornia, decided in 1863. For an elaborate and interesting account of these Califor- 
nia land frauds, "a system of extensive frauds with forged grants and perjured wit- 
nesses such as the world has seldom witnessed*', as Judge Grier said in the VaUejo 
Case, see arguments of counsel in De Haro v. United SiateSt 6 Wall. 599, in 1869; 



100 THE SUPREME COURT 

Bank v. SkeUey, 1 Black, 436, the State of Ohio again at- 
tempted to induce the Court to reverse its position as 
to the power of a State to tax banks, which by a prior 
statute had been exempted from taxation; but the 
Court said that though it was aware that its view had 
not been satisfactory to all persons, *^ it has been adhered 
to by this Court in every attempt hitherto made to 
relax it ; and we presume it will be, until the historical 
recollections, which induced the framers of the Consti- 
tution to inhibit the States from passing any law im- 
pairing the obligation of contracts, have been for- 
gotten/* 

Shortly after the opening of the December Term 
of 1861, the precarious state of health of both Taney 
and Catron and the consequent retardation of the 
work of the Court made it imperative that one of 
the existing vacancies should be filled. Accordingly, 
on January SS, 1862, President Lincoln appointed in 
Judge McLean's place Noah Haynes Swayne of Ohio. 
Swayne was fifty-seven years old ; though without pre- 
vious judicial experience, he held an eminent position 
at the Ohio Bar, and his appointment had been vigor- 
ously urged by Governor Dennison, Senator Sherman 
and Senator Wade.^ Appointments to fill the vacan- 
cies caused by the death of Judge Daniel and the resig- 
nation of Judge Campbell were postponed until Con- 
gress should have come to a final decision as to the re- 
distribution of the Circuits, made necessary by the 
disappearance of the two which comprised the seceding 
States. It was rumored that the appointees for the 
new Circuits would be Senator OrviUe H. Browning of 

■ee alio Uter the notorioiu McGanahan cUdnis involved in United States v. Oainee, 
SS How. 926, 1 Wall. 690, 3 Wall. 752 ; MeOarrahan v. Mining Co,, 06 U. S. 816. 

1 New York Evening Post, Jan. 27, 1862; tlie New York Tribune, Jan. 28, 1862, 
termed Swayne *' one of the ablest Uwyen in Ohio. '* Swayne waa confirmed by the 
Senate, Jan. 24, 1862, by a vote of 88 to 1. 



THE CIVIL WAR AND CHASE 101 

Illinois and Caleb B. Smith of Indiana, Lincoln's Sec- 
retary of the Interior. Owing to personal opposition 
to these candidates and to State jealousies, the method 
of grouping the Western and Southwestern States 
became a subject of warm controversy in Congress ; the 
House and the Senate adopted different plans ; and it 
was not until the very end of the session, that on July 15, 
186S, an agreement was reached and an Act passed re- 
organizing the Court.* To fill one of the new positions 
the President appointed, on July 16, Samuel Freeman 
Miller of Iowa. Miller was forty-six years old, an 
outstanding figure at the Bar west of the Mississippi 
River, though little known to the country at large, and 
in no sense a National figure ; but his appointment had 
been vigorously urged by the lawyers of Iowa, Minne- 
sota, Kansas and Wisconsin* by the Governor and 
Senators and Representatives of Iowa, and by a peti- 
tion signed by one hundred and twenty-nine out of 
one hundred and forty Congressmen and twenty-eight 
out of thirty-two Senators.* To the other Judgeship, 
the President made no appointment for several months. 
The Bar of Illinois urged the name of Thomas Drum- 
mond; that of Michigan, William A. Howard; and 

^ See 97ih Cong,, td Ses».t July 4, 1862, especially speeches of Senator Tnimbull 
and Senator Wright. The Circuits were finally composed as follows : (6th, Ca- 
tron's) Ky.. Tcnn., Ark., Tex., La.; (7th, Swaync's) Ind.,Ohio; (8th) HI., Wise.. 
Mich. ; (9th) Minn., la., Kans., Mo. The New York Tribune, July 14, 1868, said 
that by the inclusion of Ohio and Indiana in Swajme's Circuit the opponents of Smith 
and Browning were suooessful ; that by the union of Wisconsin and Illinois, both 
Browning and Senator James R. DoditUe (of Wisconsin) were put out of the ques- 
tion, as Michigan was added, in the expectation that its influence would defeat 
both. " Browning, whose prospects were, until he took ground against the most 
important Republican measures, considered the best, has been the Jonah of the bill, 
everybody trying to throw him overboard.'* 

* Samwd Freeman MHUr, by Charles N. Gregory, lotoa Biog. Series (1007), Yale 
Law Jour. (1008), XVII ; see also article by Horace Stem in Cheat American Law- 
yers (1008), VI. So little known was Miller that the New York Tribune said edi- 
torially, July 18, 1862: "Mr. Miller's name is printed 'Samuel' in the despatches 
but we presume it is 'Daniel F. Miller', the first Whig member of Congress ever 
chosen from Iowa." 



102 THE SUPREME COURT 

that of Wisconsin, James R. Doolittle. Finally, Lin- 
coln chose his dose personal friend, David Davis of 
Illinois, who was appointed on December 1, and con- 
firmed on December 8, 1862. Davis was forty-seven 
years of age, and had been for fourteen years a Judge 
of the Eighth Judicial Circuit in Illinois.^ 

The next spring, by the Act of March 3, 1863, Con- 
gress established a new (Tenth) Circuit comprising 
California and Oregon, and a tenth Associate Judge ; 
and to this position, the President appointed, on March 
6, Stephen Johnson Field of California, who was con- 
firmed by the Senate, March 16. Field was forty-six 
years of age and had served as Judge and Chief Justice 
of the Supreme Court of California. Though a Demo- 
crat in politics, he had been a strong Union man, and 
his appointment, requested by the whole California 
delegation, was received with hearty applause through- 
out the country, regardless of politics — **a fine, general 
scholar and a thorough lawyer", said the New York 
Evening Posty "probably better acquainted with that 
mixed system of law, Mexican, Spanish and American, 
which prevails in California, than any other man in the 
country. ... He will long do honor to the position 
. • . and the Government will have no more deter- 
mined supporter. '* * 

The Term beginning in December, 1862, was a 
notable one in its effect upon the war. On March 10, 
1863, the Court decided the group of cases known as 
the Prize Cases ^ 2 Black, 635, headed by the Brig Amy 
Warwick} Not only were these the first cases arising 

> Damd Dams, by Thomaa Dent, Amer, Law Rev, (1019), LIII. 

> New York Evening Poet, March 11, 186S ; see also Cincinnati Daily OwuUe, 
March 14, 186S ; Stephen Johnson Field, by John N. Pomeroy, Jr., Qreat American 
Lawyere (1908), VII. 

* National Republican, March 10, 1862, said ; " Tlie object of this sitting of the 
Court was to announce its decision in the great Almaden Case and the Prize Cases, 
Besides the counsel for and against the Government there were present a Urge 



THE CIVIL WAR AND CHASE lOS 

out of the Civil War to be decided by this tribunal, but 
they were far more momentous in the issue involved 
than any other war case ; and their final determination 
favorable to the Government's contention was almost 
a necessary factor in the suppression of the war. The 
problem presented to the Court was how to apply the 
rules of international and prize law affecting attempts 
by neutrals to violate a blockade established between 
separate political powers recognized as belligerents, to 
the situation presented in this war* The Government 
of the United States had heretofore acted upon the 
theory that the war was an insurrection, that there were 
not two belligerent parties, and that the political integ- 
rity of the coimtry had not been modified.* The 
situation was greatly complicated by the facts that 
Seward as Secretary of State had inserted in his block- 
ade proclamations, provisions unknown to interna- 
tional law; that he had taken the ofiBicial position 
that "no war'' existed ; and that the Government itself 
was strenuously protesting against any recognition by 
foreign nations of the Confederacy as a belligerent.* 
If the Court should decide that the principles of in- 
ternational law applying in a war between belligerents 
did not control in this case, the Government's blockade 

number of dutinguiahed lawyers from different sections of the country besides a 
very intelligent and attentive audience including several ladies. The reading of 
the Almaden Cote decision occupied from 11.80 a.m. to 2 p.m." 

^ William MaxwtU Evarts, by Sherman Evarts, in Oreai American Lawyers (1906)» 
VII. 

> See New York World, March 17, 1863 Diary (1863), by Adam Gurowski, II, 
146 a ieq„ Feb. 19, 186S: ''The counsel for the English and rebel blockade run- 
ners and pilferers find the best point of legal defence, in the unstatesmanlike and 
unlegal wording of the proclamation of the blockade, as concocted and issued by 
Mr. Seward, and in the repeated declarations contained in the voluminous cor- 
respondence of our Secretary of State, declarations asserting that no war whatever 
is going on in the Federal Republic. No war, — therefore no lawful prizes in the 
ocean. So, ignorance and humbug mark every step of this foremost among the 
pilots of a noble, highminded, but too confiding people. . . . When Mr. Seward 
penned this doleful proclamation of the blockade ... he never had before his 
mind what a mess he generated, what complications might arise therefrom." 



104 THE SUPREME COURT 

would be entirely ineffective. As Richard H. Dana, one 
of the Government's counsel wrote : * 

These causes present our Constitution in a new and pe- 
culiar light. In all States but ours, flow existing or that 
have ever existed, the function of the Judiciary is to inter- 
pret the acts of the Government. In ours, it is to decide 
their legality. The Government is carrying on a war. It 
is exerting aU the powers of war. Yet the claimants of the 
captured vessels not only seek to save their vessels by deny- 
ing that they are liable to capture but deny the right of the 
Government to exercise war power, — deny that this can be, 
in point of law, a war. So the Judiciary is actually, after 
a war of twenty-three months' duration, to decide whether 
the Government has the l^al capacity to exert these war 
powers. . . . Contemplate, my dear sir, the possibility of a 
Supreme Court, deciding that this blockade is illegal ! What 
a position it would put us in before the world whose com- 
merce we have been ill^ally prohibiting, whom we have 
unlawfully subjected to a cotton famine, and domestic dan- 
gers and distress for two years ! It would end the war, and 
how it would leave us with neutral powers, it is fearful to 
contemplate! Yet such an event is legally possible — I 
do not think it probable, hardly possible, in fact. But last 
year, I think there was danger of such a result, when the 
blockade was new and before the three new Judges were 
appointed. The bare contemplation of such a possibility 
makes us pause in our boastful assertion that our written 
Constitution is clearly the best adapted to all exigencies, the 
last, best gift to man. 

The cases were argued for twelve days, February 
10-25, by Attorney-General Bates, William M. Evarts 
and Charles B. Sedgwick of New York, Richard H. 
Dana of Boston, and Charles Eames of Washington, 
against James Mandeville Carlisle of Washington, 
Daniel Lord and Charles Edwards of New York and 
Edward Bangs of Boston. And the following graphic 

^ Riekard H. Dana (1890), by Charles Francis Adams, II, 266 s< Mg., letter of 
Maich 9, 1865. 



THE CIVIL WAR AND CHASE 105 

description of Dana's argument and of its effect upon 
the Court was given by an auditor in the Court-room, 
recalling ^'the glow of admiration and delight with 
which they listened to that luminous and exquisite 
presentation of the status which armed the Executive 
with power to use the methods and processes of war to 
suppress the great rebellion. Dry legal questioms were 
lifted into the higher region of international discussion, 
and the philosophy of the barbaric right of capture of 
private property at sea was, for the first time in the 
hearing of most of the Judges then on the Bench, 
applied to the pending situation, with a power of rea- 
son and a wealth of illustration, and a grace and fe- 
licity of style that swept all before them. After Mr. 
Dana had closed his argument, I happened to encounter 
Judge Grier, who had retired for a moment to the cor- 
ridor in the rear of the bench, and whose clear judicial 
mind and finely cultivated literary taste had keenly 
enjoyed the speech, and, in a burst of imjudicial en- 
thusiasm, he said to me, *Well, your little Two Years 
before the Mast has settled that question ; there is noth- 
ing more to say about it!'*'* Dana himself wrote 
from Washington : "I have every reason to be satisfied 
with my argument and its results. The compliments 
I have received from the Judges and audience and 
counsel are quite too flattering to be put on paper. 
They seem to think the philosophy of the law of prize 
has been developed for the first time in its bearing on 
the present question.*' And later : "I have won Judge 
Grier*s heart. He pats me on the shoulder and says 
I have cleaned up all his doubts and that it is the best 
argument he has heard for five years, etc. The Attor- 
ney-General seems quite overcome with his emotion on 
the subject, and cannot say enough. Seward is flat- 

^ Richard E. Dana (1800). by Charles Francb Aduns, II, 260-270. 



108 THE SUPREME COURT 

tering, and others.'* The judgment of the Court was 
delivered only fifteen days after the close of the argu- 
ment ; and while there was a division in the Court, it 
was not on political lines; for the three Judges ap- 
pointed by President Lincoln, Swayne, Miller and 
Davis, joined with two of the old Court, Wayne and 
Grier, to make up the majority (Chief Justice Taney 
and Judges Nelson, Catron and Clifford dissenting)* 
In giving the opinion of the Court, Judge Grier said 
that: "It is not necessary, to constitute war, that 
both parties should be acknowledged as independent 
nations or sovereign States. A war may exist where 
one of the beUigerents claims sovereign rights as against 
the other . . • and whether the hostile party be a 
foreign invader, or States organized in rebellion, it is 
none the less a war, although the declaration of it be 
* unilateral/ " It was held that the President's proc- 
lamation of a blockade was a lawful exercise of his 
power to meet and suppress the war, " in the shape in 
which it presented itself/' This decision was greeted 
by the press of the North with approval and relief. 
There had been grave fears lest the Court, composed of 
a majority of the Judges appointed prior to the war, 
might embarrass the Administration, by denying the 
legality of President Lincoln's actions, many of which 
had been initiated without legislative sanction. A 
striking illustration of the apprehensions with which 
the result of the case had been awaited, appeared in an 
elaborate editorial consideration which the New York 
Times gave to the attitude of the "Copperheads'* to- 
wards the Courts.* It stated that, beginning with 
the Merryman habeas corpus, appeals to the civil 
Courts had figured largely in the attempts made to 

^New York Times, March 18, 1868; New York World, March 14. 17, 1868; 
New York Tribune, March 18, 1868; National Republican, March 11, 1868. See 
eLk) Law Reporter (1863), 787, quoting letter from Boston Adoertiaer, Dec. 18, 1868. 



THE CIVIL WAR AND CHASE 107 

embarrass and weaken the Government. It rejoiced 
that hitherto these attempts had failed, and that the 
Judges had generally shown a loyal spirit, and had had 
" both the heart and head to refuse cooperation with 
factious men," and had in habeas corpus proceedings 
been content to await the decision of the highest 
tribunal before releasing men under military arrest; 
and it further rejoiced that the hope of the "Copper- 
heads" "to cast a vast burden upon the Treasury, by 
annulling the blockade proclaimed by the President 
before the meeting of Congress, is dashed by a deci- 
sion that the President had a complete right to in- 
stitute the blockade, without awaiting Congressional 
action." It found grounds for expecting the Court to 
uphold the legality of the Emancipation Proclamation ; 
for, it said, "the Court distinctly recognizes the jtis 
belii, the war power, against which so much passionate 
declamation has been expended. It is said that the 
President may exert this power by proclamation, and 
that all the sinews of war may thus be cut. It is diffi- 
cult to see why the very broad language of the Court 
in respect to the proclamation of the blockade does not 
involve the constitutional validity of the proclamation 
against slave property. ... It is our firm conviction 
that the Supreme Court would indorse the constitu- 
tional validity of every important act of the Executive 
or of Congress thus far in the rebellion." The National 
Republican rejoiced that the dissenting opinion of 
Judge Nelson had not prevailed, as it left "an unpleas- 
ant and unsatisfactory feeling of apprehension that the 
powers of the Government, as found in the Constitution, 
were not adequate to the high and imperative duties 
which devolved upon it, of using all possible means of 
crushing the war of the rebellion at the outset." 
That the Court was insistent on upholding the arm of 



108 THE SUPREME COURT 

the Grovemment in its war operations was seen in an- 
other important decision^ rendered on the same day with 
the Prize Cases^ March 10, 1863, in Bank of Commerce v. 
New Yofky 2 Black, 620, strongly denouncing any in- 
terference by a State with the powers and f imctions of 
the National Government. In this case, the State of 
New York had attempted to tax the capital of a bank, 
part of which was invested in stock and bonds of the 
United States. The exercise of such attempted au- 
thority was held to be in derogation of the power of the 
Nation to borrow money, "one of the most important 
and even vital functions of the General Government 
... a means of supplying the necessary resources 
to meet exigencies in time of peace or war." While 
admitting that "there is and must always be a con- 
siderable latitude of discretion in every wise govern- 
ment in the exercise of the taxing power". Judge Nel- 
son said that this principle would not warrant the tres- 
pass by a State upon the functions of the Nation; 
that while it might be difficult oftentimes to fix the true 
boundary between the two systems, " each is sovereign 
and independent in its sphere of action, and exempt 
from the interference or control of the other, either 
in the means employed or functions exercised"; and 
he added, " influenced by a public and patriotic spirit 
on both sides, a conflict of authority need not occur 
or be feared." The hope of the Copperheads "to 
damage the credit of the Government by subjecting 
its bonds to State and other local taxation is dashed", 
said the New York Tim^s. The importance of the clear 
announcement of the principle asserted in this case, 
just at this period when the financing of the war was 
becoming increasingly difficult, cannot be overesti- 
mated. 
That the Court, however, even in time of war, was 



THE CIVIL WAR AND CHASE 109 

not inclined to acquiesce in any extension of National 
authority which it deemed unwarranted by the Consti- 
tution was seen in its attitude towards the provision 
of the Federal income tax law, imposing a tax upon the 
incomes of the Judges. In denial of the validity of 
such a tax. Chief Justice Taney wrote to the Secretary 
of the Treasury, saying that he would "not by any 
act or word of mine have it supposed that I acquiesce 
in a measure that displaces it (the Judicial Department) 
from the independent position assigned to it by the 
statesmen who framed the Constitution." The Secre- 
tary having ignored this communication, the Court it- 
self, on the day of the decision of the Prize Cases, March 
10, 1868, ordered a copy of the letter to be entered on its 
records.* 

At the December, 1863, Term, it was supposed that 
the great question of the constitutional power of Con- 
gress to issue legal tender paper money would be de- 
cided, for a case involving the validity of the Legal 
Tender Acts was before the Court, on a writ of error to 
the New York State Supreme Court, Roosevelt v. Meyer, 
1 Wall. 512. By curious mischance, the question was 
not decided, owing to the fact that the Court held that 
it had no jurisdiction of the case (although nine years 
later, it was obliged to admit that its decision had been 
wrong, and to overrule it). Had the case been decided 
in 1863, instead of in 1870, it is probable that the Legal 
Tender Acts would have been held invalid by so large a 
majority of the Court that no attempt would have 
been made to reverse the decision, and the Court would 
have been spared the charges and the temporary 
discredit, later brought upon it by the rendering of its 
two contradictory decisions, in 1870 and 1871. The 
effect of an adverse decision in 1863 upon the methods 

^ Tan§if,i»%; Opinionof the Judget ol Ftb. 16» 1808, in 158 U. S. App. 



110 THE SUPREME COURT 

then employed to finance the wtir presents an interest- 
ing field for surmise. 

One other case of historical importance with relation 
to the war may be noted, Ex parte VaUandigham, 1 
Wall. 243, in which it had been expected that the whole 
question of the validity of the arrests and military trials 
ordered by Lincoln and Stanton would be presented for 
the decision of the Court. The possibility, however, 
of a conflict between the Court and the Executive 
on this serious point was averted by a ruling that the 
Court had no jurisdiction of a petition of habeas corpus 
issued to a military commission; consequently no de- 
cision of the question was made until after the end of 
the war, in Ex parte Milligan, in 1866. 

Before the opening of the December Term of 1864, 
Chief Justice Taney (who had been ill during the whole 
of the previous Term) died on October 12, 1864. He 
was then in his eighty-eighth year, and had presided 
over the Court for more than twenty-eight years. 
When the Court met on December 7, 1864, resolutions 
of the Bar were presented by Thomas Ewing, stating 
that "deeply impressed by the great and good qualities 
and acquirements and illustrious life" of Taney, they 
deplored "the decree, inevitable at his advanced age, 
which had removed him from his place of usefulness, 
dignity and honor here." ^ In his reply to these reso- 
lutions. Judge Wayne, after alluding to the Chief Jus- 
tice and referring to the body of law built up by his 
decisions and by those of his predecessor, closed with a 
patriotic comment upon the war and the duty of the 
Court in maintaining this great constitutional system 

1 The meeting of the Bar had been held, Dec. 6, 1864, and addresses were made by 
Thomas Ewing, J. M. Carlisle, Henry Stanbeiy, Reverdy Johnson and Charles 
O'Conor. The National RepMiean, Dec. 7, 1864, stated that the resolutions were 
**read by James M. Carlisle who framed them. Justice Wayne in a low and tremu- 
lous voioe which was semi-audible replied in behalf of the Court." 



THE CIVIL WAR AND CHASE 111 

of law: "It is truly a system upon which we can rely, 
as a foundation for securing the rights and independence 
of the States of this Union and our National Liberty. 
Gentlemen of the Bar, it is our part to maintain it, and 
if this shall be done with discretion, and with a spirit 
exempt from the corruptions of party, our country 
will again be what it was/^ 

The persistence of the bitterness of partisan feeling 
which had been aroused by Taney's fatal decision in 
the Dred Scott Case was shown by an entry in the diary 
of Gideon Welles, the Secretary of the Navy, with 
reference to a discussion in the Cabinet as to its at- 
tendance at Taney's funeral : ^ 

I felt little inclined to participate. I have never called 
upon him living, and while his position and office were to be 
respected, I had no honors for the deceased beyond those 
that were public. That he had many good qualities and 
possessed ability, I do not doubt ; that he rendered service 
in Jackson's Administration is true, and during most of his 
political life, he was upright and just. But the course pur- 
sued in the Dred Scott Case and all the attending circum- 
stances forfeited respect for him as a man or Judge . . . 
for I have looked on him and his Court as having contrib- 
uted, imintentionally, perhaps, but largely, to the calami- 
ties of our afflicted country. They probably did not mean 
treason, but thought their wisdom and official position 
would give national sanction to a great wrong. 

Many Republican newspapers commented on Taney's 
death with extreme rancor. The Independent^ while 
stating that ""a long life of public service in posts of 
great power and dignity is just ended", and while ad- 
mitting his "unblemished private life", could not 
refrain from making the occasion an excuse for a further 
attack on the "infamous decision" and his "perdurable 
ignominy", and it repeated the false charge that Taney 

1 The Diary of Qidwn WMes (1911), Oct. 14, Not. 86, 1864. 



112 THE SUPREME COURT 

had stated that the negro had no rights which a white 
man was bound to respect. "This sentence," it said, 
"will keep the memory of Chief Justice Taney in 
the popular mind, as long as the memory of slavery 
endures. It compresses into a single line the whole 
bloody history and lawless law of slavery . . . • History 
will expose him to eternal scorn in the pillory she has set 
up for infamous Judges/'^ The Cincinnati Gazette 
delivered a violent invective on the Dred Scott decision, 
which it termed "astounding to lawyers and revolting 
to every humane man"; and it stated that as the 
Court became successively more "degraded", the 
Democratic Party "began to set up its decision as a 
finality. They dragged it into the party arena to 
decide political questions," in all of which Judge Taney 
was "as subservient an instrument as in the tyrannical 
act for which he was rewarded by his place on the 
Bench." Other papers even questioned Taney's pa- 
triotism. Thus, the Washington correspondent of the 
Philadelphia Press wrote that Taney had earned great 
and just renown, and had been accepted as the best 
embodiment of a pure and conscientious Justice, until 
"that fatal decree which in great part has been the 
source of all our woes. . . . The Supreme Court from 
that time became a political, if not a party, tribunal, and 
the awe and veneration that had so long surrounded 
its Chief were supplanted by suspicion and dis- 
trust. . . . Nobody doubts that Taney died with his 
heart beating for the Rebellion. He scarcely took 
pains to conceal his feelings. Some of his decisions in 

> Independent, Oct. 20, 1864 ; Cineinnaii OoMeUe, Oct. 14, 20, 1864 ; Philaddpkia 
Press, Oct. 14, 1864 ; PkOadeljMa North American, Oct. 14, 1864. The Nation, 
Apill 28, 1880, stated tlutt the Btoiy used to be told of Benjamin F. Wade, the radical 
Republican Senator from Ohio, "that old Ben said he had for many weary years 
earnestly prayed that the author of the Died Scott decision might live until a 
Republican President could name his successor — and he began to fear that he 
prayed too hard.** 



THE CIVIL WAB AND CHASE US 

the early days of that most murderous revolt were held 
to be ahnost partisan. Hence, however we may re- 
member and respect his past excellence, no true friend 
of the Government can feel that his loss is a National 
loss/' And the Philadelphia North American made 
an equally unwarranted assault, stating that subser- 
viency and partisanship were characteristic of his 
nature, proofs of which he had afforded "by his ef- 
forts to relieve Maryland traitors from arrest* . . . 
The Nation can feel little regret at his removal from an 
office which, in his hands, has been so promiscuously 
used. It is fortimate for the interests of humanity 
that the President and Senate who must fill the vacancy 
are devoted to the interests of republican liberty and 
will suffer no man of that school of politics to which 
Taney belonged to intrude into the judicial robes of 
which death has deprived him." 

There were, however, many strong Republican pa- 
pers which were not blinded by passions arising out of 
the slavery question, and which frankly admitted the 
greatness of the dead Chief Justice.^ '^He discharged 
the high duties of his position with a dignity, impar- 
tiality, and integrity which have reflected honor on his 
country, and in a manner which, with one notable ex- 
ception, have been entirely satisfactory to his country- 
men,*' said the Washington Chronicle; and the New 
York Tribune^ while terming him "a votary and pillar 
of the Slave Power", said that though not so wise a man 
as Marshall, he was still an "able, learned, upright 
Judge, whose one signal aberration from the line of duty 
his surviving countrymen will now hasten to forget", 
and that *^it is no more just than generous to question 
his mtegrity, nor his sincerity, whatever we may think 

1 Wa$kingUm Ckranids, Oct. 18, 1864 ; Missouri Democrat, Oct. 18, 1864 ; Nsw 
York Tribune, Oct. 14, 15, 1864 ; New York Times, Oct. 14, 1864 ; Ohio State Jour- 
nal, Oct 17, 1864 ; Boston Daily Advertiser, Oct. 14, 1864. 



114 THE SUPREME COURT 

of the quality of his patriotism. . • • It were unjust 
to presume that he did not truly and earnestly seek the 
good of his country/' The New York Times spoke of 
Taney's "pure, moral character and great legal learn- 
ing and acumen", and said: "Had it not been for his 
unfortunate Dred Scott decision, all would admit that 
he had, through all these years, nobly sustained his 
high office. That decision itself, wrong as it was, did 
not spring from a corrupt or malignant heart. It came, 
we have charity to believe, from a sincere desire to 
compose, rather than exacerbate, sectional discord. 
But yet it was none the less an act of supreme folly, and 
its shadow will ever rest on his renown.'* And the 
Boston Advertiser said that, imtil the Dred Scott decision, 
Taney "by his acquirements as a jurist and his grave 
deportment seemed the worthy successor of Marshall ; 
• • . and as the political excitements of the day dis- 
appear, and his character as a Judge comes to be read 
in the long course of his judgments, rather than in po- 
litical discussion, we may well believe that his name 
will again shine brilliantly and permanently among 
those of the greatest of American lawyers and jurists." * 
That the Democratic papers would eulogize the 
Chief Justice was to have been expected; and the 
World said that Taney possessed one indispensable 
qualification for his position which even his assailants 
admitted, "a high and intrepid independence — that 
moral fearlessness which is deterred by no obloquy from 

^ That even with Republicans the feelings aroused by Taney's Dred Scott decision 
had begun to die down prior to his death is seen from an editorial in Harper* a Weekly^ 
Dec. 8, 1860, which stated : "Taney has won high fame. His opinions command 
general respect. . . . Within the past year or two, he has, after twenty years 
absolution from the strife of politics, been subjected to some animadversion by 
members of the Republican party, in consequence of the Dred Scott decision. With- 
out entering upon the controversy involved in this celebrated case, we may close 
this brief sketch with the remark that when Judge Taney shall have disappeared 
altogether from public life, members of all parties will unite to commend Us vast 
learning, his unspotted integrity and his remarkable suavity." 



THE CIVIL WAR AND CHASE 116 

stern obedience to honest convictions/' The Na- 
tional Intelligencer said that he left '^a reputation as 
much distinguished by the superior dignity of his 
character as by the extraordinary vigor of intellect"; 
and the Baltimore Sun said that the ^'common opinion 
of his countrymen bears witness to his faithful perform- 
ance of the great duties of his station. . . . He will 
go to his grave, followed by the reverence and regret 
of the wise, the thoughtful and the virtuous of his 
generation." ' 

The persistence of the implacable hatred entertained 
by the radical anti-slavery Republicans towards the 
Chief Justice was illustrated, four months after his 
death, by a debate in February, 1865, on a bill which 
had been introduced by Lyman Trumbull, the promi- 
nent Republican Senator from Illinois, for the placing 
of a marble bust of Taney in the Supreme Court-room 
(where already busts of Jay, Ellsworth and Marshall 
had been installed).^ "I object," said Charles Sum- 
ner, *'that an emancipated country should make a bust 
to the author of the Dred Scott decision/* To this, 
Trumbull replied: "A person who has presided over 
the Supreme Court for more than a quarter of a cen- 
tury and has added reputation to the character of the 
Judiciary of the United States throughout the world 
is not to be hooted down, by an exclamation that the 
country is to be emancipated. Suppose he did make a 
wrong decision. No man is infallible. He was a great 
and learned and able man." ' "The name of Taney," 
retorted Sumner, "is to be hooted down the page of 

1 New York World, Oct. 14, 1864; National Intelligencer, Oct. 13, 1864; see also 
Nov. 10, 1864, quoting address of William L. Pryor before the United States Circuit 
Court in New York, and the response of Judge Nelson ; Baltimore Sun, Oct. 14, 1864. 

> 38th Cong,, U Sees,, Feb. 93, 1865, 1012 et seq. 

' See editorial in Springfield Republican, Jan. 26, 1867, entitled "The Just are 
Generous ", with reference to efforts made in Illinois to defeat Trumbull for rejection 
because of his vote on the Taney bust question. 



116 THE SUPREME COURT 

history. • . . The Senator says that he for twenty- 
five years admmistered justice. He administered jus- 
tice, at last, wickedly, and degraded the Judiciary of 
the country and degraded the age.'* This extreme 
attack brought to his defense the warm personal 
friend of the late Chief Justice, Reverdy Johnson, 
Senator from Maryland, who said: '"I cannot fail to 
express my astonishment at the course of the honorable 
Senator from Massachusetts, which he thinks it, I 
suppose, his duty to pursue. If the times in which 
we are living are honestly and truly recorded by the 
historian, I think the honorable member from Massa- 
chusetts will be very happy, if he stands as pure and 
high upon the historic page as the learned Judge who is 
now no more. . . . The decisions of that learned jurist 
are now quoted with approbation everywhere; and 
there is not a Judge upon the Bench now (three or four 
of them having been selected by the present incumbent 
of the Presidential office) who will not say at once that a 
brighter intellect never adorned the judicial chair.** ^ 
Trumbull also defended the dead man's name : '*I will 
not imdertake to institute a comparison between Mar- 
shall and Taney. They were great men, both of them 
great jurists, and each of them has shed luster upon the 
judicial tribunal over which he presided. Each was a 
man of great ability, of great learning, of great purity 
of character; and I am sorry that the Senator from 
Massachusetts should come in with this denunciation of 
a man, against whom he can find no fault except that 

^ In ft debate over the Territory of Montana bUl, March 31» 1864, Johnaon had 
replied to Sumner'a criticiam of the Dred Scott decision, in these caustic words : 
** I have yet to be advised that the honorable member, either by nature or education, 
has attained so much intellectual celebrity, or possesses such transcendent mental 
ability as to be able to pronounce car cathedra against a decision pronounced by the 
Supreme Court of the United States. There are many men, the equals of the honor- 
able Senator, to say the least, intellectually, who think that that decision was any- 
thing but an outrage." 



THE CIVIL WAR AND CHASE 117 

he made an erroneous decision"; and he added with 
sarcasm: ""If the Senator from Massachusetts had 
presided, or should ever preside, over the Supreme Court 
of the United States for thirty years, he would be more 
than man, if he did not make any erroneous decision." 
Sumner returned to the charge with even more extrav- 
agant language, saying that Taney should be "left 
to the sympathetic companionship of Jeffreys • . . 
the tool of unjust power. . . • What is the oflBice of 
Chief Justice, if it has been used to betray Human 
Rights ? The crime is great, according to the position 
of the criminal. If you were asked to mention the 
incident of our history previous to the Rebellion which 
was in all respects most worthy of condemnation, most 
calculated to cause the blush of shame, and most deadly 
in its consequences I do not doubt that you would say 
the Dred Scott decision and especially the wicked opin- 
ion of the Chief Justice. . . . Judicial baseness reached 
its lowest point on that occasion. You have not for- 
gotten that terrible decision where a most unrighteous 
judgment was sustained by a falsification of history." 
Senator Henry Wilson of Massachusetts said that the 
Dred Scott decision was "the greatest crime in the 
judicial annals of the Republic", and that Taney was 
"recreant to liberty and humanity. ... It is not 
in the power of the Congress of the United States to 
affect his reputation with the present or with the 
coming ages. Laudations, statues and busts will be as 
impotent as were the eulogies pronounced by a few 
conservative gentlemen in the Supreme Court-room a 
few weeks ago." ^ The debate was closed by Sumner 
— "Taney shall not be represented as a saint by any 

^The AUanHe Monthly in February, 1865, said that Taney "will most likely, 
after the traitor leaders, be held in infamous remembrance" and that he covered 
"the most glorious pages of his country's history with infamy, and insulted the 
virtue and inteUigenoe of the civilized world." 



118 THE SUPREME COURT 

vote of Congress, if I can help it/' The bill was lost 
at this session of Congress. Later, however, on January 
S9, 1874, about a month before Sumner's death, a bill 
for the busts of Chase and Taney was passed without 
debate, and they were duly placed in the Court-room. 
History has recorded a very different verdict upon 
his place in the annals of the legal history of the coun- 
try from that which Sumner and Wilson endeavored to 
establish. "Before the first term of my service in the 
Court had passed, I more than liked him; I loved 
him," said Judge Miller, later. "And after all that 
has been said of that great good man, I always stand 
ready to say that conscience was his guide, and sense of 
duty his principle." "Few Judges have had wider 
experience, and none, perhaps, more capable of forming 
a sound and unimpassioned judgment," said Judge 
Dillon. George Ticknor Curtis, one of the counsel who 
had argued before Taney in behalf of Dred Scott, writ- 
ing only fourteen years after Taney's death, paid the 
following handsome and judicious tribute to his quali- 
ties: "He was indeed a great magistrate, and a man 
of singular purity of life and character. That there 
should have been one mistake in a judicial career so 
long, so exalted, and so useful, is only proof of the im- 
perfection of our natures. ... If he had never done 
anything else that was high, heroic and important, his 
noble vindication of the writ of habeas corpus and of 
the dignity and authority of his office against a rash 
minister of state, who, in the pride of a fancied Executive 
power, came near to the commission of a great crime, 
wiU command the admiration and gratitude of every 
lover of constitutional liberty, so long as our institu- 
tions shall endure." ^ And a sane and temperate review 

1 Samud Freeman Miller, by Charles N. Gregory, YaU Law Joum, (1908), XVII ; 
A Oreat Judicial Character — Roger Brooke Taney, by Charies N. Giegoiy, ilnd. 



THE CIVIL WAR AND CHASE 119 

of Taney's life in a leading law journal, written only 
eight years after his death, thus portrayed his position 
in legal annals. "He presided over the Supreme Court 
of the United States for upwards of twenty-eight years. 
To borrow the suggestive words of Cushing : * He had 
inducted into office nine Presidents of the United 
States ; and as he stood on that historic eastern front 
of the Capitol, the Republic's giant steps, in the lofty 
dignity of his great form and office, year after year wit- 
nessing and assisting at the rise and fall of parties, of 
Administrations, of dynasties, all else seemed to be 
transitory as day and night, evanescent as dream- 
si)ectres, whilst he and it were stable and monumental 
alone in this government/ His professional career was 
nearly contemporaneous with the judicial career of 
Chief Justice Marshall. Together they filled that high 
office for more than sixty-three years, and may be said 
to have built up the great structure of Federal juris- 
prudence, of which the foundation only was laid by 
their predecessors. . . . Upon all points of new prac- 
tice, he almost uniformly, even when very infirm and 
unable to write other opinions, delivered the judgment 
of the Court. The stability, uniformity, and com- 
pleteness of our National jurisprudence is largely to be 
attributed to the fact that, for sixty-three years, only 
two persons presided over the Supreme Court and that, 
when its business accumulated and the docket became 
crowded. Chief Justice Taney possessed that organizing 
genius which rendered the practice complete and sys- 
tematic. His judicial Associates speak with profound 
respect of his value in the consultation-room; and it 
is the concurrent voice of all whose professional avo- 
cations brought them into personal relations with him 

(1906), XVlll ; Laws and Juruprudence qf England and America (1805), by John 
F. Dilkm* l(r7 ; CurUs, 1. 88IHM6 ; Amer. Law Beo. (1878), VU, 827-828. 



120 THE SUPREME COURT 

that there was a sweetness and benignity, a courtesy 
of the heart as well as of the manner, and a simple 
kindliness, especially to the younger members of his 
profession, which rendered him a conspicuous example 
for all Judges to imitate. The patient and untiring 
attention which he always gave to counsel while address- 
ing the Court is worthy of perpetual remembrance. 
. . . Whatever opinion posterity may form of the 
greatness of the Judge, there can be but one as to the 
purity of his heart and his earnest fidelity to his own 
understanding of his duty. He was twice the object of 
general denunciation by large multitudes of his coun- 
trymen. ... It is doubtless too soon to expect cool 
and fair judgment upon one who on such different oc- 
casions, so conspicuously opposed popular sentiment. 
It is an unhappy American custom to charge treason 
and baseness upon those who differ from us on great 
questions of policy and law. . . . The calmer judg- 
ment of posterity may, perchance, say that, as an ab- 
stract question of constitutional law, the Chief Justice 
rightly interpreted the law as it was, and that the dis- 
senting voices only proclaimed what it should have 
been. Revolution has confirmed their dissent, and, if 
amendment was needed, the sword has amended the 
construction now." 

As soon as the death of Taney was announced, agita- 
tion as to his successor became active, and the proba- 
bility of a Republican Chief Justice was hailed with 
delight by the supporters of the Union. " So old Taney 
is dead,** wrote Col. Charles Francis Adams. "These 
fatal Ides of November bid fair to see the Executive, 
Legislative, Judiciary and Army of this country working 
in one harmonious whole like the strands of a cable. 
It is a pleasant vision. I at least feel confident it will 
be realized. However that election may result, one 



THE CIVIL WAR AND CHASE 121 

tlimg is settled : the darling wish of Taney's last day is 
doomed not to be realized. It was not reserved for 
him to put the veto of the law on the Proclamation of 
Emancipation. I suppose Chase will succeed him, and I 
do not know that we have any better man. If he does, 
he will have a great future before him in the moulding 
of our new constitutional law.** Charles Sumner had 
already written to Lincoln, urging the importance of 
having the war measures sustained by the Court, and 
saying that "from this time forward the Constitution 
must be interpreted for liberty, as it has thus far for 
slavery." ^ "There is an opportunity now to restore 
to the oflSce the high character given it by Jay and 
Marshall^ and to lay a cornerstone of regenerated and 
reconstructed Union,** said a prominent Republican 
organ; and another expressed the hope that the ap- 
pointment would be made, not in payment of any, 
personal or political debt, but as "the crowning grace 
of a career of exalted and beneficent public service**; 
for, it said, ** notoriously the Bench of the Supreme 
Court is not so strong as it was forty years ago, and 
emphatically it needs to be reenf orced and elevated in 
the opinion of the Nation.** The press, in general, 
assumed that Lincoln would appoint Salmon Portland 
Chase of Ohio, who had resigned as Secretary of the 
Treasury, in the preceding June. "The country ex- 
pects the President to fulfil the wishes of the people by 
the appointment of Chase,** said the Independent.^ 
Chase had, moreover, very strong supporters in his 

1 A CycU qf Adams LeUera (19M), letter of Oct. 15, 1864 ; Sumner, IV, letter to 
Francis lieber, Oct. 12, 1864 ; the DetroU Free Press, Oct. 17, 1864, said that 
Taney's death has been '* looked for with anxiety by the malignant partisans of Mr. 
Lincoln. One of their schemes has been to abolitionize the Supreme Court." 

> CineinnaH Oazdte, Oct. 20, 1864; New York Tribune, Oct. 18, 1864; Independ- 
ent, Oct. 30, 1864; the New York Herald, on the other hand, said, Oct. 16, 1864, 
that : " A worse selection could not be made. The position requires a lawyer of 
profound attainments. Chase is but a dabbler in legal lore. It requires a man of 
calm judgment and unbiased opinion. Chase is a partisan I *' 



122 THE SUPREME COURT 

Cabinet colleague, Edwin M. Stanton, and in the three 
prominent Senators, Wilson and Sumner of Massachu- 
setts and William P. Fessenden of Maine. The Presi- 
dent, notwithstanding his many differences of opinions 
with his "imperious Secretary", had always preserved 
a high and unshaken opinion of his great ability. Long 
before Taney's death, he had said : " Chase is about 
one and a half times bigger than any other man I ever 
knew", and had stated that : "There is not one man in 
the Union who would make as good a Chief Justice as 
Chase ; and, if I have the opportunity, I will make him 
Chief Justice of the United States." ^ But Lincoln was 
uneasy lest Chase's well-known ambition for the Presi- 
dency should lead him to mingle politics with law, if he 
were placed upon the Bench. To Senator Wilson, who 
had remarked to him that he could afford to overlook 
Chase's harsh words, Lincoln had replied : " Oh, as to 
that, I care nothing. ... I have only one doubt 
about his appointment. He is a man of unbounded 
ambition and has been working all his life to become 
President. That he can never be ; and I fear that if I 
make him Chief Justice, he will simply become more 
restless and uneasy, and neglect the place, in his strife 
and intrigue to make himself President. If I were sure 
that he would go on the Bench and give up his aspira- 
tions and do nothing but make himself a great Judge, 
I would not hesitate a moment." ^ And to George S. 
Boutwell, Lincoln said: "There are three reasons in 
favor of his appointment, and one very strong reason 

^ Salmon Portland Chase (1890), by Albert Bushnell Hart; Abraham Lincoln 
(1890), by John C. Nicolay and John Hay, IX. 

' Abraham Lincoln (1890), by John C. Nicolay and John Hay, IX ; Reminiacences 
of Sixty Years in Public Affairs (1902), by George S. Boutwell, II, 29. In an edi- 
torial in the Independent, May 15, 1873, on Chase's death, it is said that: "Mr. 
Lincoln hesitated to appoint him, only because as he said, he (Chase) had the Presi- 
dential maggot in his brain, and he (lincoln) never knew anybody who once had it 
to get rid of it." 



THE CIVIL WAR AND CHASE 123 

against it. First, he occupies the largest place in the 
public mind in connection with the office; then we 
wish for a Chief Justice who will sustain what has been 
done in regard to emancipation and the legal tenders. 
We cannot ask a man what he will do, and if we should, 
and he should answer us, we should despise him for 
it. Therefore, we must take a man whose opinions are 
known. But there is one very strong reason against 
his appointment. He is a candidate for the Presidency 
and if he does not give up that idea, it will be very bad 
for him and very bad for me.*' Some of his opponents 
urged that Chase was too old ; but as he was only fifty- 
six, while at the time of their respective appointments, 
Taney had been fifty-nine, Rutledge fifty-five and Ells- 
worth fifty, there was little force in this criticism. Other 
rival candidates of legal eminence had strong advocates. 
Judge Swayne, then on the Court, was extremely de- 
sirous of promotion, and was vigorously urged by Lin- 
coln's personal friend Judge David Davis, and by the 
Postmaster-General, Dennison. Montgomery Blair, 
the former Postmaster-General, was also an ardent 
candidate, and was supported by the Secretary of State, 
William H. Seward, and by the Secretary of the Navy, 
Gideon Welles.^ Chase himself believed that Edwin 
M. Stanton would be appointed. There was a sug- 
gestion of the promotion of Judge Wayne, and Judge 
William Strong of Pennsylvania was considered.* The 
New York and Massachusetts Bars were supporting 

^ Chailes Sumner wrote, Aug. 8, 1866: "Montgomery Blair complained to 
Seward that he had not pushed him for the Chief Justiceship against Chase. Sew- 
ard said that he had ' presented his papers * and that Blair was ' his candidate.' Blair 
thought that if Seward had been mudh in earnest, he could have prevented Chase's 
nomination.'* Sumner, IV. 

* The National InMigencer, Dec. 6, 1864, quoted a Kentucky paper as saying 
that the appointment of Wayne would be "a suitable acknowledgment of his pure 
patriotism in a crisis so trying to his allegiance to the Constitution and Union which 
so many other distinguished Southern men have proved unfaithful to." Amer. 
Law Rev. (1881), XV, ISO. 



124 THE SUPREME COURT 

William M. Evarts of New York, and Chase, himself, 
acknowledged Evart's qualifications, writing character- 
istically : ''Evarts is a man of sterling abilities and ex- 
cellent learning, and a much greater lawyer than I ever 
pretended to be. The truth is, I always thought my- 
self much overestimated. And yet, I think I have 
more judgment than Evarts, and that, tried by the 
Marshall standard should make a better Judge, while he 
might, tried by the Story standard." Chase himself 
had long been anxious to obtain the appointment, but 
he was unwilling to become an active applicant; and 
he wrote to his warmest and most eflFective supporter, 
Charles Sumner of Massachusetts: ''I have feared 
that the President might suppose that I have some 
agency in the representations which reach him favor- 
able to my appointment. If he has, I hope you will 
disadvise him of the impression. I would not have the 
oflBce on the terms of being obliged to ask for it." 
Many leading Republicans, however, opposed Chase, 
and delegations appeared even from Ohio in protest 
against him, arguing that he had ardent political am- 
bition and that he would use the Bench merely as a 
stepping-stone to the Presidency, and that he was not 
of judicial temper.^ 

While the President postponed acting upon the ap- 
pointment until a month after the close of the Presi- 
dential campaign in November, the importance of the 
choice to be made, and "the duty of filling the Supreme 
Bench with a man who shall revive Marshall" was 
pointed out to him in frequent articles in the press. The 
Independent said: "That Court will be called upon, 

^ The New York World and New York Herald opposed Chase; while the New 
York Tribune and Independent warmly favored him. The Independent, Dec. 15, 
1868, said that Thurlow Weed and James Grordon Bennett came to Washington to 
consult with Montgomery Blair (Chase's bitterest foe) to see if the nomination 
could not be prevented. 



THE CIVIL WAR AND CHASE 125 

before long, to deal with the most momentous questions 
it can ever handle — questions involving the dearest 
rights of millions of human beings, the sacred honor cf 
the Government, and the entire future of the Republic. 
If the next Chief Justice of the United States should 
have either a wrong head or a wrong heart — if he 
could be another Taney — who could measure the far- 
reaching extent of such a National calamity? There 
is one man whose appointment will fulfill the general 
expectation — Chase. Will the President hesitate about 
his duty ? We believe not." ^ Writing November 26, 
1864, Gideon Welles described the situation in an in- 
teresting manner, though in his estimate of Chase, 
allowance must be made for Welles' strong personal 
prejudices : * 

The question of Chief Justice has excited much remark 
and caused quite a movement with many. Mr. Chase is 
expecting it, and he has many strong friends who are urging 
him. But I have not much idea that the President will 
appoint him, nor is it advisable he should. I had called on 
the President on the 2Srd and had some conversation, after 
dispatching a little business, in regard to this appointment of 
Chief Justice. He said there was a great pressure and a good 
many talked of, but that he was now preparing his message 
and did not intend to take up the subject of Judge before the 
session commenced. *^ There is," said he, **8l tremendous 
pressure just now for Evarts of New York, who, I suppose, 
is a good lawyer?" This he put inquiringly. I stated 
that he stood among the foremost at the New York Bar ; 
perhaps no one was more prominent as a lawyer. ''But 
that, " I remarked, "is not all. Our Chief Justice must have 
a judicial mind, be upright, of strict integrity, not too pliant ; 
should be a statesman and a politician." By politician I 
did not mean a partisan. (I said) that it appeared to me the 
occasion should be improved to place at the head of the 
Court a man, not a partisan, but one who was impressed 

1 Independent, Nov. 24» 1864. * WMee, U, 181-184, 187. 



126 THE SUPREME COURT 

with the principles and doctrines which had brought this 
Administration into power, that it would conduce to the 
public welfare and his own comfort to have harmony between 
himself and the judicial department, and that it was all- 
important that he should have a Judge who would be a 
correct and faithful expositor of the principles of his Ad- 
ministration and pohcy after his Administration shall have 
closed. I stated that among the candidates who had been 
named, Mr. Montgomery Blair, it appeared to me, best con- 
formed to those requirements ; that the President knew the 
man, his ability, his truthfulness, honesty and courage. 

Welles also wrote that Postmaster-General Den- 
nison had said that Chase and Lincoln "'could 
not assimilate, and that, were Chase in that posi- 
tion — a life tenure — he would exhibit his resent- 
ment against the President, who, he thinks, has 
prevented his upward official career. . . . He never 
forgets or forgives those who have once thwarted him/' 
A few days later, Welles wrote that: "Gov, Morgan 
thinks Chase will be appointed Chief Justice, but I do 
not yet arrive at that conclusion. The President 
sometimes does strange things, but this would be a 
singular mistake, in my opinion, for one who is so 
shrewd and honest — an appointment that he would 
soon regret. '* 

Finally, Lincoln made his decision; and magnani- 
mously overlooking all personal considerations he 
elevated Chase to the Chief Justiceship, on December 
6, 1864. "It took Congress, as it did the country, 
somewhat by surprise," wrote a Washington corre- 
spondent, "because the President had so conducted 
himself within a fortnight as to create the impression 
that he would not decide the matter at once. Mr. 
Lincoln is a humorous man, and he seems to have en- 
joyed the pleasant surprise of Mr. Chase's friends 
and the confusion of his enemies. He kept his secret 



THE CIVIL WAR AND CHASE 127 

well, if it is a fact, as some of his friends claim, that he 
has never thought of appointing any one else. ... A 
day or two before the nomination was made out, Mr. 
Lincoln said to a very intimate friend : * Mr. Chase*s 
enemies have been appealing to the lowest and meanest 
of my feelings. They report ill-natured remarks of 
his upon me and my Administration. If it were true 
that he made them, I could not be so base as to allow 
the fact to influence me in the selection of a man for the 
Chief Justiceship.' *' No better illustration of Lincoln's 
high-mindedness and nobility of soul can be found 
than in this nomination; for as Welles wrote: "The 
President told Chandler, of New Hampshire, who 
remonstrated against such selection, that he would 
rather have swallowed his buckhom chair than to have 
nominated Chase." That Lincoln evidently did not 
consult his Cabinet as to this important appointment 
is seen from another entry in Welles' diary, on Decem- 
ber 6:^ 

Shortly after leaving the Cabinet, I heard that Chase had 
been nominated to, and confirmed by, the Senate as Chief 
Justice. Not a word was interchanged in the Cabinet re- 
specting it. . . . I hope the selection may prove a good one. 
I would not have advised it, because I have apprehensions 
on that subject. Chase has mental power and resources, 
but he is politically ambitious and restless, prone to, but not 
very skillful in, intrigues and subtle management. If he 
appUes himself strictly and faithfully to his duties, he may 
succeed on the Bench, although his mind, I fear, is not so 
much judicial as ministerial. He will be likely to use the 
place for political advancement, and thereby endanger con- 
fidence in the Court. He, though selfish, stubborn some- 
times, wants moral courage and frankness, is fond of adula- 

1 WeUes, U, 195-197, Indej)endent, Dec. 15, 1864. A letter to the Cincinnati 
Gazette said, Dec. 6, 1864, that the appointment of Chase was written out by 
Lincoln in his own hand ; that the first persons informed were Senator Sherman, 
and Hugh McCulloch ; and that it was not known to any one else, even to the 
President's Secretary, until it was aait in to the Senate. 



}u 



128 THE SUPREME COURT 

tion, and with ofBcial superiors is a sycophant. I hope the 
President may have no occasion to regret his selection. 

The appointment was received with very varied 
feelings by the public. On December 15, Welles 
wrote: "Chase's appointment gives satisfaction to 
Sumner and a few others; but there is general disap- 
pointment. Public sentiment had settled down under 
the conviction that he could not have the position. 
Sumner helped to secure it for him. • • • Sumner 
declares to me that Chase will retire from the field of 
politics and not be a candidate for the Presidency. I 
questioned it, but Sumner said with emphasis it was 
so. He had assured the President that Chase would 
retire from party politics. I have no doubt Sumner 
believes it. What foundations he has for the belief, 
I know not, though he speaks positively and as if he 
had assurance. My own convictions are that, if he 
lives, Chase will be a candidate and his restless and 
ambitious mind is already at work. It is his nature.'' 
By the press of the country, in general, the appoint- 
ment met with approbation.^ "The eminent qualifi- 
cations which Mr. Chase brings to this exalted position 
will be recognized by all citizens without distinction of 
party, among whom purity of character in combina-- 
tion with distinguished intellectual endowments are 
held in honor," said the National Intelligencer. Even 
the Democratic New York World said that the appoint- 
ment "will be generally endorsed by the public opinion 
of the country as the most suitable that could have 
been made." The Boston Advertiser commented with 

• 

^ WathingUm Star, Dec. 7, 1804 : "The nomination will itrike the countiy gener- 
ally as one eminently fit to be made." Philadelphia Press, Dec. 8, 1864 ; Boston 
Daily Advertiser, Dec. 8, 1864 ; New York World, Dec. 7, 1864. The New York 
Evening Post,Dec. 9, 190^, termed him "cahn» deliberate, just . . . long intimately 
acquainted with the whole dass of subjects which are likely to engage in the coming 
time the attention of the Court." 



THE CIVIL WAR AND CHASE 129 

much fairness as follows: ^' Enemy as well as friend 
has admitted his dignity and force of character, his 
intellectual power and grasp, and the immoveable 
strength of his convictions of right. . • . It was urged 
by many, and with some force, while this appointment 
was still in doubt, that in filling such a place, the Presi- 
dent's choice should properly fall upon some man of 
legal eminence, rather than anybody whose name had 
long been connected with politics, and that by such a 
course, Mr. Lincoln might do something towards rais- 
ing the Supreme Judicial tribunal of the Nation above 
the embittered discussion of the past few years, and 
give it something like its former hold upon the confi- 
dence of men of all parties. Mr. Lincoln, however, 
in making this appointment from political life rather 
than with reference to professional distinction alone, 
has followed a long line of precedents on both sides of 
the water. . . . Jay, Ellsworth, Marshall and Taney . . . 
were aU men whose political career had given them a 
position and rank which mere preeminence at the Bar 
seldom brings. Mr. Lincoln, like former Presidents, 
preferred to call to that station a statesman who has 
already secured the attention and respect, if not the 
friendship, of the whole country, trusting, as they did 
with such eminent success, that the judicial capacity 
and high merit of the man would, in the sequel, secure 
besides these advantages, the confidence of all classes 
and parties." 

There were some who, as stated in the foregoing 
editorial, were apprehensive of the appointment as 
savoring too much of politics, and who feared that 
Chase's absence from the Bar since 1850 and his serv- 
ice in the Senate and in the Cabinet had withdrawn 
him from legal pursuits, and had rendered him less 
able to cope with the modem developments of the law, 
VOL. in — 5 



ISO THE SUPREME COURT 

Some also believed that he would find it difficult to dis- 
associate his opinions from political considerations, in 
view of the fact that many questions on which he must 
now pass had been before him when in Executive office. 
"I dined with him/' wrote Hugh McCulloch, "a 
couple of weeks after the coveted honor had been 
conferred upon him, and I was pained by discovering 
that he was far from being satisfied. • • • High as the 
position was, it was not the one to which he had really 
aspired. To him it seemed like retirement from public 
life." ' 

Few of the forebodings of his opponents were justi- 
fied, and the prediction that politics would influence 
his decisions proved especially false. For though 
with this appointment. President Lincoln had practi- 
cally reconstituted the Supreme Court as it existed prior 
to the war (five of the members being his appointees 
— Swayne, Miller, Davis, Field and Chase, — and these 
five becoming a majority of the Court on the death of 
Judge Catron, six months later), nevertheless, those 
politicians who hoped for a partisan administration of 
justice by the Court with its new Judges were disap- 
pointed. Again it was shown to the American people 
that even in time of stress, the men who ascended 
the Supreme Bench, dropped their "politics when they 
assumed the black robes." And again it was found, 
as has been well said by Chase's biographer, that, pre- 
cisely as the Republican appointees of Jefferson and 
Madison had failed to conform to the Presidential 
hopes that they would modify the Federalism of the 

1 Men and Meamres qf Half a Century (1888)» by Hugh McCullodi, 186-187; 
John Shennan in hb RecoUecHane qf Forty Years (1895), 11, 340, states that in Sep- 
tember, 1804, Chase was his guest for a day or two ; " He was evidently restless and 
uneasy as to his future. I spoke to him about the position of Chief Justice. . . . 
He said it was a position of eminence that ought to satisfy the ambitions of any* 
one but for which few men were fitted." 



THE CIVIL WAR AND CHASE ISl 

Court under Washington and Adams, so now, the re- 
constituted Court, "inherited the spirit of its predeces- 
sors; it continued to hold fast to its time-honored 
principles on public law and private rights, rather than 
to set up a new regime; and Chase's influence bore 
for caution and restraint, and not for radical changes." 
His own view of the necessity of eliminating all political 
considerations was set forth in a letter during the 
Johnson impeachment proceedings, when he wrote that 
he wished his name permanently disconnected from the 
Presidency: "I must dismiss every thought which 
might incline the scale of judgment either way. Do 
what I may, I cannot hope to escape imputations. I 
only hope to avoid giving any just occasion for them. 
The rest I leave cheerfully to Him who alone judgeth 
righteously." ^ 

It must be admitted, however, that, in spite of the 
expression contained in this letter. Chase retained his 
ambition to succeed to the Presidency, and he was 
undoubtedly desirous of receiving the nomination both 
in 1868 and in 1872. While this ambition never influ- 
enced his judicial decisions, it seriously impaired the 
popular confidence in his impartiality and weakened 
the eflFect of some of his opinions. There was one 
further obstacle to his complete eminence in his posi- 
tion, which was referred to by Hugh McCuUoch : "He 
had not been in the active practice of the law for twenty 
years, nor had he been able during that period to devote 
any time to legal studies. ... So that when he went 
upon the Bench, he was unfamiliar with the work which 
he was called upon to perform. • . • He did have to 
work much harder in the investigation of legal questions, 

^ PrvoaU lAJe and Public Semcet of Salmon Portland Chase (1874), by Robert 
B. Warden, letteri of March 2» 10, 1808; Salmon Portland Chase (1899), by Albert 
BiuhneQ Hart 



182 THE SUPREME COURT 

and in the preparation of opinions, than any of his 
Associates.'* Though he gradually developed great 
legal capacities as a Judge, Chase's own modest atti- 
tude towards his qualifications was strikingly expressed 
in a letter written three years after his appointment: 
** I never expected great success in any position I have 
occupied. My surprise at the degree of it that I have 
achieved has been greater, perhaps than any other 
man's. And now I still less hope for much success 
as a Judge. I came to the Bench too late and from 
too active pursuits to think of emulating any of my 
great predecessors. It will suffice if the duties of my 
position are performed according to the measure of 
my abiUty and circumstances." 

On Thursday, December 15, 1864, at eleven in the 
morning, Chief Justice Chase took his seat on the Bench. 
"The scene was one to be remembered for a lifetime, yet 
it was of the simplest character," wrote a Washington 
correspondent. "There was a crowd of spectators 
present; but next to Mr. Chase, one man, himself a 
spectator, was the most interesting figure in the group of 
celebrated persons there. It was Charles Sumner. He 
stood leaning against one of the composite pillars at the 
right of the Justices, evidently agitated by the reflec- 
tions suggested by the scene. It was in that very 
chamber, and the Senator looked down upon the spot, 
where Brooks made his murderous assault upon him 
but a few years ago ; and now what a change ! An 
abolitionist, and one glorying in the name, is Chief 
Justice ; while of all the bloody men who participated 
in the intended murder (either actively or passively) 
scarcely one is alive; and the two or three who are, 
have sunk to obscurity. This is the revenge that time 
brings to the virtuous. When I saw Mr. Chase stand 
there in the highest place upon that Bench, already 



I 

3 

h 
il 

II 

" s' 



, V 



THE CIVIL WAR AND CHASE 133 

honoring it by his majestic presence, I was satisfied that 
Providence had ordered events more wisely than men 
could have done, in making Abraham Lincoln Presi- 
dent, and Salmon P. Chase, Chief Justice." 

On February 1, 1865, six weeks after the new Chief 
Justice took his seat, an event occurred in the Court 
which must have stirred his soul to its depths, when he 
reflected on the long years during which he had struggled 
in behalf of the negro ; for on that day, the first negro 
lawyer — John S. Rock of Massachusetts — was ad- 
mitted to practice before the bar of the Court. The 
dramatic event was thus described by an earnest anti- 
slavery man:^ "The black man was admitted. Jet 
black, with hair of an extra twist — let me have the 
pleasure of saying, by purpose and premeditation, of an 
aggravating *kink' — unqualifiedly, obtrusively, de- 
fiantly * Nigger ' — with no palliation of complexion, 
no let-down in lip, no compromise in nose, no abatement 
whatever in any facial, cranial, osteological particular 
from the despised standard of humanity brutally set up 
in our politics and in our Judicatory by the Dred Scott 
decision — this inky-hued African stood, in the mon- 
archical power of recognized American Manhood and 
American Citizenship, within the bar of the Court which 
had solemnly pronounced that black men had no rights 
which white men were bound to respect ; stood there a 
recognized member of it, professionally the brother of 
the distinguished counsellors on its long-rolls, in rights 
their equal, in the standing which rank gives their peer. 
By Jupiter, the sight was grand ! 'Twas dramatic, too. 
At three minutes before eleven o'clock in the morning, 
Charles Sumner entered the Court-room, followed by 

^ Independent, Dec. 22, 1864, Feb. 9, 1865, quotiDg New York Tribune, Gideon 
Welles wrote in his diary, Feb. 8, 1865 : '* A negro lawyer has been presented by him 
(Sumner) to practice in the Supreme Court and extra demonstrations of that land 
have been made by him and Chief Justice Chase.*' 



134 THE SUPREME COURT 

the negro applicant for admission, and sat down 
within the Bar. At eleven, the procession of gowned 
Judges entered the room, with Chief Justice Chase at 
their head. The spectators and the lawyers in attend- 
ance rose respectfully on their coming. The Associate 
Justices seated themselves nearly at once, as is their 
courteous custom of waiting upon each other's move- 
ments. The Chief Justice, standing to the last, bowed 
with affable dignity to the Bar, and took his central 
seat with a great presence. Immediately the Senator 
from Massachusetts arose, and in composed manner 
and quiet tone said : * May it please the Court, I move 
that John S. Rock, a member of the Supreme Court of 
the State of Massachusetts, be admitted to practice 
as a member of this Court.' The grave to bury the 
Dred Scott decision was in that one sentence dug; and 
it yawned there, wide open, under the very eyes of 
some of the Judges who had participated in the judicial 
crime against Democracy and humanity. The assent- 
ing nod of the great head of the Chief Justice tumbled 
in the corse and filled up the pit, and the black counselor 
of the Supreme Court got on to it and stamped it 
down and smoothed the earth to his walk to the rolls of 
the Court." It is a noteworthy fact that the status 
of the negro, even at that date, had continued so un- 
settled, that the new member of the Supreme Court 
Bar was obliged, after his admission, to go to the Pro- 
vost Marshal to obtain a permit, before he could return 
to Massachusetts — no negroes being then allowed to 
leave Washington without a license from the military 
authority. 

Within a year after Chase's accession, his progress 
in his judicial oflSce was described in a letter from Wash- 
ington as follows : ^ " The Chief Justice is hale and 

^ Independent, Much 29, 1866. 



THE CIVIL WAR AND CHASE 135 

hard at work, busy in downright earnest with his grave 
duties. Rising early, he attacks his books, examines his 
briefs, ponders his points of law and often before break- 
fast has done a fair day's work. Mr. Chase has sig- 
nally realized his early ambition to attain to the one 
official position, which I know him to regard as the 
loftiest in our American system of government. During 
the few months inmiediately after his appointment, he 
found the studious and meditative life of the Judge so 
great a contrast to the exciting labors of a cabinet min- 
ister, that a man of his executive genius could not but 
feel a temporary irksomeness, as from a loss of custom- 
ary muscular exercise. His shoidders at first did not feel 
weight enough in his gown. But he soon brought his 
faculties into such harmony with his office that he now 
takes up each new case, with a freshness of spirit that 
shows how a total change in one's intellectual habits 
in mature years may prove one of the best methods of 
keeping an elderly gentleman from growing old." 

In view of the tremendous number of cases arising 
out of the war, during the ten years following the ap- 
pointment of Chase as Chief Justice, it was of inesti* 
mable value to the country to have at the head of the 
Court not only a great lawyer, but a great statesman 
who had served both in Congress and in the Cabinet, 
and who was thoroughly and practically familiar with 
the business administration and economic and military 
problems of the Government. As had been predicted 
on his appointment. Chase brought "to the compli- 
cated and embarrassing questions growing out of the 
war and the subsequent reconciliation of divided sections 
... a large wisdom, a discerning but impartial judg- 
ment, and the sincerest patriotism, a love for the whole 
Nation and for all its parts, and a resolute will that 
neither an overgrown centralization of power in the 



186 THE SUPREME COURT 

Federal head, nor an anarchical claim of absolute 
sovereignty in the component States shall vitiate and 
defeat" the long-established system of American 
government.^ With such a man at its head, and in 
view of the conditions of the times, it was but natural 
that, for the first six years after his accession to the 
Bench, the trend of the Court's decisions should be 
distinctly Nationalistic in character, sustaining the 
powers of the Government to the fullest extent. The 
first important task which fell to Chase's lot was the 
development of the American prize law, in a series 
of about thirty noted cases. As early as January 30, 
1865, in The Circassian, 2 Wall. 135,* and in the more 
famous cases of the Bermuda, the Springbok and the 
Peterhqff in the two succeeding years, the Court es- 
tablished the famous doctrine of "continuous voyage" 
and "ulterior destination.'* In the Bank Tax Cases^ 
i Wall. 200, in 1865, and in a long series of cases later, 
the Court was required to consider the constitutionality 
of the great National banking system and the validity of 
the numerous State statutes which sought to tax the 
notes and operations of the National banks and the cap- 
ital of State banks invested in United States Govern- 
ment stock or bonds. In all these cases, the Court con- 
sistently held that investments in Government securities 
could not be taxed by the States, and that shares in the 
National banks could only be taxed by permission of 
Congress — such National banks being an agency of the 
National Government whose operation could not le- 
gally be impeded by State action.' 

1 New York Eoming PoH, Dec. 8, 1864. 

' See especially as to this case an editorial in the New York World, March 17, 1868. 

*See also Bank of Commerce v. Commisnoner, i Black, 620; Bank Tax Cases, 
ft Wall. 200; Van Allen v. Assessors, 8 Wall. 578; Society for Savings ▼. Coite, 6 
Wall. 694; Provident Institution for Savings v. Massachusetts, 6 Wall. 611 ; Bank v. 
The Supervisors, 7 Wall. 26 ; Austin v. The Aldermen, 7 Wall. 694 ; National Bank 
▼. Commonwealth, 9 Wall. S5S ; Lionberger v. Rouse, 9 Wall. 468. 



THE CIVIL WAR AND CHASE 187 

In 1866, the Court enhanced the National power by 
an important decision in The Moses Taylor and in 
The Hine v. Trevor^ 4 Wall. 411, 555. In these cases, it 
was held for the first time that the grant of admiralty 
jurisdiction to the District Courts by the Judiciary Act 
of 1789 was exclusive, and that State laws conferring 
remedies in rem coidd only be enforced in these Courts. 
The residt of the decision was to deprive the State 
Courts, especially in the West, of an immense class of 
cases relating to maritime contracts, collisions and other 
torts, over which they had hitherto exercised jurisdiction. 

In 1867, another phase of the development of the 
principle that a State might not impede or embarrass 
the Government or impair the rights of the United 
States' citizens under the Constitution was presented 
by the decision in CrandaU v. Nevada^ 6 Wall. 35, in 
which a tax imposed by the State of Nevada upon every 
person leaving the State by railroad or stage coach or 
vehicle transporting for hire, was held invalid. It was 
declared that all citizens had a right to pass from State 
to State and to come to the seat of the Government, and 
that "this right is in its nature independent of the will 
of any State over whose soil he must pass in the exer- 
cise of it." That the Court had not yet fully realized 
the broad scope of the Commerce Clause of the Consti- 
tution was illustrated in this case by the fact that it 
refused to hold the statute invalid under that Clause ; 
and it stated that "the tax does not itself institute any 
regulation of commerce of a National character or which 
has a uniform operation over the whole country." ^ 

1 Four yean later, in 1871, in Ward ▼. Maryland, 12 Wall. 418, the Court held a 
State tax diacriminating against non-resident traders invalid, as repugnant to the 
provision of the Constitution guaranteeing State citizens all the privileges and im- 
munities of citizens in the several States; but here again it found it unnecessary to 
decide whether the tax infringed on the right of Congress to regulate interstate 
commerce. See also Woodmff v. Parkam, 8 Wall. 128 ; Hinson v. LoU, 8 Wall. 148» 
in 1809; and United States v. Wheeler, 854 U. S. 281 in 1920. 



188 THE SUPREME COURT 

Other than these decisions on. National supremacy, 
the Court's chief work, in 1867 and the immediately en- 
suing years, in connection with the war was the settle- 
ment of the legal eflFect of the existence of a state of 
war upon business conditions. Its effect upon the 
running of the statute of limitations was considered in 
Hanger v. Abbott^ 6 Wall. 532, and on contracts and 
trading with or for the enemy and on debts to an 
enemy in Hall v. Coppell^ 7 Wall. 542. The important 
financial and tax legislation of the war was upheld in 
Pacific Insurance Company v. Soulcy 7 Wall. 433, in 
which the nature of a "direct tax" under the Constitu- 
tion was carefully elucidated in connection with the 
internal revenue laws.* The general power of the 
Government to expropriate property other than enemy 
property, in time of war and immediate public exigency, 
and the validity of the statutes which provided for the 
disposition of captured and abandoned cotton and for 
its sale and deposit of proceeds in the United States 
Treasury to meet the claims of any owners who could 
prove they had not adhered to the cause of the enemy 
were upheld, in 1871, in the noted case of United States 
V. Russell^ 13 Wall. 623, and in about twenty cases 
during the succeeding fifteen years.* Another series 
of about thirty cases (decided over a period of twelve 
years) involved the statutes enacted for the confiscation 
and conservation of enemy property, the constitution- 

^ In Bennett v. Hunter, 9 Wall. S26, there was invc^ved the first instance, since the 
early years of the Republic, of the imposition by Congress of a direct tax on land 
apportioned among the States. 

* Act of March 12, 1863, and Act of July 2, 1864. See The ConetUuHon and the 
War Power — War Claims against the United States, by William Lawrence, Amer, 
Law Reg. (IS74-76), n. b. Xm, XIV; The ROfMion, by R. McPhail Smith, Sottih- 
em Law Rev. (1878-74), U, m ; The LaU Civil War and iU Efect on Ciml Remedies, 
by William A. Maury, Amer, Law Reg, (1875), n. b. XIV ; Constitutional Founda- 
tion oj War Claims for Property, by William B. King, Am^. Law Reg. (1881), 
N. B. XX ; Some Legcd Aspects of the Confiscation Acts o/ the Civil War, by James G. 
Randall, Amer, Hist. Rev. (1912), XVII ; Captured and Abandoned Property during 
the CivU War, ibid, (1918), XIX. 



THE CIVIL WAR AND CHASE 139 

ality of which were upheld in another notable opinion, 
in 1871, Miller v. United States, 11 Wall. 268.» The 
legal status of the Confederate States and of their 
legislation during the war was settled by the Court, as 
early as 1870, in Hickman v. Jones, 9 Wall. 197, in which 
it held the Confederate Government to be "simply an 
armed resistance to the rightful authority of the sov- 
ereign '* ; and all its acts were held invalid so far as they 
were in aid of the rebellion. While the more radical 
Republican leaders were insistent that all legislation of 
every kind enacted by the various States of the Con- 
federacy were illegal and void, the Court took a more 
conservative and rational view ; and in Horn v. Lock- 
hart, 17 Wall. 570, in 1873, it decided that the acts 
of the several Confederate States "so far as they did 
not impair or tend to impair the supremacy of the 
National authority or the just rights of citizens under 
the Constitution, are, in general, to be treated as valid 
and binding. The existence of a state of insurrection 
and war did not loosen the bonds of society or do away 
with civil government." * 

1 Act of July 18, 1861 ; Act of August 6, 1861 ; Act of July 17, 1862 ; see espe- 
cially McVeigh v. Uniied States, 11 Wall. 259, in which the right even of an enemy 
to be heard in proceedings under the confiscation laws was upheld ; and for the 
facts of this very extraordinary cause, see New York Herald, April 28, May 7, 1878. 

* In Keith v. Clark, 97 U. S. 454, it held that legislation by a Confederate State not 
in aid of the rebellion was valid. "The State remained a State of the Union. She 
never escaped the obligations of that Constitution, though for a while she may have 
evaded their enforcement." In Lamar v. Micou, 112 U. S. 452, in 1884, it was held 
that investment by a guardian in bonds of the Confederate States "was clearly 
unlawful, and no legislative act or judicial decree or decision of any State could jus- 
tify it. The so-called Confederate government was in no sense a lawful govern- 
ment but was a mere government of force, having its origin and foundation in 
rebellion against the United States*', and its bonds had no legal value as money 
or property, except by agreement or acceptance by parties capable of contracting. 



CHAPTER TWENTY-NINE 

THE MILLIGAN CASE 
1866-1867 

Ai/THOUGH, from 1861 to 1870, the Court had con- 
sistently upheld the authority of the National Gov- 
ernment, had widened the scope of jurisdiction of the 
Judiciary of the United States and had strictly limited 
the sovereignty of the States whenever they appeared 
to trespass on the National domain, it was destined 
to become the object of the most serious and deter- 
mined attack by the very political party which fa- 
vored such extension of National power. 

The death of President Lincoln occurred on April 
14, 1865, at the close of the December, 1864, Term ; 
and with that Term, there ended a period of five years 
during which the Court had been absolutely free from 
the partisan criticism prevalent during the decade 
from 1850 to 1860. In 1866, however, political at- 
tack was renewed in a most violent form, as the Court 
became gradually involved in the fierce conflict then 
ensuing between President Johnson and the Con- 
gress over Reconstruction policies. The Republican 
opponents of the President were determined to abol- 
ish the military and civil State Governments in the 
South, instituted by Johnson under his Executive 
authority. They were insistent upon the estabhsh- 
ment of a purely military control by legislative enact- 
ment, imtil the States should be reorganized and ad- 



THE MILLIGAN CASE 141 

mitted back into the Union upon acceptance of such 
conditions as Congress should choose to impose. 
But, while confident of their power to prevail over the 
President's antagonism to their measures, the radi- 
cal Republicans were apprehensive as to the attitude 
of the Court. Since no one of the forms of Govern- 
ment for the South proposed by them had any ex- 
press constitutional sanction, and since it was openly 
stated by the President and his supporters that the 
validity of any such legislation woidd be challenged, 
it was evident that the Court might become the final 
arbiter of the situation ; and in such event, the Radi- 
cal Republicans were very doubtful as to the views 
of the Chief Justice. It was reported in the press 
that he did not approve their course in Congress; 
and it was well known that President Lincoln him- 
self had expressed some fear lest Chase on the Bench 
might not support his war policies. *' Lincoln hesi- 
tated," wrote Hugh McCulloch, "for some days, 
while the matter was under consideration, to send 
his name to the Senate, under the apprehension that 
he might be somewhat rigorous in his judgment of 
some of the Executive acts, and especially those of 
the Secretary of War, if suit should be brought in- 
volving questions that could only be settled by the 
Supreme Court. Knowing that my relations with 
Mr. Chase were intimate, he sent for me one day, and 
after explaining the nature of his fears, asked me what 
I thought about them. *Why, Mr. President,' I re- 
plied, *you have no reason for fears on that score. 
Mr. Chase is in the same box with yourself and Mr. 
Stanton. He favored and advised, as he himself has 
informed me, the dispersion by force of the Mary- 
land Legislature, and if anything more illegal than that 
would have been has been done, I have not heard of 



142 THE SUPREME COURT 

it/"^ Shortly before Lincoln's death, and less than 
three months after the appointment of the new Chief 
Justice, it appears that he had received further intima- 
tions that Chase's views as to the legality of military 
trials would be adverse to the Administration, for 
his Secretary of the Navy, Gideon Welles, wrote in 
his diary : 

Feb. 21, 1865. I found the President and Attorney- 
General Speed in consultation over an apprehended deci- 
sion of Chief Justice Chase, whenever he could reach the 
question of the suspension of the writ of habeas corpus. 
Some intimation comes through Stanton, that His Honor 
the Chief Justice intends to make himself felt by the Ad- 
ministration, when he can reach them. I shall not be sur- 
prised, for he is ambitious and able. Yet on that subject, 
he is as much implicated as others. 

Feb. 22, 1865. Met Speed at President's a day or two 
since. He is apprehensive Chase will fail the Adminis- 
tration on the question of habeas corpus and State arrests. 
The President expresses, and feels, astonishment. Calls 
up the committals of Chase on those measures. Yet I think 
an adroit intriguer can, if he chooses, escape these com- 
mittals. I remember that on one occasion when I was 
with him. Chase made a fling which he meant should hit 
Seward on these matters, and as Seward is, he imagines, a 
rival for high position, the ambition of Chase will not per- 
mit the opportunity to pass, when it occurs, of striking his 
competitor. There is no man with more fierce aspira- 
tions than Chase, and the Bench will be used to promote 
his personal ends. Speed and myself called on Seward 
on Monday, after the foregoing interview with the Pres- 
ident. Seward thinks Chase, if badly disposed, cannot 
carry the Court, but this is mere random conjecture. 

At the time of the trial of the assassins of Lincoln 
before a military commission sitting in the District 

> Springfield Weekly RepMiean, April 7, 1866, quoting a Washington cor- 
respondent of tlie CineinnaH Commercial; Men and Manners qf Half a Century 
(1888), 186, 187, by Hugh McCulloch; The Diary qf Gideon Wdles (1911), II. 
242, 245, 246. 



THE MILLIGAN CASE 148 

of Columbia, the attitude of some of the other Judges 
of the Court had disturbed the Radical leaders in 
Congress, who feared lest the Court should issue 
writs of habeas corpus and discharge the prisoners. 
Welles recorded in his diary, July 17, 1865, that 
Secretary of War Stanton, in his characteristic, arbi- 
trary fashion, wanted the prisoners sent to the Dry 
Tortugas in the South, "where old Nelson or any 
other Judge would not try to make difficulty by 
habeas corpus/' The Judges had also drawn upon 
themselves the criticism of the Radicals, by their 
refusal to sit in the Circuit Courts in the Southern 
States, so long as those States were governed by mili- 
tary authority. Though the Federal District Judges 
in Virginia, Mississippi and Alabama held Court 
during 1866, Chief Justice Chase and his Associates 
had declined to sit on Circuit until, as he said, "all 
possibility of claim that the judicial is subordinate 
to the military power is removed, by express declara- 
tion of the President"; and it was not until June 6, 
1867, that he opened in North Carolina the first Cir- 
cuit Court to be held in the Southern States.^ The 
refusal of the Chief Justice to hold Court in Virginia, 
thereby preventing the trial of JeflPerson Davis for 
treason, gave particular offense to the Radical Re- 
publicans.* 

As a consequence of this distrust both of the Pres- 

' Under the Judiciary Act of July 29, 1866, the Supreme Court Judges lost their 
Circuit Court jurisdiction in the Southern States; but this was restored by the 
Act of March 2, 1867. Cases appealed from Southern States were heard for the 
first time at the December, 1866, Term of the Supreme Court, there being then 
twenty-nine pending; see New York Herald, Dec. 18, 1866. See Chase's address 
to the Bar, Amer. Law Rev. (1867), I, 745. 

* One of Davis' counsel, George W. Brown, wrote to Franklin Pierce, Jan. 10, 
and July 14, 1866 : "Whether or not a trial will ever take place is wholly uncer- 
tain, dependent on the turn political affairs may take. The Radicals have in- 
sisted on a trial, because they thought that something might be gained for thdr 
party, veiy erroneously, I believe. It is a strange and anomalous condition of 



144 THE SUPREME COURT 

ident and of the Court, the first move which Congress 
made was to reduce the membership of the Court. 
After the number of Associate Judges had been in- 
creased to nine, in 1863, to provide a new Circuit 
Court for the Districts of California and Oregon, and 
after appointment of Judge Field, the Court had 
consisted of six Democrats and four Republicans. 
On the appointment of Chase in 1864, the Court 
had become evenly divided in political character; 
and after Judge Catron had died. May 30, 1865, the 
Judges appointed by President Lincoln constituted 
a majority of the Court (Chase, Swayne, Miller, 
Field and Davis) . President Johnson had nominated, 
on April 16, 1866, to fill the vacancy caused by Ca- 
tron's death, Henry Stanbery of Ohio, a close personal 
friend, then Attorney-General of the United States, 
a Republican and a lawyer of high eminence. "'A 
most excellent appointment, and it is to be hoped that 
he will be promptly confirmed. His power of legal 
analysis, close reasoning, accuracy of statement and 
concise and forcible expression have justly placed him 
at the head of the present Bar of the Supreme Court," 
said a prominent Republican paper. ^ The Senate, 
however, was determined to curb the President in 
every move ; and fearing that he might have the op- 
portunity to make further appointments to the Bench, 

things that the Court which has indicted him refuses to bail him, because he 
is held by the military arm of the Government ; and the Chief Justice will not 
hold Court in Virginia, until martial hiw is formally revoked. He had no such 
scruples about holding Court in Maryland, when martial law was carried out 
with a strong hand. . . . The real difficulty, no doubt, is that Ch. J. Chase 
does not choose to recognise Virginia as legally in the Union, by going to Rich- 
mond and holding Conrt there.'* Franklin Pierce Papers MSS, See also Harper* e 
Weekly, Nov. 25, 1806, quoting Chase as saying that "it was not becoming the 
Courts of the United States to sit in regions still subordinate to military htw.*' 
The Sprinf^eld Weekly RepMiean, Jan. 18, 20. Feb. S, 24, April 7, 1866, assailed 
Chase for his attitude as to Davis, and said he had "White House on the brain. 
... No man has fallen more in public esteem, in public confidence." 
^ PhOaddpkia In^mrer, April 18, 1866. 



THE MILLIGAN CASE 145 

it passed a bill, moved by Lyman Trumbull of Illinois, 
providing for the reduction of the number of Asso- 
ciate Judges to seven. To the question asked in the 
House whether '"this bill abolishes the Judge whose 
appointment the President sent to the Senate the 
other day**, it was stated by Wilson of Iowa that 
such was its effect as well as purpose.^ By this Act 
of July 23, 1866, the Court became nine in number, 
and by the death of Judge Wayne on July 5, 1867, 
it was further reduced to eight. 

Meanwhile, before the passage of this Act affecting 
the membership of the Court, that body had seemed 
to justify the fears of the Republican leaders, by ren- 
dering a decision at the very end of the Term, on 
April 3, 1866, which came as a staggering blow to the 
plans for the use of the military forces in the process 
of Reconstruction then being matured by Congress. 
In Ex parte Milligan, 4 Wall. 2, the Court held that 
the President had no power to institute trial by mili- 
tary tribunal during the war in localities where the 
civil Courts were open. At first, the country at large 
did not realize the fateful breadth of the decision, 
and the press paid little attention to it, since, on this 
date, the Court confined itself to a mere announce- 

^ S9th Cong., Iti Sess., Feb. 26, July 10, 18, 1866. See criticism of this action 
€A Congress in Democracy in the United States (1868), by Ransom H. Gillet. The 
American Law Review (1867), I, ii06, said : "There seems to have been no serious op- 
position to the law, which was in no sense a political measure, however much politi- 
cal feelings may have aided its passage. We are constrained, however, to doubt the 
wisdom of it. Ten Judges is too large a number for any Court ; but, when we 
consider the great extent of the country, the distances which Judges have to travel, 
the advantage of having every section of the Union represented, if possible, in 
this tribunal, — it is a matter of serious inquiry, whether the number of Judges 
can be much reduced, without our incurring greater evils than that of the bulkiness 
of the Bench. Nor does the Act strike us as opportune, if we allow the abstract 
wisdom of it. In consequence of the great number of vacancies which have taken 
place of late years, there are many Judges of brief experience upon the Bench. 
The older ones have reached an age at which we cannot expect much more serv- 
ice frcMn them; and the result of the recent law may be, that, ere long, the entire 
South will be without a Judge on this Bench, and the country east of the Allegheny 
Mountains have but two, who must bear the chief burden of all maritime cases.'* 



146 THE SUPREME COURT 

ment of its judgment, without setting forth its rea- 
soning. Nevertheless, its full eflfect was at once ap- 
parent to President Johnson and to the Radical Re- 
constructionists in the Senate; and Welles recorded 
in his diary : 

April 2, 1866: The President inquired as soon as the 
subject was taken up whether any facts were yet public 
in relation to the decision of the Supreme Court in the 
Indiana cases. 

April 6, 1866 : The decision of the Supreme Court in the 
Indiana Cases, — Milligan, Bolles and others — was dis- 
cussed. Attorney-General Speed could not state exactly 
the points. The Judges do not give their opinions until 
next winter. They seem to have decided against the le- 
gality of military commissions. I inquired what should 
be done in Semmes' case, which had been long pending. 
Little was said, and the President said he would see me 
after the session, and I therefore remained. He remarked 
that there was a somewhat strange state of things. . . . 
The Courts were taking up some of the cases for treason 
and were showing themselves against miUtary commis- 
sions. He therefore thought it would be as well to release 
Semmes on parole. 

On December 17, 1866, at the beginning of the next 
Term, however, when the Judges delivered their opin- 
ions in full, the decision became at once the subject 
of the most violent and virulent attack, as well as of 
extravagant praise, by the different factions through- 
out the country. This Milligan Case had arisen in 
the following manner. A previous attempt had been 
made, in 1864, to secure an opinion from the Court 
as to the legality of the military commissions con- 
stituted by President Lincoln. Application had been 
made to the Court for a writ of habeas corpus in the 
case of the notorious Clement L. Vallandigham, who 
had been arrested and held for military trial. No 



THE MILLIGAN CASE 147 

decision, however, had been rendered on the point 
desired to be tested ; for the Court held, in Ex parte 
VaUandighamy 1 Wall, 243, on February 15, 1864, 
that it had no power to issue such a writ to a military 
commission, since under the Judiciary Act its appel- 
late jurisdiction extended only to judicial Courts. 
Within a short time after this decision, however, an- 
other case was initiated, in which the Court would be 
required to face and settle the issue. One Milligan 
had been arrested on order of the General command- 
ing the military district of Indiana and tried, in Octo- 
ber, 1864, by a military commission on a charge of 
conspiracy against the Government, giving aid and 
comfort to the rebels, initiating insurrection, dis- 
loyal practices, and violating the laws of war. He was 
found guilty, and was sentenced to be hung on May 19, 
1865. On May 10, 1865, he petitioned the United States 
Circuit Court in Indiana for a writ of habeas corpus ; 
and the Judges disagreeing certified the question of law 
to the Supreme Court. The case was argued on 
March 6 to 13, 1866, only two months after the adop- 
tion of the Fourteenth Amendment by Congress, and 
at a time when legislation based on the continuance 
of military control was still under debate.^ Impres- 
sive, eloquent and impassioned pleas were made by 
David Dudley Field, General James A. Garfield and 
Jeremiah S. Black for the prisoner,* and by Attomey- 

^ Tlie resolution for this Amendment passed the Senate, Jan. 8, and the House, 
Jan. 18, 1866 ; see History qf Ihe Fourteenth Amendment (1908), by Horace S. Flack. 

The Civil Rights Act was enacted April 6, 1866, over President Johnson's veto. 

' See Address of Levi March in Reminiacencea of J. 8. Black (1887), by M. B. 
Clayton, 131 : "Of the arguments the most powerful is that of Jeremiah S. Black, 
which has been described as ' indisputably the most remarkable forensic effort be^ 
fore that august tribunal, delivering his address without a solitary note of read- 
ing from a book, and yet he presented an array of law, fact and argument, with 
such remarkable force and eloquence as startled and bewildered those who lis- 
tened to him. . . . Freedom was his client. The great cause of Constitutional 
liberty hung upon that single Ufe.' " 



148 THE SUPREME COURT 

General James Speed, Henry Stanbery and Benjamin 
F. Butler for the Government. On April 3, 1866, 
within the short space of three weeks after the argu- 
ment, the Court rendered its decision, unanimously 
holding the military commission authorized by the 
President to have been unlawful, A majority of the 
Court — Judges Field and Davis (appointed by Lin- 
coln) and Nelson, Grier and Clifford (appointed in 
pre-war days) — took the occasion to state their further 
opinion that neither the President nor Congress pos- 
sessed the power to institute such a military commis- 
sion, except in the actual theater of war, where the 
civil Courts were not open. There being thus in- 
jected into the case a question which did not arise 
on the facts, four Judges — Chief Justice Chase and 
Judges Miller, Swayne (appointed by Lincoln) and 
Wayne (appointed by Jackson) — filed a dissenting 
opinion refusing to regard the power of Congress as 
subject to such limitations. The opinion of the 
Court, holding Lincoln's military tribunal illegal, was 
delivered by Lincoln's personal friend. Judge Davis. 
"No graver question was ever considered by this 
Court, nor one which more nearly concerns the rights 
of every American citizen when charged with crime, 
to be tried and punished according to law," he said. 
"The Constitution of the United States is a law for 
rulers and people, equally in war and in peace, and 
covers with the shield of its protection all classes of 
men, at all times, and under all circumstances." Its 
provisions cannot "be suspended during any of the 
great exigencies of government. Such a doctrine 
leads directly to anarchy or despotism. . . • Martial 
rule can never exist where the Courts are open, and 
in the proper and unobstructed exercise of their juris- 
diction." Hence the military commissions were held 



THE MILLIGAN CASE 149 

illegal.^ In a dissenting opinion agreeing with the 
majority on the actual question involved, but con- 
tending that Congress had the power to institute 
military commissions, the Chief Justice said: ''We 
cannot doubt that, in such a time of public danger. 
Congress had power, under the Constitution,** to 
make such provisions for military trial ; and he stated 
that the civil Courts ''might be open and undisturbed 
in the execution of their functions, and yet wholly 
incompetent to avert threatened danger, or to punish 
with adequate promptitude and certainty, the guilty 
conspirators. . . • The power of Congress to authorize 
trials for crimes against the security and safety of 
the National forces may be derived from its consti- 
tutional authority to raise and support armies and to 
declare war, if not from its constitutional authority 
to provide for governing the National forces." 

This famouis decision has been so long recognized as 
one of the bulwarks of American liberty that it is diffi- 
cult to realize now the storm of invective and oppro- 
brium which burst upon the Court at the time when 

* The subsequent facts as to the petitioner in the MiUigan Case are of interest. 
His sentence of hanging on May 19, 1805, was suspended on May 10, pending 
his petition to the Court; and it was commuted to life imprisonment by Presi- 
dent Johnson on June 21, 1865. He was confined in the Ohio Penitentiary by 
Older of Gen. Hovey, the military coounander of the District of Indiana, and was 
released on April 10, 1866, after the decision of the Supreme Court. On March 
IS, 1868, he brought an action for damages against Gen. Hovey in the State Court, 
which, under the Removals Act, was removed to the Fedenl Circuit Court by 
Hovey. While it was pending there, the Cineinnati Enquirer, on May 18, 1871, 
exprused the editorial hope that Milligan*s suit would be upheld : "It would be 
a healthy, political sign to show that there was a limit to military usurpation ; and 
that even the President of the United States cannot give an order, or enforce a 
decree, against the law of the land, and that his illegal orders are no protection 
to his subordinates. This is a lesson that military tyrants and usurpers should 
be taught, if we would preserve any remnant of liberty in the land.*' The jury, 
after a charge from Judge Thomas Drummond, rendcml a verdict in Milligan's 
favor, but awarded him only nominal damages, since under the two years* statute 
of limitation he could only recover for damages for confinement between March 
IS and April 10, 1866. See also Humphrey v. MeCormiek (1866), 87 Ind. 144 ; and 
WoBkingUm WeMy Chronicle^ March 16. 1867. 



160 THE SUPREME COURT 

it was first made public.^ By the Reconstruetionists, 
the decision was regarded as a reversion to the theory 
of constitutional law held by opponents of the Union ; 
they claimed that the Court's doctrine, if applied in 
war time, would have resulted in the loss of the war ; 
and they asserted that the Court had now joined 
hands with President Johnson in an effort to destroy 
the Congressional plans for Reconstruction. An il- 
lustration of this feeling as to the majority opinion 
is to be seen in a letter written to Chief Justice Chase 
by John Jay: "If, as the public begin to fear, their 
denial of the powers of Congress is any index to the 
view they are prepared to take of the great questions 
that will come before them in reference to Reconstruc- 
tion, our situation is certainly a grave one ... to 
surmount the formidable opposition, no longer of an 
obstinate President defying the will of the people, 
but of an Executive furnished with a constitutional 
standpoint, by the Supreme Judiciary giving validity 
to his acts, and checkmating Congress at the most 
eventful moment by denying its powers and annulling 
its legislation. I cannot yet consent to believe that 
we are brought into this dilemma, and that appointees 
of Mr. Lincoln are ready to imitate the late Chief 
Justice, in making the Court the chief support of the 
advocates of slavery and the Rebellion.** * The viru- 
lence of attack upon the Judges can only be appre- 
ciated by a comprehensive perusal of the editorials 
of the day, of which the following are illustrative.' 

1 See Salmon Portland Chase (1899), by Albert Bushnell Hart. The Waahington 
correspondent of the New York Times wrote, Dec. 27, 1866: "There is much con- 
fusion in the public mind as to what the Court actually did decide, and the pub- 
licity of the decision is anxiously looked for, especially as the Court, in order to 
prevent an imperfect synopsis of the decision from going forth, denied the re- 
porters present the usual privilege of taking notes." The decision in full was 
given to the public through the press for the first time on Jan. 1, 1867. 

' Amer. Hist, Ass. Rep, (1902), II, letter of Jan. 5, 1867. 

* iVei0 York Times, Jan. 8, 1867 ; IndianapoUs Daily Journal, Jan. 8, 1867, 



THE MILLIGAN CASE 161 

"In the conflict of principle thus evoked, the States 
which sustained the cause of the Union will recognize 
an old foe with a new face/* said the New York Times. 
"It is the old dogma of rigid construction as applied 
to the National Government and liberal construc- 
tion as applied to the States on the one hand, and on 
the other, the common sense doctrine that the Con- 
stitution provides for the permanence of the Union, 
and for such an exercise of authority by Congress as 
may be necessary to preserve the National ex- 
istence. . • . The Supreme Court, we regret to find, 
throws the great weight of its influence into the scale 
of those who assailed the Union and step after step 
impugned the constitutionality of nearly everything 
that was done to uphold it. • . • The whole Cop- 
perhead press exults over the decision. . . . They shelter 
themselves behind Justice Davis and his Associates, 
and indirectly renew their assault upon the policy 
that dictated and guided the war for National 
unity. . . . The newly declared reliance of the Presi- 
dent and the Southern States upon the interposition 
of the Supreme Court has a certain apparent justifi- 
cation in this decision.'* The Indianapolis Journal 
said that the decision was "such as to create mis- 
givings in the mind of the patriotic people who saved 
the Nation from destruction at the hands of rebels.** 
Admitting that, under some circumstances, a decision 
against military tribunals "would be an invaluable 
defense to popular liberties, here it is intended only 
to aid the Johnson men, and is so clearly a forerunner 
of other decisions looking to a defeat of Republican 
ascendancy and to a restoration of Southern domina- 
tion, that the indignation against the Court is just 

Cleveland Herald, Jan. 8, 4, 5, 7, 1867; Independent, Jan. 10, 1867; Ctnctmiati 
Commerdalt Jan. 8, 4, 5. 1867. 



152 THE SUPREME COURT 

and warranted/' But, it concluded, "the Court 
cannot enforce its reactionary dogmas upon the peo- 
ple. The decision carries no moral force, and cannot 
bind coordinate departments/' The Cleveland Her- 
aldf speaking of **the late alarming pronunciamento 
called a decision of the Supreme Court*' termed it 
a "judicial tyranny." "The Milligan decision now 
occupies the moat prominent place in the political 
situation," it said. "A new and most mischievous 
weapon has been placed in the hands of those who 
oppose the great Union party." It stated that, had 
the decision been made early in the war, "oiu* coun- 
try would have been compelled to pass through an 
ordeal of blood and turmoil that would have shaken 
society in all its phases to its centre, even had not the 
rebellion been successful in overthrowing the Gov- 
ernment. ... K the doctrine avowed by the ma- 
jority be sound, this Government is but a wisp of 
straw. ... It is well enough to talk about the 
military power being subservient to the civil, when the 
civil power can stand; but when war has trodden 
down the civil power, he is either a traitor or a granny 
who hesitates as to employing the military power, 
either its bayonets or its Courts, to preserve the life 
of the Nation. The minority, as in the Dred Scott 
Case^ will receive the thanks of all loyal men who 
would seize any means within reach to save a govern- 
ment from the hands of traitors who could subvert 
it, while its timid defenders were poring over dusty, 
musty tomes, seeking the proper civil remedy." It 
"has produced a profound impression," said the In- 
dependent. "It virtually declares that Lincoln's as- 
sassins suffered a juridico-military murder. . . . We 
regard it as the most dangerous opinion ever pro- 
nounced by that tribunal. . . . Nor shall we waste 



THE MILLIGAN CASE 168 

criticism on the verbose sophistries with which they 
labor to conceal the iniquitous doctrines pro- 
pounded. ... So far as it bears upon the actual 
points in issue and is a determination of the case under 
review, it will be yielded to. Beyond thisj it will be 
treated as a mere partisan harangue, unseemly, be- 
cause of the source whence it emanated ... a sorry 
attempt of five not very distinguished persons to ex- 
hibit themselves as profound jurists, whereas they 
have only succeeded in proving themselves to be very 
poor politicians. We regret this decision on many 
grounds. The Supreme Court had begun to recover 
the prestige tarnished by the Dred Scott decision. 
. . . The recent decision restores the Court to the bad 
eminence it occupied when Taney dictated its decrees, 
and will again withdraw from it that entire confi- 
dence which a loyal people would fain repose in its 
adjudications." The New York Herald was especially 
savage on the Court, and, in a series of editorials, de- 
manded its reformation. ^'The decision in the Indi- 
ana Case may be according to the strict letter of the 
Constitution,*' it said. "But in adhering to the strict 
letter, we must go back to President Buchanan's de- 
cision, that he could find no authority in the Consti- 
tution to interfere with a seceding State. ... It is 
in this view of the Indiana decision, ignoring the vital 
necessities of the Government during the Rebellion, 
that a reconstruction of the Supreme Court, adapted 
to the paramount decisions of the war, looms up into 
bold relief, on a question of vital importance. . . . 
As the Court now stands, away behind the war, we 
hold that there is good reason to fear that its judg- 
ments, yet to come, in regard to the doings of Con- 
gress during and since the war, including the abolition 
of slavery and the creation of our present National 



154 THE SUPREME COURT 

debt, if not provided for in season, may result in a 
new chapter of troubles and disasters to the coun- 
try." Again it said: *'This two-faced opinion of 
Mr. Justice Davis is utterly inconsistent with the 
deciding facts of the war, and therefore utterly pre- 
posterous. These ante-diluvian Judges seem to for- 
get that the war was an appeal from the Constitution 
to the sword. • . . This constitutional twaddle of 
Mr. Justice Davis will no more stand the fire of pub- 
lic opinion than the Dred Scott decision." ^ "It is 
a marvelous fact," said the Cleveland Herald^ "that 
each of the two decisions of our Federal Supreme 
Court which has gone the farthest to sustain slavery 
and to paralyze the arm of our Government in putting 
down the rebellion — to wit the Dred Scott Case and 
the MiUigan Ca^e — was a decision falling under the 
title of an ipse dixit ^ a mere extra-judicial assertion 
of the Judges." "Like the Dred Scott decision, it 
is not a judicial opinion; it is a political act. . • . 
The Dred Scott decision was meant to deprive slaves 
taken into a Territory of the chances of liberty under 
the United States Constitution." The Indiana de- 
cision operates to deprive the freedmen, in the late 
rebel States whose laws grievously outrage them, of 
the protection of the freedmen's Courts," said Har- 
per's Weekly. That this decision, which has since 
been recognized by all men as the palladium of the 
rights of the individual, should at the time of its ren- 
dition have been so generally compared with the Dred 
Scott Case is a striking commentary on the passionate 
political conditions of that era.^ 

1 Nmo York HerM, Dec. 19, 20, 23, 1866, Jan. 2, 8, 1867. In a later editorial. 
Jan. 5, it termed the Court "a relic of the past, nine old superior pettifoggers, 
old marplots, a formidable barrier to the consummation of the great revolution." 

* Cleveland Herald, Jan. 4, 1867; Harper* s Weekly, Jan. 19, 1867, editorial en- 
titled "The New Dred Scott." See also New York Timee, Jan. 3, 1867, and 
numerous papers comparing the MUUgan Case to the Dred SeoU Case, 



THE MILLIGAN CASE 155 

The most virulent assault upon the Court was made 
by John W. Forney, in the Washington Chronicle^ the 
semi-official organ of the Republican Senate, and the 
constant opponent of the National Intelligencer which 
supported President Johnson. "The decision cannot 
fail to shock the sensibilities and provoke the severe 
rebuke of loyal men everywhere/* it said in one of 
its earliest criticisms of the Court. "The exulta- 
tion of the rebel Intelligencer over it will awaken a 
jubilant echo throughout rebeldom, and the hearts of 
traitors will be glad by the announcement that trea- 
son, vanquished upon the battlefield and hunted from 
every other retreat, has at last found a secure shelter 
in the bosom of the Supreme Court." This was very 
extreme and unjustifiable language, and the personal 
attack on the Judges' character very properly met 
with indignant protest from many men who, though 
disagreeing with the Judges' opinion, were eager to 
defend their loyalty. Nevertheless the Chronicle con- 
tinued, for a month, to launch a series of violent at- 
tacks on Judge Davis and on the Court, which were 
widely copied and imitated.^ "We have not met a 
Republican who does not speak with contempt of 
the language of Justice Davis," it said. "The peo- 
ple have said, if it is not lawful to whip traitors, we 
will make it so. . . . The denial of Congressional 
power has elicited universal condemnation from the 
people of the country. And the fact that this denial 
was wholly uncalled for, was well calculated to in- 
spire mistrust of the motives which induced the Judges 
to drag it into their decision. The masses of the 

^ Washington ChtxmieU, Dec. 19, 22, 29, 1866, and passim through January, 
1867, and see PkUaddphia Press and PkUaddpkia North American, passim (the 
latter saying that President Lincoln had "made a mistake in appointing a Judge 
of the fatal name of Davis*') ; and furious attacks on the Court and on Chief Jus- 
tice Chase in New York Tribune^ passim. 



156 THE SUPREME COURT 

American people are not behind these five Judges, 
in their reverence for the Constitution and their re- 
gard for the rights of the citizen; but they will not 
assent to an interpretation of that instrument, which 
places the rights of the individual before the safety 
of the whole people." Again, it said that : "Time and 
reflection have only served to strengthen the con- 
viction of the partisan character of the decision and 
the apprehension that it is the precursor of other de- 
cisions in the interest of unrepentant treason in the 
support of an apostate President." To the Court, 
as a co-conspirator with President Johnson and as a 
dangerous and reactionary factor in the Govern- 
ment, it devoted several editorials, in the last 
of which it stated that the decision "has not startled 
the country more by its far-reaching and calamitous 
results than it has amazed jurists and statesmen by 
the poverty of its learning and the feebleness of its 
logic. It has surprised all, too, with its total want 
of sympathy with the spirit in which the war for the 
Union was prosecuted, and necessarily with those 
great issues growing out of it, which concern not only 
the life of the Republic but the very progress of the 
race, and which, having been decided on the battle- 
field, are now sought to be reversed by the very theory 
of construction which led to rebellion.'* 

While these criticisms of the MiUigan Case deci- 
sion vastly outweighed the applause, the more con- 
servative Republicans and the Democrats hailed it 
as a triumph of the rule of law over lawlessness.^ 
"The laws are no longer silenced by the clash of arms. 
The supreme tribunal of the country has vindicated 
their assaulted majesty," said the President's organ, 

^ National InitXUgencer, Dec. 18, 18, 20, 25. 27, 28, 31, 1866. Jan. 1, 8, 11. 15, 
17, 1867; Naivm, Jan. 10. 1867. 



THE MILLIGAN CASE 157 

the National Intelligencer, on the day after the deci- 
sion; and it continued with the following memorable 
words, which rang through the country: **They are 
disloyal, who, under the pretense of preserving the 
liberties of the citizen, have disregarded the obliga- 
tions of the organic law. They are disunionists, who, 
daiming to fight for the Union, have trampled upon 
its fundamental bond. And, as in war times, these 
monopolists of patriotism denounced those who up- 
held the sacred liberties of the citizen as guaranteed 
by the Constitution, so now, in the midst of peace, 
they assail those who maintain the rights of the States 
as guaranteed by that same instrument. But the 
Supreme Court has evermore made such an assault 
upon the rights of the citizen impossible; and we 
doubt not that, in due time, it will extend its broad 
aegis over the violated commonwealths of the South.'* 
In later editorials, it termed the decision of greater 
moral weight than any ever rendered, since "neither 
in the breadth of the issue, the extravagance of con- 
temporary heresies on the subject, nor in the magni- 
tude of the stake could any law cause before that 
Court compare with this. ... It establishes the rights 
of the citizen on an impregnable basis. It is not 
Milligan, the alleged conspirator, who is set free; 
but Milligan, citizen, tried by an illegal tribunal. 
... It is not the crime of treason which is shielded 
by this memorable decision, but the sacred rights of 
the citizen that are vindicated against the arbitrary 
decisions of military authority. Above the might 
of the sword, the majesty of the law is thus raised 
supreme." And to the "wild attacks of partisan 
malevolence and malice", and to the diatribes of the 
Senators, the Chronicle and the Bureau of Military 
Justice and others, calling for impeachment of the 



158 THE SUPREME COURT 

Judges and for reconstruction of the Court, it said: 
**We defend now the people against the anarchical 
schemes of those who, in overriding the Court, fear- 
fully imperil our liberties, by striving to impair the 
public respect for law and for an impartial Judici- 
ary. The anarchists who would destroy the public 
confidence in the Constitution and its Supreme Court 
are as dangerous, as the revolutionists who sought 
to withdraw from that jurisdiction." The Nation, 
Republican in its views, remarked that President 
Lincoln had '^at times seemed to revel in the breach 
of Acts of Congress, and did so with the ai^roval of 
a large portion of the public" and that the chief criti- 
cism of President Johnson had been his exaltation 
of Executive power; and it stated that the very men 
who had previously denounced Presidential usurpa- 
tion were now talking of ^^ impeaching the Judges 
for doing what they were bound to do before God and 
man, come what might. . . . We hope this whole 
matter, grave and important as it is, will open the 
eyes of the public to the great danger there is that 
the breaches of law and of propriety, into which over- 
zeal on behalf of the right now carries us, may be, 
one day, used against it, in defense of the wrong. It 
is not very long, since there was a majority in the 
United States on the side of wickedness, and we may 
all live to see it again; if we should, we may have 
sore need, for our own protection, of all the forms and 
traditions of the law and the Constitution." The 
Springfield Republican, which had been a strong anti- 
slavery paper, but which was now less radical in its 
Republicanism, said that the decision had been 
strangely misunderstood and perverted", and that 
to suspect such men as Judges Chase, Davis and 
Wayne of assenting to any doctrine that shall cripple 






THE MILLIGAN CASE 159 

the power of the Government to suppress rebellion 
is preposterous. • . .. The Milligan decision is simply 
a reaffirmation of the sacred right of trial by jury. 
To deny principles so well established and so essen- 
tial to liberty and justice would not be progress, 
but a long step backwards towards despotism." It 
pointed out that the decision would not necessarily 
operate to prevent action of Congress in Reconstruc- 
tion, since ^^the application of the decision of the 
Court to the Southern States must be governed by 
opinions of the conditions. The President has pro- 
claimed them at peace, and the civil law in full force. 
Those who believe that the war is still going on will 
call for the perpetuation of military Courts." And 
it very sanely stated its belief that "attempts to ex- 
cite popular alarm or partisan animosity are false 
and foolish, and so palpably so that they cannot suc- 
ceed. The Democrats want very much to be the 
sole champions of the Constitution and the Supreme 
Court, and they will not achieve that honor. . . . 
No good citizen can regret that the Constitution and 
laws are again declared supreme. If either are faulty 
or behind the spirit of the age, the people are sov- 
ereign, and the process of amendment is easy and 
direct." 1 

The Democratic papers naturally applauded the 
decision.^ "It is both a triumphant vindication of 
the Democratic party and a happy augury of the 
future," said the New York World. "This decision 
on a matter which was the main topic of controversy 

^ SpringfiM RepMiean, Jan. 2, 5, 1867. This paper was one of the few which 
had recognized the importance of the decision, when rendered in the preceding 
April; and it had then rejoiced, April 7, 1806, that it would end the "senseless 
clamor for the military trial of Jefferson Davis and other rebel leaders." 

*New York World. Dec. 18, 19, 21, 25, 1866, Jan. 6, 12, 1867; BaUimare Snn, 
Dec. 22, 1866; Richmond Enquirer, Dec. 20, 24, 27, 28, 1866. Detroit Free Frees, 
Jan. 8, 11, 1867. 



160 THE SUPREME COURT 

between the Democratic Party and its opponents 
during the war is the final judgment of the law, as 
it will be the verdict of history, that the obloquy 
heaped upon Democrats for their opposition to the 
arbitrary exertion of authority was undeserved, 
. . • that the arbitrary proceedings against which 
they protested were as lawless as they were high- 
handed. • • • There is always a period of peril to 
civil liberty. . . • The fact that the Supreme Court 
has escaped the servile contamination of the times, 
and pronounces an independent opinion which vindi- 
cates a party so traduced and maligned as the Democ- 
racy, is full of encouragement." The Baltimore 
Sun rejoiced at the Court's emphatic declaration that 
the Constitution is the supreme law in war as well as 
in peace. **With that single sentence the miserable 
plea of military necessity is torn from human liberty, 
and men feel again that the chains of despotic power 
are utterly riven. . . . The great writ of habeas 
corpus is no longer an idle phrase." It asserted that 
the decision had greatly increased the confidence of 
the people in the Court. "Fanaticism, feeling the 
sting of death in the decision, has already raised a 
clamor for the overthrow of the Court; but fast an- 
chored in the affections of the American people that 
tribunal will resist the assaults directed against it, 
and continue the tranquil and sure arbiter of right." 
And it said that the decision ''needing no commen- 
tary, and by its piercing force of truth and logic 
admitting of no refutation . . • ought to be read by 
every man who has pride in the name of an American 
citizen." 

That the newspapers in the late Confederate States 
should rejoice at the decision was also natural; but 
if there were readers of the Richmond Enquirer of 



THE MILLI6AN CASE 161 

the year 1821 who were alive on December 27, 1866, 
they must have been astounded to read in its columns, 
on the latter date, an article highly praising the Su- 
preme Court of the United States for its exercise of 
the function of testing the constitutionality of leg- 
islation, and for its position as one of the needful 
checks and balances of Government. ""It has in- 
spired us with new hope for the future of oiu* insti- 
tutions,'' it said. '^It could not have been foreseen 
that the Judiciary both in England and America 
would have proved, in the main, so pure and incor- 
ruptible, so elevated above the passions of the hour, 
and so fearless and efficient in checking the usurpa- 
tions of power proceeding from other departments. 
• . . Now that the Supreme Court has come to the 
rescue of the Constitution, the future is lighted with 
signs of good cheer." Later, it pointed out the re- 
markable freedom from partisan action, as shown by 
the decision of the Chief Justice, **a high priest of 
radicalism", and of his Republican Associates, de- 
fending the Constitution in direct opposition to the 
political measures advocated by their Party; and it 
expressed the ardent hope that the Judges would 
stand firm, though they had been "" reproached as 
enemies, if not traitors, to their party, threatened 
with reconstruction, threatened with demolition, in- 
sulted, abused and defied. ... If the authority of 
the Constitution shall be vindicated, the South is 
safe and the end of her troubles approaches." 

The view expressed by the Democratic press un- 
doubtedly represents, in general, the verdict of his- 
tory on the immortal opinion of Judge Davis in sup- 
port of the right of the citizen to protection against 
arbitrary military action. But there has always 
been considerable sympathy with the sentiments en- 
voi*, ni — 



162 THE SXJPREME COURT 

tertained by the Republicans towards that part of 
the decision of the foiu* Judges which distinguished 
the question of Congressional power from Executive 
usurpation ; and an eminent jurist wrote with much 
reason, fourteen years after the decision: "The 
minority opinion is the only view which can recon- 
cile jurisprudence with political science, law with 
policy. It is devoutly to be hoped that the decision 
of the Court may never be subjected to the strain of 
actual war. If, however, it should be, we may safely 
predict that it will necessarily be disregarded. In 
time of war and public danger, the whole power of 
the State must be vested in the General Government, 
and the constitutional liberty of the individual must 
be sacrificed, so far as the Government finds it neces- 
sary for the preservation of the life and security of 
the State. This is the experience of political history 
and the principle of political science."^ That the 
doctrine asserted by the majority is "calculated to 
cripple the constitutional powers of the Government 
and to augment the public dangers in times of in- 
vasion and rebellion'* (in the words of Chief Justice 
Chase) is so unquestionable as to excuse both those 
who were confronting the problems of Reconstruc- 
tion in 1867, as well as those who may in the future be 
called on to deal with internal war problems in this 
country, for hoping for a reversal of the Court's deci- 
sion on this point. But whatever may be the view as 
to the law so laid down, there was a serious and well- 
founded criticism of the propriety of the Court's ac- 
tion in expressing any opinion whatever on the power 

1 Political Science and ConstUuHond Law (1890), by John W. Burgess, I, 250- 
252. ''Political science would confer, and, as it appears to me, the Constitution 
does confer, the power of determining when and where war exists, upon those 
bodies who represent the whole United States, who wield the power of the United 
States and upon whom the Constitution casts the responsibility of the public de- 
fence against both the foreign and the domestic foe." 



THE MILLIGAN CASE 163 

of Congress; and a leading law journal expressed 
very ably the views of the Bar at the time : ^ 

On the main point at issue, all the nine Judges agreed. 
It is rare that the whole Court agrees on any constitutional 
question; it is stiU more rare when the Court agrees to 
decide an important question in opposition to Executive 
authority and the current of popular feeling; and such 
unanimity is too precious a thing to be hid under a bushel. 
Had this unanimous opinion been given simply and 
directly, it would have established for ever a solid prin- 
ciple of law, on which, in all troublous times, the country 
would have relied. It would have been a strong defence 
against all assaults upon the liberties of the people. It 
would have commanded universal respect, and would have 
enlisted in its support the sound judgment and the common 
sense of the Nation. But the Court did not deliver a 
unanimous opinion. They divided on a point which was 
not before them for adjudication. . . . Had they in truth, 
simply adhered to their plain duty as Judges, they could 
have united in one opinion on this most important case. 
We deem the course they saw fit to adopt matter for great 
regret. Instead of approaching the subject of the powers 
of the coordinate branches of the government as one of 
great delicacy, which they were loath to consider, but 
which they felt bound to pass upon because it was involved 
in the righteous decision of the cause before them, yet con- 
cerning which they had nothing to do, and would have 
nothing to say, except so far as it was necessary to the 
determination of that cause, they have seemed eager to 
go beyond the record, and not only to state the reason 
of their present judgment, but to lay down the principles 
on which they would decide other questions, not now be- 
fore them, involving the gravest and highest powers of 
Congress. They have seemed to forget how all-important 
it is for the preservation of their influence that they should 
confine themselves to their duties as Judges between the 
parties in a particular case; how certainly the jealousy 
of the coordinate departments of the government and of 
the people would be excited by any attempt on their part 

1 Aturioan Law Rmew (April 1S0T}» I, 672. 



164 THE SUPREME COURT 

to exceed their constitutional functions ; and how, the more 
a case before the Supreme Court assumes a political as- 
pect, the more cautious should the Judges be to confine 
themselves within their proper limits. . . . But, however 
much the Supreme Court may have provoked criticism, 
none the less is much of that criticism to be deprecated. 
And the most alarming feature in such criticism is not indig- 
nation that the Judges have decided from political pre- 
possessions, but a feeling that they are to blame if they do 
not — a feeling that a Judge of the Supreme Court of the 
United States who gives judgment contrary to the wishes, 
foi' the time being, of a majority of the people, or, at any 
rate, contrary to the wishes of an Administration which 
raised him to the Bench, is liable to the same just censure 
that waits upon a politician who has left the party to which 
he has pledged himself, and votes with the opposition; 
that a Judge is in fact, a representative to carry out the 
wishes of a political party. Against this degradation of 
the judicial oflBce we protest. For what is the Supreme 
Court mainly established but that it may be a tribunal 
of last resort, composed of men uninfluenced by Executive 
or Legislative power or popular impulse, who may do jus- 
tice, free, as far as the lot of humanity admits, from party 
passion or political expediency ? 

The apprehensions of the Radical Republicans as 
to the disastrous effect of the Milligan Case decision 
upon their policies were fully confirmed by the steps 
which were taken by the President and by the action 
of some of the Federal Judges, immediately follow- 
ing the publication of the opinion. President John- 
son regarded it as an indorsement of his policy to 
put an end to military government in the South 
as soon as possible; and he at once issued orders 
dismissing all trials of civilians by the military then 
pending in Virginia and in other States in which the 
Republicans were claiming that a condition of war still 
existed ; and a similar action was taken by Judge Hall 
of the United States District Court in Delaware in 



THE MILLIGAN CASE 165 

ordering the release on habeas corpus of four men 
convicted of murder of Union soldiers by a military 
Court in South Carolina.* Though the Court spoke 
of Indiana and any State where the Courts have been 
open and unobstructed, said the New York Herald^ 
**the President insists that the decision applies as 
well to Virginia as to Indiana, and eager to please the 
white blood-hounds of the Old Dominion, he orders 
the dismissal of a military tribunal engaged in trying 
the murderer of a black man. There is no warrant 
for such a cruel inference ; but the President will not 
wait, but wishes with unseemly haste to issue his 
order to all departmental commanders on rebel soil 
to reaped the decision of the Court.** The Radical 
Republicans were even more disturbed by the realiza- 
tion that the logical result of the decision was to de- 
clare illegal the trial and conviction of Lincoln's as- 
sassins, and to constitute the execution of Payne, 
Atzerott, Herold and Mrs. Suratt, little more than 
lynching. "It virtually declares that they suffered 
a juridico-military murder," said the Independents 
That their apprehensions were justified became evi- 
dent when, within a week after the Milligan decision 
in December, 1866, applications were made to 
Judge Wayne and to Chief Justice Chase for a 
writ of habeas corpus by one of these prisoners 

^ See especially m to this case Botton Daily AdoertUef, Feb. 8, 1867. The Nor 
HUm said, Jan. 8, 1867 : *' Mr. Johnson has at last found what he imagines to be 
a snug and safe harbor for his 'policy.' The Supreme Court has come to his aid, 
and has already declared nulituy commissions illegal — thus putting an end to 
military interference with the action of the local authorities at the South — and 
it is fully believed will take strong conservative ground in several cases now be- 
fore it." 

* New York Harold, Dec. 28, 28, 1866; IndependefU, Jan. 8, 1867. See Life rf 
Lyman TrumbtiU (1918), by Horace White. The Washington correspondent of 
the Boston Daily Advertiser, Dec. 27, 1866, said: "Grood lawyers here give it as 
their opinion that the late decision renders the Secretary of War, the Judge Ad- 
vocate General and all the members of the Court which tried the assassins, liable 
to prosecution ; while Secretary Stanton holds that it overthrows the Freedmen's 
Bureau, and renders the Army wholly powerless in the South." 



166 THE SUPREME COURT 

at the Tortugas convicted by military commis- 
sion.^ Though Chase denied the application, he based 
his refusal only on the ground that he had no power 
to issue such a writ outside his own Circuit; and 
therefore the question of the legality of the military 
trial of the prisoner still remained open. This episode 
brought about an active debate in the House of Rep- 
resentatives in Congress, on January 3, 1867, on a 
resolution that the Committee on the Judiciary should 
report on the advisability of a repeal of the habeas 
corpus law of March 3, 1863, so as "to prevent the 
Supreme Court from releasing and discharging the 
assassins of Mr. Lincoln and the conspirators to 
release the rebel prisoners at Camp Douglas in 
Chicago.'* Of the excited political atmosphere at 
Washington, a Western correspondent wrote: "The 
President holds that this decision applies to every re- 
bellious State as well as to the loyal ; and the blood- 
hounds are loose all over the South, and the freed- 
men must take their chances. I am informed on very 
respectable authority that one at least of the majority 
Judges in the decision of the Court is very nervous 
over the result of this blunder. The Justice I refer 
to was a personal friend of Mr. Lincoln, and claimed 
to be at that time a staunch Republican. He shud- 
ders as he sees the cruelties that are to be perpetrated 
all over the South under his decision, but it is too 
late. If a case could properly come before the Court, 
it would be found that a majority do not hold that 
military tribunals are unconstitutional in the rebel- 

' See IndianapolU Daily Journal, Jan. 8, 1867 ; Springfield Repvbliean, Dec. 
29, 1866; Boiton Daily Advertiser, Dec. 21, 25, 1866; speech of Reverdy John- 
son, Jan. 25, 1867, S9th Cong,, 2d Sees., 780. It appears that another application 
for habeas corpus by this prisoner was contemplated later, in 1867, when Judge 
Wayne should for the first time hold Court on Circuit in Florida, but it was not 
made, and the prisoner was pardoned by President Johnson in Feb., 1869. See 
Life cf Samud A. Mudd (1906), by Nettie Mudd, letters of Jan. 15, March 25, 1867. 



THE MILLIGAN CASE 167 

lious States, for Congress holds that they are still in 
a belligerent condition. • . . Should the Court, how- 
ever, by any other decision show that it is irrevo- 
cably wedded to pro-slavery ideas, to a sympathy 
for rebels — then a future Congress will reorganize 
the Court." ^ Another correspondent wrote : "Thad- 
deus Stevens today visited several of the Depart- 
ments, and with General Schenck had a long inter- 
view with Secretary Stanton. . . . He has a great 
contempt for the Supreme Court's decision in the 
MUligan Case, He does not favor the project of 
impeaching several of the Justices, but wants to im- 
peach the President, from whom all the evils flow. 
General Grant had a long interview with Secretary 
Stanton today upon the effect of the recent decision 
of the Supreme Court upon military commissions. 
It renders the Freedman's Bureau and Civil Rights 
bills a nullity, and while it is allowed to stand, orders 
will be issued to prevent any conflict of authority 
under it. Secretary Stanton, General Geary, General 
Palmer and all the other army officers who have been 
on military commissions are hourly liable to criminal 
arrest and trial. Senator Trumbull who drew up 
both the above bills agrees with the Supreme Court. 
The decision creates intense excitement and it is 
now claimed by the President that the Constitutional 
Amendment abolishing slavery will yet be declared a 
nullity. A movement that will be started tomorrow 
for the impeaching of several of the Justices will meet 

^ Clevdand Herald, quoting Detroit Tribune, Jan. 2, 1867 ; see also Cincinnati 
Commgreial, Jan. 6, 1867. The Springfidd RepMiean, Dec. 29, 1867, said : "All 
the copperheads and secessionists of this vicinity have jumped to the conclunon 
that under the recent decision of the Supreme Court military tribunals are un- 
constitutional in the rebellious States. The language of the decision warrants 
no such inference. . . . One or two of the Judges who supported the recent de- 
cision are said to be not a little nervous over the use the President is making of it 
at the South.'* 



168 THE SUPREME COURT 

with favor in the House, where there are a number of 
military men ready to take the strongest ground 
against judicial usurpation ; but in the Senate, there 
are no soldiers, and any move like impeachments 
would be hopeless before the present Senate. Mr. 
Stevens is preparing some stringent measures to pro- 
tect the country from the evil tendencies of the Su- 
preme Court.*' 

These accounts were not exaggerated; for the re- 
ports of statements made by the President that the 
Supreme Court was prepared to follow its Milligan 
decision to its logical consequences and to hold un- 
constitutional any legislation which contemplated the 
government of the Southern States by military force, 
aroused the Republican leaders in Congress to a con- 
sideration of means of curbing the Court. ^ The 
measure most vigorously urged upon them was a re- 
organization of the Court, the argument for which 
was strongly set forth as follows by Harper^ s Weekly : 
"The people have decided that Congress has supreme 
authority in time of war and must necessarily be judge 
when and where and how to exercise it. They have 
decided that States which rebel have not a continu- 
ous right to resume at their pleasure their functions 
in the Union, but are to resume them upon such terms 
as the victorious loyal people in Congress may deter- 

> "The President is said to have conferred with several Judges of the Supreme 
Court in regard to the positions assumed by Congress towards the Southern States, 
when he announced to the Commissioner from South Carolina, Mr. Wetherby, 
that the Supreme Court would declare the Amendment unconstitutional, and is 
thought to have spoken by the card," wrote the Washington correspondent of the 
Columbiu Morning Jowmal (Ohio), Jan. 1, 1867; see also New York Tribune, 
Jan. 1, 1867. But as to this, the Nation rightly said, Jan. 8, 1867: "Statements 
of what ' is said ' are of little value unless we know who ' said it.' It is very unlikely 
that President Johnson knows anything more about the way in which the Supreme 
Court is likely to decide on any of the great questions of the day than anybody 
else. The Judges may not be * sound * on the Reconstruction question, but most 
of them, at least, still retain a strong sense of judicial propriety, and find better 
occupation than talking over thdr dedaions with Mr. Johnson." 



THE MILLIGAN CASE 169 

mine. . • • It is plain that if Congress passes laws 
the Supreme Court declares unconstitutional and 
which the President, as Commander-in-Chief, refuses 
upon that ground to execute, the situation would be 
critical. But the remedy is obvious and it is not 
revolutionary. ... K the Supreme Court under- 
takes to declare that the people of the United States, 
at the end of a long and fearful war in which they 
saved the Government, can do nothing to secure that 
Government from similar assaults hereafter, let the 
Supreme Court be swamped by a thorough reorgani- 
zation and increased number of Judges. . • . The 
question in regard to the Supreme Court need not 
be misunderstood. It is not, whether in time of peace 
in loyal States the civil Courts shall be supreme, which 
nobody questions. It is, whether loyal men or rebels 
shall reorganize the Union. . . • The remodeling of 
the Court may truly be called an extreme measure, 
to be adopted only in most extraordinary cases, as 
that which would arise if the five Judges should de- 
liberately undertake to nullify the will of the majority 
of the people of the United States in reorganizing the 
Union. '* ^ This recommendation for a re-formation 
of the Court, which had been advocated also by the 
New York Herald^ was opposed, however, both by Re- 
publicans and Democrats, as a ^^ desperate and dis- 
graceful*' device to "pack" the Court; and it was 
pointed out that the Constitution stood in the way 
of abolition of the Court, and that even if the Judges 
should be removed, or additional Judges created, it 
would rest with President Johnson to make the new 
appointments. 

While this measure, therefore, did not secure sup- 
port in Congress, the debates, during December, 1866, 

1 EarTpef*$ WeMy, Jan. 19» Feb. 0, Maicli % 1807. 



170 THE SUPREME COURT 

and January, 1867, over other bills directed against 
the Court were long-continued and bitter. The dis- 
cussion was opened by Reverdy Johnson in the Senate, 
defending the Court from the infamous charge made 
against the Judges by the Washington Chronicle} 
"The opinion of the majority was given by a man 
whose character, public and private, stands beyond 
possible reproach, placed upon that high tribunal 
by the lamented late President, loyal throughout 
the civil contest in which we have been engaged," 
Johnson said. "The editor to whom I allude thought 
proper to say that treason had found a refuge in the 
bosom of the Supreme Court of the United States. I 
am sure no Senator on this floor will justify such an 
attack. . . . They (the Judges) will stand upon the 
character which long lives of honor and integrity have 
earned for them, while their assailant will reap all 
the reward to which he may be entitled by such an 
assault" ; and Johnson continued by terming the de- 
cision as "not to be surpassed in my judgment, by 
any opinion pronounced by any Judge in any former 
case in that tribunal." To this, Thaddeus Stevens, 
the most savage of the Reconstructionists, retorted 
that, in his opinion, the decision, "although in terms 
not as infamous as the Dred Scott decision, is yet far 
more dangerous in its operation upon the lives and 
liberties of the loyal men of this country. ... If 
the doctrine enunciated in that decision be true, never 
were the people of any country, anywhere, or at any 
time, in such terrible peril as are our loyal brethren 
at the South"; and he spoke of "murderers that 
were being turned loose under the Milligan decision." 
John A. Bingham of Ohio, in the House, proposed 

1 S9th Cong,^ id Ses$., 210, 251, 209, speech of Jdmson, Dec. 20, 1866, Jan. 4, 
1867, speech of Stevens, Jan. 8, 1867. See also Life qf Thaddeui Stevens (1918), 
by James A. Woodbum. 



THE MILLIGAN CASE 171 

"sweeping away at once the Court's appellate juris- 
dict]>n in all cases** ; and he said : "If, however, the 
Cour. usurps power to decide political questions and 
defy t free people's will, it will only remain for a 
people, thus insulted and defied, to demonstrate that 
the servant is not above his lord, by procuring a 
further Constitutional Amendment and ratifying the 
same, which will defy judicial usurpation, by annihilat- 
ing the usurpers, in the abolition of the tribunal 
itself." ^ 

Thomas Williams of Pennsylvania urged a bill for 
the concurrence of all the Judges in any opinion on 
a constitutional question. "This bill, if passed into 
a law,'* a newspaper advocate said, "will practically 
relieve the Supreme Court of any further interference 
with Congress in the business of Southern Recon- 
struction, and it may then operate in a remarkable 
change of Southern sentiment; for it appears that 
the main reliance of the intractable, ruling classes 
of the South now is in the Supreme Court. . . . Nor 
are these things the mere expedients of party for party 
purposes. They are the demands of a great revolu- 
tion, which cannot be resisted but which must run its 
course. ^ 

In the midst of the debates over these measures 
a£Fecting the Court, the Radical Reconstructionists, 
who desired to see all participants in the cause of the 
Confederacy treated as traitors and denied any civil 
rights or privileges, were still further enraged by two 
decisions of the Court, rendered on January 14, 1867, 

1 S9ih Cong,, Sd Sess., 249, 286, 501 et seq,, Jan. 8, 4, 16, 21, 28, 1867. This sug- 
gestion of limiting the appellate jurisdiction of the Court was first made by the 
leading Republican paper in the West, the Chicago Tribune. It also suggested 
a statutory requirement of the concurrence of eight Judges ; see New York World, 
Jan. 21, 1867, in criticism of this proposal. I 

* New York Herald, Jan. 23, 1867; see Cleveland Herald, Jan. 28, 1867, approv- j 

ing a bill requiring concurrence of two thirds of the Judges. I 



\ 



\ 

\ 



172 THE SUPREME COURT 

in Cummings v. Missouri and Ex parte Garland, 4 
Wall. 277, 333, — decisions which revealed the Court 
as wholly unaflfected by the tumult raised by its Milli- 
gan decision, and which displayed its freedom from 
prejudices arising from the late war and its utter fair- 
ness towards those engaged in it.^ The first case in- 
volved the validity of the provisions of a State Con- 
stitution requiring certain persons (a minister of the 
gospel in the instant case) as a prerequisite to en- 
gaging in their pursuits, to take an oath that they 
had not supported, aided or favored by act or word 
the cause of the Confederacy; the second case in- 
volved an Act of Congress of January 24, 1865, and 
a Rule of Court adopted in March, 1865, in pursuance 
of the Act, requiring a similar oath before an attorney 
should be admitted or allowed to practice before the 
Court, In the first case, David Dudley Field, Mont- 
gomery Blair and Reverdy Johnson argued for the 
petitioner against John B. Henderson and G. P, 
Strong for the State of Missouri. In the second, 
Reverdy Johnson and Matt H. Carpenter argued for 
the petitioner and Alexander H. Garland (who was 
later Attorney-General of the United States) also filed 
a brief pro se; the Attorney-General, James Speed, 
appeared for the Government. The Court held the 
requirement of the oath in both cases to be uncon- 
stitutional; but again it was closely divided. The 
four Judges appointed prior to the war — Wayne, 
Grier, Nelson and Clifford — joined with Judge Field, 
in holding that the framers of the Constitution in- 
tended to guard against such "excited action of the 

1 The N9W York World, the Washington Chronicle and other papers announced 
as early as Dec. 8, 1866, that the constitutionality of the ironclad oath case had 
been decided by the Judges in conference, by a majority of five to four against the 
radicals." But the New York HerM sUted, Dec. 10, 1866, that : " Chief Jus- 
tice Chase denied the rumor." See also National Intelligencer^ Dec. 18, 1866, 



THE MILLIGAN CASE 173 

States, under such influences as these''; that '^the 
Constitution deals with substance, not shadows. Its 
inhibition was levelled at the thing, not the name. 
It intended that the rights of the citizen should be 
secure against deprivation for past conduct by legis- 
lative enactment, under any form, however dis- 
guised.** Accordingly, the statutes were held in- 
valid as imposing a form of punishment forbidden 
by the constitutional prohibition against bills of at- 
tainder and ex post jaxio laws. On the other hand, 
Lincoln's appointees — the Chief Justice and Judges 
Miller, Swayne and Davis — supported the legis- 
lation as a desirable protection of the country against 
disloyal men, and as fixing proper qualifications for 
the practice of professions ; and they denied that the 
statutes were either bills of attainder or ex post facto 
laws within the meaning of the Constitution.^ 

The attacks on these decisions were again of the 
most violent character. The Washington Chronicle 
said that they had been made *Hhe fortification be- 
hind which impertinent rebels may renew or con- 
tinue their war upon the Government", and that 
*' dangerous in the encouragement they have extended 
to traitors, they have nevertheless produced a reac- 
tion, which will not stop until the exact relation of 
that tribunal to the other departments of the Govern- 
ment is absolutely and irrevocably fixed." The New 
York Herald stated that they were of the highest im- 
portance in their political aspect, and it again urged 
a reconstruction of the Court, "to secure such inter- 
pretation of the Constitution as will proclaim the 
great fixed fact that the war for the Union was neither 
a blunder nor a failure but a great revolution." Har- 
per*s Weekly said that they were merely "another 

^ See Ameriean Law Review (1867), I, 575, 



174 THE SXJPREME COURT 

proof of the disposition of the Court to withstand the 
National will and reverse the results of the war." ^ 
On the other hand, the New York World said: "The 
decisions are an additional proof of the Court's su- 
periority to party passions and popular clamor *' ; the 
Detroit Free Press congratulated the people "that 
their liberties are safe as against the despotic and 
treasonable contentions of Congress, at least until 
a bloody revolution has overthrown the Supreme 
Court or until its independence and usefulness is de- 
stroyed in some more insidious but perhaps more 
dangerous manner"; and the National Intelligencer 
said that: "It may suit the purposes of corrupt and 
unscrupulous partisans, alike in the press, the forums 
and the pulpit, to impugn the motives of the learned 
Judges who interpret the organic law of the Nation 
under a solemn sense of their responsibilities ; but the 
plain people will not believe that they can be swerved 
from their sworn duty, by any sinister or improper 
inducements. Full of years, and full of honors, with 
no other ambition than to live in history as the wise 
and well qualified guardians of those principles which, 
embodied in the Constitution, constitute at once the 
boast and safeguard of the Nation, they are as in- 
capable of being seduced into partial, much less polit- 
ical, decisions, as they are incapable of being intimi- 
dated by the threats of brawling politicians or the 
coarse vituperation of unprincipled editors. In an 
era of revolutionary convulsion, they yield neither to 
the passions of the mob, nor the invective of the 

^ Washington Chronide, Feb. 16, 1867 ; New York Herald, Jan. 16, 1867 ; Bar- 
per*s Weekly, March 2, 1867; New York World, Jan. 15, 1867, charging Chief Jus- 
tice Chase, in dissenting in these cases, as "acting a most unworthy and respon- 
sible part", "acting with a bias*', since he had ab«ady advised President Lincobi 
in regard to them; Detroit Free Press, Jan. 16, 1867; National IntsUigencer, Jan. 
15, 1867; the Springfidd Weekly RepMiean, Jan. 19, 1867, noted with gratifica- 
tion that the division of the Judges was not baaed on political linea. 



THE MILLIGAN CASE 175 

demagogue. . • . We simply congratulate the country 
that though, amid the clash of arms, the sacred rights 
of the citizen were somewhat infringed, yet, with the 
return of peace, the Constitution is vindicated in all 
its fuUness and integrity." 

The eflFect upon Congress was to strengthen the 
demand for legislation to curb the Court ; and George 
S. Boutwell of Massachusetts at once introduced a 
bill in the House to nullify the Court's decision by 
providing that it should be a rule in all the Courts 
of the United States that no person who had been 
engaged in the Rebellion or supported its cause should 
act as an attorney in those Courts.^ "It is an offence 
to the dignity and respectability of the Nation," he 
said, "that that tribunal, under the general authority 
vested in it under the Constitution and the laws, does 
not protect itself from the contamination of rebels 
and traitors, until the rebellion itself shall be sup- 
pressed and those men shall be restored to their for- 
mer rights as citizens of this country. The Supreme 
Court failing in the performance of this high and 
self-protecting duty, the time has arrived when the 
Congress of the United States, by whose breath alone 
the Supreme Court enacts rules of any sort, or ad- 
mits any man to the office of counsellor or attorney 
at its Bar, should assume exact and specific authority 
to declare by solemn law, that men who have been 
guilty of murder or treason or bribery, or who have 
raised their arms to strike down the Government of 
this country, shall not participate in the administra- 
tion of the laws of the land, until they are absolved 
from their armies." 

^ 39th Cong., 2d Ses$„ Jan. 22» 1867, 646-(r7S ; 8pnngfield RepubHean, Jan. 26, 
1867; PhOaddphia Inquirer, Jan. 24, 1867; see also the accounts of thu bill in 
New York World, Jan. 24, 1867; National InleUigenoar, Jan. 16» 1867; Boston 
i>at% Adtmiiter, Jan. 28^ 1867. 



176 THE SUPREME COURT 

The bill did not meet with warm support, even in 
the Republican press. **The bill is an attempt to 
neutralize the decision of the Court. It strikes the 
country as designed to place these two branches of 
the Government in direct and open antagonism but 
that Act itself will probably prove a nullity. Con- 
gress is not the final judge of the validity of its own 
acts, and cannot make itself so, while there is a Con- 
stitution and a Supreme Court/' said the Spring- 
field Republican. On the other hand, the Philadel- 
phia Inquirer warned the Court that either it would 
be obliged **to succumb, or to take the high ground 
that it is beyond Congressional control in matters of 
detail and practices connected with the organization 
of the Court. It would be of dangerous consequence 
for the Judges to assume any such view ; as the Court 
is, as to administration, constituents, and regulation, 
entirely within the authority of Congress and the laws." 

Boutwell's bill and other corrective measures failed 
of adoption. Nevertheless, the radical attitude of 
the majority portended trouble for the future, and 
was truthfully described by a Democratic Congress- 
man, when he said in one of the debates that, since 
the decisions of the Court were "in irreconcilable 
conflict with all the leading measures and policies 
of the dominant party in Congress, and, by the plain- 
est logical sequence, pronounce judgment of con- 
demnation against them all in advance, hence arises 
the growing hostility of radicalism towards that great 
tribunal. The country may well anticipate an early 
attempt by the radical despotism, that now claims 
to be the 'Nation' and to measure its power by its 
own will, to reduce that last citadel of National safety 
to its control, and to make the Judges mere clerks, 
to record as law the edicts of party and caucus." 



CHAPTER THIRTY 

BECONSTRUCTION 
1867-1869 

Though exceedingly apprehensive as to the attitude 
of the Court toward its proposed Reconstruction leg- 
islation, Congress did not allow itself to be deflected 
from its firm purpose to adopt such measures as it 
believed imperative. Accordingly, in March, 1867, 
it proceeded to enact a series of statutes (over the 
constitutional objections raised by Presidential veto), 
providing for military government in the Southern 
States.^ 

Within three weeks after their passage, the long- 
expected attempt to obtain a ruling of the Court upon 
the validity of military government in time of peace 
was consummated, when, on April 5, 1867, a motion 
was made by Robert J. Walker, Alexander H. Garland 
and William L. Sharkey for leave to file an original 
bill in equity in the Supreme Court on behalf of the 
State of Mississippi, to enjoin '^Andrew Johnson, a 
citizen of the State of Tennessee and President of the 
United States and his officers and agents appointed 
for that purpose, and especially E. O. C. Ord, assigned 
as mUitary commander of the district . . . from execut- 
ing or in any manner carrying out the Acts of March 3, 

1 See Act of March 2, 1867; Act of March 23, 1867; Act of July 10, 1867; Act 
of March 11, 1868; and the Act of June U, 1868. See also History of the Ream- 
struetion Measures qftheSM and 40th Congresses 1865^8 (1868), by Henry Wilson ; 
MilUary Oovemment cf Southern Territory, by A. H. Carpenter, Amer, Hist, Ass. 
Rep. (1900), I. 



178 THE SUPREME COURT 

and 25, 1867.^ Attorney-General Stanbery objected 
to the filing of the bill on the ground that it contained 
"matter not fit to be received." The occasion was 
thus described by one who was present. " Those who 
attended the Court-room were witnesses to one of the 
most significant and remarkable scenes which ever 
occurred in any hall of justice. William L. Sharkey 
and Robert J. Walker as counsel for the people of the 
State of Mississippi rose in their places and asked 
leave to file an injunction, restraining the President 
and military commanders from enforcing the Recon- 
struction Act, on the ground of its unconstitutionality. 
For the first time in the history of any nation, the legal 
representatives of the participants in an organized re- 
bellion, defeated in the field, were permitted to appear 
in Court, not to defend their clients on trial, but to ar- 
raign and deny the authority of the law-making power, 
and to plead anew the issues of the cause already de- 
cided by the sword. After accepting the terms of sur- 
render, they propose in the Supreme Court to test the 
very right admitted by their surrender. No greater 
effrontery on the part of insurgents and rebels against 
legal authority has ever been witnessed; and no in- 
stance on the part of any other government can be 
quoted, as this in which the highest tribunal of the 

^ Ex-Judge John A. Campbell, over six montliB before, was preparing a suit to test 
the validity of the military tribunals which had been established by President John- 
son in Mississippi. In a letter to Benjamin R. Curtis, July 9^ 1866, Campbell 
wrote that he had just been to Washington in connection with the case of a super- 
vising agent of the Treasury not connected with the military service and charged 
with appropriating captured cotton and **in the clutches of a military commission 
at Mobile. It was a good case to try the potency of these * new minted judicatures*, 
as Piynne styled Strafford's militaiy commissions that were trying men 'by an ar- 
bitrary, summary, illegal and martial proceeding, without any lawful presentment 
or trial by a sworn, impartial able jury, diametrically opposite to the fundamental 
laws, customs, great charters, statutes of the realm, and inherent liberty of the sub- 
ject.' . • . I hope that D , who is not a guilty criminal, will be allowed a trial 

by a Court and not delivered over to the military commission's ten'der mercies. 
The record in his case is a curious specimen of * Military Justice' of which I am toU 
there is a Bureau at Washington." Benjamin A. Curtu MS8, 



RECONSTRUCTION 179 

country patiently sits to hear arguments, which, if 
admitted, would declare the war for the Union to have 
been unjust and oppressive." And the Independent's 
Washington correspondent wrote : "A few rebel leaders 
of the proscribed class are trying to break down the 
Reconstruction Act through the Supreme Court. . . . 
They cannot succeed. . • . Congress found a way 
to carry its plans into execution against the opposi- 
tion of the President, and it is able to sense means to 
carry out its purposes if the Supreme Court puts itself 
in the way. The proceedings yesterday in Court in- 
dicate that the President will execute the Act and that 
he will give no open encouragment to the rebel Gov- 
ernors," ^ On April 12, the power of the Court to 
exercise jurisdiction over the President was argued. 
The petitioners relied on Chief Justice Marshall's de- 
cision in the Burr treason trial, sixty years previous, 
sustaining the right of the Court to issue a subpoena 
duces tecum to President JeflFerson. The Attorney- 
General argued vigorously as to the extraordinary 
results which would follow from an attempt by the 
Judiciary to control the acts of the Executive. "The 
scene was the most notable that has been witnessed in 
the Chamber of the Supreme Court for a long time,** 
wrote a newspaper correspondent. "One marked 
the inteUectual face of Mr. Trumbull, the fine 
forehead and weak mouth of Charles O'Conor, the 

> Independent, April 10, 1867 ; the New York Herald, April 6, 1867, printed an ed- 
itorial headed " Miasiflsippi before the Supreme Court. The Old SouUiem Twaddle 
bat a moat important movement" ; and said that the decision "will at all events, 
from the gravity of the subject, be wuted for with the deepest interest by all par- 
ties." The New York World, April 4, 11, 1867, said it thought the Court would 
evade the issue, and that it did not suppose Sharkey himself had "any sanguine 
hope of success." The Springfield RepubHean, April IS, 1867, said that "Judge 
Sharkey denies that the President had anything to do with his attempt. ... He 
says that he does not know the President's opinion on the subject, and when be 
notified him of his intention to petition for an injunction the President expressed 
neither approval nor disapproval." 

See Rixnutrtuium and the ConstiUUion (lOOS), by John W. Burgess, 144 ei eeq. 



180 THE SUPREME COURT 

Mephistophelian features of Montgomery Blair, the 
cunning eyes of Robert J. Walker, the classic pro- 
file of Roscoe Conkling, the white hair and florid 
countenance of Judge Sharkey, the mastiff jaws of 
Reverdy Johnson, Ex-Senator Harris genial and digni- 
fied, the Attorney-General bland and courteous, Mr. 
Cowan seemingly troubled with self-consciousness, the 
Ex-Attomey-General, Mr. Black, jocular and uneasy, 
and Governor Jenkins of Georgia grave and courtly. 
. . . The Attorney-General spoke an hour and was 
listened to with the closest attention throughout. Tall, 
spare, angular in action, of the sweetest personal cour- 
tesy, Mr. Stanbery is a most unique type of an 
old-fashioned gentleman, admired by his friends and 
seemingly respected by everybody . . . . TheAttomey- 
Greneral's manner was quite as impressive as his lan- 
guage. . . . He spoke with a clear voice, and held 
the fixed notice not only of the audience and of the 
attorneys but of every member of the Supreme Bench." 
Walker's argument was described as of little interest 
and as ^^ adroit and specious.'' ^' Small, dapper, with 
a squatty appearance, sharp of featiu*e and sharp of 
voice, with foxy manners and blinking eyes, Mr. 
Walker is quite as imique in his way as the Attorney- 
General. Equally easy and courteous, he lacks Mr. 
Stanbery's frankness and earnestness." Another cor- 
respondent wrote: "The Supreme Court presented 
a striking scene. It was crowded with distinguished 
officials, great lawyers and curious civilians. Two 
rebel States, which for four years fought with all their 
ability to overthrow the Government and to escape 
from its control, appeared in the Court to claim that 
during all that four years of cruel war, they were States 
in the Union and entitled to the same immunities and 
privileges as New York, Ohio and any of the loyal 



RECONSTRUCTION 181 

States. This was a fine illustration of the humility 
of our 'conquered rebels/" To this criticism, the 
New York World replied: "The South has heretofore 
refused to recognize the Supreme Court as the ultimate 
arbiter between the States and the Federal Govern- 
ment in disputed questions. The present applications 
ought, therefore, instead of the reprobations they have 
called forth in some quarters, to be accepted in a spirit 
of congratulation, as a signal token of the great change 
public opinion has undergone in the South/' ^ 

Although the Independent's correspondent stated 
that: "There is but one opinion here among men of 
all parties, as to the result; the Court will refuse to 
grant leave; this tribunal, already suspecting that, 
as now constituted, it is regarded as a diseased member 
of the body politic, will not run the risk of amputa- 
tion by touching the edged tools of Sharkey and 
Walker," there were others who were not so confident 
as to the Court's action ; and Francis Lieber wrote to 
Charles Sumner: "I imagine that at no time in our 
history have there been so many ears pricked up, in 
all portions of our country, for a coming decision, as 
at present, for the decision of the Supreme Court. • . . 
As it appears to me, the Court has only to decide be- 
tween two laws presumed to conflict — a necessary 
consequence of an enacted (or written) Constitution. 
It leads to many inconveniences; but where parties 
contend, justice must be done. If we could obtain 
some archangels to sit, after each Congress, to decide 
on the laws of Congress, then we might make consti- 

^ BoaUm Daily AdvertUer, April IS, 1867; Independnd, April 16, 17, 1867; see 
Pkiladdpkia Inquirer, April 18, 1867, for fuU report of the argumenta of counsel ; 
New York World, April 17, 1867. Harper's Weekly, April 20th, 1867, in an editorial 
headed "Rip Van Winkle in the Supreme Court", said that the arguments set forth 
in great amplitude "the old fallacy, thoroughly exposed and exploded, that once a 
State, always a State**, and termed them "a desperate effort to undo in a Court 
the decision of a war." 



18ie THE SUPREME COURT 

tutionality a general question ; but, with all respect for 
our Supreme Court, or for many of the Judges at least, I 
have never seen the angelic wings penetrating the gown." ^ 

On April 15, 1867, within three days after the argu- 
ment, the Court, through the Chief Justice, rendered 
a decision in which it avoided the delicate issue as to 
its power to control Executive acts in general, and 
contented itself with holding that, inasmuch as the 
actions involved in this case were not ministerial and 
required Executive discretion, the Court "has no juris- 
diction of a bill to enjoin the President in the perform- 
ance of his official duties, and no such bill ought to 
be received by us/' * 

Undiscouraged by this failure, counsel for the States 
of Georgia and Mississippi made another attempt to test 
the validity of the Reconstruction legislation by ask- 
ing leave to file bills praying for injunctions to restrain 
Secretary of War Stanton and General Grant from exe- 
cuting the provisions of the Reconstruction Acts, and 
setting forth that the design of these Acts was to annul 
the existing State Governments and to subject the peo- 
ple to military rule. The Court deciding to allow these 
bills to be filed, on consent of the Attorney-General, 
they were set down for immediate argument.' Con- 

1 Lif$ and LdUn qf FraneU LUher (1882), letter kA April 14, 1867. 

' Missisnpjn v. Johnson^ 4 Wail. 475. 

*See Cleveland HercJd, April 15, 27, 1867: "Sharkey's New Rebellioxi, fts de- 
veloped in the Supreme Court today, drew forth a motley audienoe, who crowded 
the Court-room. . . . Most of them were rebels and sympathisers who did not 
look as if they were aware that the late rebellion was over. . . . The clear, strong 
argument of the Attorney-General seemed easily to overbear the formidable array 
of legal talent engaged in this new crusade against the peace of the country — 
Ewing, Johnson, Black, O'Conor, Edgar G>wan, Sharkey, Walker.** See also 
especially Philadelphia Inquirer, April 17, 1867; BoeUm Daily Adeeriieer, April 16, 
18, 10, 1867. The Springfield Weekly Republican, April 20, 1867, said that : "There 
is no expectation that the Court will grant the injunction prayed for, whatever 
may be the opinions of the Judges as to the constitutionality of the law. Even if 
the Court should grant the petition, final action will not be taken till next Decem- 
ber, and by that time Reconstruction will have been completed in nearly every 
Southern State. We have no doubt the Southern people prefer to have it so." 



RECONSTRUCTION 188 

servatives and Radicals alike approved this course, both 
believing that it was better that the Court should say 
at once whether it would take jurisdiction in this man- 
ner over the Reconstruction question. And the Radi- 
cals expressed the view that, if the Court should now 
decide against the bill at the present Term : "The whole 
South will understand at once that the Court will not 
step in between Congress and rebels, not at present 
certainly, and not early enough in any event to do any 
good or harm. As a matter of course, in due time, a 
case can be made up in one of the inferior Courts against 
the Military Act ; but a decision of the Supreme Court 
could not be reasonably expected before 1869. By 
that time the rebellious States will be thoroughly re- 
constructed." ^ The case was elaborately argued on 
April 26, May 1, 3, 6, 1867, by Charles O'Conor of 
New York and Robert J. Walker of Mississippi in be- 
half of the States. They were opposed by Attorney- 
General Stanbery, who, though stating that person- 
ally he was opposed to the Reconstruction measures, 
nevertheless, made an exceptionally powerful argument 
against the jurisdiction of the Court over the purely 
political question presented by the bills in equity before 
it. "The little Court-room was filled but not at any 
time crowded. One fourth of the spectators were 
ladies, some of them well-known secessionists," wrote 
a correspondent. "The attendance of young and im- 
known lawyers was quite large. For the rest, there 
was Chief Justice Cartter of the District Court, shrewd 
and practical in every feature; good old Tom Ewing 
with his bald head and jovial double chin; Senator 
Morgan, grave and dignified; the Secretary of the 

1 Independent, April 25, 1867. On May 2, it said : "There is but one way for 
the Court to obtain jurisdic^on of the Reconstruction Acts and that is by appeal 
from a State Court. To do this will take so long that the South can obtain no re- 
lief." 



184 THE SUPREME COURT 

Treasury, bland and unruffled; Thomas J. Durant, 
the sad-faced and thin featured New Orleans Union- 
ist; Judge Black, with his sardonic smile and white 
eyebrows and black wig ; rugged Joshua Hill, the Geor- 
gia Loyalist; and a goodly number of white-haired 
Washington Rebel sympathizers." ^ 

Only ten days later, the Court rendered a decision 
dismissing the suits, and holding that they called for 
an adjudication on rights, not of persons or property, 
but of a political character, of sovereignty, of corporate 
existence as a State, and that it had no jurisdiction 
over such a controversy — Georgia v. Stanton^ 6 Wall, 
50. "Undoubtedly, it is no light matter," said the 
Nation^ "that the highest Court in the land should 
thus disclaim the power of enquiring into the constitu- 
tionality of an Act of Congress destroying the govern- 
ment of ten States. For it must be observed that 
every word of Mr. Stanbery^s argument would be just 
as applicable if Massachusetts, instead of Georgia, were 
the complainant, and if Congress had undertaken to 
overthrow a State government which it at the same 
time admitted to be perfectly legitimate. No State in 
the Union, therefore, can rely upon the Supreme Court 
for protection against the usurpation of Congress. This 
is a grave fact which deserves serious consideration, 
and yet, notwithstanding all the perils of such a de- 
cision, it is dear that it is justified by reason and ex- 

^ Boston Daily Advertiser, April 97, 1867; see also especially Philadelpkia In^ 
quirer, April 9», 1867; Nation, May %, 0, 16, 1867; Harper* s Weekly, May 11. 
1867. Welles wrote in his diaxy, April 20, 1867 : "The injunction cases in behalf 
of Georgia and Mississippi have been before the Court and are still pending. At- 
torney-General and Mr. O'Conor made arguments on Friday. The latter is evi- 
dently more of a lawyer than statesman, studies law more than Constitution, cases 
more than governmental principles. Nothing will be got from the Court, I appre- 
hend, and there are embarrassments in the case. Tlie Attom^-General*s position 
cannot be subscribed to in all respects. Why O'Conor and his associates make no 
use of the recent decision of the Court in MiUigan's case, I don't understand. Con- 
gress under color of law, cannot invest brigadiers with power to abolish jury trial 
or to suspend the privilege of habeas corpus in time of peace." 



RECONSTRUCTION 185 

perience. . . . Purely political controversies are, of 
all things, the least amenable to the jurisdiction of 
a Court. The origin and existence of a State, the exist- 
ence and justice of a war, or the validity of a revolu- 
tionary change in the form of government, are all of 
them questions which no nation ever allowed Courts to 

determine The immediate results of the decision 

just rendered by the Court are unqualifiedly beneficial. 
Even if the suit had been merely entertained without 
a decision upon the merits, the effect upon the South 
must have been injurious, while it is difficult to es- 
timate the mischief that might have been wrought by 
the entire success of the complainant. It could not 
have saved the State from the ultimate control of Con- 
gress, and it woidd have introduced new elements of 
evil into the conflict. We think that every intelli- 
gent Southerner — certainly every shrewd lawyer or 
politician — feels relieved by the decision. Certainly, 
it is a cause for congratulation among all friends of 
regulated liberty. The speedy reorganization of the 
South under the Reconstruction Act is now made all 
but certain." The Springfield Republican said that 
the decision was ""what all sensible persons expected. 
• . . The Court is not going to establish so danger- 
ous a precedent." ^ 

One last attempt was now made by counsel for Mis- 
sissippi to amend their bill so as to show a property in- 
terest in the State in matters affected by the actions 
of the defendant military commanders ; but this motion 
was denied by an equally divided Court; Wayne, 
Clifford, Nelson and Field being in favor of granting 

^Nation, May 28, 1867; SpringfiM Wuldy RejnMiean, May 18, 1867. The 
Philadelj^na Inquirer, May 17, 1867, spoke of "those remarkable geniuses, Sharkey 
and Walker . . . the first to imagine that an Act of Congress might be nullified 
by the special injunction of a Court of equity — an original doctrine which the 
Court have not yet comprehended." See also for an interesting criticism of Black's 
argument, WashingUm Weekly Chronide, May 18, 1867. 



186 THE SUPREME COURT 

leave to amend, the Chief Justice, Swayne, Miller and 
Davis being opposed. Owing to the absence of Judge 
Grier, who, had he been present, would have probably 
favored the motion, the question whether the Court 
could interfere with the Reconstruction legislation in 
order to protect the public property of a State remained 
undecided ; and Congress was left with a free hand.^ 
While the decision of the Court, that it would not take 
jurisdiction when the facts of the case involved only 
political and not personal or property rights, enounced 
no new doctrine of law, the Democrats throughout the 
coimtry were inclined to believe that the Court was 
evading its responsibilities by refusal of jurisdiction, 
and criticized it for its course. "What is to become 
of the Supreme Court of the United States — the con- 
servative branch of the Government?" wrote James 
Buchanan. "When I recall the names of the pure, 
able and venerable men who have filled the office of 
Chief Justice from John Jay to Roger B. Taney, and 
witness the efforts of the present Chief Justice to drag 
the judicial ermine through Uie dirt to propitiate 
radicals, I cannot help thinking we have fallen on evil 
times. But I am now an old fogy." * 

Though the Reconstruction legislation had thus be- 
come safe from injunction, its constitutionality was 
brought before the Court at the next Term, in De- 
cember, 1867, in an unexpected manner, through the 
operation of a statute recently enacted by Congress 
for the protection of Federal officials and other loyal 
persons against adverse action by the Courts and offi- 
cials in the late Confederate States. Under this new 

^ Boiton Daily Advertiser, May 17, 1867 ; the Springfidd Weekly RepMican, May 
18, 1867, said that the motion to amend by asking for an injunction against Gen. 
Ord's taking possession of the Mississippi State Treasury, was denied by a divided 
Court, the names of the Judges being withheld. ** All legal obstacles to Reconstruc- 
tion are now remoYed." 

> Works qf James Buchanan (1910), XI, letter of June 11, 1867. 



RECONSTRUCTION 187 

Act of February 5, 1867, appeals from the Federal 
Circuit Courts to the Supreme Court in habeas corpus 
cases, which had hitherto been allowed in a very limited 
class of cases, were now extended to "all cases where 
any person may be restrained of his or her liberty, in 
violation of the Constitution or of any treaty or law of 
the United States." By an ironic stroke, this Act 
designed to enforce the Reconstruction measures was 
now seized upon as a weapon to test their validity. An 
editor named McCardle, who had been arrested and 
held for trial by a military commission in Mississippi 
under authority of one of the first Reconstruction Acts, 
petitioned for a writ of habeas corpus in the Federal 
Circuit Court, and after an adverse decision took an 
appeal to the Supreme Court. On January 10, 1868, 
Jeremiah S. Black, counsel for McCardle, moved that 
the case be advanced for speedy hearing. Attorney- 
General Stanbery stated to the Court that, as he had 
already oflBcially advised the President that the Re- 
construction Laws were unconstitutional, he could 
not act on behalf of the Government, and that he had 
so notified the commanding military officials concerned. 
On January 17, the Court granted the motion and set 
the case for the first Monday in March. "This deci- 
sion," said a leading Republican paper, "gives satis- 
faction to the Radicals, as they hope by that time to 
have affairs in such condition in the States of Mis- 
sissippi and Alabama that, even if the Court decides 
the Reconstruction Acts unconstitutional, it will not 
seriously impede the work in those States.*' ^ It was 
reported that the Judges were divided on the question 

^ See especially as to the proceedings in this case, Indianapolis Journal, Jan. 18, 
1868; Chicago RepMiean, Jan. 11, 17, 18, 22, 1868. On Feb. 1, it said that: 
''The speech of Jerry Black was an extremely bitter copperhead harangue on State- 
Rights and the unconstitutionality of the Reconstruction laws. He evidently 
argued the McCardle case eon amore," 



188 THE SUPREME COURT 

of advancing, as follows — Judges Grier, Clifford, 
Nelson, Davis and Field, against Chief Justice Chase, 
Judges Swayne and Miller; and the newspapers be- 
lieved that there would be a similar division on the con- 
stitutionality of the laws. Before the final hearing, 
however, vigorous arguments were heard by the Court, 
on January 31 and February 1, on its right to take 
jurisdiction of the case under the new habeas corpus 
statute, Jeremiah S. Black, David Dudley Field and 
William L. Sharkey appearing for McCardle, and Matt 
H. Carpenter, Lyman Trumbull and James Hughes for 
the Government. 

Meanwhile, nunors that the Court intended to hold 
the Reconstruction Laws invalid,^ and the fact that the 
impeachment of President Johnson was already being 
discussed, had convinced the Reconstructionists in 
Congress of the necessity of some form of action which 
shoidd save their imperiled legislation. Accordingly, 
with the intent of averting such an adverse decision 
by the Court, the Judiciary Committee of the House 
reported a bill to provide that, in any case involving 
the validity of a law of Congress, two thirds of the Judges 
must concur in an opinion adverse to the law.' In 
the debate which ensued, the Court was warmly de- 
fended by John V. L. Pruyn of New York and Samuel 
S. Marshall of Illinois, the latter stating that he con- 

^The Springfidd ReptMiean, Jan. 10, 1868, speakmg of the rumor that the 
Court was to hold the laws invalid by a vote ol ^ve to three, said : "It is not 
easy to understand why Congress should be disturbed about it. Mr. Stevens 
always said that these Acts and much other legislation for the South were 
'outside of the Constitution', and the only real support has been found in the 
supposed right of Congress to exercise the war power over conquered States. Of 
course, the Constitution recognises no such power." Ibid., Jan. 25, 1808. 

s 40ih Ccng., ed Se$$., 478 si $eq. The bill was sUted by Thomas Williams, Jan. 
IS, 1868, to be a copy of a bill introduced in the last Congress "which seemed at 
the time of its introduction to startle the profession, and, to some extent, the 
country at large." See especially speech by Wilson of Iowa, Jan. 14, 1868, 4M- 
498, attacking Judges Swayne and Chief Justice Chase and defending Judge Field 
and the Court against Radicalism. 



RECONSTRUCTION 189 

sidered the bill "revolutionary and dangerous . . . 
one of the worst of the revolutionary measures brought 
forward to subvert and destroy the institutions of our 
country, which have caused such widespread gloom 
and despondency. . . . This measure is hurried 
through here this morning to prevent an adjudication 
of the validity of their motley Reconstruction Acts. 
... It is a confession of guilt on the part of the 
majority. It is evident that they feel and know in 
their hearts that their legislation will not bear inves- 
tigation by a legal tribunal, made up now principally 
of members of their own party, placed there by their 
own favored President." George W. Woodward of 
Pennsylvania declared that Congress had no power 
to prescribe the number of Judges necessary for a de- 
cision, or to dictate to the Court how it should decide 
constitutional questions. On the other hand, in sup- 
port of the measure, Rufus P. Spalding of Ohio de- 
clared that "for everything except its official life, that 
tribunal must look to an Act of Congress'' ; and John 
A. Bingham of Ohio, in a savage onslaught, urged that 
as Congress had full power over the Court, it could 
even limit its number to three, of which two or even 
three shoidd be required as a quorum.^ The bill passed 
the House by a vote of one hundred and sixteen to 
thirty-nine, and it was warmly supported by the Radi- 
cal Republican press.' "There is danger of an adverse 

^ James F. WUson of Iowa proposed to amend the Committee amendment as 
follows: "Provided however, that if any Circuit or District Court of the United 
States shall adjudge any Act of Congress to be unconstitutional or invalid, the 
judgment, before any further proceeding shall be had upon it, shall be certified up 
to the Supreme Court of the tlnited States and shall be considered therein, and if 
upon consideration thereof, two thirds of all the members of the Supreme Court 
shall not affirm such judgment, the same shall be declared and held reversed." 
This new modification was defeated by a vote of twenty-five to one hundred and 
twenty-four. 

' Independent, Jan. 23, 1808 ; Harper* $ WeeJdy, Feb. 1, 1868 ; IndianapclU Journal^ 
Jan. 25, 1808; WaMnnUm Weekly Chronide, Jan. 25, 1808. 



190 THE SUPREME COURT 

decision from the Supreme Court. Let the bill pass 
prohibiting a bare majority from declaring any Con- 
gressional Act void/' said the Independent. "It is 
needed now, never more than at this moment; and 
the fact that it is needed is no argument against the 
propriety of passing the bill, as some timid people con- 
tend ; " and it even charged that : "The Supreme Court 
is at this hour the guilty confederate of Andrew John- 
son. The country will rejoice to see it checkmated.*' 
Harper^s Weekly argued, in support of the measure, 
that : "If the Court shall decide against the validity of 
the Legal Tender Act, that the War was fought on an 
unconstitutional basis, and that the Southern States 
are still in the Union . . . results that cannot be con- 
templated without extreme solicitude would follow, and 
it is wholly unsafe to leave these questions to the de- 
cision of a bare majority of the Judges. . . . The 
regulation in question in no manner interferes with the 
stability of the Court, except to promote it. It leaves 
the whole judicial power in the tribunal, and only regu- 
lates it so as to prevent a capricious judgment. The in- 
dependence of the Judge is not interfered with." The 
Indianapolis Journal regretted that the bill had not 
been introduced at an earlier date, when it woidd not 
provoke such partisan feeling ; but it said that it was 
never of so great importance as now. "The Recon- 
struction Acts are full of the rights and liberties of 
millions of men ; and to have these stricken down, by 
the decision of some old fossil on the Supreme Bench 
whose political opinion belongs to a past era, would 
be an outrage on humanity.'* It urged that a two- 
thirds requirement would lift judicial decisions into 
universal respect, while the present close divisions ex- 
posed the Court to imputations of partisanship. The 
Washington Chronicle^ urging the passage of the bill, 



RECONSTRUCTION 191 

said that owing to the Court's action in the McCardle 
CasCy which had created "a feeling of just and general 
resentment . . . the new peril of the Republic is grave ; 
but the remedy is sure and drastic, and it ought to 
be applied without waiting or shrinking," 

These views, however, were not shared by the coun- 
try at large; and the general public was opposed to 
so revolutionary an attempt to interfere with the 
Judiciary,^ A leading paper in the West, the Chicago 
Republican^ said that Congress was attempting to 
override the Supreme Court, the 'National Executive 
and every judicial tribunal in the country ; that Con- 
gress should "'check injustice and oppression on its 
own part." And it further stated that it could never 
"sit by quietly and see a hand lifted against the Court 
or the Constitution, whether by our National Congress 
or by Southern traitors", and that such were the views 
of nine tenths of the Republicans in the Northwest. 
"The people are not in favor of this Supreme Court 
bill. Let Congress avoid all doubtful or violent meas- 
ures of legislation. ... It must not meddle with the 
constitutional rights and privileges of the people, nor 
of their Executive or Supreme Judiciary. . . . Re- 
garding, as they do, the Supreme Court as the judi- 
cial bulwark against tyranny and injustice on the part 
of either President or Congress, they will never permit 
this safeguard against oppression to be swept away. 
The people will be found as prompt to resent usurpa- 
tion on the part of Congress as of Johnson." Other 
papers asked if the Republican leaders in Congress 
wished to justify the charge of the Democracy that 
they are bound upon usurpation and revolution. The 

^ Chicago RepMicarit Jan. 15, 24, 25, 27, 31 ; in the latter issue it stated that the 
Cineinnati OauUe, Detmii Tribune, Cleveland Herald, Albany Evening Journal, and 
fifty other Republican papers were opfKMed to the bill. See also Nation, Jan. 16, 
80, Feb. 20, 1868; Spnngfidd Republican, Jan. IS, 18, 25, Feb. 1, 1868. 



192 THE SUPREME COURT 

Springfield Republican remarked sarcastically, but per- 
tinently: "If the Supreme Court should decide the 
two-thirds law to be unconstitutional, and by a two- 
thirds vote, what is to be done next ? This is a poser. 
There seems to be nothing for it but to suspend the ac- 
tion of the Court on constitutional questions, during 
the existence of the present Congress/* The Nation 
opposed the bill as an attempt by Congress to manipu- 
late the Court to suit a particular exigency, the only 
effect of which would be to weaken the Court's influence. 
Pointing out that, hitherto, the opponents of the Court 
had been found among the partisans of State-Rights, 
it said that: ""It is more than strange, it is pitiable, 
to find the National men of the present day repeat- 
ing the State arguments so often used by their adver- 
saries. To remove the legislation of Congress from the 
reach of all jurisdiction is simply impossible. ... If 
the Judges of the Nation are silenced, those of the 
States will be left entirely uncontrolled. . . . Remove 
the supervisory function of the National Judiciary and 
these laws will become the sport of local partisanship ; 
upheld in one commonwealth, they will be overthrown 
in another, and all compulsive character will be lost. 
... To restrict their jurisdiction and weaken their 
moral power is, therefore, to sacrifice in a most un- 
necessary manner that department of the Government 
which, more than any other, will make National ideas 
triumphant, not only in the legislation of today but in 
the permanent convictions of the people.'' 

Gideon Welles displayed his apprehensions as a con- 
servative Republican over this attitude of the Radi- 
cals as follows: 

Jan. IS, 1868: In the House, under the discipline and 
stimulation of the Radical leaders, there is manifested a 
revolutionary and violent spirit. Part of the conspiracy 



RECONSTRUCTION 19S 

is a scheme to change the character of the Supreme Court, 
which Stevens and his fellows find is against them. 

Feb. 18, 1868: In their war upon the Court, the Radicals 
under the lead of Trumbull, have under consideration an act 
prohibiting the Court from passing judgment on political 
questions, and they have now a bill declaring what are 
political questions. These usurpations and intrigues strain 
our government. 

In the Senate, there now appeared some hesitation 
on the part of the Republican leaders to enact the House 
bill for the requirement of a concurrence of two thirds 
of the Judges; and Democratic Senators made the 
charge (with considerable reason) that the Republicans 
suspected that, even with such a requirement, the Re- 
construction Laws would be held unconstitutional. 
After several postponements, the bill was finally 
dropped. Later, another more extreme measure, orig- 
inating with Thaddeus Stevens in the House and ex- 
pressly forbidding the Supreme Court to take juris- 
diction in any case in law or equity arising out of the 
Reconstruction Acts, was introduced by Lyman Trum- 
bull in the Senate ; but that body, doubting the politi- 
cal expediency of creating such a precedent, finally 
took no action.^ The wisdom of this course was well 
pointed out by the Nation: "If this game of * excep- 
tions', as an instrument of party warfare, be once 
fairly entered on, we venture to say that, in the course 
of the next twenty years, the constitutionality of half 
the statutes at large would be withdrawn from the 
cognizance of the Supreme Court. It is, luckily, three 
years before the Democrats can get the upper hand in 

1 ^Oth Cong., ed Sess., 2137, March 26, 1868. It is to be noted that are solution 
was introduced into the House to investigate a statement appearing in the Wash- 
ingUm Evening Express of Jan. £9, 1868, to the effect that Judge Field had openly 
declared the Reconstruction law to be invalid. Chicago Republican, Feb. 6, 7, 
1808. These statements were later proved false. 

VOL. in — 7 



194 THE SUPREME COURT 

Congress ; but when they do, there will be some wonder- 
working legislation/* 

On February 10, 1868, the Court made public for the 
first time its full opinion (delivered by Judge Nelson) 
in the cases brought by the States of Georgia and Mis- 
sissippi against Secretary Stanton and General Grant, 
which it had dismissed in the preceding May. The 
first sentiment of the Republicans as to this opinion 
was that it would dispose of the McCardle Case^^ which 
they assumed would also be regarded by the Court as 
involving a mere political question. "Not only is the 
supremacy of the Court declared to be judicial suprem- 
acy, but the issues arising out of the Reconstruction 
legislation of Congress are pronounced to fall within 
the political domain, upon which the tribunal has no 
right to enter. In vain will ex-rebels look to the judi- 
cial department of the United States to aid them in 
their wicked scheme of insubordination and resistance,'* 
was the exultant conmient of the Chicago Tribune; and 
the Chicago Republican^ remarking the unanimity of the 
Judges, said that: "It must exert a powerful influence 
in repressing the stubbornness and confidence of the 
ex-rebels in their reactionary schemes. They must 
now feel that Congress is sole master of the political 
situation. . . . Disregard of the distinctions between 
political and judicial powers would convert the Supreme 
Court into a political council and board of control. 
... It would confer on the Supreme Court, powers 
too gigantic and terrific, too dangerous to the peace 
of the United States." On the other hand, the Nation 
correctly pointed out that: "The judgment is mainly 
important, as showing the reluctance of the whole 
Court to meddle in Reconstruction, or in any way 

1 Chicago Tribune, Feb. 12, 1868; Chieago Republican, Feb. 11, 12, 1868; Nation, 
Feb. 18, 1868; Spnngfieid Republican, Feb. 12. 22, 1868. 



RECONSTRUCTION 195 

throw itself across the track of Congress or of the Ex- 
ecutive, and ought to make some of the ^sons of 
thunder' who have been abusing it for the last month 
a little ashamed of their work. But it does not, it 
seems to us, remove all grounds for anxiety as to the 
McCardle Case; for Judge Nelson in several places 
suggests the inference that a bill showing that the 
Act of Congress in some way infringed on rights of 
persons or property might be differently treated." 
On February 3, 1868, one week after the publication 
of its opinion in the Georgia and Mississippi cases, 
and only one week after the argument of Ex "parte Mc- 
Cardie, 6 Wall. 318, the Court, contrary to general 
public expectation, rendered its decision upholding its 
jurisdiction of the latter case, and on March 2, argu- 
ments were begun before it. "I spoke two and a half 
hours today, and as well as I expected or hoped to do,** 
wrote Senator Mathew Hale Carpenter (one of the Gov- 
ernment counsel) to his wife. ''I am praised nearly 
to death. I had half of the Senate for an au- 
dience. Miller's face was as the face of an angel, radi- 
ant with light and joy. Davis and Field looked 
troubled. Nelson, Clifford and Grier, dead against 
me. But I shook them up and rattled their dry 
bones." ^ Meanwhile, the Impeachment Trial of Presi- 
dent Johnson had been initiated and on March 5, in 
the midst of the McCardle argument. Chief Justice 
Chase was withdrawn from the Bench in order to pre- 
side over the Senate.^ On March 9, the Court took 
the case under advisement.' Three days later, Con- 

^ Maihew Hole Carpenter as a Latoper, by Henry D. Ashley, Green Bag (1894), 
VI : "When Carpenter finiahed. Secretary of War Stanton, with tears in his eyes, 
exclaimed fervently : 'Carpenter, you have saved us.* *' 

' The House had voted for impeachment, Feb. 24, 1868 ; the first proceedings 
in the Senate took place on March 6 ; the trial began March 13, and the first vote 
was taken May 16. 

* As to this caae» see especially New York Herald^ March 4, 14, 1868^ publishing 



196 THE SUPREME COURT 

gress finally decided to intervene and to render any 
decision of the case impossible. In spite of the fact 
that, owing to Chase's absence, the Court might be 
desirous of postponing a decision until the next 
Term, the Radicals in Congress were fearful and re- 
solved to take no chances. On March 12, 1868, there 
was pending in the House a harmless and unimportant 
Senate bill to extend to the Court's appellate juris- 
diction in cases involving customs and revenue officers. 
Unanimous consent had been obtained by Robert 
C. Schenck of Ohio for its consideration, on the state- 
ment that it was a mere routine matter ; and while 
the Democrats were thus thrown off their guard by this 
assertion, James F. Wilson of Iowa, without any ex- 
planation or debate, introduced an amendment entirely 
repeaUng the appellate jurisdiction of the Court under 
the Habeas Corpus Act of 1867, and further prohibit- 
ing the exercise of any jurisdiction by the Court on 
appeals which had been or might be taken. ^ The 
amendment was agreed to without comment or objec- 
tion, and the bill as thus amended by the House went 
back to the Senate. Then, for the first time, the moder- 
ate Republicans and the Democrats awoke to the fact 
that they had been deceived. Benjamin M. Boyer 
of Pennsylvania charged that the House had been dis- 
armed by Schenck's remarks and induced to accept an 
amendment not genuine. He charged that it had 

David Dudley Field's argument in full; Chicago RepubUean, March 5, 6, 7, 10, 
1868; IndianajKdis Journal, March 6, 10, 1868. The Springfield Republican* 9 
Washington correspondent wrote, March 5, that it was considered certain that the 
case would not be decided until the next Term. 

^ In Social Foreee in American History (1911), by A. M. Simons, 800-301, it is 
stated : "On the 27th of March, 1868, Congress passed a law threatening the mem- 
bers of the Supreme Court with fines and imprisonment, if they interfered with the 
carrying out of such legislation, and notifying that body that this legislation was 
not subject to review as to its constitutionality. The Court and Congress com- 
pletely punctured the bubble upon which the autocratic power of the Court rests." 
Such a statement as to the character of the statute enacted is incorrect, for it made 
no provision for fines and imprisonment. 



RECONSTRUCTION 197 

been smuggled through, to prevent a test of the con- 
stitutionality of the Reconstruction Acts; and while 
admitting that the minority had not been wide enough 
awake, and had been caught napping, he thought that 
it would have been more manly to have introduced 
such a measure for free discussion.^ Schenck, in reply, 
boldly and frankly avowed that his purpose had been 
to deprive the Court of its power and jurisdiction, 
saying that he had lost confidence in the majority of 
that tribunal, and that : " They usurp power, whenever 
they dare to undertake to settle questions, purely po- 
litical, in regard to the status of the States and the man- 
ner in which those States are to be held subject to the 
law-making power. And if I find them abusing that 
power, by attempting to arrogate to themselves juris- 
diction under any statute that happens to be upon 
the record from which they claim to derive that juris- 
diction, and I can take it away from them by a repeal 
of that statute, I will do it. . . . Now I hold that the 
Supreme Court, arrogating to themselves the preten- 
sion to settle not merely judicial but political ques- 
tions, and trampling upon the principle of the decision 
made in the case of the Dorr Rebellion and upon every 
other decision of that kind, are, the majority of them, 
proceeding step by step to the usurpation of jurisdic- 
tion which does not belong to them. And I hold it to 
be not only my right, but my duty as a Representative 
of the people, to clip the wings of that Court." 

In the Senate, the amendment to its bill was con- 
curred in, with no explanation or debate, on March 12, 
1868, by a vote of thirty-two to six, with sixteen Sena- 
tors absent. A request by Charles R. Buckalew of 
Pennsylvania for information as to the purpose of the 
amendment received only a very brief reply by George 

^ MHh Cong., 2d 8$S8„ 1859, 1881 et «eg.» March 12» 14, 1868. 



198 THE SUPREME COURT 

H. Williams of Oregon, which did not in any way ex- 
plain its real purpose ; and a request by Buckalew for 
postponement of action was refused.* Within a very 
few days, however, after the passage of the bill through 
both Houses, the fact that Congress had been practi- 
cally tricked into passing, without debate, a measure 
of the utmost importance burst with a shock upon the 
country. Welles wrote in his diary : 

March i^, 1868. It is evident that the Radicals in Con- 
gress are in a conspiracy to overthrow not only the President 
but the Government. The impeachment is but a single act 
in the drama. . . . By trick, imposition and breach of 
courtesy, an Act was slipped through both houses, repealing 
the laws of 1867 and 1789, the effect of which is to take 
from the Supreme Court certain powers and which is designed 
to prevent a decision in the McCardle Case. Should the 
Court in that case, as it is supposed they will, pronounce the 
Reconstruction Laws unconstitutional, the military govern- 
ments will fall and the whole Radical fabric will tumble 
with it. Only one course can prolong the miserable contriv- 
ance, and that is a President like Wade, who will maintain 
the miUtary governments regardless of Courts, of law, or 
right. Hence, I have very little expectation that the Presi- 
dent will escape conviction. His deposition is a party 
necessity, and the Senators have not individually the 
strength, ability, nor honesty, to resist the Radical caucus 
decision, which Stevens, Ben Butler, and other chief con- 
spirators sent out. 

"The country is in the hands of Congress. That 
Congress is the Radical majority, and that Radical 
majority is old Thad Stevens. Government by the 
people has its glories ! " said the New York Herald, with 
sarcasm, but with truth.* But the Radical Republi- 
can press was exultant. "The passage of that little 

1 ^Oth Cong., 2d Sess,, 2095, March 25, 1868; see speech of Senator Thomas A. 
Hendricks explaining the method by which the bill passed the Senate. 

*New York Herald, March 14, 1868; Independmit, March 19, April 21, 1868; 
Springfidd Republican, March 27, 1868. 



RECONSTRUCTION 199 

bill which put a knife to the throat of the McCardle 
Case was a splendid performance. . . • Congress will 
not abandon its Reconstruction policy to please any 
Court, because it sincerely believes that the welfare 
of the Nation depends upon the success of that policy/' 
said the Independent. "This Congress will not brook 
opposition from the Court in political matters. The 
safety of the Nation demands that Congressional Re- 
construction shall be successful ; and if the Court inter- 
feres, the Court will go to the wall. This language 
sounds harsh and indecorous to fossil ears, no doubt." 
And the Springfield Republican said: "Congress does 
not intend to permit the Supreme Court to overthrow 
it or revive rebellion, if it can help it." 

Although his impeachment trial had already be- 
gun, the President did not hesitate, even at this 
desperate moment in his career, to meet the Congres- 
sional attack upon the Court with a vigorous deter- 
mination to uphold the honorable status of that tri- 
bunal; and on March 25, he sent to Congress a 
powerfully worded veto of the bill, in which he stated : 

Thus far during the existence of the Government, the Su- 
preme Court of the United States has been viewed by the 
people as the true expounder of their Constitution, and in 
the most violent party conflicts, its judgments and decrees 
have always been sought and deferred to with confi- 
dence and respect. In public estimation, it combines ju- 
dicial wisdom and impartiality in a greater degree than any 
other authority known to the Constitution; and any act 
which may be construed into, or mistaken for, an attempt 
to prevent or evade its decisions on a question which affects 
the liberty of the citizens and agitates the country cannot 
fail to be attended with unpropitious consequences. It 
will be justly held by a large portion of the people as an ad- 
mission of the unconstitutionality of the act on which its 
judgment may be forbidden or forestalled, and may inter- 
fere with that willing acquiescence in its provisions which 



«00 THE SUPREME COURT 

is necessary for the harmonious and efficient execution of 
any law. 

When the question of passing the bill over the veto 
arose in the Senate, opportunity was at last given for a 
thorough debate as to its purpose, and its supporters 
were worsted on the argument.^ Lyman Trumbull, 
who was largely responsible for its enactment, at- 
tempted to argue that there was no case pending be- 
fore the Supreme Court under the Habeas Corpus Act 
of February 6, 1867. This bill, he said, was not a very 
important measure; and at all events the "liberties 
of the people had been pretty well preserved for three 
quarters of a century, without the Act of 1867 in any 
of its provisions ; and all the securities that were ever 
afforded until within the last year are left just as they 
always have been," ^ To this rather disingenuous ar- 
gument, James R. Doolittle of Wisconsin replied very 
forcibly that, if there was no case pending before the 
Supreme Court which would be affected by the bill, why 
did the bill make specific provisions for repeal of jurisdic- 
tion in all pending cases ? * * Why undertake to take away 
the jurisdiction of the Court? The truth is, and we may 
as well look it square in the face, it is because men know 
that these acts will be decided to be unconstitutional. 
. . . I say it is because they fear it; because they 
know that the constitutionality of the measures is in- 

^ Wth Cong., id 8$»s„ 2095, 2115, 2127, 2105, March 25, 26, 1868. 

* The Chicago RepMioan, March 27, 1868, attempted a similar and false-hearted 
defense of the bill, saying that the Habeas Corpus Act of 1867 was only intended 
** to counteract the spirit of rebel persecution that sought to inflict vengeance upon 
Union whites and blacks under the forms of law" and that "probably, through the 
expensiveness of its processes, it had been little resorted to. Indeed the ingenuity 
of disloyal men threatens to make it an instrument for promoting thdr nefarious 
ends. Congress has, therefore, decided to remove from them this source of embroil- 
ment. Another reason justifying its repeal is that the whole time of the Supreme 
Court is already occupied in its consideration of cases naturally and properly 
arising, and that it would be impolitic to encumber the docket with unnecessary 



causes." 



RECONSTRUCTION 201 

volved, and they fear that the decision will be against 
their constitutionality." Trumbuirs position in re- 
gard to this bill was a delicate one, for he was counsel 
for the Government in the McCardle Case and had full 
knowledge of the issues involved. William M. Stewart 
of Nevada, therefore, came to his aid with a vicious 
attack upon the Court and its motives. Stewart was 
no more fortunate, however, in the explanation which 
he proffered as to the necessity for this bill ; since, after 
stating that it was required because of the crowd of 
cases arising under the Act of 1867„ he was obliged to 
admit, on being pressed for details, that he knew of 
only one pending case — McCardle's. In a masterly 
speech on the whole subject of habeas corpus. Senator 
Thomas A. Hendricks of Indiana taunted the "brave 
Senators'* who were "afraid of the decision of the 
Court. . . . You did claim to the country that the 
Administration of Mr. Lincoln was entitled to its con- 
fidence; and are there not five Judges out of eight 
whom Mr. Lincoln appointed and whom you confirmed ; 
and at the head is there not Chief Justice Chase, dis- 
tinguished as a party leader? Then, with a Supreme 
Court, five out of eight appointed by Mr. Lincoln and 
confirmed by these honorable Senators that I am 
addressing, and only three of the Old Court left, you 
say you cannot afford to risk this question before 
that Court. Why ? Let that question be answered/' 
Senator Reverdy Johnson also replied with force to 
Stewart's attacks on the Court, and said that it was 
"dangerous to inculcate the belief that Courts can be 
governed by political and party motives." Senator 
Willard Saulsbury of Delaware charged that the 
passage of the bill was an act of "despotism'*; Sen- 
ator Thomas F. Bayard of Delaware termed it a" con- 
fession of fear" ; and S^ator Charles R. Buckalew of 



202 THE SUPREME COURT 

Pennsylvania spoke of Trumbuirs "feeble and fruit- 
less denial " of the real purpose of the Act. But though 
the merits of the debate were wholly with the defenders 
of the Court, the bill passed the Senate on March 26, 
1868, over the President's veto, by a vote of thirty-three 
to nine (with twelve Senators absent) ; it passed the 
House on March 27, by a vote of one hundred and 
fifteen to fifty-seven, and became the Act of March 27, 
1868. Thus was consummated an action which has 
been, with justice, characterized as '^an abominable 
subterfuge on the part of Congress and a shameful 
abuse of its powers.'* ^ 

Meanwhile, during the eighteen days between the 
close of the argument in the McCardle Case and the 
final passage of this bill, there was much excitement 
over the question whether the Court would proceed 
to render its decision, regardless of the pendency of 
the bill taking away its jurisdiction.* Gradually, it 
became apparent that the Court intended to await 
the final outcome of the bill, and, as the Republican 
papers stated, that it did not choose "to run a race 
with Congress", since "it would hardly have been 
consistent with the dignity of the country and the re- 
spect due to the other branches of the Government to 
proceed with the matter until the President had either 
approved or vetoed the bill, and the Congress had acted 
on the veto." • "The Supreme Court, acting with 

1 ReeonHnuHon and ike ConHUtOUm (1902), by John W. Burgess, 19(^-197. 

* The Boston PosCt Washington correspondent wrote that it was believed that 
the Court would decide the case, " in defense of its own dignity, and to show that 
the Court cannot be trifled with by reckless partisans who flippantly speak of 
' clipping the wings of the Court.' It is well ascertained that Justices Chase, 
Nelson, Grier, Clifford, Davis and Field believe the Reconstruction Acts to be un- 
constitutional. . . . The decision is made up, and they have the power and the 
right to deliver it. Whether they have the nerve to be an independent Judiciary 
remains to be seen.*' See New York Tribune^ March 19, 1868. 

' The IndianapoUs Journal, March 18, 1868, said: "The Copperheads contend 
that so far as the McCardls Case is concerned, having abeady been argued before 



RECONSTRUCTION «0» 

more discretion and better taste than the President," 
said the Springfield Republican^ **bows down to the will 
of Congress, and has postponed the McCardle Case till 
Congress has more definitely settled the Reconstruc- 
tion question. No announcement to this effect has 
been publicly made, but it is known that the Court 
has made the decision, only Justices Field and Grier 
voting for an immediate decision," This delay by the 
Court was the subject of much criticism by the Demo- 
crats, who asserted that it was seeking to evade its 
responsibilities. When the bill was finally passed over 
the President's veto, the Court was immediately con- 
fronted with the necessity of deciding whether Con- 
gress had the power to abolish its right to adjudicate 
pending cases. On Monday, March 30, Jeremiah S. 
Black moved that the case be set down for argument 
on this important question, and the Court after some 
hesitation agreed to hear it on April 2. Counsel, how- 
ever, not being prepared to proceed on so short a notice, 
a majority of the Judges (Grier and Field dissenting) 
decided that no further date would be fixed and that 
the whole matter must be postponed until the next 
Term, and it was so ordered. At the same time, the 
Court refused to take up the pending case of Georgia 
V. Grant, a new bill in equity filed by the State to en- 
join the enforcement of military action.^ 

the Court, the bill is ex poH fado and cannot apply.** The Chicago RepMiean, 
April 7, 1868, said that the case was not considered at the first consultation day, 
Saturday, March 18, and that before the next one, the Court had learned of the 
passage of the bill on March 12; see also Indianapolis Journal^ April 7, 1868 ; New 
York Herald, March 20, 1868 ; Springfield Republican, March 28, 1868 ; speech 
of Reverdy Johnson, 40th Cong., 2d Sees,, 2095. The Chicago RepMiean, March 
24, 1868, said : "The Democrats are abusing the Supreme Court soundly for not 
rendering decision, since the announcement is made, on authority of the Court, 
that a decision will not be made for some time." 

^ Indianapolis Journal, Maich 28, 1868. In this case, on Feb. 8, 1868, David D. 
Field moved for leave to file a new bill in equity ; leave was granted March 16 ; see 
also New York Tribune, March 21, 28, 1868. 



204 THE SUPREME COURT 

The Reconstruction cases were thus disposed of, for 
another year. But the revolutionary methods which 
had been employed by Congress in accomplishing its 
purpose and the evident reluctance of the Court to 
face the issue dismayed and disheartened the conser- 
vative portion of the community. So strongly did 
Judge Grier feel over the postponement of the Mc- 
Cardie Case that, on conclusion of Black's argument 
on March 30, he filed in writing the . following stout 
protest : ^ 

This case was fully argued in the beginning of this month. 
It is a ease which involves the liberty and rights, not only of 
the appellant, but of millions of our fellow citizens. The 
coimtry and the parties had a right to expect that it would 
receive the immediate and solemn attention of the Court. 
By the postponement of this case, we shall subject ourselves, 
whether justly or unjustly, to the imputation that we have 
evaded the performance of a duty imposed on us by the 
Constitution, and waited for Legislative interposition to 
supersede our action, and relieve us from responsibility. 
I am not willing to be a partaker of the eulogy or oppro- 
brium that may follow. I can only say, 

Pvdet hoc opprobrium nobis 
Et poiuisse did et rum potuisse repeUi. 

or, literally translated, I am ashamed that such opprobrium 
should be cast upon the Court, and that it cannot be refuted. 

This action by Grier was made the subject of con- 
siderable comment, and extreme Republican papers 
termed it "an unseemly exhibition ... a breach of 
judicial decorum, for which there is no excuse unless 
it was caused by aberration of mind or dotage, . . . 
an extra-judicial opinion of an extraordinary character 
tantamount to accusing his Associates on the Bench 

^ Indianapolis Journal, April 2, $, 1868; Chicago Republican^ April 8, 1868; 
National Inielligencer, March 31, April 6, 1868. Grier*s ttatement ib reported in 
slightly differing phraaeobgy in the Tarioiu papers. 



RECONSTRUCTION 805 

of malversation in office." There was, nevertheless, a 
very general feeling throughout the country that the 
Court had evaded an issue. "It must be confessed,'' 
said the Springfield Republican, "that the course of 
the Supreme Court has not been creditable to that 
body as the embodiment of the highest judicial author- 
ity of the Nation. Justice Grier seems to have been 
especially sensitive to the unfavorable effect the action 
of the Court in postponing the decision would have 
on its reputation and influence, and when the case was 
called, read a brief document, strongly phrased, ex- 
pressing his sense of the shame and dishonor which the 
Court had incurred. He had held no counsel with his 
Associates, and his action took both them and the pub- 
lic by surprise, and still causes much excited conmient 
at Washington.'* Benjamin R. Curtis wrote that: 
"Congress, with the acquiescence of the country, has 
subdued the Supreme Court, as well as the President." 
And Welles in his diary took a despairing view of the 
situation : 

March SO, 1868. The Judges of the Supreme Court have 
caved in, fallen through, failed in the McCarcUe Case. Only 
Grier and Field have held out like men, patriots, Judges 
of nerve and honest independence. These things look 
ominous and sadden me. I fear for my country when I 
see such abasement. Fear of the usurping Radicals in 'Con- 
gress has intimidated some of these Judges, or like reckless 
Democratic leaders, they are willing their party should 
triumph through Radical folly and wickedness. These are 
indeed evil times ! Seward has on more than one occasion 
declared that he controlled Judge Nelson. Whether he is, 
or has been, intriguing in the matter, or taken any part is 
a problem. The action of Congress, and particularly the 
Senate in taking from the Supreme Court certain powers 
to prevent a decision in the McCardle Case is shameful, and 
forebodes an unhappy future to the country. There is no 
exercise of reason, judgment, intelligence or patriotism by 



206 THE SUPREME COURT 

the Radical majority on any subject whereby their party 
is affected. Truth, justice, right, law and Constitution are 
broken down and trampled under foot by Senators. I say 
this in sorrow. 

The National Intelligencer said that Grier's protest 
was rendered "with a manifestation of much emotion'*, 
and that it was an "everlasting memorial" to his 
honor. " Well does he anticipate the inevitable imputa- 
tion of weak evasion of a duty, whose obligation is in- 
exorable in proportion to the peril threatened by its 
performance." 

While there was some justification for the view that 
the Court had not been firm in its stand, it must be 
admitted that, in view of the fact that the Chief Jus- 
tice was presiding in the Impeachment Trial of the 
President, it was probably wiser on the part of the 
Court to postpone arguments on so important an issue 
until there should be a full Court; and the intima- 
tions that its action was influenced by the political 
situation were clearly unfair, in view of its previous 
courageous action in sustaining its jurisdiction over 
the case.^ That the Court could not escape the issue 
presented to it by Congress had been shown^ four days 
before its adjournment, when an original petition for 
habeas corpus was presented to it, in a case arising in 
Florida where two men were held by the military for the 
murder of a negro. This case would inevitably require a 
decision on the Reconstruction Laws, at the next Term.* 

' Chief Jiutioe Chase wrote his views in a letter in September, 1868, as follows : 
"I hold my old faiUi in universal suffrage, in Reconstruction upon that basis, in 
universal amnesty, and in inviolate public faith; but I do not believe in military 
government for American States, nor in military commissions for the trial of Amer- 
ican dtisens, nor in the subversion of the Executive and Judicial Departments of 
the Genend Government by Congress." Oreen Bag (1902), XIV. 

* This case (not reported) of Ex 'parte Martin and Gilly, in which a writ was 
granted, returnable at the December, 1869, Term, seems not to have been pressed ; 
for references to it, see Chicago Republican, March 28, 1868 ; Indianapolis Journal^ 
Maich 88» April 1, 1868 ; National Intelligeneer, March 81, 1868. 



RECONSTRUCTION 207 

With the passage of the Act of March 27, 1868, Con- 
gress reached the limit of its attacks upon the Court. 
A reaction in favor and support of that tribunal at 
once arose. The acquittal of President Johnson, in 
May, 1868, broke the power of the Radicals. Both 
Congress and the country at large acquired a cooler 
and saner point of view. Many of the Southern States, 
reluctantly accepting Reconstruction as an ineluctable 
fact, ratified the Fourteenth Amendment and were 
readmitted to participate in the Government. And 
finally, in the spring of 1869, several decisions of the 
Court itself seemed to give assurance that there would 
be no judicial overthrow of Congressional plans. 

Encouragement appeared to be first a£Porded when 
the Court dismissed from its docket the indictment of 
Je£Person Davis for treason. For four years, the ques- 
tion whether the Southern participants in the Civil 
War were guilty of treason had been involved in this 
case, and had never been decided authoritatively in 
any other case in the Federal Courts. Davis had been 
captured on May 10, 1865, and had been indicted in 
the District of Columbia, and later in the United States 
District Court in Virginia ; but as it had been generally 
felt that a trial "in the hotbed of treason by a jury of 
sympathizing traitors would be a transparent farce ",^ 
he had been kept by the military authorities in Fortress 
IVjtonroe. Finally, on October 12, 1866, Attorney- 
General Stanbery advised his transfer to the civil au- 
thorities; on refusal of compliance by the military, 
his transfer was ordered by the District Court on a 

^ Pkihddjfhia Inquirer, May 12, 1866; see especiaUy ibid,, April 10, May 17, 
June 8, 13, 1866, May 8, 11, 13, 15, 1867, for full account of the various proceed- 
ings; see also Cleoeiand Herald, May, 1867, paseim. See NoUa of Col. W. G. 
Moore, Private Secretary to President Johnson, in Amer. HUt. Rev. (1918), XIX, 
giving account of a Cabinet Meeting of May 7, 1867, at which the Pre^iident ordered 
the War Department to turn Davis over to the civil authorities. 



208 THE SUPREME COURT 

writ of habeas corpus, May 12, 1867, and he was re- 
leased on bail. While the Radical Republicans were 
confident that all "Rebels** were traitors, there had 
been grave doubts expressed by many at the North 
(including most of the Bar) whether a military offi- 
cer of the Confederate Government could legally be 
held to be guilty of treason. Many others, like Horace 
Greeley, had believed it to be bad policy to press the 
point, and had advocated the release of Davis.^ Many, 
however, had urged that the trial should be pressed in 
order that the question of law might be finally decided. 
"The trial of Mr. Davis, if it can be conducted in a 
satisfactory manner, will have some important and 
beneficial results. An honest jury cannot fail to find 
the prisoner guilty, as far as the mere facts are con- 
cerned,** said the Nation in 1867. "The real contro- 
versy will be before the Court, to determine whether 
those facts constitute treason. No authoritative de- 
cision has yet been rendered upon that question. The 
only convictions for treason against the United States, 
so far as we are aware, took place in California and 
Kentucky before the United States District Courts. . . . 
The Kentucky convict was a citizen of Kentucky and 
could only have made his case worse by justifying under 
the authority of Tennessee and a seceded and foreign 
State. The California party was made up of nonde- 
scripts from various Nations and States, all of them 
residents of California and therefore clearly without 
excuse for hostile acts. But no Court has yet had an 
opportunity to determine whether the commander of 

^ To Greeley, Chief Justice Chase wrote, June 86, 1867, advising him to read 
Webster's reply to Hayne, and saying: "You will find no hint that nullifiers, pur- 
suing their nullification to civil war, ceased to be traitors, on becoming engaged in 
such a war." 

ThR American Law Amew (Jan., 1867), I, 387, said that "the continued post- 
ponement of the trial of this State prisoner has been the subject of bitter 
altercation.** 



RECONSTRUCTION 209 

a regular army, conducting war against the United 
States upon equal terms and in the name of a hostile 
government, can be convicted of treason/* ^ 

Owing to the unwillingness of Chief Justice Chase 
to hold Court in Virginia while the military authori- 
ties were in control, and to many other reasons, the 
trial did not occur until December S, 1868. By that 
time, the war passion against Davis had died down ; 
the interest in the law of treason had dissipated ; and 
the adoption of the Fourteenth Amendment had given 
rise to another question in the case, namely, whether 
the provision for disqualification for office established 
by the third clause of that Amendment was intended 
to exclude any other form of punishment for the acts 
to which it referred. Chief Justice Chase and Dis- 
trict Judge Underwood, sitting in the District Court, 
had di£Pered in opinion on this latter new question of 
law, and the case had accordingly been certified to the 
Supreme Court, December 5, 1868. Finally, on Feb- 
ruary 19, 1869, the Government not wishing to press 
the case further, it was dismissed from the docket — 
a disposition of the affair which commended itself to 
the Bar and to the general public; **and so a ridicu- 
lous farce ends,'* said Harper^ s Weekly.^ 

Soon after the end of the Davis Case, the McCardle 
Case was reached for final argument, on March 19, 
1869, on the question of the power of Congress to pro- 
hibit the Court from deciding a pending case ; and on 
April 12, the Court rendered a unanimous decision that 
the statute had taken away its jurisdiction, and that 
therefore it could not proceed to pronounce judgment. 

> Nation, May 10, 1867. 

' The certificate of divuion waa filed in the Supreme Court, Dec. 7, 1868 ; Trial 
ofjefferaon Davis, by David K. Wataon, YaU Law Journal (1915), XXIV ; Harper* 9 
Weeldy, Jan. SO, 1860; Amer. Law Rev. (Jan., 1860), III, 868; Springfield Weekly 
Republican, Nov. 28, Dec. 26, 1868, Jan. 2, 1860. 



210 THE SUPREME COURT 

"Judicial duty/' said the Chief Justice, "is not less 
fitly performed by declining ungranted jurisdiction 
than in exercising firmly that which the Constitution 
and the laws confer." While appellate jurisdiction 
of the Supreme Court, he held, was not derived from 
Acts of Congress but from the Constitution, yet it was 
conferred "with such exceptions and under such regu- 
lations as Congress shall make." Congress had chosen 
to make a specific and positive exception in this case ; 
and the Court was "not at liberty to inquire into the 
motives of the Legislature." Ex parte McCardle, 7 
Wall. 506. On the same day, the Court rendered an 
opinion in a most important case involving the status 
of the seceding States, — Texas v. Whiter 7 Wall. 700; 
and while it did not actually decide the question of the 
validity of the Reconstruction Laws, its general lan- 
guage gave much encouragement to their supporters. 
In this case, the State of Texas, through its Governor, 
brought an original suit in equity to enjoin the pay- 
ment of certain State bonds owned by the State prior to 
the war and negotiated by the Confederate State Gov- 
ernment. The first question presented to the Court 
was: "Is Texas a State of the Union, and as such, 
capable of bringing suit?" It was contended by the 
defendants that Texas, having seceded and not yet 
being represented by Senators and Representatives in 
Congress, was still out of the Union. This was the 
position which Thaddeus Stevens and other Radicals 
had taken in Congress. It was also contended that a 
Governor elected before the passage of the Reconstruc- 
tion Acts was illegally elected and incapable of author- 
izing suit. The Court, by Chief Justice Chase, held 
that it was unnecessary to inquire into or pronounce 
judgment upon "the constitutionality of this legisla- 
tion so far as it relates to military authority or to the 



RECONSTRUCTION 21 1 

paramount authority of Congress '* ; that the ordinance 
of secession by Texas was a nullity ; that Texas had 
always remained a State of the Union within the 
purview of the Constitution, which, in the memorable 
words of Chase, *^m all its provisions looks to an inde- 
structible Union, composed of indestructible States. 
When, therefore, Texas became one of the United 
States, she entered into an indissoluble relation/' While 
her obligations to the Union remained the same, her 
relations after secession changed, and'* these new rela- 
tions imposed new duties upon the United States. The 
first was that of suppressing the rebellion. The next 
was that of reestablishing the broken relation of the 
State with the Nation.*' This duty Congress had the 
power and the duty to perform, under the provision 
of the Constitution guaranteeing to the States a re- 
publican form of Government. But as the President 
had appointed a provisional Government, which was 
in actual operation when Congress passed its Recon- 
struction Acts, and which had authorized this suit, 
the Court held that the suit was instituted by a com- 
petent authority and by a State of the Union. As to 
the right of the bondholders in the case, the Court held 
that it must be determined by the purposes for which 
the bonds were negotiated; that while Texas was le- 
gally always a State of the Union, it did not follow that 
all her actions and laws, while in fact a member of the 
Confederacy, were to be held valid ; and that statutes 
which were "necessary to peace and good order among 
citizens" might be valid, but that those passed in 
furtherance or support of the rebellion, were to be re- 
garded as absolutely void.^ 

^ The case was argued by George W. Paschal and R. T. Merrick against James 
Hughes, Albert Pike, Robert W. Johnson, J. M. Carlisle, P. Phillips, S. S. Cox and 
J. W. Moore. See The Case cj Texas v. WkUe, by William W. Pierson, SouihweeUm 
HiH. Quart. (1915). XVni. XIX. 



812 THE SUPREME COURT 

This decision has constituted one of the landmarks 
in American history. It settled forever the question 
whether a State could legally secede^ and it confirmed 
the permanence of the Union. Nevertheless, it has 
frequently been considered logically unsatisfactory in 
its reasoning; and the dissenting opinion of Judges 
Grier (concurred in by Swayne and Miller) seems more 
easily to be supported, when he said that the status of 
Texas was ^*to be decided as a political fact, not as a 
legal fiction. ... If I regard the truth of history for 
the last eight years, I cannot discover the State of Texas 
as one of these United States. ... I am not disposed 
to join in any essay to prove Texas to be a State of the 
Union when Congress have decided that she is not. . . • 
Politically, Texas is not a State in this Union. Whether 
rightfully out of it or not is a question not before the 
Court.*' The decision came, however, as a welcome 
solution to a greatly vexed and debated question ; and 
Chase's opinion, though adverse to the extreme claims 
of Thaddeus Stevens and the Radicals, who deemed the 
seceding States entirely out of the Union and properly 
subject to any legislation Congress chose to enact, was 
equally adverse to the claim of the Democrats, who 
held that Congress had no power whatever to withhold 
from these States any of the rights which they had 
possessed before the war. The general views and plans 
of the more moderate Reconstruction statesmen were 
in complete consonance with the language of the opin- 
ion ; and the growing fears lest the Court would inter- 
fere with their plans were thus allayed. An able opin- 
ion rendered by Attorney-General Hoar, following the 
decision of Texas v. White and sustaining the legality 
of military trials in Texas, gave further comfort to the 
Reconstructionists. "The Act of March 2, 1867, is, 
in my opinion," said Hoar, "a legislative declaration 



RECONSTRUCTION 213 

that in Texas the war which sprang from the rebellion 
is not to all intents and purposes ended ; '* and he held 
that other statutory legislation and judicial declara- 
tions recognizing the end of the war were "not incon- 
sistent with the proposition that, for some purposes, 
the rights of war are not ended." ^ 

In spite of these judicial decisions, and in spite of 
the action of Congress in abolishing the Court's ap- 
pellate jurisdiction in habeas corpus proceedings in- 
stituted under the Act of 1867, it appeared in the fall 
of 1869 that there was still a possibility that the Court 
might be required to render a decision on the legality 
of the Reconstruction Laws. On October 15, 1869, the 
case of Ex parte Yerger^ 8 Wall. 85, was brought up for 
argument by Philip Phillips and J. M. Carlisle against 
Attorney-General Ebenezer R. Hoar. This suit was 
a petition for habeas corpus originally made to a Fed- 
eral Circuit Court in Mississippi by another editor, who 
had been imprisoned by the military, but who on de- 
nial of his writ had taken an appeal to the Supreme 
Court, under the provisions of the original Judiciary 
Act of 1789, and not under the repealed Act of 1867. 

One week after the argument, the Court, through 
the Chief Justice, rendered a decision exhaustively re- 
viewing the Court's powers under the various habeas 
corpus statutes, and upholding its jurisdiction of this 
appeal, under the old Act of 1789. By this unexpected 
ruling, the road was left open for a full argument of 
the whole question of the Reconstruction legislation, 
when the case should be reached for hearing on the 
merits. With such a situation confronting them, the 
Radicals in Congress determined upon their most radi- 
cal move against the Judiciary. On December 9, 

1 See Amer, Law Bm, (Dec., I860}, IV, opinion of Hoar to the Secretary of War, 
in Wea90r'9 Caae. May 81. 1869. 



214 THE SUPREME COURT 

1869, Senator Trumbull reported a bill which was en- 
titled "to define the jurisdiction of the Supreme Court 
in certain cases *', but which was in reality a bill to de- 
stroy the constitutional function of the Court — a bill 
which was aptly termed the "bright, consummate 
flower of the military doctrine/' ^ It declared that no 
civil government existed in Virginia, Mississippi and 
Texas and that none should be recognized by the Ex- 
ecutive or by the Judiciary until Congress should de- 
cide ; it further declared that the Reconstruction Laws 
were "political in their character, the propriety or va- 
lidity of which no judicial tribunal was competent to 
question", and it prohibited the Supreme Court "from 
entertaining jurisdiction of any case growing out of 
the execution of said Acts " ; and it suspended all ap- 
peals growing out of such execution, either in habeas 
corpus cases or otherwise. 

While this bill was welcomed by the Radical Repub- 
licans, conservative men of both parties felt that the 
proposed action was far too extreme. One of the lead- 
ing Western Republican papers, expressing its opposi- 
tion and regret at this renewal of attack on the Court, 
stated that Congress had "no power to arbitrarily and 
conclusively decide what issues the National Judiciary 
cannot take into consideration", and that the Court 
must possess the power to determine what questions 
are political merely, and what questions involve per- 

^ New York World, Dec. 10, 11, 1869. Section 1 of this bill provided that : " Under 
the Constitution, the judicial power of the United States does not embrace politi- 
cal power, or give to the judicial tribunals any authority to question the decisions 
of the political departments of the Government on political questions; and it is 
hereby declared that all Courts of the United States in the administration of jus- 
tice shall be bound by the decisions of the political departments of the Government 
on political questions." Section 2 provided that: "It rests with Congress to decide 
what Government is the established one in a State, and that it is hereby, in ac- 
cordance with former legislation, declared that no civil State Government exists 
in Viiiginia, Mississippi, or Texas." kid Cong*, 2d Sess,, 167 el eeq., speech of 
Trumbull Dec. 16, 1869. 



RECONSTRUCTION 215 

sonal rights and liberties. The power of the Courts 
to decide the question of constitutionality ^* arises out 
of the circiunstances of the necessity to decide which of 
two laws shall prevail." And it concluded with this 
striking praise of the Court : **K this country possesses 
an able, experienced, conscientious and universally 
satisfactory Bench, it is to be found in our Supreme 
Court. It makes its decisions under the eyes of the 
whole legal fraternity. If a conspicuous error should be 
conmiitted, it could not escape detection ; and the ex- 
posure, through the press of the country, would be en- 
tirely equal to the error committed. As yet, no one 
has presumed to question the purity of the motives 
which have obtained hitherto in the adjudication of 
mooted questions." ^ The New York World said : "If 
Congress can force the judicial power to yield to it, the 
Constitution is annulled ; if it is in the power of Con- 
gress to say that any law of the United States can be 
made, into whose constitutional validity, when a case 
arising under it has taken a judicial form, the judicial 
power shall not inquire, then Congress is above the 
Constitution, and all its restraints, prohibitions and in- 
junctions are so much waste paper. . . • The design 
is to emancipate Congress from all constitutional re- 
straints which arise under any power that Congress 
chooses to assert is political in character." And the 
Nation asked : "If a majority of Congress is sure not 
to do wrong, why have any Constitution at all ? Why 
restrain this body of sages by any restrictions what- 
ever? Why not let them make their own Constitu- 
tion, every session ? Indeed, why administer any oath 
of office?" And it said further that there existed no 



> Ckieago Republican, Dec. 11, 1869; ibid., Dec 15, said that: "Trumbuirs bill 
will hardly become law in its preseiit form. It does not meet with much favor, 
bat it may increase in popularity." Nmo York World, Jan. 9, 1870. 



216 THE SUPREME COURT 

need of such a measure to check any supposed tendency 
of the Court to usurp Congressional power ; that the 
dangers of this, "feared by our democratic fathers, have 
proved not to have a particle of foundation. Indeed 
the Judiciary is the branch of the Grovernment and the 
only one which has been steadily declining in influence 
and authority during the last fifty years. Nearly 
every tendency of the day has told against the increase 
of its power, while there is hardly one which has not 
helped to increase the power of the Executive and the 
Legislature.'' 

But there were Senators who desired to go even fur- 
ther than Trumbull, and on December 13, Senator 
Charles D. Drake of Missouri delivered a violent 
speech advocating a bill to provide that no Court 
created by Congress should have any power to adjudge 
invalid any Act of Congress, and to prohibit the Su- 
preme Court in its appellate jurisdiction from aflirm- 
ing any such judgment of invalidity by an inferior 
Court — "a bill to abolish the Constitution,'* said the 
New York World} "It is the distinguishing function 
of a Judicature to declare the law, no Court, high or 
low, being able to decide any case without deciding at 
the same time what is the law applicable to that case. 
This results from the very essence of the judicial func- 
tion, nay, it is inseparable from the nature of things. 
If the laws appertaining to the question in litigation 
are contradictory, it is obvious that the Court must 
decide which law is valid and which null, before it can 
reach a rule for rendering justice to the parties." The 
Nation opposed Drake's bill, on the ground that "the 
action of Congress of late years has not been such as 

> NatUm^ Dec. 2, 16, 28, 1809; New York Herald, Dec. 15. 1869; Independent, 
Dec. 16, 1869; Ckieaffo Republican, Dec. 8, 1869. The New York Time$, Dec. 14, 
1869, in an account of the debate, stated that Drake's speech was not favorably 
xeoeived in the Senate, list Cong,, 2d Se$8., St,9>l el aeq. 



RECONSTRUCTION 217 

to entitle it to this supreme power." The New York 
Heraldy speaking of the "riotous spirit which pre- 
vails in law-making bodies where one side has an over- 
whelming majority", said very sanely: "The framers 
of the Constitution seem to have supposed that the 
best Congress we could ever get would still be composed 
of human creatures, and that, in virtue of its humanity. 
Congress might be liable to err. They supposed also 
that the representatives of the people would be drawn 
from all the fields of national activity, that they would 
be merchants, miners, farmers, ship carpenters, shoe- 
makers, schoolteachers, bankers, drovers, etc., and that 
Congress might, therefore, be an assembly not learned 
in the law. Whilst, therefore, the crude decrees of 
such a body might oppress any man in his rights, it 
was determined that the people should always have an 
appeal to a given number of men who have made the 
law the study of a lifetime." Even the radical In- 
dependent was inclined to believe that there was no im- 
mediate necessity for either Trumbull's or Drake's 
bill, and that the Court would "hardly make a contest 
with Congress. Its action last winter proved that it 
does not choose to measure its strength with the Na- 
tional Legislature. It looked, one month ago, as if 
Mr. Chase and his Associates were bent on precipitat- 
ing a decision against the Reconstruction Acts, and as 
if Yerger would be set free ; but the Court will pause 
in its course, while Congress acts on the measure, for 
it very well knows where victory lies in such a con- 
troversy. ... If Congress takes from it jurisdiction 
in political questions and it refuses to obey. Congress 
can- impeach and remove the Court. But it will not 
come to that. The good sense of a majority of the 
Justices will avert any such conflict." The Chicago 
Republican made the following eloquent defense of 



218 THE SUPREME COURT 

the Court: ^*A more dangerous, not to say absurd, 
attempt to destroy the Courts and make Congress su- 
preme could not be conceived. . . . What is this but 
declaring Congress as the supreme authority of the 
Nation, placing the country under an oligarchy, none 
the less despotic because the people themselves elected 
its members? The Courts, sitting in calm isolation, 
removed from partisan prejudices and often exciting 
passions of the hour, were especially instituted as checks 
and balances against attempted usurpation by either 
the Executive or the Legislative departments, to pre- 
vent wrong or harm from hasty and inconsiderate 
legislation, or from misconception or wrongful appropri- 
ation of power by the Executive. . . . The truth is, 
Mr. Drake's proposition is in outrageous repugnance 
to the whole genius of republican government ; and he 
will find, we believe, but few sympathizers with his 
revolutionary scheme, either in Congress or among the 
people. We cannot give up our Courts at present, 
even though experience has shown that they are not 
always infallible. They are safer to trust to, in 
matters of Constitution and law, than a tribunal 
selected as Congress is.'* 

Meanwhile, before Congress took any action on the 
bills, a situation had arisen in the Court itself (as will 
be described in the next chapter) which made action 
seem less necessary. Moreover, by agreement between 
Yerger's counsel and the Attorney-General, stipula- 
tions were entered into by which Yerger was to be pro- 
tected from the military, and his case became, there- 
fore, a moot one which required no argument at the 
present time.^ Thus, this hotly contested legal ques- 

1 See Nmo York World, Dec. 2, 1869» Jan. 9, 1870. Later, Congress took cog- 
nizance of the case, and the House requested information as to the delay in the 
execution of Yerger's sentence. See Washington Chronicle, Feb. 6, 1870. The 
final disposition of this case was reported in the New York Times, March 18, 1870. 



RECONSTRUCTION 219 

tion of the validity of the Reconstruction Laws dis- 
appeared from the Court's history, without any ex- 
press decision.^ 

"In the Supreme Court today (March 11) Mr. Phillips stated that the counsel for 
Yerger, who was convicted by a military commission of the killing of Col. Crane 
and sentenced, having received authentic information that the militaiy authori- 
ties had turned over the prisoner to the dvil authorities of the State of Mississippi, 
the object of the petition was fulfilled, and therefore he moved that it be dis- 
miBsed.*' In February, 1870, another case arose in the Court which might have 
called for a decision on the Reconstruction Acts, when George R. Kennedy, tried 
by military commission in Texas on charge of murder, applied to the Court for a 
writ of habeas corpus. See Boston Daiiy Adoertiser, Feb. 19, 1870. 

* It was not until as late as 1875 that the Court (whose membership by that date 
had been considerably changed) gave an intimation in Raymond v. Thonuu, 01 
U« S. lit, that it mi^t possibly hold the Reconstruction Acts to be lawful, but the 
case was actually decided on a subordinate point. 



CHAPTER THIRTY-ONE 

THE LEGAL TENDER CASES 

1860-1871 

The disposition of the Yerger Case, in December, 
1869, having removed all present danger of any judi- 
cial decision on Reconstruction, another question then 
came to the front, — the validity of the war legislation 
making the paper currency (the Treasury notes) legal 
tender. Though the first of these Legal Tender Acts 
had been passed as early as February 25, 1862, by a 
singular chance, no decision as to its validity had yet 
been reached in 1869. The constitutional issue had 
been involved in a case which came up on writ of error 
to the New York State Court, in 1863, Roosevelt v. 
Meyer, 1 Wall. 512, but the Court had decided in that 
year that it had no jurisdiction under the Judiciary 
Act.^ In 1865, however, the question was presented 
in a case in which the Court had undoubted jurisdiction 
on writ of error to the Kentucky Court of Appeals, 
Hepburn v. Griswold, 8 Wall. 603, and it was first argued 
at the December Term of 1867. On the suggestion of 
Attorney-General Stanbery as to the great public 
importance of the question, a reargument was ordered 
for the next Term, with leave to the Government to be 
represented; and accordingly on December 10, 1868, 
it was reargued by Benjamin R. Curtis and Attorney- 
General William M. Evarts, against Clarkson N. Pot- 

^ Nine yean later, in 1872, the Court held that this decinon had been erroneoua* 
and accordingly overruled it. TrAUoock v. WiUtm, 12 Wall. 887. 



THE LEGAL TENDER CASES 221 

ter.^ The probable action of the Court had been the 
subject of long and excited debate in the community. 
On the one side, were the National and the State banks, 
the mortgagees and creditors who demanded payment 
in gold ; lined up with these interests were those men 
who, on principle, denied the right of the Federal Gov- 
ernment to make paper currency legal tender, and op- 
posed legalized cheating through the enforced pay- 
ments of debts in depreciated currency. On the other 
side, were the railroads, the municipal corporations, the 
mortgagors of land and other debtors who now sought 
to pay, with a depreciated legal tender currency, debts 
contracted on a gold basis before the war; and with 
these interests, there were associated all those men who 
felt strongly that the Government ought not to be de- 
prived of a power which they considered so necessary 
to its existence in time of war. But while, as a war 
measure, issue of legal tender may have been necessary, 
there is no doubt that most thoughtful men believed 
that its evils outweighed its benefits, and agreed with 
the Nation^ when it said that "the prevailing laxity in 
commercial morals, the rise of notorious cheats into 
position of fame and wealth, and the prostration at 
their feet of large masses of private property, is largely 
due, not simply to the spirit of speculation bred by the 
issue of irredeemable paper, but to the sanction given 
by the law to the wholesale cheating by fraudulent 
debtors which was the direct result of the Legal Tender 
Act." 

Practically every State Court which had considered 
the question had upheld the constitutionality of the 
law; there was little expectation by the public or by 

^ The Springfield RepiMiean, Feb. 15, 1868, stated that on Feb. 14, the Attorney- 
General had read to the Court a letter from Secretary of the Treasury McCulloch 
asking him to appear, and had stated that he had had no time to prepare and 
wished a postponement. 



222 THE SUPREME COURT 

the Bar that the Court would do otherwise.^ Soon 
after the argument, however, the rumor spread that 
its decision would be adverse; and thereupon, strong 
appeals were made in the press that, in view of the 
ruinous consequences of such a ruling, the Court 
should postpone decision.^ An interesting editorial in 
the Chicago Republican strongly indorsed this rather 
preposterous suggestion, saying : " The gloomy prospect 
which presents itself to anyone contemplating the results 
of an adverse decision ought to convince Judges, who at 
the same time are statesmen, that a decision should not 
be given, if adverse. • • . It is plainly the general 
wish of the country that this tardy and ruinous wisdom 
of the Supreme Court should not now work universal 
ruin, if the decision is to be adverse to the constitu- 
tionality of the Act. Let the petty cases be dismissed 
and no decision be given. Harmless inaction is better 
than a dangerous act."^ 

While unable to arrive at a decision in this case dur- 
ing the December, 1868, Term, the Court did decide 
several cases in which it passed upon subordinate as- 
pects of this question. In Lane County v. Oregon^ 7 
Wall. 71, it considered whether Congress had the power 
to make the paper war currency legal tender in payment 
of taxes to a State, and while intimating that Congress 
could not so interfere with the State taxing power, it 
held that the Legal Tender Acts were not to be con- 

^ NaHan, Feb. 10, 25, 1869 : "The Judges of most of the SUte Courts to whom 
it has been submitted, being in closer dependence on popular opinion than they 
have ever been before, have not unnaturally shrunk from what seemed the tre- 
mendous responsibility of gainsaying what so many good men had been saying, 
and the best part of the community believing for so long, on such azi exceedingly 
delicate subject as the value and power of the currency actually in use." 

* Chieago RepMiean, Dec. 11, 14, 21, 1868. 

*This editorial also stated that a written opinion was obtained, though with 
great difficulty, from members of the Court in favor of the validity of the Legal 
Tender Act, at the time of its passage ; and that it is now stated that "its authors 
will be glad to rewrite it, by a decision declaring the Act void." 



THE LEGAL TENDER CASES 223 

strued as so providing. In Bronson v, Rodes and Butler 
V. Horwitz, 7 Wall, 229, 258, the Legal Tender Acts 
were held not to apply to obligations calling specifically 
for payment in gold and silver coin. 

One reason for the delay in the decision of the Legal 
Tender Cases had undoubtedly been the fact that, at 
this time, the Court had been reduced in number to 
eight Judges by the operation of the Act of 1866 
(passed to deprive President Johnson of the oppor- 
tunity of filling expected vacancies), and hence there 
was danger of an even division of the Court on the 
question. This situation was now changed by the ac- 
cession of Grant to the Presidency, and the consequent 
enactment of a statute (the Act of April 10, 1869), in- 
creasing the number of the Court to nine, and author- 
izing the President to nominate an additional Judge at 
the next session of the Senate. At the same time. 
Congress had at last provided a long-desired and long- 
contested judicial reform, by establishing a new Circuit 
Court system with nine new Circuit Judges, but with- 
out entirely relieving the Supreme Court Judges of 
Circuit duty.^ To fill these new positions, President 
Grant made nine appointments, based largely on the 
reconunendation of his Attorney-General, Ebenezer 
Rockwood Hoar of Massachusetts ; ^ and on December 
14, 1869, he appointed Hoar to the vacancy on the Su- 
preme Bench. " It is a gratifying proof of the increased 
respect in which the Supreme Court is held that we do 
not hear of any attempt to foist upon it, under the 

^ As late as 1866, the American Law Review, I, 807, had rejoiced over the failure 
of the passage of Circuit Court bills introduced in Congress, April 2, 1866, March 
5, 1867 (see SM Cong,, Ut Sue.; Wth Cong,, let 8e$e., Senate Special Sees.) 
and had said: "We trust that so nuschieyous a measure will never receive 
the assent of Congress. Mr. Webster more than once defeated similar proposi- 
tions. ... It has been well designated as a bill to prevent the Justices of the 
Supreme Court from ever learning any law." 

s See New York Times, Dec 9, 1869, for detailed criticism of the Circuit Court 
appointments. 



224 THE SUPREME COURT 

provisions of this Act, a partisan Judge/' said the 
Nation. "There seems to be a general agreement of 
opinion that no such appointment should be made. 
The reiterated assertions that the Attorney-General is 
to have the place show the general feeling about it. 
The present Chief Justice has been Mn politics' quite 
enough. ... If Judge Hoar is appointed, the appoint- 
ment will be an admirable one." And it further pointed 
out that, in the year of the Reconstruction excite- 
ment, in 1868, the Court had "'touched the lowest point 
in its career ; and now that the spirit of conservation 
has begun to reign again, the important problem of the 
hour is to bring back harmony and justice into the affairs 
of the country", that the Court was the agency best 
calculated to assist in the work, that its hands must be 
strengthened, and that apparently popular respect for 
the judicial function had begun again to appear. "As 
Congress and the President fell, so the Court arose in 
regard and esteem. The balance is at length in a fair 
way of being restored, and one more illustration fur- 
nished of the inherent excellence of the system of checks 
and balances which lies at the root of American politics. 
Thus one day may the future historian of America, for 
the instruction of generations to come, carve the lessons 
of the recent history of the Judiciary." Hoar's nom- 
ination was commended on all sides by the public and 
the press. "His distinguished abilities are conceded 
and his elevation to the Supreme Bench is received with 
profound satisfaction by all," said the New York Times. 
"One of the best that could have been made," said 
Harper's Weekly, and it mentioned his "vigorous in- 
dependence, soundness of judgment, masculine good 
sense and legal learning." ^ That he was supremely 

1 Nation, Dec. 2, 1869, Jan. 6, 1870; New York Times, Dec. 16, 1869; Harj>er*e 
WeeUif, Jan. 1, 1870; Amer. Law Rev,, IV, 880. See also Waehinffttm Chronicle, 



THE LEGAL TENDER CASES 225 

fitted for the position by his legal qualifications, all 
admitted. He was fifty-three years of age and at the 
height of his vigor ; he had been Judge of the Mas- 
sachusetts Supreme Court, and an able Attorney-Gen- 
eral of the United States; he was also in thorough 
sympathy with Grant's policies. But in the Senate, 
the nomination met with hearty opposition from many 
causes. Some Senators believed that a lawyer from 
the South, particularly Thomas J. Durant of Louisiana, 
should have been appointed ; others were disgruntled 
over the nominees recommended by Hoar for Circuit 
Judges; to many Senators, Hoar's brusque manners 
had given great offense ; others resented his opposition 
to the Johnson impeachment ; others disliked his sup- 
port of Civil Service Reform.^ He was supported by 

Dec. 15, 1809, Htymg it "will generally be accepted as an appropriate selection, 
comparatively young, possessing the required learning and ability." 

^ Harper's Weeldy, Jan. 1, 1870, said that the real ground of objection must be 
his ''hearty contempt of the system that makes the whole civil service party plun- 
der.'* On Jan. 8, it said that the Senate's virtual rejection of Hoar was reported 
by the New York Timee to be due to a "sense of the affronts Senators and Repre- 
sentatives have received at his hands. ... He has no one to blame for his dis- 
comfiture but himself." "This means," said the Weekly, "that Mr. Hoar has re- 
fused to be a mere party tool." The Independent, Feb. 10, 1870, said : "Nobody 
can deny that the Attorney-General is an able lawyer and a genuine radical. The 
Senate disliked him personally and looked with disfavor upon the selection of a 
Northern man for a Southern Circuit." The New York Herald, Dec. 21, 1869, 
stated that the Senate contrasted the "poUshed politeness of Evarts, and dignified 
but courteous bearing of Stiftibery with the supercilious contempt of Hoar to his 
superiors." George F. Hoar in his Atdobiography oj Seventy Years (1008), said : 
"Judge Hoar strenuously insisted that the Judges of the newly created Circuit 
Courts of the United States should be made up of the best lawyers, without Sen- 
atorial dictation. President Grant acted in accordance with his advice. The 
constitution of the Circuit Court gave great satisfaction to the public. But lead- 
ing and infiuential Senators, whose advice had been rejected and who were com- 
pelled, by the high character of the persons nominated, to submit and did not ven- 
ture upon a controversy with the President, were intensely angry with the Attorney- 
General. The result was that when he was nominated by the President for the 
office of Associate Justice of the Supreme Court of the United States, he was re- 
jected by the Senate. A few Senators avowed, as a pretext for their action, that 
there was no Judge on the Bench from the South, and that the new appointee ought 
to reside in the Southern Circuit. But these gentlemen all voted for the confir- 
mation of Mr. Justice Bradley, a most admirable appointment, to whom the same 
objection applied." See also especially Springfield Weekly Republican, Dec. 20, 
1860» Jan. 1, 1870, giving the causes of Hoar's rejection. 

VOL. in — 8 



226 THE SUPREME COURT 

Senator Trumbull but opposed by Conkling, Edmunds, 
Carpenter, by the carpet-bag Senators from the South 
and by the Democrats. "In the whole proceedings/' 
said the Nation^ "the Democrats alone can be justified 
or excused. To them. Judge Hoar is the principal 
representative of a system they believed to be uncon- 
stitutional and outrageous/' 

While this fight was pending in the Senate, the Pres- 
ident was given an opportunity to make another ap- 
pointment. Judge Grier, who, in his seventy-sixth year 
and after twenty-three years* service, had become men- 
tally and physically enfeebled, took advantage of the 
recent statute increasing the Judges' salaries and au- 
thorizing retirement on half pay, and sent in his resigna- 
tion on December 15, 1869, to take eflFect, February 1, 
1870. A petition was at once signed by a large majority 
of the Senate and of the House and presented to the 
President, asking that the vacancy be filled by the ap- 
pointment of the late Secretary of War, Edwin M. 
Stanton of Pennsylvania.^ Grant, while reluctant to 
make this nomination and while desiring to appoint 
Judge William Strong of Pennsylvania, saw a chance 
of conciliating the Senate with regard to Hoar; and 
accordingly, on Sunday, December 19, 1869 (Stanton's 
fifty-fourth birthday), he called on him, offered him the 
position and sent in his name, the next day, to the 
Senate, where he was promptly confirmed by a vote of 
forty-six to eleven. The appointment was received 
by the country with great differences of opinion. 
Though Stanton had been an able lawyer, his tempera- 

^ Judge Grier had suggested to Giant that Joseph P. Bradley of New Jersey be 
appointed his successor. Independent^ Dec. 23, 1869. The Springfield Republican 
as early as Nov. 27, 1869, had urged Stanton's appointment, and it said, Dec. 26, 
that "as Gen. Grant never got on well with Stanton when he was in the War De- 
partment, and had some pr^udice to conquer in order to bring him up to this 
appointment, it must have been quite a gratifying interview to the old war horse 
o£ the Anny Department." 



THE LEGAL TENDER CASES 827 

ment was such as to make him a doubtful acquisition 
to the Bench; for he was arbitrary, overbearing, 
masterful and utterly lacking in judicial poise. Never- 
theless, the Republicans hailed his choice with delight, 
and termed it "the equivalent of a Constitutional 
Amendment/' The Washington Chronicle "thrilled 
with joy " and said that no statesman had a firmer hold 
on the affections of the people. The Chicago Repub- 
lican said it would "give general satisfaction" and that 
he "had few peers at the Bar." The Springfield Re- 
publican said that "justice is his strong point." The 
New York Times spoke of the "general congratulations " 
and of his "sturdy integrity, intellectual acumen and 
force, unswerving patriotism, high legal reputation, 
tireless energy." "It is a recognition of his illustrious 
service to his country, in the performance of which he 
was equalled for energy, courage and genius by no other 
statesman or hero of the war. . . . The peer of Bis- 
marck in executive force, we believe that ... he will 
attain a judicial eminence second to none ever achieved 
in the same judicial station. God bless Edwin M. Stan- 
ton ! " said the Independent 

The Democratic press raged at the appointment. 
The New York World said that: "His enemies (and 
no one ever had a greater number) think him a passion-^ 
ate, violent and headstrong man, malignant, despotic 
and utterly unscrupulous. . • . His apologists have 
never denied that he has an impetuous temper and over- 
bearing manners. . . . There has never been any dif- 
ference of opinion between his foes and his partisans, 
respecting the general type and structure of his char- 
acter, which is as far removed as possible from dispas- 
sionate calnmess, judicial impartiality and reverence 
for strict law. No one could be more out of place than 
such a hasty, violent, imperious zealot on the bench of 



228 THE SUPREME COURT 

the Supreme Court/* The New York Herald stated, 
more fairly, that while he was fully qualified as a lawyer 
for the position of Judge, and while he had been honest, 
earnest, active, firm, resolute, decisive and efi^cient in 
the War OflBce, " the man of all men for the part he had 
to play, ... it may be said that he was rough, im- 
perious, despotic, cruel and offensive in many things/' 
Of the independent papers, the Nation was inclined 
to be hopeful. "There are many signs,'* it said, "that 
the Supreme Court is recovering from the temporary 
loss of influence and dignity inflicted on it by the Dred 
Scott decision and the events of the war. The general 
excellence of the President's appointments to the new 
Circuit Judgeships, capped by the bestowal of the 
vacant seats in the Supreme Court itself on Judge Hoar 
and Mr. Stanton, and the increase of salaries which is 
now pending in Congress, are all signs of a healthy re- 
action in the public mind as to the inestimable value of 
an upright, independent and honored Judiciary." 
Whatever Stanton 's fitness may or may not have been, 
his sudden death from heart trouble, on December 24, 
four days after his nomination, put an end to the dis- 
cussion. "In him, the bench of the Supreme Court 
loses a Judge of large experience and learning, of perfect 
integrity and of unflinching courage in the discharge 
of duty," said the American Law Review. "And at this 
time, when there is so manifest a disposition in many of 
our public men to undervalue the duties and to encroach 
upon the province of the Judiciary, and to throw aside 
men, confessedly fitted by character, learning, and ex- 
perience to adorn the Bench, for trivial and unworthy 
causes, we deem that the country has suffered an ir- 
reparable loss." ^ 

1 Nation, Dec. 23, 1869 ; Amer. Law Rev. (1870), IV, 894 ; aee Chicago Republican, 
Dec. 22, 25, 1809; Independent, Dec. 28, SO, 1809; New York Timee, Dec. 21. 25, 



THE LEGAL TENDER CASES 229 

As the Senate had not confirmed Hoar, and as, after 
January 8, 1870, it was certain that it would not do so, 
the President had still two appointments to make.^ 
For the Grier vacancy, Benjamin H. Brewster of 
Pennsylvania, and Judge George P. Fisher of Delaware 
were urged ; and in place of Hoar, Thomas J. Durant 
of Louisiana and Senator Charles D. Drake of Mis- 
souri. "What the country wants is purity,- honesty, 
ability and fearless radicalism," said the Independent. 
"The country distrusts lawyers, when it comes to ques- 
tions of loyalty and human rights. What we want now 
is two or three sincere and obstinate radicals on the 
Bench . . . with a sincere, profound belief in the equal- 
ity of human rights." * Very early in January, the 
President had informed visitors that he had decided to 
appoint Judge Strong to the Grier vacancy ; • but the 

27, 1869, stating that : "The commiasion of Mr. Stanton as Associate Justice had 
not been signed at the time of his death, but in the course of the day the President 
appended the signature and sent the paper to the widow as a mark of respect." 
Washington Chronide, Dec. StS, 1869 ; New York Herald, Dec. 25, 1869 ; ^010 York 
World, Dec. 22, 1869. On Dec. 24, the World published an editorial containing in- 
vective against Stanton of the most extreme nature ; and after his death, it said» 
Dec. 25 : " When Mr. Stanton*s character is viewed in its true light, he will be re- 
garded as the most faithful personal embodiment of the passionate and vindic- 
tive spirit of the period in which he acted ;'* see Springfield Weekly RepMiean stat- 
ing, Jan. 1, 1870, that the WorUTs rancor against Stanton was due to the latter's 
refusal to give a pass, in 1864, to a World correspondent, to whom he said: "No 
favor can be given here to a treasonable newspaper." 

^See New York Times, Jan. 8, 10, 1870; Ebenezer Rochcood Hoar (1911), by 
Moorfield Storey and Edward W. Emerson. James Russell Lowell wrote to Hoar : 
"Don't let your name be withdrawn. Let the responsibility lie with the knaves 
who hate you for your impregnability and haven't the courage to say so." Hoar's 
nomination was finally defeated by the Senate, Feb. 8, 1870, by a vote of 24 to 88. 

' The Nation said, Feb. 16, 1870 : " We are informed that it was in contemplation 
to urge Mr. Durant of New Orleans for the Judgeship which Mr. Hoar did not get. 
Mr. Durant is, and was before the war, a leading member of the Louisiana Bar, 
was a staunch Union man during the war and a man of the highest character, both 
professional and personal. Hb appointment would supply what is greatly needed 
— a Civilian on the Supreme Bench. The want of any Judge versed in Civil Law 
is often severely felt in appeals from Louisiana, Texas and California." 

* Independent, Jan. 6, Feb. 10, 1870; New York Times, Jan. 10, 1870; New York 
Herald, Jan. 20, 1870, Nation, Jan. 6, 1870. The Springfield Weekly Republican, 
Jan. 15, 1870, stated that Strong had been definitely selected and that he had long 
been "a prominent and honored citissen . . . and will be a real addition to the 
working ability and legal character of the Court." 



230 THE SUPREME COURT 

hope was generally expressed that he would not repeat 
what the Nation termed "an act of very doubtful 
propriety" and "a dangerous precedent*', when the 
President had nominated Stanton to the Supreme 
Bench "long before any vacancy existed, the immediate 
result of which was the curious spectacle of a Judge 
dead and buried in state while his predecessor sits on 
the Bench and goes to the funeral/' 

During all this time, when the question of filling the 
vacancies was pending, the Court had been withholding 
making public a decision at which it had arrived ; for 
on November 27, 1869, four Judges had agreed in hold- 
ing the Legal Tender Act unconstitutional as applied 
to contracts made before its passage, and Judge Grier, 
who had at first declared himself in favor of the Act, 
had finally changed his view and agreed with the ma- 
jority. As three Judges dissented, the rendering of the 
opinion was delayed until the varying views could be 
definitely reconciled. In the meanwhile, however, the 
Court, on December 13, 1869, decided the important 
case of Veazie Bank v. Fenno^ 8 Wall. 533, argued for 
the State banks by Reverdy Johnson and Caleb Cush- 
ing and by Attorney-General Hoar for the Govern- 
ment. In this case, the power of Congress to restrain 
by taxation the circulation of State bank notes as cur- 
rency was upheld, as an appropriate means under the 
Constitution of providing a National currency for the 
country. Chief Justice Chase held the tax was not a 
direct tax ; and stated that without this power of tax- 
ation, the Government's "attempts to secure a sound 
and uniform currency for the country must be futile. '* 
That the tax was so excessive as to indicate a purpose 
on the part of Congress to destroy the franchise of the 
State bank, he held was a matter which the Court could 
not consider. **The power to tax may be exercised 



THE LEGAL TENDER CASES 231 

oppressively upon persons, but the responsibility of the 
Legislature is not to the Courts, but to the people, by 
whom its members are elected/* ^ From the broad 
construction given to the "necessary and proper** 
clause of the Constitution by the Chief Justice in this 
case, the country was led to believe that he would render 
a similar favorable decision in the Legal Tender Case 
then pending.^ No definite knowledge, however, as to 
the actual decision at which the Court had arrived in 
the previous November leaked out ; and on January 4, 
1870, the New York Times stated that : "From all that 
can be learned of the matter, it is reasonably certain 
that no decision will be reached during the present 
Term. No consideration has yet been had in the case 
by the Court, and inasmuch as the Court will be reor- 
ganized by the addition of two new members, it is alto- 
gether probable that the cases will be ordered to be re- 
argued before a decision is made. ** On January 21, the 
New York World stated that in the three important 
litigations arising out of the war, the Legal Tender Case, 
the Cotton Tax Case ' and the State Test Oath Case, the 

^ James M. Beck in NvUificaiion by IndirecHony Harv, Law Rev, (1911), XXIII, 
said that Vecatie y. Fenno first announced the doctrine " that the Judidary is with- 
out power to prevent the nullification of the rights of the States by the exercise of 
Federal powers for unconstitutional purposes." See also McCray v. United States 
(1904), 195 U. S. 27; Tke Extension of Federal Control through the Regulaiion cf 
the Mails, by lindsay Rogers, Harv. Lavo Reo. (191S), XXVII ; PotMr of Regula- 
tion Vested in Congress, by Max Pam, ibid. (1910), XXIV. 

' The Cincinnati Daily Chronide, Dec. 15, 1869, stated that the decision "must 
settle the validity of the Legal Tender Law." The New York World, Dec. Id, 1869, 
said as to this decision that "there was a manifest indecorum in Judge Chase's 
taking part, as he was the real author of the scheme for taxing State banks out of 
existence" ; and that his opinion "was an elaborate defense of his own policy when 
he was Secretary of the Treasury. He is the father oi the present system of Na- 
tional Banks. He was the instigator of the tax whose manifest design and real 
effect was to cripple and crush the rival State institutions", and that his sense of 
propriety should have led him not to sit. 

' This case^ Farrington v. Saunders, involving the question whether the Cotton 
Tax was a "direct tax" had been argued, Dec. 8, 9, 1869, by Philip Phillips, Albert 
Pike, R. W. Johnson, W. L. Sharkey, James Hughes, John A. Campbell, Benjamin 
R. Curtis and Robertson Topp against Attorney-General £. R. Hoar. See New York 
Herald, Dec. 9, 1869. It was not decided until 1871, when by an evenly divided 



232 THE SUPREME COURT 

opinions of the Court would probably be adverse. 
"Great anxiety/' it said, "is felt in reference to these 
decisions; and the expectation that the decision ad- 
verse to these Acts would irritate the Radicals in Con- 
gress has made some go so far as to impute timidity, as 
one of the reasons that there is not a full Court. The 
idea is thus obtaining currency that the Court will not 
have the nerve to perform their duty in these cases, and 
that these important cases will be suffered to sleep as 
they have done for so many months/' The want of jus- 
tification for this charge of lack of nerve on the part of 
the Court was seen, when within two weeks, on Feb- 
ruary 1, 1870, the Court rendered a decision in the Test 
Oath Case upholding by a four to four division the va- 
lidity of the Missouri statute.^ On Saturday, January 
29, 1870, the Court had met in conference and adopted 
the form of its final opinion in the Legal Tender Case ; 
but that the speculative surmises of the press as to its 
action in this latter case were far from accurate may be 
seen from the New York Tribune^ s statement of Feb- 
ruary 1, that a consultation had been held and that 
" there is ground for believing that the decision will not 
go into the question of the constitutionality of the law. 

Court, the decision of the lower Court upholding the validity of the tax was affirmed ; 
it is not reported in Wallace ReporU. See e7th Cong., 2d Seaa,, March IS, 1922. 

^Tfais case, Blair v. Thompson A Ridgdy (not reported in Wallace Reports), 
had been begun in 1866 to test the constitutionality of a Missouri statute depriv- 
ing all persons of a right to vote who did not take an oath that they had not par- 
ticipated in hostilities against the Nation or the States. See New York World, 
Jan. 9, 21, Feb. 2, 1870. The Independent said, Feb. 10, 1870: "Mr. Chase gave 
his vote in favor of the constitutionality of the oath and saved it from overthrow. 
This shows two things, first that he is not a modem Democrat ; and second that he 
is not seeking a nomination to the Presidency from the Democratic party." See 
also New York Timee, Feb. 1, 1870; New York Tribune, Feb. 1, 1870, for a full re- 
port of the case. It was argued by Montgomery Blair against Senator Drake. 
The Judges divided — Nelson, Grier, Clifford and Field against the statute. Chase, 
Swayne, Davis and Miller for it ; see BoHon Daily AdwrHeer, Feb. 1, 1870. On 
the same day, the Court by another four to four decbion (not reported) upheld the 
validity of the Act of Congress forbidding suits against United States officers who 
took or destroyed property in the South as a war measure. See especially Spring^ 
field Republican, Feb. 2, 4, 1870; Boston DaUy Advertiser^ Feb. 2, 1870. 



THE LEGAL TENDER CASES 28S 

but will decide that all contracts made previous to the 
passage of the act contemplated payment in gold. " ^ 
The Court had intended that its opinion should be 
delivered on Monday » January 31, when Judge Grier 
would still be a member of the Court and would be one 
of the five Judges constituting the majority ; but out 
of deference to the minority, who wished for further 
time to prepare their dissenting opinions, the matter 
was postponed for a week.* On February 7, Chief 
Justice Chase announced the opinion of the Court, 
which was concurred in by Judges Nelson, Clifford and 
Field, with Judges Miller, Swayne and Davis dissenting, 
— Hepburn v. Griswoldy 8 Wall. 603. 

On the underlying principles of law, both the ma- 
jority and the minority agreed in accepting Marshall 's 
statement of the implied powers of Congress as set 
forth in McCuUoch v. Maryland. The Chief Justice, 
however, held that the attempt to impart the quality of 
legal tender to the Government paper currency was not 
** an appropriate and plainly adapted means for carrying 
on war" ; and that the argument by which the legality 
of the statute was defended carried the doctrine of 
implied powers too far, and '"asserts that whatever in 
any degree promotes an end within the scope of a gen- 
eral power, whether, in the correct sense of the word, 
appropriate or not, may be done in the exercise of an 
implied power. . . . Undoubtedly, among means 
appropriate, plainly adapted, really calculated, the 
Legislature has unrestricted choice." But it was for 
the Court to determine whether the means adopted 
came within that category. He held, moreover, that 
""a law not made in pursuance of an express power, 

^ New York Tribune, Feb. 1, 4, 1870 ; aee also B4>aUm Journal, Feb. 2, 1870, which 
nid that the opinipn "will carefully avoid the question of the ooiutitutioiiality of 
the Act itself;" Independent, Dec. 23, 1869. 

* See statement of Chief Justice Chase in Knox v. Lee, 12 Wall. 457. 



234 THE SUPREME COURT 

which necessarily and in its direct operation impairs the 
obligation of contracts, is inconsistent with the spirit 
of the Constitution/' And finally, referring indirectly 
to his own support of this law when Secretary of the 
Treasury, he said : "It is not surprising that amid the 
tumult of the late civil war, and under the influence of 
apprehensions for the safety of the Republic almost 
universal, diflFerent views, never before entertained by 
American statesmen or jurists, were adopted by many. 
The time was not favorable to considerate reflection 
upon the constitutional limits of Legislative or Execu- 
tive authority. If power was assumed from patriotic 
motives, the assumption found ready justification in 
patriotic hearts. Many who doubted, yielded their 
doubts ; many who did not doubt were silent. . . . Not 
a few who then insisted upon its necessity, or acquiesced 
in that view, have, since the return of peace, and under 
the influence of the calmer time, reconsidered their 
conclusions." Accordingly, so far as the Legal Tender 
Act applied to contracts made before its passage (which 
was the only question actually involved in this case), 
the Court held the Act unconstitutional. The reason- 
ing, however, contained in the Chief Justice's opinion 
was equally applicable to cases of contracts executed 
after the passage of the law and would render it equally 
invalid as to them. The minority, after reviewing the 
conditions of the war when the Act was passed, held that 
"this law was a necessity, in the most stringent sense 
in which that word can be used" ; and they described 
the war in terms which have a very modem sound, as 
"a war which, if we take into account the increased 
capacity for destruction introduced by modem science 
and the corresponding increase of its cost, brought into 
operation powers of belligerency, more potent and more 
expensive than any that the world has ever known." 



THE LEGAL TENDER CASES 235 

Apart from the question of impairing obligation of 
contract, the real diflFerence between the majority and 
the minority was simply one of fact, viz. whether 
Congress might, within the bounds of reason, have 
considered the issue of legal currency to be "neces- 
sary" for the carrying on of the war. 

At first, the decision was not regarded as of great 
consequence, as its effect was supposed to be confined 
merely to cases of contracts made before the war, 
"The decision is not unexpected," said the New York 
Times 9 "and in no manner involves the constitution- 
ality of the law itself. . . • There will be hardship, 
undoubtedly, and in some instances injustice ; but the 
judgment of the Court rests upon an intelligible, if not 
an agreeable or entirely defensible principle, the pro- 
mulgation of which constitutes another reason for the 
restoration with all convenient speed of specie pay- 
ments." 1 "This decision is of much less consequence 
than it would have been if it had been rendered five 
years sooner," said the Independent. "In 1870, it is 
not a means of protection or redress, but only a message 
of condolence." "It would have been of great im- 
portance had it been * more timely, * " said the New York 
World. The Washington Chronicle said that while the 
decision was "an insidious assault upon the great meas- 
ure which saved the country during the rebellion", it 
was not likely to work any serious injury. "The confi- 
dence in the greenbacks is too great to be shaken by 
judicial decision." The New York Herald, which also 

^ The New York Timet, Feb. 8, 1870, said : "There was a great deal of perturba- 
tion and much confusion at the Capitol today at the announcement. . . . The 
Court-room was crowded; but little satisfaction was obtained in listening to the 
reading of the decision ... by the Chief Justice, as he was almost wholly inaudi- 
ble;" see also Washington Chronide, Feb. 12, 1870; Independent, Feb. 10, 17, 1870; 
New York Herald, Feb. 8, 0, 16, 22, 1870; on Feb. 24, it mA : "The decision does 
not foreshadow a decision denying the validity of the act. . . . There is not a 
vestige of probability that the Court will go a step further." 



236 THE SUPREME COURT 

favored the greenbacks and opposed the National banks, 
at first took this restricted view of the opinion and said 
that the Court had avoided holding the Legal Tender 
Act unconstitutional as to present contracts — a de- 
cision which would have "involved the whole country 
in financial chaos and the Government perhaps in bank- 
ruptcy and repudiation. . . . We have no fears that 
the Supreme Court will risk, for a long time to come, a 
decision against our greenback currency as legal tender." 
And it stated that with the new members on the Court 
it expected a favorable decision. "The Court, even 
when most strongly seasoned with State-Rights, has 
carefully avoided any disturbing collision with Con- 
gress. '* The Nation said, presenting what was probably 
the view held by most thoughtful men : "There is little 
question, whatever be the objections to the decision on 
general grounds, that it will accelerate the return of 
specie payments and give a useful fillip to the moral 
sense of the country, and especially of the knavish por- 
tion of the public. . . . Legal tenders are one thing ; 
depreciated legal tenders are another thing; and no 
Court can be expected to declare cheating lawful, unless 
it is plainly and unmistakably obliged to do so by 
the recognized decrees of the sovereign authority. • . . 
The Court can very well say, and does say, that it knows 
nothing of legislative necessity, but that it does know 
that nothing but express direction would justify it in 
declaring lawful and justifiable the evasion of a clear 
moral obligation." As to the opinion of the dissenting 
Judges, it said : "The strong point of Judge Miller's 
argument is, as might be expected, what is the Chief 
Justice's weakest — the impropriety of taking from 
Congress and committing to a Court of Justice a task 
so plainly legislative in its nature as the decision what 
means are necessary and proper to the performance of 



THE LEGAL TENDER CASES 237 

a duty, so complex, so delicate and so full of unforeseen 
contingencies ... as the government of a great Na- 
tion during a great war, even within the limited sphere 
prescribed by our written Constitution. . . . And yet 
if the interpretation of a written Constitution is not 
committed to Judges, what use is it ? If the majority 
can do whatever they choose to declare constitutional, 
what better is it than the revocable charters which 
absolute sovereigns in Europe amused themselves by 
granting, for some years after 1816?"^ 

The views of the other side were presented by 
Harper ^8 Weekly ^ which said that: "It is dangerous to 
deprive ourselves of an essential means of warfare and 
defense on such delusive grounds. It will soon appear 
that the Legal Tender Act cannot safely be dispensed 
with. Its constitutionality is clear, and it should re- 
main with Congress to decide when it shall be inoper- 
ative. The Court has overstepped the just line of its 
authority, and attempted to restrict Congress in this 
matter, when the framers of the Constitution decided 
to leave them free of such restriction.*' The New York 
Times stated that: "The effect of the decision, if 
allowed to stand, upon the future of the country if it 
shall imfortunately be involved in war, will constitute 
its worst feature. It strips the Nation of one of its 
means of warfare and defense." 

As soon as it became evident that, though the case 
before the Court involved only the effect of the Act 
upon contracts made before its passage, the reasoning 
of the majority opinion was such as to make it uncon- 
stitutional both as to contracts entered into after, as 
well as before, a strong movement arose in the com- 
munity to urge the Court to grant a rehearing, or to 

^ NaHon, Feb. 10, 17, 1870; Harper's Weekly, March 19, April 16, 1870; Spring- 
fiM Weekly RepMican, Feb. 11, 18, 1870; New York Times, Feb. 12, March 8, 1870. 



238 THE SUPREME COURT 

review the whole question on argument of other cases 
pending on the docket.^ Those who believed the de- 
cision to be disastrous not only in its financial, but in 
its governmental effect, were encouraged in this move- 
ment by the fact that at last the two long-pending 
vacancies in the Court had been filled and the appoint- 
ees confirmed. For on February 7, on the same day 
and at the very time when Chief Justice Chase was 
reading his opinion in the Legal Tender Casey President 
Grant sent in to the Senate the names of William Strong 
of Pennsylvania to fill Grier's place, and of Joseph P. 
Bradley of New Jersey to fill the new Judgeship for 
which Hoar's name had already been rejected.* The 
legal qualifications of both were eminent; and while 
they were believed to favor the necessity of a strong 
National Government, both were entirely free from 
political entanglements, or suspicion of political ac- 
tivity or ambition. Strong was sixty-two years of age, 
and had been for eleven years a Judge of the Supreme 
Court of Pennsylvania. Bradley was fifty-seven years 
of age; he had been highly prominent at the Bar of 
New Jersey, which regardless of party had urged his 
appointment, and though a Republican, he had been 
earnestly recommended to the President, in the previous 
December, by a Democratic Judge, Grier.' 

^ The Nation^ March 24, 1870, said that the scheme for reversing the decision 
grew out of the notorious dislike of the Senators for Chief Justice Chase and out 
of e£forts of moneyed corporations. "So far as the public is concerned, there has 
not been a breath of popular discontent to justify any political movement; and 
yet grave men have doubted the result ; Senators have fully expressed their opin- 
ion that the decision must be reversed; Congressmen have furiously denounced 
it as rivalling the Dred Scott decision in bad preeminence." 

' See Am0r, Law Rev., IV, 894, saying that Hoar*s rejection was a scandal, and 
that the reasons given by the Senate as to the tartness and acerbity of Hoar's man- 
ners were puerile and trivial. 

It may be noted that Bradley had a middle initial "P", but no middle name. 

'The New York Tribune, Feb. 9, 1870, said: "General Grant has nominated 
very good lawyers for the Supreme Court, but none truer or fitter than Bradley" ; 
■ee also New York Times, Feb. 8, 1870. 



THE LEGAL TENDER CASES 239 

The coincidence that the appointments were made on 
the day of the rendering of the adverse Legal Tender 
decision soon gave rise to a story, which later had much 
currency, that "Grant packed the Court" for the pur- 
pose of obtaining a reversal of the decision. The charge 
has been conclusively answered many times, but still 
occasionally crops out in attacks on the Court.^ The 
facts themselves disprove the accusation. Both Judges 
were nominated on recommendation of Hoar, who later 
formally stated that their views on the Legal Tender 
issue had nothing to do with his recommendation. 
Strong's appointment had been decided on, fully a 
month before February 7; and Bradley's had been 
urged on the President and favorably considered, be- 
fore Hoar's own appointment in the previous Decem- 
ber.* The President himself formally stated that he 
had no advance knowledge as to the decision of the 
Court, and members of his cabinet later stated the same 
thing. The newspapers of the time clearly show that 
there was no leak as to the decision, for their published 
forecasts were inaccurate.' Since practically every 
State Court (except Kentucky) and every prominent 
Republican lawyer held the view that the Legal Tender 
Act was constitutional it would have been impossible 
for the President to find any State Judge or any lawyer 

^ See Nation, April 7, 1870, March 7, 1872. In its issue, April 11, 1872, it stated 
that it considered that Hoar (the Ex-Attomey-6eneral) had fully answered the 
charges ; Und,, April 6, 1872, Nov. 9, 1876. See especially for full statement. The 
Charge Cff Packing the Court against President Orant and Attorney-General Hoar 
(1895), by George F. Hoar; see also Hoar's speech, April 1, 7, 1874. ^Sd Cong,, 
1st Sese. 

' The New York Herald, Dec. 16, 1869, said that Strong's name was being consid- 
ered for Grier's place ; see also New York Tribune, Feb. 7, 1870 ; Neio York World, 
Feb. 15, 1870, saying that Bradl^ was Grant's original choice before he appointed 
Hoar. 

' See Washington correspondent of Boston Daily Advertiser, writing Feb. 6, 1870. 
That at least one prominent statesman, however, had advance knowledge is seen 
from (jeorge S. Boutwell's statement in his Reminiscences of Sixty Years (1902), 
rV, 209, that Chase told him of the Court's conclusion "two weeks in advance of 
the delivery of the opinion." 



240 THE SUPREME COURT 

of his own party who differed from Strong and Bradley 
in the view which they later expressed on the Supreme 
Bench. Moreover, if Grant had desired to "pack the 
Court**, it would have been far easier to do so by ap- 
pointing some Judge more acceptable to the Radicals 
than the conservative Strong, and also by appointing 
a carpet-bag Judge from the South instead of Bradley ; 
for it was known at the time of the appointments that 
Strong was not popular, and that Bradley's confirmation 
by the Senate would be very doubtful, o.wing to the 
prevalent sentiment that at least one vacancy should 
be filled by a Southern lawyer. * * Bradley 's nomination 
is a surprise," said the New York Tribune* s Washington 
correspondent, "and the conmients of Senators make 
the opinion general that both are looked upon with dis- 
favor. In regard to Judge Strong, the time of his nom- 
ination is very inopportune, on account of the decision 
of the Supreme Court just rendered on the Legal Tender 
Cases. That decision has stirred up the more radical 
members of the Republican party in Congress and es- 
pecially the Senate. . . . Judge Strong they think a 
man as conservative as either Chase or Field. . . . 
Bradley lacks a National reputation"; and the New 
York Herald said that "the Senate vigorously inveigh 
against Bradley. The carpet-bag Senators are par- 
ticularly ferocious on the appointment of Bradley . . . 
and demand to have a man from their own section. 
A pure Southerner is their ultimatum. Bradley, though 
personally acceptable to every Republican Senator, 
notwithstanding his conservative record, carries with 
him the same objection as Hoar as to locality." There 
was "universal feeling of surprise" at Bradley's ap- 
pointment and "Northern and Southern Senators have 
strongly urged the President to withdraw it," said the 
New York World. While Strong was finally confirmed 



THE LEGAL TENDER CASES 241 

by the Senate on February 18, Bradley's nomination 
was postponed, awaiting action on a bill then pending 
in Congress requiring Judges to reside in the Circuit 
to which they were appointed ; but it was finally con- 
firmed on March 21, by a vote of forty-six to nine, 
receiving the support of the Democrats and the oppo- 
sition of the Southern Republicans.^ The best evidence 
that the Democrats did not then suppose that Grant 
was "packing the Court" appears to be the highly 
fiattering editorial comment of the New York World on 
Judge Bradley. "By this result, the Court gains an 
accomplished jurist, and the carpet-baggers are dis- 
gracefully defeated in their scheme of foisting upon 
the highest judicial tribunal in the land one of their 
own class. . . . The Democratic Senators, have, from 
the first, hailed the nomination of Mr. Bradley as that 
of one so respectable and worthy, though a Republican, 
that the wonder grew how Grant ever came to pick 
him out. . . . He is in all respects worthy of it. We 
confidently look to him and to Judge Strong as active 
allies with the Chief Justice and his conservative 
brethren in keeping the great tribunal of the land up 
to the mark where Marshall and Taney left it. Mr. 
Bradley goes on the Bench utterly untrammelled." 

On March 25, four days after confirmation of the 
Judges, Attorney-General Hoar produced a sensation 
by moving in the Supreme Court that two of the Legal 
Tender Cases y Latham v. United States and Deming v. 
United States^ then pending and which involved con- 
tracts made after the passage of the Act be taken up for 
argimient. While predictions had been current that 

^ New York Herald, Feb. 8, 18, 1870; New York World, Feb. 9, 1870, March 1. 
3, 1870. On March 2, Bradl^*8 name came up m the Senate and after speeches 
by the Southern Senators opposing him, action was postponed. New York World, 
March 22, 2d, 1870; Boeton Daily Advertiser, March 22, 1870, described fully the 
confirmation and the opposition of Southern Senators and of Thayer of Nebraska. 



242 THE SUPREME COURT 

such an attempt would be made, and while the Radical 
Republicans and the Greenbackers were threatening 
dire results politically and financially, unless the Court 
should reopen the question, nevertheless, the general 
public had assumed that the question of constitution- 
ality was to be considered as completely settled in the 
Hepburn Case} Hence, when on April 1 the Court 
announced that the cases would be heard on April 11, 
on all the questions involved, thus reopening the Hep- 
hum Casey the action produced a marked sensation in 
the community ; ^ and there was much sjmapathy ex- 
pressed with the vigorous dissent filed by Chief Justice 
Chase, and Judges Nelson, Clifford and Field. The 
Court's reasons, however, for granting a rehearing were 
well staited later by Judge Strong, 12 Wall. 529 : "It 
would be difficult to over-estimate the consequences 
which must follow our decision. They will affect the 
entire business of the country, and take hold of the 
possible continued existence of the government. If it 
be held by this Court that Congress has no constitu- 
tional power under any circumstances, or in any emer- 
gency, to make treasury notes a legal tender for the 
pajmient of all debts (a power confessedly possessed 
by every independent sovereignty other than the 
United States), the Government is without those means 
of self-preservation which, all must admit, may, in cer- 
tain contingencies, become indispensable, even if they 
were not when the Acts of Congress now called in ques- 
tion were enacted. It is also clear that if we hold the 
Acts invalid as applicable to debts incurred or trans- 
actions which have taken place since their enactment, 
our decision must cause, throughout the country, great 
business derangement, widespread distress and the 

1 See NaHon, March 24, 1870. 

* See Botion Daily Advertiser. April 2, 1870. 



THE LEGAL TENDER CASES «4S 

rankest injustice. . . . These consequences are too 
obvious to admit of question/' 

Of course, the answer to all this was, that the Court 
should not concern itself with "consequences", but 
only with the question of constitutional limits, regard- 
less of results produced. There was, however, popular 
support in many directions, chiefly based on financial 
reasons, for the Court's action in ordering a rehearing ; 
while the argument that the authority in the Govern- 
ment was requisite for the public security was naturaUy 
an appealing one. Harper^s Weeklpy which favored 
reargument, issued this warning to the Court: "The 
relations of the Court to Congress, as prescribed in the 
Constitution, constitute a powerful reason for the ut- 
most delicacy in the treatment of questions of Congres- 
sional power. . . . Far be it from us to wish to limit 
in any degree the perfect independence of the Judiciary, 
as we regard this freedom as the sheet-anchor of our 
safety ; but prudence requires that a tribunal, subjected 
so materially to the power of Congress by the funda- 
mental law, should continue to use the same delicacy 
in questions affecting Congressional power which gov- 
erned the Court when Marshall presided over its delib- 
erations. Its dignity and usefulness will always be 
promoted by extreme caution. The exhibition of this 
care will command public confidence, and prevent ex- 
tremities in providing for the regtdations which Con- 
gress is empowered to make." The Nation, on the 
other hand, stated that there was danger to the Court in 
the process through which it was now going, and that it 
would never long survive the loss of popular respect : 
"We find very little difference of opinion in the press 
as to the gross impropriety (to use a veiy mild term) 
of the reopening of the Legal Tender decision. It is, 
in every way one looks at it, a blunder." It feared. 



244 THE SUPREME COURT 

moreover, that this was a beginning of refusal by parties 
affected by a decision to accept any ruling as final ; and 
it said that ^'the country ought to speak out boldly 
against these disgraceful beginnings/'^ The Spring^ 
field Republican said that it still hoped that ^Hhe 
country is to be spared this great wrong and scandal of 
a reversal." 

Whatever may have been the popular view in 1870, 
there is no doubt that ever since that era the Court's 
action in reopening its first decision has been regarded 
as a very grave mistake — and a mistake which for 
many years impaired the people's confidence, not in the 
honesty, but in the impartiality and good sense of the 
Court. Not only was the Court's action unfortunate, 
but the manner in which it was taken caused an unpleas- 
ant degree of friction, — an instance of which on April 
11, 1870, was described by a Washington correspondent 
as follows: "There was a very lively scene at the 
Supreme Court this morning, the oldest lawyers prac- 
ticing there having witnessed nothing like it in their 
day." Counsel during the argument of the Latham and 
Deming appeals having stated that when Evarts was 
Attorney-General an order had been made by the Court 
that these cases should abide the result in the Hepburn 
Casej Attorney-General Hoar now denied that there 
had been any such order, and "the Chief Justice here 
interrupted to say that according to his recollection 
such an order had been made. This was said with 
evident feeling and Justice Miller remarked with equal 
feeling that he knew of no such order. Justice Nelson 
came to the rescue of the Chief Justice, and Justice Davis 
spoke up, saying that he concmred with Justice Miller. 
The Chief Justice repeated his statement with emphasis 

> Harper's Weekly, April 16» 1870; NaHon, April 7, 14. 21. 28. 1870; SpringfiM 
RepubUoan, April 8, 1870. 



THE LEGAL TENDER CASES 245 

and hardly suppressed passion, and then upon the sug- 
gestion of Judge Davis, who remarked that it was not 
worth while to bandy words, it was decided that the 
cases might go over to next Monday. The Attorney- 
General meantime bowed to the recollection of the Chief 
Justice, and merely expressed his regret that in a matter 
of this importance there was no record/'^ This action 
of the Court, however, in reopening the question had 
no immediate effect ; for on April 18, 1870, the coun- 
sel for the appellants in the Latham and Deming Causes 
moved to dismiss their appeals, and after some discus- 
sion and variance of opinion, the motion was granted.^ 
The American Law Review expressed the hope, which was 
shared by most conservative men, that the question 
was finally settled and would not be disturbed in the 
Court: "The inferior Courts throughout the country 
have been adapting their opinions to the decision pro- 
nounced in Hepburn v. Qriswoldy and declaring contracts 
made previous to the passage of the Legal Tender Act, 
payable in gold. This has gone so far that we observe 
in our recent exchanges one or two reported decisions 
following Hepburn v. Qriswold. To upset Hepburn v. 
Qriswold now would be to upset all these subsequent 

1 Bofton DoAy Adoeriiser, April 12, 1870. On April 18, it said that the afFair 
had been the subject of a good deal of talk among lawyers present and that the Chief 
Justice showed strong passion. " It is evident that there is a state of feeling in the 
Court by no means pleasant." Amer, Law Reo. (1870), V, 158, 866; the Nation, 
April 14, 1870, spoke of "an unseemly squabble on the bench in open Court." 

Chase prepared a memorandum in which he made allegations that the Judges 
who formed the minority in the Hepburn Case and who now were part of the major- 
ity of the Court had agreed that the Hepburn Case decision should settle all the 
other cases pending. This raised a point of bad faith on the part of his associates, 
and learning that th^ were prepared to deny it. Chase withdrew his memorandum. 
Later its substance appeared in a biography ; whereupon in 1001, Charles Bradley 
in MiecellaneauB Writinge of the late Hon. Joseph P. Bradley (1902) published for 
the first time a statement written by Judge Miller and signed by the majority of 
the Court, April 80, 1870, giving a detailed statement of all facts concerning these 
cases, which completely disproved Chase's allegation ; see also Oreen Bag (1902), 
XIV, 208. 

* Laiham and Deming* s Appeals^ 9 WaU. 145 ; Botion Daily Adeertiser, April 22» 
1870. 



246 THE SUPREME COURT 

adjudications; and that the business interests of the 
country can demand such chronic vacillation in the law 
as this would imply, we cannot believe. And this, too, 
is a minor point. The great objection to opening the 
Legal Tender decision is, that the Supreme Court cannot 
do it without degrading itself in the eyes of all intelli- 
gent men ; and this fact, we should think the new mem- 
bers of the Court would recognize, quite as distinctly as 
the old. We believe we express the opinion of every un- 
biased lawyer throughout the United States, when we 
say that the reopening of the Legal Tender Cases would 
be a terrible blow at the independence and dignity of 
the profession." 

There was, moreover, a general relief over the with- 
drawal of the appeals, since it seemed apparent that, if 
the decision should be reversed, a political movement 
might be initiated to reverse this second decision, by 
adding still more Judges to the Court; and thus the 
question of the Judiciary might be injected into the 
approaching Presidential campaign. All hopes, how- 
ever, that the issue might be considered settled were 
dashed when, on April 30, 1870, the Court ordered the 
reargument of the case of Knox v. Lee, 12 Wall. 467, 
which had been already argued in November, 1869, and 
which involved primarily the confiscation law of one 
of the Confederate States. At the reargument on 
February 23, 1871, counsel for both sides admitted the 
validity of the Legal Tender Acts so far as they affected 
this case, and did not raise the point ; but at its close, 
Clarkson N. Potter, who had argued the Hepburn Case, 
asked to be heard on the constitutional question ; and 
the Court, over the dissent of Judges Clifford, Nelson 
and Field, ordered a second reargiunent by Potter 
and Attorney-General Akerman, on the constitutional 
question. The matter being thus reopened, and heard 



THE LEGAL TENDER CASES 247 

on April 18, 19, 1871, the Court rendered a decision, 
ten days later, on May 1, reversing ffepfewm v. Griswold 
and sustaining the Legal Tender Acts in the broadest 
possible manner, as a valid exercise by Congress of the 
war power, in respect to all contracts whether made 
after or before the passage of the Acts. In this opinion, 
the new Judges Strong and Bradley united with the 
former minority, Swayne, Miller and Davis, while the 
Chief Justice, Nelson, Clifford and Field dissented and 
reaffirmed their previous decision. 

This reversal by the Court of a decision which had 
been rendered only fifteen months before was regretted 
on all sides, both by many who agreed with its conclu- 
sion as well as by those who held the contrary view. 
"It is a grievous mistake,'' said the Springfield Repub- 
lican. '* It will greatly aggravate the growing contempt 
for what has long been the most respected and the most 
influential department of our government, its Judiciary.'* 
"The present action of the Court," said the iVcrfion," is 
to be deplored, first, because this sudden reversal of a for- 
mer judgment which had been maturely considered after 
full argimient, will weaken popular respect for all de- 
cisions of the Court including this last one; second, 
because the value of a judgment does not depend on the 
number of Judges who concur in it — Judges being 
weighed, not counted, and because of the rehearing of a 
cause, in consequence of the number of Judges having 
been increased, is peculiarly, and for obvious reasons, 
objectionable, where the number is dependent on the 
will of the very body whose acts the Court has to re- 
view, and which in this very case it is reviewing ; and 
third, because the Judges who have been added to the 
Bench since the former decision are men who were at 
the Bar when that decision was rendered, and were in- 
terested professionally and personally in having a dif- 



248 THE SUPREME COURT 

ferent decision. We do not mean to insinuate that this 
has affected their judgment, but we do say that it is not 
enough for a Judge to be pure; he must be likewise 
above suspicion; that is, he miist not only be honest, 
but must give no man any reason for thinking him 
otherwise than honest." ^ Many who believed in their 
absolute honesty felt that the new Judges, as a matter 
of propriety, should have refrained from taking part in 
the decision ; and they agreed with the New York Trib- 
unej which said that the assurance given by various 
papers that the new Judges divested themselves abso- 
lutely of their railroad interests in going upon the Bench 
did not touch the point of the complaint. ^'It was an 
essentially improper thing that a recent and earnest 
paid advocate of the constitutionality of the Legal 
Tender Act should take his seat upon the Supreme 
Bench to decide its constitutionality. Let him be as 
pure as snow, he cannot, for this, escape condemna- 
tion. ... It will not be easy to restore pubUc respect 
and reverence for the tribunal which this decision has 
sacrificed.*' With this violently Republican paper, the 
equally violent New York World joined in assailing the 
decision and reiterating the charge, which had been 
made in the previous year, that the Court had been 
"packed" — a charge which, as noted above, has since 
been completely exploded. "The decision provokes 
the indignant contempt of thinking men. It is gen- 
erally regarded not as the solemn adjudication of an 
upright and impartial tribunal, but as a base compli- 
ance with Executive instructions by creatures of the 
President placed upon the Bench to carry out his in- 
structions." And in this curious combination of news- 

1 NaJAofKy April 27, 1871 ; New York Tribune, May 1, t, 1871 ; New York World, 
Biay 8, 8, 1871 ; New York Times, May S, 1871 ; New York Herald, May S, 1871 ; 
Springfield Republican, May 5, 1871; Harper*e Weekly, May StO, 1871; Cinein- 
noH Enquirer, May 6, S, 10, 1871. 



THE LEGAL TENDER CASES 249 

paper opinion, the New York Evening Post joined, de- 
claring that the decision was the voice of the Adminis- 
tration, and not of the law, and that under this practice 
of reconstituting the Court, if tolerated, "the Consti- 
tution and its interpretation cease to limit the National 
Government and become just what the appointing 
power choose to make them." 

On the other hand, an equally curious combination 
of diverse political and other interests defended the 
decision. "Happily for the country, the opinion of 
the Chief Justice did not prevail,** said the New York 
Times. "The country will be satisfied," said the New 
York Herald. That the character of the new Judges 
"forbids any suspicion of other than the best motives 
in their action", was the view of Harper's Weekly; and 
it added (with some extravagance of statement) that 
the chief class of person who would regard the decision 
"with profound disgust" was "all those who wish to 
see the powers of the National Government against its 
enemies weakened." And the Cincinnati Enquirer, 
a Democratic advocate of greenbacks, stated that the 
people of the country would be benefited by the de- 
cision, though the Republican charges against the Re- 
publican Judges were " very mortifying to every Amer- 
ican who has pride in the honor of his country and in 
the integrity of the Judiciary." There was thus pre- 
sented the singular spectacle of strong adherents of 
National power opposing a judicial opinion which voiced 
most extreme limits of such power, and ardent advo- 
cates of a non-centralized Government praising a de- 
cision which vastly increased the authority of the Na- 
tional Government. 

In the year following its decision in the Legal Tender 
Cases y the Court once more upheld in the most extreme 
terms the powers of the National Government in its 



250 THE SUPREME COURT 

relation to the States. In United States v. TarhlCy 13 
Wall. 397, a State Commissioner of Wisconsin had is- 
sued a writ of habeas corpus discharging a man held by 
the United States Army for trial by military tribunal 
on charge of desertion. The Court held, on March 11, 
1872, that if on application for habeas corpiis made to 
a State official it should appear by the return that the 
petitioner was "confined under the authority or claim 
and color of authority of the United States by an officer 
of the Government", the writ must be refused; and 
that the State official had no power to issue a writ under 
such conditions. "Whenever any conflict arises be- 
tween the enactments of the two sovereignties, or in the 
enforcement of their asserted authorities, those of the 
National Government must have supremacy until the 
validity of the different enactments and authorities can 
be finally determined by the tribunals of the United 
States. This temporary supremacy, until judicial 
decision by the National tribunals, and the ultimate 
determination of the conflict by such decision, are es- 
sential to the preservation of order and peace, and the 
avoidance of forcible collision between the two Govern- 
ments." It is interesting to note that a Democratic 
Judge, Field, wrote this opinion, reasserting the Na- 
tional supremacy previously voiced by a Democratic 
Chief Jiistice in the Booth Case while the Republican 
Chief Justice, Chase, dissented in an opinion strongly 
upholding the powers of the States. 

In 1873, in Olcotl v. Supervisors, 16 Wall. 678, the 
Court reaffirmed its adherence to a doctrine, which it 
had first announced in 1864, and which, upheld through- 
out this critical post-war period, probably had a 
more important effect upon the commercial develop- 
ment of the country than any other of the Court's 
extensions of National power. This was the doctrine 



THE LEGAL TENDER CASES 261 

by virtue of which the Federal Courts were held to be 
vested with power to disregard the decisions of State 
Courts on the validity of the issue of municipal bonds. 
The decision asserting this power arose out of eco- 
nomic conditions which had prevailed for a long period 
prior. From 1840 to 1860, the States of the Union, es- 
pecially in the Central West, had run riot in authoriz- 
ing municipalities to vote money and to issue bonds, 
and the constitutional power to extend such aid to 
public corporations had been, in general, upheld by the 
State Courts.^ Gradually, the extensive frauds com- 
mitted by both the officers of municipalities and by 
officers of the railroads, the enormous loans made to 
corporations which failed to fulfill the objects for which 
the money was loaned or granted, produced a revulsion 
of feeling ; counties, cities and towns entered on a course 
of repudiation, and State Courts reversed or overruled 
their previous judgments and denied the power of the 
Legislatures to authorize municipalities to issue such 
bonds. Such were the conditions, therefore, which 
existed, when, in 1864, the case of Gelpcke v. Dvbuque 
came before the Court on appeal from a Circuit Court 
of the United States. The State Supreme Court of 
Iowa had, in many opinions from 1853 to 1859, sustained 
the validity of municipal bonds issued in aid of rail- 
roads ; but in 1860, it had given an opinion overruling 
all the previous cases. Suit being brought on bonds 
issued by a city while the former State decisions pre- 
vailed, it was contended by cQunsel for the city that the 
Court must adhere to its established doctrine of follow- 
ing the latest construction of a State Constitution made 
by a State Court. But by adopting such a rule in these 

' See especially deflcription of these conditions by Judge Jeremiah S. Black in 
SharpUu ▼. Mayor, 21 Pa. St. 147 ; Awier. Law Reg. (1868). n ; in RUekie ▼. Frank- 
lin County, 22 Wall. 67, in 1875, Judge Davis referred to " the weU known mania of 
the people to run in debt for public improvements.*' 



252 THE SUPREME COURT 

cases, the Court would give countenance to repudiation, 
and would bring untold losses upon thousands of in- 
nocent bondholders who had invested their money on 
the faith of apparently established law. To deal with 
such a situation, the Court apparently had but three 
possible courses open to it ; either to follow the latest 
State decisions ; or to follow the earlier decision on the 
ground that it was, in fact, the ^'latest settled adjudi- 
cation " ; or to hold that the question was one of com- 
mercial law, and that in accordance with its decision 
in Stoift v. TysoUy it would determine all such questions 
for itself regardless of the law of the State. Instead of 
following either of these courses, however, the Court 
decided the case on an entirely new ground ; and in a 
noted opinion by Judge Swayne held that where a con- 
tract was valid by the law of a State as expounded by 
its Judiciary at the time it was made, it could not be 
impaired, either by subsequent action of a Legislature 
or decision of a State Court, and that this rule '^ rests 
upon the plainest principles of justice." While not 
unmindful of the importance of uniformity in the de- 
cisions of the Court, and those of the highest local 
Courts, "we shall never", he said, "inundate truth, 
justice, and the law, Ijecause a State tribunal has 
erected the altar, and decreed the sacrifice." And in 
later cases, it held that "such a rule is based upon the 
highest principles of justice." While it was difficult 
to reconcile this equitable doctrine with the duty im- 
posed on Federal Courts by the Thirty-Fourth Section 
of the Judiciary Act to follow the laws of the State, and 
while from time to time the Court advanced varying 
grounds for its action,^ nevertheless, it continued for the 

^ The Court's theory of impairment of obligation of contract by judicial deci- 
sion was reiterated in Oleott v. Supervisort, 16 WaU. 678, in 1878, and Towtukip of 
Fine Qro9e ▼. TaieoU, 19 WaU. 666, in 1874, but was gradually abandoned until 



t 

\ 



THE LEGAL TENDER CASES «58 

next twenty years consistently to disregard opinions of 
the State Courts denying the validity of these municipal 
railroad aid bonds, to formulate its own commercial 
law on the subject and to discountenance every form 
of attempted repudiation of debt.^ While the doctrine 
thus firmly asserted by the Court had an inestimable 
effect upon the material and moral prosperity of the 
country in restoring confidence in a class of securities 
which were an indispensable factor in the development 
of municipal and industrial enterprises, it became, on 
the other hand, a somewhat serious factor in the history 
of the relations of the Court to the American people. 
For owing to the pronounced feelings of hostility to the 
Federal Judiciary which these bond decisions aroused 
through the Central West, popular confidence in, and 
support of, the supreme tribunal were weakened, at the 
precise time when such confidence and support were es- 
pecially needed. These bond decisions were rendered 
during the partisan and passionate contests which cen- 
tered around Reconstruction legislation, and at the very 
period when the Court was being made the subject of 

it WM entirely repudiated in 1888 in New Orleans Waterworks v. Louisiana Sugar 
Co^ 125 U. S. 18, 80. See Impairment qf Contract hy Judicial Decisions, by Coniad 
Reno, Amer. Law Rev, (1889), XXXII. Ph>f. James B. Tfaayer upheld the decision 
on the ground that it was a rule adopted by the Court to shape its discretion in mat^ 
ten arising in the Federal Circuit Courts in suits based on diverse citizenship and in- 
volving the construction of State laws and Constitutions, and termed it a just and 
wholesome one. The Scope of Qdpcke v. Dubuque, Hon. Law Rev. (1891), IV ; 
Und. (1898). Vm. 

^Sot Municipal Corporations (1874, 2d ed.) by John F. Dillon, sec. 416; The 
Ruie in Odpeke v. Dubuque, by John M. Read (Chief Justice of Pennsylvania), 
Amer. Law Res. (1875), IX; RaHroad Aid Bonds in ike Supreme Court, by James 
F. Mister, Amer, Law Reg, (1878), n. b., XVII ; Statutory Fowers in Bond Cases, 
ibid. (1881), N. s., XX; Munidpid Bonds, by Frank W. Hackett, Bare, Law Rev, 
(1891), V; see also Law qf Municipal Bonds, in Southern Law Ree. (1876), n. b., 
II ; (1881), VII : "The Supreme Court has upheld the right of holders with a strong 
hand, and has set a face of flint against repudiation, even when made on legal 
ground deemed solid by the State Courts, by municipalities which had been de- 
ceived and defrauded. That such securities have any general value left is largely 
due to this course of adjudication and to the reliance f dt by the public that it will 
itand firmly by its doctrines." 



254 THE SUPREME COURT 

most violent attacks in Congress and in the press. 
That the Court had taken a position in the bond cases 
which must bring it into disfavor with large portions of 
the pubUc had been predicted at the outset by Judge 
MiUer, in his strong dissenting opinion in the Gelpcke 
Case ; and the fulfillment of his prophecy was seen in the 
numerous clashes which ensued during the next thirty 
years, and which resulted in bringing before the Court 
for its decision during that period approximately three 
hundred municipal bond cases — a larger number than 
on any other subject presented for its consideration.^ 

^ Judge Davis said in Tkonuon v. Lee County, 8 Wall. 827, in 1866 : "There is 
hatdly any question connected with this species of securities that has not been dis- 
cussed and decided by the Court." This statement showed curiously little appre- 
ciation of the troubles that were to face the Court, since in succeeding years the Court 
had before it about three hundred cases involving such bonds. Of these cases, 
sixty-five arose in Illinois ; fifty in Missouri ; twenty-five in Iowa ; twenty-two in 
Kansas; eighteen in Wisconsin; fourteen in New York; eleven in Indiana; nine 
each in Kentucky and Tennessee ; the others being scattered over eighteen States ; 
none, however, arising in New EngUnd. 



CHAPTER THIRTY-TWO 

THE SIAU6HTERH0USE CASES AND THE DEATH 

OF CHASE 

1878 

As the preceding chapters have shown, the period of 
Chase's Chief Justiceship had constituted an era of 
Nationalism, and the pronounced trend of the Court 
was significantly noted at this time in a review of the 
first digest of decisions of the Federal Courts: "The 
great increase in the strength and influence of the Fed- 
eral Government, which has been the natural conse- 
quence of the triumph over a gigantic rebellion, is no- 
where more clearly evinced than in the enhanced 
interest felt by the Bar of the whole country in the de- 
cisions of the Federal Courts ... or in the newly felt 
importance of the Federal Judiciary." * With the year 
1873, however, there came a distinct reaction from this 
extreme Nationalism. That the Court from 1870 to 
1873 was receding somewhat from the almost unvaried 
support which it had theretofore given to Congressional 
power had been seen in the increased instances in which 
it had exercised its function of declaring Federal leg- 
islation to be violative of the Constitution. While in 
the eighty-one years from 1789 to 1869, only four Acts 
of Congress had been declared invalid, in the four years 
from 1870 to 1873, six of such Acts were held unconsti- 
tutional.^ Signs of a reaction in favor of the State 

^ We9iem Jurist, U, 819, review of Brightly's Digest. 

^Marlmry ▼. Madison (1809), 1 Cranch, 187; Dred 8coU v. Sandford (1857), 
10 How. 898 ; Gordon v. UnUsd States (18«5), 2 Wall. 561 ; Ex paHe Garland (1867), 
4 WaU. 888; Hepimm v. Griswold (1870), 8 WaU. 608; United States v. De Wiit 



«66 THE SUPREME COURT 

powers had appeared as early as 1870, when, two months 
after the first Legal Tender Case decision, the Court 
upheld, in Thomson v. Union Pacific R. /J., 9 Wall. 579, 
the right of a State to tax the property of a railroad 
even when built with Government money and acting 
as a Government agency. Attorney-General Hoar 
had argued eloquently against such an interference, say- 
ing : ""It is a military, postal and commercial road and 
came out of the throes of the rebellion. It -was de- 
signed to promote the imity and indivisibility of our 
people ... a work which more than any other ever 
undertaken by the Government tends to consolidate 
peace and to maintain the dignity and reflect the glory 
of the nation." The Court, however, by Chief Justice 
Chase, held that while taxation of the agency is taxation 
of the means employed by the Government, "there is a 
clear distinction between the means employed by the 
Government and the property of agents employed 
by the Government. . . . Taxation of the agency is 
taxation of the means ; taxation of the property of the 
agent is not always, or generally, taxation of the means.'* 
In the absence of interposition by Congress to protect 
this property from State taxation, it held that it must 
be assumed that the State power to tax was not being 
employed so as to defeat or hinder the operation of the 
National Government.^ 

Another sign of reaction came in 1871, when, one 
month before the second Legal Tender Case decision, 
the Court had occasion, in Collector v. Day, 11 Wall. 113, 

(1870), 9 Wall. 41 ; Justices v. Murray (1870), 9 WaU. 274 ; Collector y. Day (1871), 
11 WaU. US; United States v. Klein (1872), 18 WaU. 128; UniUd States v. B. A 0. 
R. R. (1873), 17 WaU. 822. 

^ See Union Pacific R. R. v. PenisUm, 18 WaU. 5, decided Dec. 15, 1878, in which 
the same dedaion was made as to a railroad chartered by Congreas; see United 
States y. Union Pacific R, R., 91 U. S. 72; United States v. Burlington & Mo, River 
R. R., 98 U. S. 834 ; PlaU y. Union Pacific R. R., 99 U. S. 48; Union Pacific jR. A. 
y. United States, 99 U. S. 402; Union Pacific R. R. y. United States, 104 U. S. 862; 
Union Pacific R, R, y. United States, 117 U. S. 355. 



THE SLAUGHTERHOUSE CASES 257 

to consider the right of Congress to impose in time of 
war an income tax on the salary of a State judicial of- 
ficer. It had held that the sovereignty of a State could 
not thus ""be crippled, much less defeated by the taxing 
power of another Government. . . . The exemption 
rests upon necessary implication, and is upheld by the 
great law of self-preservation; as any government, 
whose means employed in conducting its operations, if 
subject to the control of another and distinct govern- 
ment, can exist only at the mercy of that government.'' 
This decision, said the Cincinnati Enquirer ^ "that the 
States have rights which are as sovereign as those of 
the Greneral Government, and that the maintenance of 
their political dignity and sovereignty is as essential 
to good order and the perpetuity of free institutions as 
is the maintenance of the political dignity and sover- 
eignty of the Federal Government, knocks the pins from 
under the trestle work the Republicans have been erect- 
ing, and over which they hoped to march the people 
from a land of freedom to one of despotism." ^ 

It was with the decision of the famous Slaughterhouse 
Cases, 16 Wall. 36, in 1873, however, that the change in 
the attitude of the Court became most marked. In 
these cases, the Court, in construing for the first time 
the scope of the Fourteenth Amendment, rendered a 
decision which profoundly affected the course of the 
future history of the coimtry. 

Though the Amendment had been proclaimed to be 
in force July 28, 1868, nearly five years had elapsed 
before the question of its construction had been pre- 
sented for determination by the Court." These Slaugh- 

^ CineinnaH Enquirer, May 6, 1871 ; New York WtyrU, May 2, 11, 1871 ; the New 
York Tribune, April 29, May 8, 1871, attacked the decision. 

* See 10 Wall. 278, in 1870, when the Court considered in the Slaughterhouse 
Ctuee, the effect of a writ of error as a supersedeas. The first case in which the ap- 
plicability of this Amendment was urged was Worthy ▼. Commieeionere, 9 WaJL 

VOL. m — 9 



258 THE SUPREME COURT 

terhouse Cases had been pending since 1870 ; they had 
been argued in January, 1872, but as Judge Nelson was 
absent,^ and as there was a division of opinion among 
the Judges, they were argued again, on February S, 4, 5, 
1873, with supreme ability by John A. Campbell 
against Matt H. Carpenter and Thomas J. Durant, 
Jeremiah S. Black and Charles Allen.^ The facts in 
these cases presented a situation which clearly called 
for relief, if the Federal Courts had any power to grant 
it. The "carpet-bag" Legislature of Louisiana, un- 
doubtedly under influence of corruption and bribery, 
had passed a statute which granted a monopoly of the 
slaughterhouse business within certain parishes of New 
Orleans in favor of one corporation, and which deprived 
over one thousand persons of the right to engage in that 
business. There had been a general feeling of outrage 
throughout the commimity, and the right of a State to 
estabUsh such a monopoly was vigorously challenged.* 
Theretofore, the legal questions presented would have 
been purely of State concern and for exclusive decision 
by the State Courts. Now, it was contended by the 
opponents of the monopoly that rights guaranteed by 
the Fourteenth Amendment had been violated by the 
State statute, and that it not only abridged the priv- 
ileges and immunities of citizens of the United States, 

611« but the Court on Feb. 7, 1870, held that the point was not properly claimed in 
the State Court and dismiased the caae for lack of Federal jurisdiction appearing in 
the record. 

^ Judge Nelson resigned Nov. 28, 1872, at the age of eighty and after twenty- 
seven years' service on the Court (see 14 Wall. iz). To succeed him. President 
Grant was urged and expected to appoint a Judge from the South, either Thomas 
J. Durant of Louisiana or Judge Duvall of Texas; he was also urged to appoint 
William M. EvarU of New York {Harper** Weekly, Dec. 14, 1872) ; but he finally 
appointed Dec. 11, 1872, Ward Hunt of New York, a man sixty-two years of age, 
and a Judge of the New York Court of Appeals. 

' Campbell had appeared before the Court for the first time since his resigna- 
tion, in Waring v. Mayor, 8 Wall. 110, on Oct. 12, 1869. As to his part in the 
Slaughterhouae Cases, see especially John Archibald Campbell (1920), by Heniy 
G. Connor. 

'See BeoandrticHon in Louisiana afier 1S6S (1918), by Ella Lonn. 



THE SLAUGHTERHOUSE CASES 259 

but deprived them of their property without due pro- 
cess of law» and denied to them the equal protection of 
the laws ; it was further argued that it constituted an 
involuntary servitude, in violation of the Thirteenth 
Amendment. Two months after the second argument, 
the opinion of the Court was rendered by Judge Miller, 
on April 14, 1873, Judges CliflFord, Davis, Strong and 
Himt "Concurring. It stated that it was "impressed 
with the gravity of the questions raised", and recog- 
nized the "great responsibility" of the decision; that 
"no questions so far-reaching and pervading in their 
consequences, so profoimdly interesting to the people of 
this country, and so important in their bearing upon the 
relations of the United States and of the several States 
to each other, and to the citizens of the States and of the 
United States, have been before this Court during the 
official life of any of its present members" {i.e. since 
1858). After considering the history of the Fourteenth 
Amendment, the evil which it was designed to remedy, 
and its "pervading spirit", the Court held that the 
Louisiana statute did not violate the Amendment in any 
particular ; that if the right claimed by the plaintiff to 
be freed of monopoly existed, it was not a privilege or 
immunity of a citizen of the United States as distin- 
guished from a citizen of a State ; that the Amendment, 
in defining a citizen of the United States, did not add 
any additional privileges and immunities to those which 
inhered in such citizens before its adoption, that it was 
only rights which owed their existence to the Federal 
Government, its National character, its Constitution 
or its laws, that were placed under the special care of 
the National Government ; that it was not intended to 
bring within the power of Congress or the jurisdiction 
of the Supreme Court, "the entire domain of civil rights 
heretofore belonging exclusively to the States"; and 



260 THE SUPREME COURT 

that to hold otherwise would "constitute this Court a 
perpetual censor upon all legislation of the States on the 
civil rights of their own citizens." ^ Such, very briefly 
stated, was this momentous opinion. That the de- 
cision, so far as it concerned the provision of the Amend- 
ment forbidding the States to abridge the privileges and 
inmiunities of a citizen, rendered that clause a practical 
nullity, was pointed out by the dissenting Judges 
(Field, Swayne, Bradley and Chief Justice Chase). 
The construction given by the majority of the Court 
made of this clause, they said, "a vain and idle enact- 
ment which accomplished nothing, and most unneces- 
sarily excited Congress and the people on its passage" ; 
for "with privileges and immunities pertaining only to 
citizens of the United States ds suchy no State ever could 
have interfered by its laws", and no new constitutional 
provision was required to inhibit such interference. 
The supremacy of the Constitution and laws of the 
United States always controlled any State legislation 
of that character, even before the Fourteenth Amend- 
ment. Accordingly, the dissenting Judges were of 
opinion that the Amendment must be given such a 
construction as to render it of some eflFect; and they 
held that the monopoly was a "flagrant and indefen- 
sible violation of the rights of many for the benefit of 
a few " ; that grants of exclusive privileges of this kind 
were "opposed to the whole theory of free government 
and it requires no aid from any bill of rights to render 
them void", and that a right of a citizen had been vio- 

i'*The privileges of American citizenship on American soil, as distinguished 
from those of State citizenship, were hardly thought of until the Civil War had 
done its nationalizing work. They would have remained largely a matter of sen- 
timent then, had it not been for the new conditions and controversies precipitated 
by the enfranchisement of the colored race. By fundamental alterations in our 
Constitution, they have acquired a new dignity and power; but their ultimate 
range and scope have been left for the future to determine, by the slow growth of 
National institutions." The Citizen* of the United SiaAee, by Simeon £. Baldwin, 
Yale Law Joum, (1898), II, 88; MaxtpeU v. Daw (1900), 176 U. S. 581. 



THE SLAUGHTERHOUSE CASES 261 

lated which was entitled to protection under the Amend- 
ment. "By the Constitution, as it stood before the 
War/* said Judge Swayne, "ample protection was given 
against oppression by the Union, but little was given 
against wrong and oppression by the States. That 
want was intended to be supplied by this Amendment. 
Against the former this Court had been called upon 
more than once to interpose. Authority of the same 
amplitude was intended to be conferred as to the latter. 
But this arm of our jurisdiction is, in these cases, 
stricken down by the judgment just given."' 

"The decision was given to an almost empty Court- 
room and Bar,*' wrote a Washington correspondent, the 
next day, "and has as yet attracted little attention out- 
side of legal circles, although the Judges of the Court re- 
gard the case as the most important which has been be- 
fore them since the Dred Scott decision. The opinion of 
Mr. Justice Miller is held by the Bar to be exceedingly 
able, while passages in it were regarded as striking 
examples of judicial eloquence.'* ^ It was but a short 
time, however, before the Bar and the general public 
began to realize the immense scope of the decision. To 
the Radical Reconstructionists it came as a tremendous 
shock and disappointment ; for their intent in framing 
the language of the Amendment was directly contrary 
to the narrow construction now placed upon it by the 
Court. Though the country at large may not have 
understood, at the time of the passage of the Fourteenth 
Amendment, the full purpose of its very general phrase- 
ology, the Radical leaders in Congress had had very 
definite ideas in drafting and submitting it to the people. 
Not only did they desire punishment of the South (to 
be achieved through the second, third and fourth sec- 
tions, which were easily understood by the people) and 

^ BoiUm Daily Adoertiaer, April 16, 1878. 



262 THE SUPREME COURT 

the elevation of the negro to the plane of equality with 
the white man (which was to be achieved by section five, 
as well as by the Thirteenth and Fifteenth Amendments), 
but they also intended, by section one, to centralize in 
the hands of the Federal Government large powers, 
hitherto exercised by the States. The interval between 
the adoption of the Thirteenth Amendment and the 
proposal of the Fourteenth had been marked by legis- 
lation in the Southern States, designed, under the guise 
of repressing vagrancy and regulating contracts of em- 
ployment, to keep the negroes in a state of subjection ; 
and in order to gain control over the negro situation in 
the South, wide extension of Federal power, and with- 
drawal of power previously vested in the States, were 
deemed necessary. As has been said : "They desired 
to nationalize all civil rights; to make the Federal 
power supreme ; and to bring the private life of every 
citizen directly under the eye of Congress. This inten- 
tion of the Radicals, though too much involved for the 
people in general to comprehend, was quite generally 
understood by the leading editors in the North and in 
the South and by the party leaders on both sides.'* ^ 
The feelings of those Republicans who had taken part 
in framing the Amendment were clearly shown by their 
conunents on the decision. Senator Greorge S. Boutwell, 
who had been a member of the Committee on Recon- 

^ The Fourteenth Amendmeni and the States (1912), by Charies Wallace Collins, 
45. Prof. John W. Burgess said in Political Science and ConstUvtional Law (1890), 
I, 825 : "They intended to occupy the whole ground, and thought they had done 
so. The opposition charged that these Amendments would nationalize the whole 
sphere of civil liberty; the majority accepted the view; and the legislation of 
Congress for their elaboration and enforcement proceeded upon that view.*' See 
39th Cong,, 1st Sees,, 253(H2542. James G. Blaine in his Twenty Years of Congress 
(1884-1886), II, 419, said that by the decbion "the Amendment has been deprived, 
in fact, of the power which Congress intended to impart to it." 

See The Adoption of the Fourteenth Amendment^ by Horace Edgar Flack (1908) ; 
The Fourteenth Amendment (1898), by William D. Guthrie ; Contemporary Ameri- 
can History (1914), by Charles A. Beard ; The Fourteenth Amendment and the Slaugh- 
terhouse Case, by William L. RoyalU Southern Law Rev, (1879), n. b., IV, 558. 



THE SLAUGHTERHOUSE CASES 268 

struction, said that the Court had ^' erred in holding that 
there were two classes of rights, National and State/' 
Senator Timothy O. Howe declared that "the American 
people would say, as they had said about the Dred Scott 
decision, that it was not law and could not be law." 
Senator Roscoe Conkling stated that the Drafting 
Conmiittee had intended to include within the scope of 
the Amendment, not only the negro struggling upward 
from bondage, but also corporations and business in- 
terests struggling for emancipation from legislative in- 
terference. Senator George F. Edmimds, who also 
took part in framing the Amendment, said later: 
"There is no word in it that did not imdergo the com- 
pletest scrutiny. There is no word in it that was not 
scanned, and intended to mean the full and beneficial 
thing it seems to mean. There was no discussion 
omitted ; there was no conceivable posture of affairs to 
the people who had it in hand which was not considered. 
And yet it was found upon the first attempt to enforce 
its first clause . . . that the Court, by a division of five 
to four, radically differed in respect both to the intention 
of the f ramers and the construction of the language used 
by them." 

Those Radical Republicans, who opposed the deci- 
sion from a partisan standpoint, were joined in their 
denunciation by a large number of Democrats, more 
especially in the West, who, though sympathizing with 
the views of the Court in regard to the relations of the 
Nation and the States, nevertheless deplored the de- 
cision from an economic and social standpoint, in the 
support which it gave to State-created monopolies. 
Tjrpical of this form of critic was the Cincinnati En- 
quireVf which feared that the " degeneracy of the Court" 
was displayed by this decision upholding "a law passed 
by a so-called Legislature, elected by the bayonet and 



264 THE SUPREME COURT 

through the agency of the most degraded and ignorant 
portion of the population ... to reward particular 
favorites. . . . We are astonished at this decision of the 
Court for which hitherto we have had the greatest re- 
spect. We could not have believed it possible that they 
could have had any hesitancy as to their duty. ... It 
gives a legal sanction to the consummation of an outrage 
on individual rights that is almost unparalleled. It 
seems to us that, in view of the alarming precedent 
which has been set, the Court cannot maintain its 
opinion, but must recede from it. It is truly the monop- 
olists ' decision.'* It pointed out that the Fourteenth 
Amendment, originally designed for oppressing the 
Southern people, was now, as construed by the Court, 
only shelter for fraud and outrage, and not only " power- 
less for good, but powerful to harm." The opinion, it 
said, " will create a prejudice against the continued exist- 
ence of a tribunal that has such little regard for the 
interests of the public. Not since the war, nor during 
it, was there so dangerous a precedent established as 
by this decision, which gives to a political body the 
authority to create monopolies of a few persons to 
tyrannize over and rob the many, forever." ^ The 
Southern Law Review also assailed the Court for sus- 
taining a "menacing monopoly created by a corrupt 
and ignorant carpet-bag State Government." 

Opinions of this nature, however, were not generally 
shared ; for it was seen by most of the press and by the 
Bar that the decision did not, in reality, sanction mo- 
nopolies, but simply established the proposition that the 
subject of local monopoly was for the States to deal with 
and not for the Federal Government ; ^ and this was un- 

^ Cincinnati Enquirer, April 16, 17, 1878 ; The Slaughterhouee Cases, Southern 
Law Res. (1874), m ; The Fourteenth Amendment, ibid. (1878), m. b., IV. 

* The Chicago Tribune, April 18, 19, 1873, said : "The dedaion of the Court, while 
it indiiectly suatains this monopoly, does not turn upon this point. The quea- 



THE SLAUGHTERHOUSE CASES 266 

doubtedly in accord with the temper of the times. The 
country was tiring of the extensions, and, in some cir- 
cmnstances, usurpations of Federal power which had 
been the natural outcome of war and of war necessities. 
The decision marked the end of the great centralizing, 
Nationalistic movement, and the beginning of a reaction 
towards the enhancement of the powers of the States. 
"It is important," said the Nation^ "as showing that 
the Court is recovering from the war fever and is getting 
ready to abandon sentimental canons of construction." ^ 
"No one for a moment can suppose that the Amend- 
ments were ratified with any such revolutionary pur- 
pose," said the Independent; and the New York World 
said that the gist of the question before the Court was 
"whether those Amendments had changed the previous 
relations of the States to the Federal Government. 
The Court very properly decided that they had not. 
. . . Nothing is clearer than that the new Amendments, 
fairly interpreted, leave all the broader relations be- 
tween the States and the Federal Government un- 
changed and imtouched. . . . The joint design of them 
all was to bleach the negro into a political white man, 
to raise the African to the level of the Caucasian in his 
civil and poUtical rights. . . . Such suits would never 
have been thought of, if certain shallow people had not 
gone crazy about the scope of the Fourteenth Amend- 
ment. There is no limit to the folUes which have 
clutched at that Amendment for support. The 

tioD of monopoly was not before the Court at all, as is assumed by the Mx990uri 
DemocfcA and some other journals." 

1 NcAion, April 24, 1878; Independent, May 22, 1878; New York World, April 
16, 1878; New York Timee, April 16, 1878; Boston Daily AdveHiaer, April 17, 
1878; Philadelphia Prese, April 17, 1873; Chicago Tribune, April 18, 19, 1878. 
William L. Royall in Southern Law Review (1878), n. s., IV, said: "The truth is 
that when this Amendment came before the Court for construction, the minds of 
patriotic men were filled with alarm at the centralizing tendency of the government 
. . . and those who wish well to their country looked with sorrowing eyes upon the 
prospect that the ancient landmarks of the States were to yield before the advanc- 
ing strides of our imperial despotism.*' 



266 THE SUPREME COURT 

women's-rights people have claimed that it ordains 
female suffrage. A Chicago she-attorney claims 'that 
it admits her to the Bar/ Certain New Orleans 
butchers assert that it gives them the right to land and 
slaughter animals in any part of that city they please. 
But the Supreme Court has decided, really, but too fal- 
teringly, that its only legal effect is to make full-fledged 
citizens of negroes, but leaving the government of the 
country in all other respects precisely the same as if the 
Constitution had stood as first adopted, and no negro 
had ever left his native Africa. . . . That the Court did 
not strike a bolder note in declaring this sound doctrine 
is to be accounted for by their consciousness that they 
were running counter to the impetuous hostihty of the 
Repubhcan party to the constitutional rights of the 
States." The New York Times said that it was "cal- 
culated to throw the immense moral force of the Court 
on the side of rational and careful interpretation of the 
rights of the States and those of the Union. It is cal- 
culated to maintain, and to add to the respect felt for, 
the Court, as being at once scrupulous in its regard for 
the Constitution and unambitious of extending its own 
jurisdiction. It is also a severe, and we might almost 
hope a fatal, blow to that school of constitutional lawyers 
who have been engaged, ever since the adoption of the 
Fourteenth Amendment, in inventing impossible con- 
sequences for that addition to the Constitution." The 
New York Tribune termed it "a most important de- 
cision", and said that it "set up a barrier against new 
attempts to take to the National Government the ad- 
justment of questions legitimately belonging to State 
tribunals and Legislatures." The Philadelpkia Press 
said that it would "clear away a tolerably dense legal 
fog" ; and the Boston Advertiser said that a contrary de- 
cision "would constitute this Court a perpetual censor 



THE SLAUGHTERHOUSE CASES 287 

upon all State legislation concerning the rights of its 
citizens. A doctrine so subversive of ancient and fun- 
damental principles cannot be set up, unless by language 
too plain to be capable of any other interpretation." 
The Chicago Tribune said that the decision plainly in*- 
dicated two things: "That the Court will not con- 
strue the Constitutional Amendments as upsetting 
State Governments ; and that the people of every State 
must look to their own protection against monopolies, 
when they frame their Constitution and elect their Leg- 
islatures, and not come to the Courts afterwards and 
ask them to undo what the Legislative authority has 
done." Of the soundness of the decision, it said that 
there could be no doubt : "The Constitutional Amend- 
ments, beyond their estoppel of the States from en- 
slaving the negro or depriving him of the privilege of the 
elective franchise and the other rights of white men, 
cannot interfere with State-Rights. Any other inter- 
pretation of these Amendments would be glaringly in 
conflict with historical facts. . . . The Federal Gov- 
ernment thus becomes absolute in its jurisdiction, and 
State Governments only exist or exercise their powers 
by its suffrance. . . . The principal value of this de- 
cision grows out of the fact that it clearly and unmis- 
takably defines the province of the Constitutional 
Amendments, and will hereafter put a quietus upon the 
thousand and one follies seeking to be legalized by hang- 
ing on to the Fourteenth Amendment. . . . The de- 
cision has long been needed, as a check upon the central- 
izing tendencies of the Government and upon the de- 
termination of the Administration to enforce its policy 
and to maintain its power, even at the expense of the 
constitutional prerogatives of the States. The Su- 
preme Court has not spoken a moment too soon or any 
too boldly on this subject." 



f 



268 THE SUPREME COURT 

Sentiments like these, widely expressed in the North, 
the East and the West, afford an interesting illustration 
of how far the pendulum had swung away from central- 
ization and towards the most extreme State-Rights 
views held by the Democratic Party before the war. 

An opinion similar to that of the daily press was also 
held by the American Law Review ^ which said : '"In its 
results it is of untold importance to the future relations 
of the different members of our complex system with 
the whole. The line which separates the Federal Gov- 
ernment from the States, and which of late years has 
trenched on what are called the reserved rights of the 
latter, was never so precisely defined as to make trite 
or tiresome new descriptions of its position ; and the 
interpretation of the Thirteenth, Fourteenth, and Fif- 
teenth Amendments to the Constitution of the United 
States, which was called for by attempts to apply their 
letter, if not their spirit, to new states of fact not con- 
templated by the Congress nor the Legislatures that 
made them, is the latest and one of the most important 
acts of government, growing out of the war. It is note- 
worthy that, while the Executive Department keeps 
Casey in New Orleans, and sends its soldiers to regulate 
the internal politics of Louisiana, the Judicial Depart- 
ment remits to the people of that State, to its Courts 
and Legislature, the custody of the privileges and im- 
munities of its citizens." ^ 

The development of the law since the date of this 
great decision has, on the whole, justified its wisdom, 
and Judge Miller's opinion has justly been regarded as 
one of the glorious landmarks of American law. The 
defeated counsel, John A. Campbell, in after years, 
admitted that it was "probably best for the country 
that the case so turned out" ; and another Southerner, 

^ American Law Rwiew (July, 1878), VII, 782. 



THE SLAUGHTERHOUSE CASES 269 

John S. Wise, said at the celebration of the Centennial 
of the Court : "That decision did more than all the 
battles of the Union to bring order out of chaos. . . . 
When war had ceased, when blood was stanched, 
when the victor stood above his vanquished foe 
with drawn sword, the Supreme Court of this Na- 
tion planted its foot and said: This victory is 
not an annihilation of State Sovereignty but a just 
interpretation of Federal power. '* Finally, the words 
of Judge Moody, in 1908, may well be quoted : "Crit- 
icism of the case has never entirely ceased, nor has it 
ever received universal assent by members of this Court. 
Undoubtedly, it gave much less eflFect to the Fourteenth 
Amendment than some of the public men active in 
framing it intended, and disappointed many others. 
On the other hand, if the views of the minority had pre- 
vailed, it is easy to see how far the authority and in- 
dependence of the States would have been diminished, 
by subjecting all their legislative and judicial acts to 
correction by the legislative and review by the judicial 
branch of the National Government." ^ 

Had the case been decided otherwise, the States would 
have largely lost their autonomy and become, as po- 
htical entities, only of historical interest. If every civil 
right possessed by a citizen of a State was to receive the 
protection of the National Judiciary, and if every case 
involving such a right was to be subject to its review, 
the States would be placed in a hopelessly subordinate 
position ; and the ultimate authority over the citizens 
of the State would rest with the National Government. 
The boundary lines between the States and the National 
Government would be practically abohshed, and the 
rights of the citizens of each State would be irrevocably 

^ Twining ▼. New Jersey (1908), 211 U. S. 78; see also Samud Freeman Miller, 
by Horace Stevens, Qreat American Lawyers (1908), VI. 



270 THE SUPREME COURT 

fixed as of the date of the Fourteenth Amendment, with- 
out power in the State to modify them, and with power 
in the Supreme Court of the Nation to review any State 
statute asserted to be in violation of such rights, even 
if such statute aflFected solely a matter of State policy. 
Inasmuch as about eight hundred cases have been be- 
fore the Court since 1873, involving State statutes 
under the due process clause of the Fourteenth Amend- 
ment, it is impossible to conceive of the amount of 
litigation on which that Court would have been called 
to pass, if State legislation involving every possible 
civil right of a State citizen could also have been brought 
before it under the privilege and immunity clause.^ 

Though the case presented two other questions aris- 
ing under the Fourteenth Amendment — whether the 
State legislation deprived the plaintiffs of life, liberty 
and property without due process, and whether it denied 
them equal protection of the laws, — the Court's opinion 
gave to these points very slight attention. As to the 
first point, the Court simply said : ^'The argument has 
not been much pressed. . . . It is sufficient to say that 
under no construction of that provision that we have 

^ "Never was the Court truer to itself, truer to the Constitution." Politics and 
the United States Supreme Court, by Walter D. Coles, Amer, Law Rev, (1893), 
XXVII. 

On the other hand, the opposite view has been expressed by Prof. John W. Bur- 
gess in PdiHeal Science and Constiiutional Law, I, 22S-2S0. Writing in 1890, he 
termed it "an ominously important decision. . . . Coming at the time when the 
reaction had begun to set in against the pronounced Nationalism of the preceding 
decade, it partook of the same, and set the direction towards the restoration of that 
particularism in the domain of civil liberty, from which we su£fered so severely be- 
fore 1861, and from which we are again suffering now. From whatever point of 
view, I regard the decision . . . from the historical, political, or juristic, it appears 
to me entirely erroneous. It appears to me to have thrown away the great gain 
in the domain of civil liberty won by the terrible exertions of the nation in the 
appeal to arms. I have perfect confidence that the day will come, when it will be 
seen to be intensely reactionary and will be overturned." See also Judicial Con' 
stUuiional Amendment, by Frederic R. Coudert, Yale Law Joum, (1904), XIII ; 
and see Everett V. Abbott, who says in his Justice and the Modem Law (1913), that 
the Slaughterhouse Case was "obviously erroneous, and we may safely conclude that 
it would not be rendered today." 



THE SLAUGHTERHOUSE CASES 271 

ever seen, or any that we deem admissible, can the re- 
straint imposed by the State of Louisiana upon the 
exercise of their trade by the butchers of New Orleans 
be held to be a deprivation of property within the mean- 
ing of that provision." In view of later decisions of the 
Court relative to the extent of the State police power 
over liberty and property, it may well be doubted 
whether the decision might not have been otherwise, 
had the case been argued more fully on the point of due 
process and had the facts been more clearly stressed; 
for one of the dissenting Judges, Field, always insisted 
in subsequent cases, that the question whether the stat- 
ute involved had any real relation whatsoever to the 
police power had not been properly presented or con- 
sidered. As to the other point argued in the case, the 
Court held that the Amendment grew out of the negro 
question and was to be interpreted as dealing almost 
solely with it. "We doubt very much whether any 
action of a State not directed by way of discrimination 
against the negroes as a class, or on account of their 
race, will ever be held to come within the purview of 
this provision," said Judge Miller. It is interesting to 
note that this prediction has been utterly falsified; 
since the protection granted by this clause of the 
Amendment has been sought by litigants almost wholly 
in cases involving social and economic State legislation, 
and very seldom in cases presenting discrimination 
against negroes. 

A particularly fortunate circumstance in the decision 
of this case was the fact that no criticism could be based 
on the political or sectional attitude of the Judges. 
For the Democrat, Judge Field, and the Republican, 
Chief Justice Chase, both of whom were of the moderate 
State-Rights school, were joined by the pronouncedly 
Nationalistic Republican Judges, Bradley and Swayne, 



272 THE SUPREME COURT 

in delivering the minority opinion directed against the 
power of the State ; while in favor of the State authority 
were found three Republicans, Judges Miller, Strong 
and Hunt, Judge Clifford, a Democrat, and Judge 
Davis whose political views were tending towards the 
Democracy. 

A practical application of the doctrine of the Shughter^ 
house Cases was made in another case decided at the 
same time at this Term, Bradwell v. The State, 16 Wall. 
130, in which a refusal of the Supreme Court of H- 
linois to license a woman to practice law was held not 
to violate the Fourteenth Amendment, inasmuch as 
the right to practice law in a State Court was not a 
privilege or immunity of a citizen of the United States 
as that term was construed by the Court. Judge Brad- 
ley (Swayne and Field concurring) agreed with the re- 
sult but not with the grounds of the decision, saying 
(in language probably unacceptable to the women suf- 
fragists) that every citizen was not qualified for every 
calling, and hence that "in view of the peculiar char- 
acteristics, destiny and mission of women, it is within 
the province of the Legislature to ordain what offices, 
positions and callings shall be filled and discharged by 
men, and shall receive the benefit of those energies and 
responsibilities, and that decision and firnmess which 
are presumed to predominate in the sterner sex." ^ 

^ The Nation aaid, April 24, 187S: "It is a rather ludicrous illustration of the 
character of the woman movement that a prominent female agitator should have 
sdzed the opportunity to prove the fitness of her sex for professional life, by taking 
for her first important case one which she must have known the Court would de- 
cide against her, unless she supposed that they were likely to be influenced by per* 
sonal solicitation and clamor, or else that they were all gone crazy." The Boston 
Daily Advertiser, April 16, 1873, said : "Judge Bradley's opinion seemed to cause 
no little amusement upon the Bench and on the Bar." See also Death of Myra 
Bradwell, Amer. Law Rev. (1896), XXX, 254. 

In 1877, the Supreme Court of the United States denied the application of a 
woman lawyer, Mrs. Belva A. Lockwood, for admission to practice as an Attorney in 
that Court, the Chief Justice saying, Nov. 6, that he had been instructed by the 
Court to announce the following decision : ** By the uniform practice of the Court, 



THE SLAUGHTERHOUSE CASES 278 

Two weeks after participating in these momentous 
decisions, and on the last day of the Term, Chief Justice 
Chase delivered an opinion in another case, Osborne v. 
Mobile^ 16 Wall. 479, which again marked the tendency 
towards a reaction in favor of the State Sovereignty 
now apparent in the Court ; and in upholding a State 
Ucense tax on express companies doing business partly 
outside the State, the Chief Justice said that, while it 
was always difficult to draw the line as to unconsti- 
tutionahty, '^it is as important to leave the rightful 
powers of the State in respect to taxation unimpaired 
as to maintain the powers of the Federal Government 
in their integrity '' — a sentiment which should have 
gratified the strongest behever in the upholding of 
State-Rights by the Court.^ 

Ten days later. Chase died suddenly, on May 7, 1873. 
For over two years, he had been in feeble health, due 
to a paralytic shock. He had served for eight years, 
through a notable period filled with political passions, 
in which only the most determined and rugged honesty 
of mind and purpose could have held the Court to the 
courageous course which it had pursued. ** The nine 
annual Terms through which he has presided constitute 
a judicial period of little less importance than that pe- 
riod of constitutional interpretation which it was the 

from its organisation to the present time, and by the lair construction of its rales, 
none but men are admitted to practice before it as attorneys and counsellors. This 
IS in accordance with immemorial usage in England, and the law and practice in all 
the States until within a recent period ; and the Court does not feel called upon to 
make a change, until such a change is required by statute, or a more extended 
practice in the highest Courts of the States." The result of this was the enact- 
ment by Congress of the Act of Feb. 15, 1879, making women eligible for admission 
to practice. See Amer, Law Rev. (1877), XI, S67. 

^ George W. Julian m his PolUical ReeoUeetiona (1884), said: "After the Presi- 
dential election (1872), I went to Washington where I met Chief Justice Chase in 
the Supreme Court and accepted an invitation to dine with him. He looked so 
wasted and prematurely old, that I scarcely knew him. He was very genial, how- 
ever, and our long political talk was exceedingly enjoyable. It seemed to afford 
him much satisfaction to show me a recently reported dissenting (pinion of his» in 
which he reasserted his favorite principle of States'-rights." 



«74 THE SUPREME COURT 

fortune of Chief Justice Marshall to fill," said the Na- 
turn, in a very just summary of his work. " For many 
years to come, the decisions of these nine Terms will be 
referred to by lawyers, legislators and constitutional 
students more than any others. In them, the late 
Chief Justice will always appear prominent and never 
far from right. He brought to the Court no store of 
legal learning, but he brought comprehensive views, 
considerable power of generalization and a just sense of 
constitutional rights and judicial responsibility . . . 
firm, liberal, and just ; and his judicial services will be 
more highly esteemed when it is more clearly perceived 
that they uniformly tend to the maintenance of those 
principles which are the basis of National integrity, 
personal or political.** "Mr. Chase was an ambitious 
man ; he wished to please people and to gain their sup- 
port, but he would not sacrifice to this object one jot of 
his convictions,'* said the Independent.^ 

At the opening of the Court on October 23, 1873, 
resolutions of the Bar were presented, to which Judge 
CliflFord made a noble response. In view of the many 
political attacks which had been made upon Chase, 
CliflFord *s comment is of peculiar interest : " From the 
first moment he drew the judicial robes around him, he 
viewed all questions submitted to him as a Judge in the 
calm atmosphere of the Bench, and with the deliberate 
consideration of one who feels that he is determining 
issues for the remote and unknown future of a great 
people.'* He spoke especially of the "candor and self 
control*' which enabled him, over the "pride of opin- 
ion**, to change his views on the subject of legal tender. 

It was generally supposed that Chase*s successor 
would be chosen from six men, Benjamin R. Curtis, 

^ Nation, May 15, 187S; Independent, May 15, 29, 1873. See also CkUf Jwtiee 
Chtue, by Isaac F. Bedfidd, North Amer. Rev. (April 1876), CXXII. 



THE SLAUGHTERHOUSE CASES 276 

William M. Evarts, E. Rockwood Hoar, Lyman Ttum- 
buU, William B. Groesbeck or Judge Miller. The lat- 
ter 's appointment would have especially pleased the 
country ; for not only did he possess one of the ablest 
judicial minds, but his breadth of view and sturdy com- 
mon sense had particularly commended him.^ Many 
papers, like the Chicago Tribune, urged the President 
to appoint such a man as Evarts, to select a jurist from 
the ablest and most distinguished lawyers, and ^^to dis- 
regard paltry considerations of locality or party serv- 
ice." President Grant, however, after a delay of six 
months, finally offered the position to his close personal 
friend and supporter, Roscoe Conkling, the Senator 
from New York. Writing to him, November 8, 1873, 
he said : "When the Chief Justiceship became vacant, 
I immediately looked with anxiety to some one whose 
appointment would be recognized as entirely fitting and 
acceptable to the country at large. My own prefer- 
ence went to you at once." Conkling was hardly fitted 
for the position, either by the extent of his practice or 
the eminence of his legal acquirements ; and probably 
wisely for his own reputation, he declined the honor.* 
Thereupon, December 1, Grant nominated his Attorney- 
General, George H. Williams of Oregon. The nomi- 
nation surprised not only the whole Bar, but the whole 
country; and the American Law Review expressed 
the general feeling in a temperate article as follows: 
"Mr. Williams has, within a few years, been called to 

^ Chicago Tribtsne, May 8, 16, 1873; Amer. Law Rev. (1873), VII, 749, VIII, 
159; Jfu2«p«ni«nt, May 29, 1873. 

*L^e and Letters of Roicoe Conkling (1889), by Alfred R. Conkling. Harper* a 
Weekly looked more favorably on Conkling*s legal attainments than did most of 
the Bar, saying, Dec. 18, 1873: "Senator Conkling, whose name is now oftenest 
mentioned in connection with the office, is forty-five years of age, and has quite as 
much reputation as a lawyer as either of the Chief Justices at the period of their 
appointment, and is probably a better speaker than any of them were at any period 
of their career." But see Nation, May 82^ Oct. 2» 1873; Independent, Nov. 27, 
1878^ presenting a contraiy view. 



276 THE SUPREME COURT 

fill, in rapid succession, some of the most exalted places 
under our government ; as a Senator, as a member of 
the Joint High Commission, and lastly, as the official 
head of the American Bar, he has had ample opportu- 
nity for the display of great talents, and in all these 
positions he has acquitted himself in such a manner as 
neither to invite distinguished praise, nor, except in the 
Pacific Railroad Case^ to provoke much adverse criti- 
cism. If the public have seen in him, as yet, Kttle to 
justify his selection for the high promotion with which 
the President has honored him. they have seen nothing 
to indicate that in his hands the dignity of his great 
office will be lowered or its powers used unworthily. 
Indeed, while it would be idle to deny that the nomi- 
nation was a disappointment to all who had hoped that 
the seat of Marshall might be filled by a fitting succes- 
sor, yet that disappointment was tempered by a sense 
of relief that the country had at least escaped the mor- 
tification of seeing in that honored place a man destitute 
alike of judicial temper and judicial experience, whose 
only claim to it was derived from active and unscrupu- 
lous service as a political partisan. Of Mr. Williams' 
judicial experience, there is little to say. He was bom 
in 1823, and was admitted to the Bar in New York. 
Three years afterwards, in 1847, he was elected Judge 
of the first judicial district of Iowa, and in 1853, he was 
appointed Chief Justice of Oregon Territory, — an 
office which he held till 1857, when he declined a re- 
appointment, as he then left the Bench to begin his 
political career. Such a training does not of necessity 
give that familiarity with questions of the class upon 
which the Supreme Court is called to pass, which we 
have been taught to consider desirable ; but it is calcu- 
lated at least to free the mind from narrowing local 
influences. We cannot conclude without expressing 



THE SLAUGHTERHOUSE CASES 277 

our regret that the President, in making this, the most 
important appointment of his Administration, has not 
improved the opportunity to make such a choice from 
the eminent lawyers of the country as the people had a 
right to expect/' "It is rather odd, it must be ad- 
mitted," said the Nation, "that the chief of a Court 
which has to pass on the most complicated controversies 
of a great commercial country should be chosen from 
the Bar of a frontier State like Oregon. . . . Mr. 
Williams, if not able and learned, is laborious, pains- 
taking and respectable ; and as things go, his appoint- 
ment will create a feeling of relief." 

The conmients of the press were apologetic, many 
frankly condemnatory, and all indicating clearly that 
the selection was not regarded as a fit one. "The 
general feeling of the public is that the President might 
and should have done better, with such names as Evarts, 
Cushing, Curtis, Hoar — to say nothing of the present 
members of the Supreme Court," said the Independent, 
and it expressed the hope that the Senate would refuse 
to confirm. "The country cannot afford to have any 
second-rate man, or any one whose qualifications are 
not beyond dispute, placed at the head of the Supreme 
Court." "The nomination surprised and disgusted 
every lawyer in the United States who has the honor of 
his profession at heart. It fell like a blow upon every 
respectable member of the Federal Judiciary," said the 
Springfield Republican.^ 

^ AfMT. Law Rev. (Jan., 1874), Vm; Nation, Dec. 4, 187S; Independent, Dec. 
11» 25, 187S. Williams had only recently been defeated in the very important 
Credit MobUier Case, in the Circuit Court in Connecticut, where he had argued 
against giants of the Bar like Benjamin R. Curtis, William M. Evarts and Sidney 
Bartlett. "The appearance made by Mr. Williams in this case was very unfor- 
tunate, and does not reconcile the Bar throughout the country to his nomination." 
Nation, Dec. 11, 187S; Springfield ReptMican, Jan. 2, 1874; New York Herald, 
Jan 4, 6, 1874, quoting press opinion through the country ; New York Tribune, 
Jan. i, 1874 ; New York Evening Post, Jan. 5, 1874. Harper's Weekly was at first 
favorable to Williams, see Dec. 20, 187S, Jan. 3, 1874. 

George H. Williams himself in his Reminiscences, in Yale Law Joum.» Vm, 



278 THE SUPREME COURT 

Within a week, the sentiment of the country and of 
the Bar had become so clearly that of protest that the 
Senate Judiciary Conmiittee, which had at first reported 
favorably on the nomination, called back its report 
for further investigation. Williams himself, however, 
claimed that he had been viciously slandered, and his 
friends urged confirmation as a vindication. Neverthe- 
less, it was reported in the newspapers that Senator 
Conkling was to propose a bill in the Senate to abolish 
the office of Chief Justice as a Presidential appointment, 
and to make it the duty of the Associate Judges to elect 
the presiding Chief Justice from their number — such 
a measure being deemed a happy expedient ^' to let Mr. 
Williams dpwn gracefully and save the Republican 
party the blemish of a scandal." One Senator said that 
there was no need of a bill to abolish the Chief Justice- 
ship, for the nomination of Williams had already done 
that. Finally, after the New York Bar Association 
had passed resolutions protesting the nomination, and 
stating that it ^* disappoints the just expectation of the 
legal profession and does not deserve the approval of the 
people, for the reason that the candidate proposed is 
.wanting in those qualifications of intellect, experience 
and reputation which are indispensable to uphold the 
dignity of the highest National Court, and to maintain 
general respect for the law in the person of the officer who 
presides over its administration," * President Grant 
yielded, and, at Williams' own request, withdrew the 
nomination on January 8, 1874. 

written in 1899, sftid : "I was favorable to the appointment of Justice Miller, but 
the President was unwilling to discriminate between the Judges on the Bench. . . . 
Conkling would have made a splendid Chief Justice. . . . The President nomi- 
nated me without my knowledge or consent. . . . Suffice to say that the reasons 
for the Republican opposition to me in the Senate were not such as were given to 
the public by the newspapers." 

^ New York Tribune, Jan. 8, 1874, said it hoped the President had learned a lesson. 
The New York Herald, Jan. 7, 8, 1874, said that the President was immensely sur- 
prised at the unfavorable reception of Williams* nomination by the country. 



THE SLAUGHTERHOUSE CASES 279 

Grant's next nomination for Chief Justice caused 
even more of a surprise and sensation ; for on January 
9, he nominated another close personal friend, Caleb 
Cushing. Unlike Williams, Cushing was a man pre- 
eminently qualified by legal attainments for the posi- 
tion. He had been Attorney-General of the United 
States, Judge of the Supreme Judicial Court of Massa- 
chusetts, and as a profound jurist, he probably ex- 
celled either Marshall or Taney or Chase ; but he was 
a man of exceedingly unstable character, and in pol- 
itics had been successively "a Whig, a Tyler man, a 
Democrat, a Constitutional Conservative in the con- 
fidence of Johnson, and a Republican/' While vigor- 
ous both mentally and physically, he was, nevertheless, 
in his seventy-fourth year. His appointment appears 
to have been largely due to Grant 's desire to recognize 
the services of the American counsel at the Geneva 
Arbitration, at the head of which had been Cushing and 
Evarts. While the nomination was objectionable to 
the Senate, still the completeness with which Cushing 
fulfilled the legal requirements of the oflBce would prob- 
ably have led to confirmation, had action been taken 
at once, even though the Radical Republican press vio- 
lently protested against such action on this "mcongru- 
ous" and "objectionable" nomination (as the Tribune 
termed it). "Simply because he is a familiar and 
serviceable friend. Gen. Grant proposes to place at the 
head of the Supreme Court, to decide upon questions 
involving the National sovereignty and the civil rights 
acquired by the war and consecrated by the late Amend- 
ments to the Constitution, a pro-slavery Democrat 
whose views have been notoriously in opposition to 
those by virtue of which the war was carried on" ; ^ but, 

^ New York Herald, Jan. 10» 13, 15, 1874 ; New York Tribune, Jan. 10, 12» 18, 14^ 
15, 1874 ; Harper's Weekly, Feb. 7, 1874 ; NoHon, Jan. 15. 1874. 



280 THE SUPREME COURT 

it added caustically : "The fear of a worse thing may 
induce the Senate to accept this/' So too, the Nation 
said that while admitting that Gushing stood in the 
front ranks for legal ability and learning, "the President 
has at last entered the small circle of eminent lawyers, 
and then with great care has chosen the worst man in 
it. His entering the circle was a result of the public 
feeling caused by the appointment of an utterly unfit 
man of doubtful reputation like Williams ; his selection 
of Mr. Gushing, a consequence of his fixed policy of 
making pubUc appointments on private considerations. 
As to Mr. Gushing, it may be said on the one hand, that 
he is past the age at which the law contemplates a Ghief 
Justice retiring, is of a crafty nature and erratic tem- 
perament, and more renowned for shrewdness and learn- 
ing than respected for talents and integrity; on the 
other hand, he is more active in body and mind than 
many a man of half his years, and like Ghief Justice 
Taney may live to be eighty-eight. . . . We believe 
that it would be found, if the truth were known, that a 
good deal of the favor with which the nomination was 
at first received at Washington was due to the fear felt 
by those who are behind the scenes, that, if he was re- 
jected, a worse man might be produced." 

Before the Senate acted, a curious turn of fortune 
supplied it with an excuse for rejection. Some years 
previous, the Government had purchased from a Gon- 
federate agent, who had fled to Ganada, three trunks of 
Gonf ederate official documents, many of which had been 
found useful in defense of suits brought by alleged loyal 
men in the South on claims against the Government. 
Among these papers, there now was found a letter 
written by Gushing to JeflFerson Davis, as President of 
the Gonfederacy, on March 21, 1861, recommending to 
his attention a young man who was then returning to 



THE SLAUGHTERHOUSE CASES 281 

Texas. It was a simple, friendly letter and contained 
no proof of disloyalty on Gushing 's part, nor could there 
be any doubt whatever of Gushing 's full sympathy and 
action with the Union cause, throughout the war. But 
this letter, ''an astounding development" as it was 
termed, afforded sufficient ground for an outcry against 
his confirmation ; ' and Grant was forced to withdraw 
the nomination, on January 13. That Gushing would 
have made an able Ghief Justice was the opinion of 
Gharles Sumner, who supported him and who wrote, 
January 15, the following interesting commentary : * 

I should never have nominated or recommended Gushing 
as Chief Justice, but I was called to consider, his name being 
before the Senate, if I could vote for his rejection. Now, I 
know him well, having seen him for the last ten years con- 
stantly ; and I know his positions on questions in which I 
am deeply interested. I trust him absolutely, and believe, 
if the occasion had occurred, he would have vindicated our 
ideas judicially far better than any probable nominee of 
Grant. I do not talk in the dark, for I have talked with him 
on these questions and have seen his sympathy with me. 
You know that I do not cherish old differences and animos- 
ities. How many have I seen advanced to the front who 
were once bitterly the other way ! Knowing Gushing as I 
did, would it not have been mean and craven for me to turn 
against him, or to skulk in silence ? This is not my way with 

^ The SprinfffiM Weekly Republican, Jan. 16, 1874, stated that, according to the 
Washington correspondent of the New York Herald, the letter was found by a derk, 
who took it to Gen. Townsend ; that it then passed to President Grant through 
Gen. Belknap; that Grant saw nothing objectionable in it; that then Senator 
Sargent of California got hold of it ; and that, after Senators Boutwell and Conkling 
had voted for Gushing in Executive Session, Sargent rose and read the note; where- 
upon. Senators Cameron and Carpenter said that they could not vote for Gushing, 
and action was postponed so that the President might be communicated with. 

* Sumner, IV, 588, letter to F. W. Bird, Jan. 15, 1874. See Reports, Reporters 
and Reporting, Southern Law Rev, (April, 1879), for a remaikable description of the 
causes of the rejection of Williams and of Gushing by the Senate. In Timothy 
Otis Eowe, by Duane Mowry, Oreen Bag (1908), XV, it is said that Howe, then 
Senator from Wisconsin, was offered the position of Ghief Justice by Grant, but 
that he declined, not wishing to make a vacancy in the Senate for the election of a 
Democrat. 



282 THE SUPREME COURT 

friends. Such is not my idea of friendship. But no earthly 
friendship could make me put in jeopardy our cause. I 
confess that I am glad of the sensibility shown for the 
safeguards of Reconstruction. . . . But what shall we do 
with other possible nominees? Who will vouch for 
B. R. C.(urtis) ? And who will vouch for some accepted 
Republicans with whom technicality is a peril to principle ? 

There was now much anxiety on the part of the Bar 
as to the President's next action. "The country 
warned by two such experiences will await with unusual 
alarm Grant's third choice; but there is no further 
room for surprise/'Jsaid the Tribune. "After the pre- 
vious shocks, the people are prepared to accept, with 
something like equanimity, any appointment which 
should not be scandalous." Those who were close to 
Grant believed that he would appoint either the So- 
licitor General, Benjamin H. Bristow of Kentucky, or 
Morrison R. Waite of Ohio who had been one of the 
counsel at the Geneva Arbitration. The President 
fulfilled their expectation by sending to the Senate on 
January 19, the name of the latter. Waite was con- 
firmed on January 21, by a vote of sixty-three to six. 
He was then in his fifty-eighth year, and had no pre- 
vious judicial experience; his legal practice had been 
chiefly in Ohio ; he had been admitted to practice in the 
Supreme Court during the previous year, but had argued 
no case there. The appointment was greeted with a 
sense of relief, but with no enthusiasm.^ "He is an 

^ New York Tribune, Jan. 17, 20, 21, 1874, quoting opinions of the press; NatUm, 
Jan. 22, 1874. Amer, Law Ren, (April, 1874), VIII, said: "His lepuUtion in 
Ohio is that of a learned, upright and able lawyer. He presided over the consti- 
tutional convention of Ohio at the time of his appointment, and was with Mr. 
Evarts and Mr. Gushing of counsel for the United States at the Geneva Arbitration, 
where his services, though unaided by a prestige like theirs, were not less valuable 
than those of his distinguished associates. He comes to the Bench with no entan- 
glements of personal ambition, and no judicial record with which perforce he must 
be consistent ; and we welcome him, with the assurance that whatever he accom- 
plished for the more full and perfect exposition of the law, will meet with the hearty 
support of the profession. Ghief Justice Waite has had this rare experience, that 



THE SLAUGHTERHOUSE CASES 28S 

honest man and a fair lawyer and that is as much as we 
can reasonably expect from the President ; " " a perfectly 
respectable man/' "The President has with remark- 
able skill avoided choosing any first rate man. • • . On 
the whole considering what the President might have 
done and tried to do, we ought to be very thankful and 
give Mr. Waite a cordial welcome.'* Such were some 
of the newspaper comments. " The general feeling both 
inside and outside the Bar will be one of profound relief, 
shading into cordial approbation," said the Springfield 
Republican. 'Contrasting what is, with what might 
have been, we congratulate the President upon his 
good choice, and the country upon its good fortune." 
"Waite is that luckiest of all individuals known to the 
law," said Judge Hoar, "an innocent third party with- 
out notice." "I do not hesitate to say that there were 
scores of lawyers in Ohio who would have been regarded 
by members of his profession as being as well if not bet- 
ter qualified," said McCulloch. " He was little known 
outside of the State. He had not been ranked among 
the great lawyers of the country." ^ 

On March 4, 1874, Waite assumed his office, and 
served for fourteen years, to the great satisfaction of 
the Bar and of the public.^ 

twice — in being elected to preside over tlie constitutional convention of Ohio* 
and in being confinned as Chief Justice — he has had all the votes of each party 
in his favor.*' 

^ Springfield Weekly RepubUean, Jan. 23, 1874 ; Men and Mannere cf Eaif a Cen- 
tury (1888), by Hugh McCulloch, 852; Morrison R. Waiie, by Benjamin Rush 
Cowen, Oreai American Lawyers (1009), VII. 

* With Waite's Chief Justiceship, the Court began its lengthened annual service, 
the beginning of the session in each year having been advanced from the first Mon- 
day in December to the second Monday in October, under the provisions of the 
Act of Jan. 24, 1878. 



CHAPTER THIRTY-THREE 

CHIEF JUSTICE WAITE AND THE FOURTEENTH 

AMENDMENT 

1874-1878 

The years of Waiters Chief Justiceship covered 
President Grant's second term and the Administrations 
of Hayes, Garfield, Arthur and Cleveland, The prob- 
lems of the war and its aftermath had been largely 
settled before he came upon the Bench ; but new and 
grave economic and social questions now presented 
themselves. These years saw the growth of the West- 
ern States and the immense development of the ma- 
terial resources of the country, and gave rise to a multi- 
tude of decisions on subjects of political and industrial 
importance — the new phases of the regulation of in- 
terstate commerce, of the transcontinental railroads 
and of the telegraph, railroad receiverships, the Granger 
legislation, control of public utilities and rates, the 
relation of the States to the liquor traffic, strikes 
and anarchist riots, polygamy, anti-Chinese legislation, 
superintendence and status of the Indian wards of the 
Nation, repudiation of State and municipal debts, the 
constitutionality of Federal laws enacted for the pro- 
tection of the negro, the right to sue State officials and 
the scope of the Eleventh Amendment, the liability of 
agents of the Federal Government to respond for tor- 
tious acts and Federal protection of such agents for acts 
done in pursuance of their duties. It was fortunate 
for the country that the molding of its destiny in these 



WAITE AND FOURTEENTH AMENDMENT 886 

various directions fell upon the shoulders of a Court 
containing Judges of such strength of mind and char- 
acter and of such breadth of vision as Waite, Miller, 
Field and Bradley. And the general public confidence 
in the Court was shown by the fact that, for over ten 
years after Waite's accession, it was substantially free 
from serious attack, either in Congress or in the press, 
l^en it is recalled that in every year from 1850 to 
1873 (with the exception of the five years of the war) 
there had been Congressional legislation proposed in 
serious derogation of the Court's powers, the practical 
immunity from assault which occurred from 1873 to 
1884 is a notable feature in its history. 

One advantage which accrued to the Court during 
this period was the comparatively slight change in its 
membership ; for during the first eight years of Waiters 
Chief Justiceship, from 1873 to 1881, there were but 
two vacancies. And as more than a majority of the 
Judges (Waite, Clifford, Field, Miller, Swayne, Brad- 
ley and Hunt) continued to serve throughout this pe- 
riod, the policy of the Court remained unusually stable 
atbd continuous. In 1875, an effort was made to in- 
duce the Chief Justice to allow his name to be consid- 
ered for the coming Presidential nomination; but he 
finally refused, writing : ^ 

1 Toledo Cammereial, Nov. 27, 1875; New York Times, Nov. 27, 1875. It ap- 
pears that Judge Miller entertained similar views as to the propriety of a Judge of 
the Supreme Court beooming a Presidential candidate, see WaekingUm Ckronide, 
Aug. 28, 1874, stating: ''When the name of Justice Miller was urged in certain 
Republican journals, he veiy promptly authorized a publication in the New York 
Times that under no dicumstances would he allow himself to be a candidate for any 
political office; that when he accepted his judicial position he abandoned political 
aspirations, and that- he believed it inconsistent with the dignity or purity of the 
Bench, for Judges to allow themsdves to become possible or probable candidates 
for any political office, however distinguished or honorable." The Central Law 
Journal, Sept. 8, 1874, said : "It is not improbable that the popular confidence in 
the integrity of the highest Court of the Nation may have been to some extent 
impaired, within the last few years, by the knowledge that some of its members 
were possible, or even probable^ candidates for the Presidency. Whenever the in- 
tegrity of the Bench is subject, in any considerable degree, to the misgivings of in- 



286 THE SUPREME COtJRT 

The office came to me covered with honor, and when I 
accepted it» my chief duty was not to make it a stepping- 
stone to sometiiing else, but to preserve its purity, and, if 
possible, make my name as honorable as that of my prede- 
cessors. No man ought to accept this place unless he shall 
take a vow to leave it as honorable as he found it. There 
ought never to be any necessity for rebuilding from below. 
AU addition should be above. In my judgment, the Consti- 
tution might wisely have prohibited the election of a Chief 
Justice to the Presidency. Entertaining such a view, could I 
properly or consistently permit my name to be used for the 
promotion of a political combination as now suggested? 
If I should do so, could I at all times and in all cases remain 
an unbiased Judge in the estimation of the people ? 

"Chief Justice Waite, who has been talked of as a 
candidate for the Presidency, has made a really valua- 
able contribution to political literature, not only by de- 
clining to allow his name to be used for any such pur- 
pose, but by pointing out the gross impropriety of mak- 
ing the Bench of the Supreme Court a stepping-stone to 
something else," said the Nation; and this paper very 
strikingly pointed out the necessity for the preservation 
of the utmost possible public confidence in the Court. 
"The strain, indeed, which the increase and conglomer- 
ation of wealth are likely to put on judicial integrity 
and judicial reputation, is certainly greater than that 
to which they were exposed through the pressure of 
royal influence. The influence of the new temptation 
is far more subtle, and far less alarming to judicial vir- 
tue, and far harder to discover. The growth of riches 
is creating powerful bodies of persons whose interest 
in legislation and judicial decisions is enormous, whose 
assiduity never tires, and who can often accomplish 

telligent hope, it is a public misfortune. The repose of society requires that the 
popular judgment should rest with confidence in the impartiality of the Bench; 
and this cannot be, if the Bench comes to be looked upon as a stepping-stone to p<^ 
litical preferment." 



WAITE AND FOtJRTEENTH AMENDMENT 287 

their object just as well by pretending they are able to 
corrupt oflScers as by acknowledging that they have 
corrupted them. The Rings never admit that any 
man is pure. . . • The stronger and more daring they 
grow, the more necessary it is that Courts of Justice 
should be fortified against them ; and a Court of Jus- 
tice is never fortified as long as it is not above suspicion. 
The Supreme Court is above suspicion thus far, and 
there is no such dearth of Presidential candidates as to 
make it excusable to expose it to even a shadow of a 
doubt.'' ^ 

The first vacancy during Waiters regime was brought 
about by the withdrawal of Judge David Davis, who 
after a service of fifteen years, had been elected Sena- 
tor from Illinois, January 25, 1877, and who resigned 
as Judge on March 4, 1877, after the inauguration of 
President Hayes. His retirement from the Bench was 
not entirely unwelcome, for his participation in politics 
and public affairs, particularly his acceptance in 1872 
of the nomination for the Presidency by the Labor 
Reform Party, had caused considerable comment and 
disapproval.^ For Davis' place, there were many 
eager candidates — Senator Isaac P. Christiancy of 
Michigan, Senator Timothy O. Howe of Wisconsin 
(who had been prominently mentioned for Chief Jus- 
tice, before Waiters appointment), John H. Caldwell 
of Arkansas, Circuit Judge Thomas Drummond of 
Illinois, Circuit Judge John F. Dillon of Iowa. The 

^ Nation, Dec. 2, 1875. Harper't Weekly, Nov. 27, 1875, aljo commented on the 
"essential impropriety of the effort to draw the Supreme Bench into every Presi- 
dential contest", and added: '* Chief Justice Waite fulfils his duties witii quiet 
dignity. When he took his seat, it was the general conviction that political ambi- 
tion no longer sat upon the highest Bench, and the country would be spared the 
spectacle that had pained it." 

* Harper's Weekly, Oct. 28, 1871, stated that it was reported that Davis was to be 
Democratic candidate for President; ibid., April, 1872, "The Presidential Fever on 
the Bench." See also Nation, Feb. 1, 1877, stating that there should be a Constitit' 
taonal Amendment making Judges ineligible to political office. 



288 THE SUPREME COURT 

South urged William Frierson Cooper (Chancellor of 
Tennessee), Herschell V. Johnson of Georgia and 
Benjamin H. Bristow of Kentucky (ex-Secretary of the 
Treasury.^ At one time, President Hayes had defi- 
nitely decided on Bristow; but as there was strong 
opposition to him in the Senate, Hayes finally ap- 
pointed on March 29, 1877, Bristow's law partner, John 
Marshall Harlan of Kentucky. Harlan was but forty- 
four years old ; he had held no high judicial office, but 
for f oiu" years had been State Attorney-General.* Three 
years elapsed before another vacancy occurred. In 
1880, Judge Strong resigned, after a comparatively brief 
service of ten years. In his place. President Hayes 
appointed on December 15, 1880, William B. Woods 
of Georgia, the first Judge from the South since the 
appointment of Judge Campbell, twenty-eight years 
before, in 1852. Judge Woods was fifty-six years old 
and had been United States Circuit Judge for the Fifth 
Circuit for twelve years.' 

For the first six years after Waite became Chief Jus- 
tice, the tendency of the Court was one of reaction from 
the extreme Nationalistic doctrines which had in general 
prevailed in the opinions delivered during and after the 
war. Beginning with the Slaughterhoitse Cases in 1873, 
and continuing until about 1880, the decisions showed a 
marked tendency to uphold the powers of the States. 
This was particularly apparent in the cases involving 
the Fourteenth Amendment. Though the main pur- 
pose of the f ramers of that Amendment had been to cut 

1 New York Tribune, March 7, 1877; New York World, March 7; Sovihem Law 
Reo. (1877)» n. b„ III ; Philadelphia Press, March 16, 1877; Boston Post, Maich 10. 
1877, strongly opposed Bristow and urged Drummond. 

' President Hayes wrote in his diary, March 12, 1878 : "The most important 
appointments are the judicial. They are for life, and the Judiciary of the country 
concerns all interests, public and private. My appointments will bear examination ;" 
and on March 26, 1878, referring to a bitter attack on him by Senator Howe, Hayes 
wrote : "His grievance is the failure to appoint him Judge." 

* Woods was confirmed on Dec. 21, 1880, by a vote of SO to 8. 



WAITE AND FOURTEENTH AMENDMENT 28d 

down the State police power and to confer on the Na- 
tional Government the right to restrain the States in its 
exercise, the course of the decisions of the Court had 
been, with very little variation, to controvert the pur- 
pose of the Amendment, to belittle its effect, to mag- 
nify the police power and to give it an excessively 
wide range.i 

Within a year after Waiters accession, the Court 
affirmed its adherence to the doctrine of the Slaughter- 
house Case, by holding in Minor v. Happerset, 21 Wall. 
162, in 1875, that the Fourteenth Amendment did not 
add to the privileges and immunities of a citizen of the 
United States, and that suffrage, not being a right 
belonging to a citizen of the United States, was not in- 
fringed by the action of a Missouri official in refusing to 
register a woman as a voter. Since rights pertaining 
to a citizen of the United States as such were few in 
number,^ and since the Court had already, in 1869, 
held in Paul v. Virginia, 8 Wall. 168, that a corporation 
was not a "citizen", it now became evident that the 
Privilege and Immunity Clause of the Amendment, as 
construed by the Court, afforded slight protection to an 
individual, and no protection to a corporation, affected 
by oppressive State legislation. Consequently, litigants 
and their counsel began to take appeals to the Supreme 
Court, based on the Due Process Clause. Two ques- 

1 PoUHeal Science and ConsHiuUonal Law (1890), by John W. Burgess, I, 211 et 
aeq. A New NaHon, by Hollis R. Bailey, Harp. Law Reo, (1895), IX ; Twining v. New 
Jersey (1908), 211 U. S. 78. It is somewhat difficult to assent to the theory pro- 
pounded in Conetihdumal Opinions of Justice Holmes, by Felix Frankfurter, Hairv. 
Law Rev. (1916), XXIX, 190, in which the writer contends that Judge Field's dis- 
senting opinion in the Slaughterhouse Cases narrowing the scope of the State police 
power gradually became the prevailing doctrine of the Court, " until in AUgeyer v. 
Louisiana, 165 U. S. 578, in 1897, we reach the crest of the wave. The break came 
and the tide turned. The turning point is the dissent in the case of Lochner v. New 
York, 198 U. S. 45, 75, in 1905." 

' See MeCready v. Virginia (1877), 94 U. S. 891, in which a right to plant oysters 
in a State was held not a right pertaining to a United States citisen ; so of a right to 
bear arms, in Presser v. Illinois (1886), 116 U. S. 852. 

VOL. ni — 10 



290 THE SUPREME COURT 

tions were usually presented by these cases — one 
whether the act by which the State interfered with the 
citizen constituted a lack of "due process", the other 
whether such act fell within the legal meaning of the 
word "deprive" in connection with life, liberty or 
property. The cases of State interference with life or 
liberty generally presented only the question of "due 
process" and involved methods of judicial or adminis- 
trative procedure, or of regulation or restriction of an 
individuaFs vocation or avocation ; while State inter- 
ference with property might involve questions either of 
"due process" or of "deprivation", and generally arose 
out of the exercise of the police power or of the power of 
taxation or eminent domain.^ Very few of the cases 
arising under the Amendment, prior to the death of 
Chief Justice Waite, in 1888, presented the question of 
the meaning of the word "deprive"; still fewer in- 
volved State legislation restrictive or corrective of 
business or labor conditions or of social activities. It 
was not until after the accession of Chief Justice Fuller 
that the great function of the Court, in upholding the 
progressive and experimental, social and economic legis- 
lation of modem times, was developed. Under Chief 
Justice Waite, the application of this Clause of the 
Amendment was chiefly involved in cases arising under 
State tax laws, and in connection with judicial pro- 
cedure and changes in administrative and judicial 
statutes of the States. Of the latter class of cases, one 
of historic interest arose in the Chicago Anarchists Case, 
Ex parte Spies, 123 U. S. 131, in 1887.^ The former 

1 See Popular Law Making (1910), by Frederic J. Stimson, 129. 

' See Anarchists Case, by William* H. Dunbar, Harv. Law Reo. '{ISSS), I ; Note on 
writ of error in Fidden's Case, Amer. Law Rev. (1890), XXIV, SOI ; see also Fielden 
Y. Illinois, 143 U. S. 452, in 1891 ; see interesting article on The Due Process Clause 
and the Substance of Individual Rights, by Robert P. Beeder, Amer. Law Reg. (1910) 
N. B., XLIX, contending that the clause should not be applied to substantive rights, 
but only to questions of procedure. 



^^ 



WAITE AND FOURTEENTH AMENDMENT 291 

class of cases, presenting the question of due process 
in tax legislation, arose very early. The first four (be- 
tween 1876 and 1878) involved Reconstruction legisla- 
tion in Louisiana on taxation, jury trial and betterment 
assessment, and the Court sustained the law in each 
instance. During the next ten years, tax and better- 
ment laws of Connecticut, Pennsylvania, California, 
New Jersey and Kentucky and New York were sus- 
tained.^ 

As an illustration of the inadequate appreciation of 
the scope of the possibilities of the Fourteenth Amend- 
ment, it is interesting to note that, though, between 1868 
and 1873, nimierous State statutes attempting to tax 
property outside the State had been held to be imconsti- 
tutional, in no one of these cases was the Court's decision 
based on the ground that such a statute was violative 
of the Fourteenth Amendment.* In each, the Court 
founded its doctrine on the general imderlying principles 
of government; "where there is jurisdiction neither as 
to person nor property, the imposition of a tax would be 
ultra vires and void,'* said Judge Swayne in St. Louis v. 
Ferry Company ^ 11 Wall. 423. Similarly in the famous 
case of Loan Association v. Topeka, 20 Wall. 655, as late 
as 1875, in which the constitutional validity of a State 
statute authorizing taxation to pay city bonds issued 
in aid of a bridge factory corporation was involved, 
neither the counsel nor the Court invoked the Four- 
teenth Amendment, though it was clearly applicable. 
Judge Miller, in holding the statute invalid, made the 

1 Kennard v. Louitiana (1876), 92 U. S. 480 ; Walker v. Saunnd (1876), 92 U. S. 
90; Pearson ▼. Yev)daU (1877), 95 U. S. 294; Damdson v. New Orleans (1878), 96 
U. S. 97; KirOand ▼. HotehkUs (1879), 100 U. S. 491 ; KeUy v. PiUsburgh (1881), 
104 U. S. 78; Hagar v. RedamatUm District (1884), 111 U. S. 701 ; Provident Inr 
stUuHon etc. ▼. Jersey City (1886), 113 U. S. 506; WurU ▼. Hoagland (1885), 114 
U. S. 606; Spencer v. Merchant (1888), 125 U. S. 387. 

s See Railroad Company v. Jackson (1869), 7 Wall. 262; Cleveland etc. R, R. v. 
Pennsylvania (1878), 15 Wall. 300; see also Pennoyer v. N^ (1878), 95 U. S. 714. 



292 THE SUPREME COURT 

classic observation that "to lay, with one hand, the 
power of the government on the property of the citizen 
and with the other to bestow it upon favored individ- 
uals to aid private enterprises and build up private for- 
tunes, is none the less a robbery because it is done under 
the forms of law and is called taxation. This is not 
legislation. It is a decree under legislative forms.** 
But he decided the case, not on the ground that there 
was lack of "due process", but that there was a limita- 
tion on the power of taxation "which grew out of the 
essential nature of all free governments", — "implied 
reservations of individual rights, without which the 
social compact could not exist, and which are respected 
by all governments entitled to the name." ^ A resort 
to the general principles of free governments for the 
foundation of a Federal legal doctrine was a hazy and 
unsatisfying method of dealing with the case.* 

That the Court intended to proceed very cautiously 
in its interpretation of the phrase "due process" was 
shown by its opinion in Davidson v. New Orleans^ 96 
U. S. 97, in 1878, in which Judge Miller stated that : 
"Apart from the imminent risk of a failure to give any 
definition which would be at once perspicuous, compre- 
hensive and satisfactory, there is wisdom, we think, in 
the ascertaining of the intent and application of such 
an important phrase in the Constitution, by the gradual 

^ Frederic N. Judson in The Judiciary and the People (1918), said : "This opinion 
in the Loan Association Case, though rendered after the Fourteenth Amendment, 
was not based upon the guarantees of individual rights therein contained. We 
shall see in the discussion of this Amendment that its construction has really ren- 
dered academic this invocation of natural law ; as both of the instances cited by 
Judge Miller of violation of domestic and property rights would be annulled under 
the due process of law." 

' Three years later, in Davidson v. New Orisons, 95 U. S. 97, Judge Miller, in a 
case of writ of error to a State Court said, in declining to hold a State law violative 
of the Fourteenth Amendment : "It may possibly violate some of those principles 
of general constitutional law of which we could take jurisdiction, if we were sitting 
in review of a Circuit Court of the United States, as we were in Loan Aseociation v. 
Topeka,*' 



WAITE AND FOtJRTEENTH AMENDMENT 29S 

process of judicial inclusion and exclusion, as the cases 
prosecuted for decision shall require, with the reasoning 
on which such decision may be founded." He ad- 
mitted that "if it were possible to define what it is for a 
State to deprive a person of life, liberty and property 
without due process of law, in terms which would cover 
every exercise of power thus forbidden to the State, 
and exclude those which are not, no more useful con- 
struction could be furnished by this or any other Court 
to any part of the fundamental law/' But he warned 
suitors and counsel that the phrase clearly did not in- 
clude a case where a party had, by the laws of the State, 
"a fair trial in a Court of Justice, according to the mode 
of proceeding applicable to such a case/' Gradually, 
later, the Court's attitude towards the phrase "due 
process" wystallized into sustaining any proceeding 
authorized by a State Legislature which was not arbi- 
trary and which in general preserved principles of justice 
and fairness ; and it might finally be summed up in the 
phrase "giving a square deal/' ^ How little inclined 
the Court was to restrict changes in legal procedure 
was shown in Hurtado v. Calif omia^ 110 U. S. 616, in 
1884, in which the Court was confronted with a new and 
vitally important question — whether the Due Process 
Clause prevented a State from dispensing with indict- 
ment by a grand jury in cases of felony. In a memo- 
rable opinion by Judge Matthews, one of the landmarks 
of our law, it was held that the State powers were not so 
restricted, and that the phrase "due process" in the 
Fourteenth Amendment was intended only to secure 
"those fundamental principles of liberty and justice 

^ See injHit ¥M-¥n, '* Amid the labyrinth of decuions . . . the principle that has 
guided the Court u that the object of the Amendment was to prevent arbitrary 
action. Action is not arbitrary if the discrimination is founded upon a reasonable 
basis and has relation to the subject matter of the legislation." Juiieial ConttniC' 
turn of the Fourteenth AmettdmerUt by Judge Francis J. Swayse, Harv, Law Asp. 
(1912), XXVI. 



294 THE SUPREME COURT 

which lie at the base of all our civil and political insti- 
tutions *' ; but that it was not intended to confine State 
legislation simply to those forms and proceedings which 
had been sanctioned by usage. '^To hold that such a 
characteristic is essential to due process of law, would 
be to deny every quality of the law but its age, and 
to render it incapable of progress or improvement. It 
would be to stamp upon our jurisprudence the un- 
changeableness attributed to the laws of the Medes and 
Persians. . . . This flexibility and capacity for growth 
and adaptation is the peculiar boast and excellence of 
the conunon law. . . . Any legal proceeding enforced 
by public authority, whether sanctioned by age and cus- 
tom or newly devised in the discretion of the Legislative 
power, in furtherance of the general public good, which 
regards and preserves these principles of liberty and 
justice, must be held to be due process of law." 

On the question as to what action of a State was to be 
held to "deprive" a person of his property, the Court 
limited very decidedly the scope of the protection which 
the Fourteenth Amendment had been expected to pro- 
vide, by holding in a series of cases that an act which 
came within the scope of the State police power could 
not be termed a deprivation of property. In the first 
case presenting this issue, Bartemeyer v. loway 18 Wall. 
129, which had been argued with the Slaughterhouse 
CaseSy but which was not decided until a year later, the 
Court upheld, in 1874, a State liquor law prohibiting 
sale of liquor owned at its passage, as a proper exercise 
of the police power. Thirteen years later, in 1887, an 
even more radical prohibition law was upheld in Mugler 
V. Kansas, 123 U. S. 123, argued by George G. Vest 
against Joseph H. Choate; and the Court practically 
asserted that statutes passed in the exercise of the State 
police power would be upheld in every case unless the 



WAITE AND FOURTEENTH AMENDMENT 295 

statute "purporting to have been enacted to protect the 
public health, the public morals, or the public safety has 
no real or substantial relation to these objects, or is a 
palpable invasion of rights secured by the fundamen- 
tal law." ^ 

The anti-Chinese ordinances of San Francisco served 
as a means of further developing the limits of the State 
police power. In 1885, a municipal ordinance of San 
Francisco prohibiting laundry work at night, but in 
reality directed solely against the Chinese, was held by 
Judge Field to be constitutional, in Barhier v. Connolly, 
lis U. S. 27. It was held that the Fourteenth Amend- 
ment was not designed "to interfere with the power of 
the State, sometimes termed its * police power', to pre- 
scribe regulations to promote the health, peace, morals, 
education, and good order of the people, and to legislate 
so as to increase the industries of the State, develop 
its resources and add to its wealth and prosperity.'' 
And in Soon Hing v. Crowley, US U. S. 70S, Judge Field, 
in sustaining a similar ordinance, held that the liberty 
guaranteed by the Constitution was "liberty regulated 
by just and impartial laws", and he also held that the 
motives which inspired the ordinance could not be in- 
quired into by the Courts so long as its enforcement was 
undertaken without unjust discrimination. A Pennsyl- 
vania statute suppressing the manufacture of oleomar- 
garine was held not to constitute a deprivation of either 
liberty or property, in Powell v. Pennsylvania, 127 U. S. 
678, in 1888. In two cases, the Court sustained State 
regulation of the operation of railroads as being within 
the police power, and not a deprivation of property, 
though imposing considerable expense on the roads. 
Railroad Co. v. Richmond, 96 U. S. 521, in 1878, and 

1 See also FoHef v. Kansas (1884), 112 U. S. 201 ; Sdimidi v. CM (1886), 119 
U. S. 886 ; Kidd v. Pearson (1888), 188 U. S. 1. 



296 THE SUPREME COURT 

Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512, in 
1885. 

But it was in the class of cases involving the 
power of the State to regulate the rates and charges 
of railroad and other corporations, that the Court 
most profoundly afiFected the course of American 
history. By the Granger Cases decided in 1877, 
the proponents of the Amendment, who had in- 
tended to provide a sweeping protection of civil 
rights against State aggression, saw its operation re- 
duced by judicial construction to a very narrow field. 
For a correct understanding of the revolutionary and 
historic decision in these Granger Cases, the whole eco- 
nomic history of the country in the eight years following 
the Civil War must be carefully studied. Briefly stated, 
the cases originated as follows. During the years 1870- 
1871, there had swept through the Central West a 
movement known as the Grange, directed largely 
against the railroads and other large semi-public cor- 
porations such as the grain elevators. Somewhat coin- 
cident with the Greenback movement, it was the result 
of the high rates and undue discriminations by railroads 
and of the corporate financial excesses, abuses and legis- 
lative corruptions of the period.^ "The State must 
either absorb the railroads or the railroads wiU absorb 
the State" was the Granger cry; and from it there 
originated radical legislation in Illinois, Wisconsin, 
Minnesota, Iowa and other of the States of the Central 
West, fixing maximum rates for the railroads, and (in 
Illinois) for grain elevators, and imposing heavy fines 
and triple to quintuple damages, attorneys' fees and costs 
on any corporation failing to comply with the rates fixed 
by the State. As described by a leading Western paper 

^ See Th0 Rise cf the Oranger Movement, The Outeomeqfihe Granger Movement, by 
Charies W. Pienon, Popular Science Mo, (1887), XXXII ; Claee Struggles in Amer- 
ica (1907), by A. M. Simoiu ; The Granger Movement (1913), by Solon Juftvs Bvck. 



WAITE AND FOURTEENTH AMENDMENT 297 

in 1877 : ^^This legislation had its origin in the unques- 
tionable extortions of the railways. For several years 
following the war, the majority of the roads were run 
on the principle that there must be dividends amount- 
ing at least annually to ten per cent/' This resulted in 
the least possible service and in excessive rates, especially 
where there was no competition. "The acconmiodation 
of the public was left out of sight altogether ; and the 
monopoly, standing on the high ground of irrepealable 
charters and vested privileges, was defiant and un- 
yielding. The outraged popular feeling at last took 
form in the way of public meetings, conventions and 
organizations, which in due time resulted in legislative 
enactments."^ The significance and importance of 
this Granger movement was that it aroused the atten- 
tion of the American people to the fact that there was a 
railroad problem which free competition could not solve. 
Moreover, it constituted the first considerable attempt 
to use representative government as a means of limiting 
the power of property owners to manage their business 
m their own way.* " The railroad corporations were in 
fact rapidly assimiing a position which could not be 
tolerated," wrote a prominent authority on railroad 
problems. "Sheltering themselves behind the Dart- 
mouth College decision, they practically undertook to 
set even public opinion at defiance. ... In other 
words, they thoroughly got it into their heads that they 
as conmion carriers were in no way bound to afford 
equal facilities to all, and indeed that it was in the last 
degree absurd and unreasonable to expect them to do so. 

^ Chicago Tribune, Maidi S, 1877. "In the matter of railroad abuses, no region 
has felt the shoe pinch more than has the portion of the West traversed by the great 
trunk lines system. A few cents* fluctuation in grain rates made all the difference 
to the farmers between a good and a losing year." State Legtelatum Reipdating 
Railroad Traffic, by Charles C. Savage, Amer, Law Reg. (1884), n. a., XXIII. 

^Railroadi, Their Origin and Probleme (1885), by Charles Francis Adams; 
Undereurrente in American PolUice (1915), by Arthur T. Hadley, 68, note. 



298 THE SUPREME COURT 

The Granger method was probably as good a method of 
approachmg men m this frame of mind as could have 
been devised." ^ 

The railroads and investors very reasonably regarded 
the legislation with the greatest alarm. '"That it has 
efiFectually destroyed all future railroad ^iterprises, no 
one who is acquainted with its efiFect in money centers 
will for a moment doubt/' wrote the president of one of 
the roads in April, 1874. To test the validity of these 
various Granger laws, suits had been promptly insti- 
tuted by the railroads and other corporations affected, 
as early as 1871 ; but for various reasons they were not 
reached for argument in the Supreme Court until the fall 
of 1875. Meanwhile, the panic of 1873, combined with 
unscrupulous manipulation and unskillful management, 
had left the railroads of the country in a disastrous 
financial condition. As a Western newspaper said in 
1877, describing the changed conditions: '"The panic 
had altered the complexion of the railroad monopoly. 
It revolutionized the transportation business. It had 
reduced railway securities and railway credits. It had 
put one half the railway mileage of the country into 
practical bankruptcy. . . . Railroads have become an 
article of merchandise, sold regularly at auction, not by 
capital stock but according to value, including a pre- 
ferred portion of debt. The expenses of running rail- 
roads have been reduced; dividends are fewer and 
smaller. Retrenchment has become essential to life. 
. . . The rates have so fallen that the popular com- 
plaint which led to State legislation no longer exists." ^ 
Since, therefore, the reasons for the Granger laws were 

^ The Railroad Quettion (1899), by William Larrabee (Ez-Goyernor of Iowa). 
* Ckieago Tribune, March S, 18, 1877. Defaults in raihroad bonds prior to 1873 
. were $184,684,800 by thirty-seven raihroad companies ; up to 1876 defaults amounted 

N to $814,416,000 by two hundred and one companies. The total bonded railroad 

debt in 1876 was $2,175,000»000 ; so that the percentage of default was 80.7%. 



WAITE AND FOURTEENTH AMENDMENT 299 

disappearing, through reform of their own methods by 
the raiboads, and since the existence of these laws had 
retarded raiboad extension and development by reason 
of the distrust of investors in railroad securities, and 
since some of the States had already modified their 
legislation, there was little belief in the general com- 
munity that the laws would be upheld by the Court. 
The conservative and business element, especially in 
the East, had violently denounced the laws for many 
years, and had expressed confidence in their overturn by 
the Court. In 1874, the Nation^ stating that the matter 
was soon to come on for argument, said that it was *^of 
the last importance that it should be there determined 
not only correctly but in such a way as to inspire public 
confidence in the decision. The Court, for the first 
time almost in its history, is out of poUtics. The Judges 
are not Democrats or Republicans; nor are they di- 
vided, as the country once was, on the question of 
internal improvements. Since the lamentable fiasco of 
the Legal Tender decision, the Court has shown a 
marked tendency to conservatism and self-respect. In 
construing the new Amendments to the Constitution, it 
has shown a very laudable determination to cling to old 
and well-settled maxims of interpretation. The coun- 
try will look with deep interest to its decision in this 
case.'* ^ An able writer in the American Law Review in 
1875, after a thorough review of the constitutional ques- 
tions, pronounced the State laws to be clearly invalid,* 
and he concluded : * ' The late war left the average Amer- 

1 Editorials in the Nation : Sept. 24, 1874, The Right to Confitcate; Oct. 20, 1874, 
How Will the United States Supreme Court Decide the Granger Cases f Jan. 28, 1875, 
The Farmers and the Supreme Courts stating that the existence of the Potter Law in 
^^^sconsin affects financing of the raihroads and ^inting out the inconsistency of the 
position of the farmers, since "formerly, in order to invalidate bonds issued by 
counties, they asked that railroads be 'held purely private enterprises, and now they 
want them held to be public highways, entitled to only such toUs as the public 
deems reasonable." See also editorial, Jan. 27, 1876, The Granger Collapse. 

* Ths PoUer Ad at Washington, Amer. Law Res. (Jan., 1875), IX. 



SOO THE SUPREME COURT 

ican politician with a powerful desire to acquire prop- 
erty from other people, without paying for it. A suc- 
cession of schemes, too familiar to recapitulate here, 
have been tried, and, after hard struggles, have been de- 
feated by the honest conmion sense of the community. 
We have sufficient faith in the speedy clarification of 
ideas, among the honest advocates of the so-called Gran- 
ger laws, to feel confident that this assault upon private 
property will soon lose their support, and be publicly 
classed with the exploded fallacies of repudiation and 
unlimited greenbacks, before the illegality of the Potter 
law is adjudicated at Washington. When that decision 
is reached, we believe it will then be received with general 
favor throughout the whole country. It is necessary, 
in order to restore public confidence in the rights of 
private property now severely shaken." Later, it 
stated that it had never believed ^'that a movement 
would succeed in America which was really directed, 
not against abuses, but against the rights of property. 
. • . When the Grangers had once proclaimed that 
their object was to 'fix rates' . . . it was perfectly dear 
that the Granger movement was rank communism.'' 

Some of the so-called Granger CaseSy which related to 
railroad rates, were argued in October and November, 
1875; other of the railroad cases, together with the 
grain elevator case, were argued in January, 1876. Very 
able counsel appeared in opposition to the constitution- 
ality of the State legislation — amongst them, Orville 
H. Browning, Frederick T. Frelinghuysen, William M. 
Evarts, Charles B. Lawrence, B. C. Cook, E. W. 
Stoughton and John W. Gary. In the principal case, 
Munn V. Illinois y 94 U. S. IIS, there was involved an 
Illinois statute, enacted in 1871, in compliance with a 
provision of the Illinois Constitution (adopted in 1870) 
requiring the Legislature to pass laws "'for the protec- 



WAITE AND FOURTEENTH AMENDMENT 801 

tion of producers, shippers and receivers of grain and 
produce." This statute, fixing the maximum charges 
on storage of grain in all grain elevators and public 
warehouses, was now vigorously attacked as a depriva- 
tion of life, liberty and property without due process of 
law, in violation of the Fourteenth Amendment. 

On March 1, 1877, the Court rendered its decision, 
through Chief Justice Waite. It pointed out that the 
question presented by this case was the meaning of the 
word ^^ deprive" as used in the Amendment, and that to 
determine its signification, ^'it is necessary to ascertain 
the effect which usage has given it, when employed in 
the same or a like connection." After a long historical 
discussion, the Court finally reached the conclusion 
that the law was as follows : that when property had be- 
come clothed with a public interest, the owner must 
submit to be controlled by the public for the common 
good ; and the general test as to the character and sta- 
tus of property was stated to be that : "Property does 
become clothed with a public interest when used in a 
manner to make it of public consequence, and affect the 
community at large. When, therefore, one devotes his 
property to a use in which the public has an interest, he, 
in effect, grants to the public an interest in that use, 
and must submit to be controlled by the public for the 
common good, to the extent of the interest he has thus 
created." Applying this test to the grain elevator busi- 
ness, the Court pointed out that such business, estab- 
lished twenty years prior, had assimied immense propor- 
tions, was practically a monopoly, and affected the whole 
commerce in grain of seven or eight States of the West. 
" It is a business in which the whole public has a direct 
and positive interest. ... It presents, therefore, a 
case for the application of a long-known and well- 
established principle in social science, and this statute 



802 THE SUPREME COURT 

simply extends the law so as to meet this new develop- 
ment of commercial progress." That the power might 
be abused, the Court said, was no argument against its 
existence. "For protection against abuses by Legisla- 
turesy the people must resort to the polls, not to the 
Courts." Judge Field alone dissented, stating that it 
appeared to him "that the Court holds that property 
loses something of its private character when employed 
in such a way as to be generally useful. . . . The doc- 
trine . . . that whenever one's property is used in such 
a manner as to afiFect the conmiunity at large, it be- 
comes by that fact clothed with a public interest . . . 
appears to me to destroy, for all useful purposes, the 
efficacy of the constitutional guaranty." He pointed 
out that the public had an interest in many private en- 
terprises and business, in the sense in which the Court 
had used the term, and that to uphold the right of the 
public to regulate the prices and rates of such business 
would destroy all rights of private property. 

On the same day that the Court sustained the grain 
elevator rate law, it upheld the validity of the laws of 
Illinois, Wisconsin, Iowa and Minnesota fixing maxi- 
mimi rates for passengers and freights on all railroads 
operating in those States.^ While in these cases the 
laws had been claimed not only to violate the Four- 
teenth Amendment, but also the Commerce Clause and 
the Impairment of Obligation of Contract Clause of the 
Constitution,^ the Court held that the State police 
power was supreme in respect to regulation of these 
public corporations ; that the State legislation passed 
by virtue of that power did not infringe any provision 

^ Chicago, Burlington & Quincy R. R. y. Ioido, 04 U. S. 155 : Peik y. Ckieago A 
Nortkwwtem R. R., 04 U. S. 164 ; Chicago, MUtoaukee & St Patd y. AcJdy, 94 U. S. 
179; Winona A St. Peter R, R. y. Blake, 9i U.S. 180. 

* See Charter Contrada and the Regvlatum qf Rates, by Charles 6. Fenwick» 
Law Rev. (1911), IX. 



WAITE AND FOURTEENTH AMENDMENT SOS 

of the Federal Constitution ; and that the corporations 
being *' engaged in a public employment afiFecting the 
public interest" had been and were subject to legisla- 
tive control as to rates, from the moment of their in- 
corporation. Judge Field, again dissenting, said that 
the questions presented were "of the gravest impor- 
tance, and their solution must materially affect the 
value of property invested in railroads to the amount of 
many hundreds of millions, and will have a great influ- 
ence in encouraging or repelling future investments in 
such property/' He regretted that though the Court 
had an opportunity to define the limits of the power of a 
State, " so that on the one hand the property interests 
of the stockholder would be protected from practical 
confiscation, and on the other hand, the people would 
be protected from arbitrary and extortionate charges", 
the Court had not done this, but had simply applied the 
doctrine of the Grain Elevator Case. The decision, he 
said, "in its wide sweep practically destroys all the 
guaranties of the Constitution and of the common law." 
Though the decision of the Granger Cases did not 
result in the destruction of private business, as Judge 
Field prophesied, it was, nevertheless, revolutionary in 
the history of law ; it permanently turned the economic 
and social development of the United States; and 
it established forever the power of the States over 
the corporations and over monopolizing wealth. That 
these results were fully appreciated at the time is 
clearly shown in the contemporary newspaper criticism. 
"These decisions seem to make the broadest possible 
affirmation of the right of the State to regulate its own 
commerce, and their importance can hardly be over- 
estimated," said the New York Tribune, and in another 
editorial on "Property and the Supreme Court", it 
stated that the decision showed that : " The limits within 



S04 THE SUPREME COURT 

which public opinion is tending to conjfine the power of 
expropriation for reasons of public utility are extremely 
vague and liberal. . . . The statement of these doc- 
trines willy no doubt, startle many people, especially in 
the Eastern Section of the country, though it is really 
a logical result of the general principle of expropriation. 
... It is an advanced guard of a sort of enlightened 
socialism." The Nation feared that the decision would 
give a strong stimulus to threatening, "striking'* legis- 
lation; it pointed out that investors must pay dose 
attention to the consequences of the decision; it de- 
plored the assumption that "a common carrier is ex vi 
termini a common rogue " ; but it finally concluded that 
though "two years ago, the judgment would have 
created a good deal of excitement and probably have 
had a serious effect on the market value of railroad prop- 
erty in the States from which the appeals were taken, 
since then, the hostility to the railroads, in States in 
which the legislation fixing rates originated, has dis- 
appeared; and the Granger Movement itself, as a 
political force has collapsed, so that the decision is not 
now likely to have any marked immediate influence.'* ^ 
Other conservative papers of the East hotly attacked 
the decision as supporting "oppression**, "thievery**, 
and "brigandage** by State Legislatures, and as semi* 
socialistic in its tendencies ; and their view was summed 
up, six years later, by a noted jurist, in the statement 
that the decision in the Munn Case ^^stands a menace to 
business and material interests of all kinds. No other 
decision has ever been made in the course of our judicial 
history — not even excepting the notorious Dred Scott 
Ca^e — which threatens such disastrous consequences 
to the future welfare and prosperity of the country. 

^ Nation, March 8, 1877; see ibid., aim March 29, 1877» editorial on "Manage- 
ment of Corporations", describing the panic in England over American railway 
securities. 



WAITE AND FOURTEENTH AMENDMENT 306 

. . . The Elevator Case directly strikes at the stability 
of private property, at rights which lie at the very 
foundation of modem society and civilization. . . . By 
the demagogues who are conducting the agitation now 
going on throughout the country, it is confidently 
appealed to and relied upon to sustain the yet more 
communistic and destructive legislation which they 
demand." ^ 

It should also be noted that a part of the contempo- 
rary criticism of the decision was due to the political 
antagonisms which had arisen from the actions of the 
Hayes-Tilden Electoral Commission, on which Judges 
Bradley, Miller and Strong and Judges Field and Clif- 
ford had been sitting, in the month prior to the date of 
the decision. The decision in the Granger Cases was 
announced by the Court, on March 1, 1877, the day 
before the election of President Hayes by Congress as a 
result of the action of that Commission. The partisan 
excitement caused by this election and by the inaugura- 
tion of Hayes led some newspapers to assert that public 
confidence in the Judges had been weakened, and that 
the country would be the less willing to accept the doc- 
trines laid down by the Court. 

The American Bar in general was undoubtedly 
startled at the sweeping character of the doctrines 
asserted in the decision.* The American Law Review 
termed them "the most important that have ever been 
made, in defining the power of the States, though the 

^ The Supreme Court and Stale Repudiation^ by John Norton Pomeroy, Amer, Law 
Rev. (Sept., 188S), XVn. 

> In 1886» William P. Wells, in an address on The DaHmouth College Case befooe 
the American Bar Association, said : "These decisions assert principles which have 
not reoeived, and as we believe, cannot receive the assent of the most weighty pro- 
fessional opinion." Amer. Bar Ass. Report (1886) ; Amer. Law Rev. (18T7-78)» 
XI, 602, Xn, 859. 

For an excellent description of the conditions leading up to these Oranger 
Cases and of the decisions themselves, see The Oranger Cases and the Police Powers 
by James K. Edsall» Amer» Bar Ass. Report (1887). 



S06 THE SUPREME COURT 

discussion leaves something to be desired, and the judg- 
ment of the Bar seems to be a good deal divided." It 
admitted, however, that upon the whole, the decision 
was justified. "It is very true that the * police power' 
is open to the suspicion of being a convenient phrase to 
cover acts, which cannot be justified by the letter of the 
Constitution, but which are nevertheless deemed neces- 
sary. On the other hand ... if railroads and eleva- 
tors have a constitutional right to charge what they 
please, it is just as truly a right to destroy the property 
of others as a right to make noxious vapors would be. 
In such cases, it is immaterial that there is no statutory 
monopoly, so long as there is actual power on one side 
and actual dependence on the other." 

While opposed by the ultra-conservative part of the 
community, the decisions were highly approved by many 
prominent Eastern newspapers. The Springfield Re- 
publican derided the fears of papers like the Nation^ and 
highly praised the decision. " This language is a com- 
plete answer to those who have claimed that the Grange 
policy was a policy of spoliation and robbery. It was a 
harsh policy, a foolish policy in the extreme to which it 
was carried for a brief season ; but it was undertaken on 
a just principle, the principle that the great agricultural 
industry of the Western States had a paramount interest 
in the manner in which railroads and grain elevators 
were managed." Answering the "old wail, the Wall 
Street nonsense, that the decision renders railway capi- 
tal insecure", it pointed out that: "It was the waste, 
extravagance and inflation of the railroad-building era 
which have ruined railroad enterprises and rendered 
capital invested insecure. • • . The idea of the rail- 
roads was that, no matter how many rings fattened off 
from construction accounts, the communities using 
the roads would be bound to pay the interest on their 



WAITE AND FOURTEENTH AMENDMENT 307 

inflated cost, forever. The people revolted and we 
don't blame them. Nevertheless, the bankruptcy which 
has overtaken the railroads of the country since 1873 
has been due far less to the Granger legislation than to 
the collapse of the credit of new railroads from natural 
causes." Of the practical effect of the decision, it said : 
"Viewed in the broad and future aspect, the greatly 
increased strictness of railroad supervision which is the 
fruit of the Grange era will render railway capital 
more secure, instead of less so. It secures a degree of 
publicity of railroad affairs which was never before at- 
tempted." Of the inmiense importance of the legal 
doctrines enounced, it said: "What seemed * thieving' 
and * brigandage ' proves to have been the vindication of 
the power of the State over all the public interests in its 
borders, not merely by the decision of the Supreme 
Court, but by the revolution in the attitude of Legisla- 
tures to corporate power — from a servile deference 
to a sharply critical and almost inquisitorial sov- 
ereignty." ^ The New York Herald said that "the de- 
cision is equivalent to a revolution in the railroad busi- 
ness and . . . has brought safety to the country and 
salvation to the railroads." It hailed with gratifica- 
tion the settlement of the "right of absolute control by 
the representatives of the people." "The time had 
come when either the people would govern the rail- 
roads, or the railroads would govern the people. The 
Supreme Court has come to the rescue, and now both 
the public and the railroads are safe." It pointed out 
that the decision had really increased the value of rail- 
road investments, for the railroad financiers must now 
"cease their incessant warfare for through traffic and 
turn their attention to their true source of strength and 
profit, their local business." And it added, with some- 

1 SpnmgilM IUpMi4xm» Biarch 18, 14, 1877 ; New York Herald, Biarch 11, 1877. 



308 THE SUPREME COURT 

what undue optimism : '"There is no chance that the 
people will oppress the railroads. . . • The public is 
always just, in the long run. Any unfair treatment of 
railroads by legislation will be fought by the press, and 
eventually remedied by the people." And the general 
sentiment of the community was well summed up, later, 
by the Independent: "It is safer and better for the 
public interest that the final power to determine the toU 
rates of railroads should be lodged in the Legislature of 
a State than in a private corporation that is practically 
a monopoly. . . . The knowledge on their part that the 
Legislature can interpose its power to correct abuses is 
well calculated to restrain their cupidity and cause them 
to deal fairly and properly with the general public.** ^ 

The newspapers of the West, and especially in the 
States where the problem of railroad rate regulation had 
been the most vital question, naturally greeted the de- 
cisions with warm approval. The Chicago Tribuney 
while admitting that, because of financial changes, the 
controversy at one time so angry had lost much of its 
consequence, stated that, nevertheless: "The decisions 
of the Court are no less important, as determining the 
principle of constitutional power. Railroads and the 
people will now both recognize the principle as settled, 
and with such unanimity by the Courts as to preclude 
all probability of a change, during the next half cen- 
tury." ^ And it further pointed out that "no man need 

^ Independent, May 17, 1888. 

> Chicago Tribune, March 3, 18, 1877. The Milwaukee Sentinel, March 6, 1877, 
said : "Had it not been for the rush of great events during the past week, no little 
stir would have been created by the announcement of the decisions. . . . We be- 
lieve that the Sentinel might be excused for glorifying itself at this result. When 
the subject was being agitated, the infallible press, which term includes such papers 
as the Nation, and the great dailies of New York, Chicago and elsewhere, which 
assume to be Courts of last resort with respect to all such questions, vehemently pro- 
tested that no power existed in the Legislatures of the States to pass such laws. The 
Sentinel alone contended for the existence of such a power. ... In recompense 
for the bitter denunciation which it thus brought upon itself, it has had the satis- 
faction of seeing its view endorsed." See Wisconsin State Journal, March 8^ 1877. 



WAITE AND FOURTEENTH AMENDMENT 309 

fear for his property in railroads, so long as those rail- 
roads recognize and act upon the principle that the true 
interest of both public and corporations is for the latter 
to depend for their profits on the magnitude of their 
business, and not upon the extortionate character of 
their rates." The Western papers further regarded as 
the most striking and most beneficial phase of the de- 
cisions, "the breaking down of the extreme doctrine of 
vested rights asserted in the Dartmouth College Case 
• . . that parent of many evils, public and private." ^ 
"The decisions in the Granger Cases have not been 
made too soon. They are the preliminary steps to the 
uprooting of the doctrine that temporary Legislatures 
may enact irrepealable or unalterable laws to bind 
peoples and States indefinitely. These decisions indi- 
cate that the reign of chartered monopolies has reached 
its end, and that we are approaching a recognition of the 
inalienability of the political or governmental powers of 
the State. The sooner this recognition is made, the 
better for the corporations and for the Government. It 
will cheapen special franchises ; it will take from Gov- 
ernments the corrupting inducement to grant perpetual 
privileges," said the Chicago Tribune. The St Paul 
Pioneer Press said that the decisions "amount to a 
complete revolution of what, a few years ago, was re- 
garded as the established law of corporations", — a re- 
vision due to " the rapidly growing power of these cor- 
porations, and the unlimited powers of oppression which 
they would enjoy, if the logical results of the Dartmouth 
College Case were insisted upon by the Courts." It was 
pointed out, however, by this newspaper that the result 
of the decisions might be twofold, and that, while they 
cured an evil, they also made possible grave injury to 
the legitimate business. On the one hand, "it is 

1 Chicaifo Tribunfi, March 10, 1877 ; St Paul Pioneer Preee, March IS, M, 1877. 



810 THE SUPREME COURT 

justly regarded as a great public blessing that the mon- 
strous doctrine has been overthrown, that one Legisla- 
ture granting a charter with special privileges to a rail- 
road corporation could bind all subsequent Legislatures 
and build up a power as sovereign as the State itself, 
and forever beyond the reach of governmental control, 
and place the public at the mercy of the corporation *' ; 
on the other hand, it said, *' the decision places the cor- 
porations at the mercy of the Legislatures, deprives the 
capital invested in railroads of all security, and by 
transferring the control of their property interests from 
the corporation to the State Legislature, renders it 
liable to be at any time confiscated by ignorant, capri- 
cious or vindictive legislation." To guard against such 
disastrous effect upon railroad credit, and to protect 
and encourage legitimate investments of capital, this 
paper urged that the State Constitution be amended, 
"so as to limit the power of the Legislature to regulate 
railroad fares, by the common law principle that they 
are entitled to reasonable compensation, to be judicially 
ascertained." ^ Similar views were expressed in the 
East by the New York Times, that " the objection prop- 
erly held is, that if each State may decide for itself 
what rates are reasonable, the holders of railroad stocks 
and bonds can have no guarantee against the application 
of a measure which might practically amount to con- 

1 Si, Paul Pioneer Press, March IS, April 5, 1877 : "Railroads must be placed on 
some new foundation in the organic law of the State which, while leaving them sub- 
ject to legislative control, will place such limitations on legislative regulation of rail- 
roads, as shall protect the capital invested in them from being put to hazard or sub- 
jected to confiscation by legislative bodies, and from the perpetual peril of legislative 
passion, ignorance or caprice/' See also iJbid,, editorial, March 24, 1877 : "There 
can be no question that this decision must be disastrous to all the railroad interests 
of the West ; for it places their whole financial foundation on the shifting sands of 
legislative caprice. How can it be expected that capitalists ¥nll invest their money 
in railroads, when this decision deprives them of any control whatever over their 
investments, and subjects the capital they put in, to the hasard of being sw^t 
away at any moment by the breath of demagoguery? Its calamitous effects are 
already beginning to manifest itself. " Ihid^ April 5, 1877. 



WAITE AND FOURTEENTH AMENDMENT 811 

fiscation, • . • and great properties may be placed at 
the mercy of a power which is essentially capricious'* ; 
and it continued : "The tendency towards meddlesome 
legislation to the prejudice of the rights and property is 
rendered more obnoxious, by the failure to exercise a 
legitimate authority in their behalf.'* Accordingly, it 
argued that the States, having now absolute power over 
the railroads, should enact legislation directed at the 
evils of railroad financing, and at the policies "fraught 
with disaster" which had prevailed in financial circles, 
such as improper leases, stock watering and secrecy of 
accounts and operations.^ 

Moreover, as has been well pointed out, a more 
powerful force than that of the Courts was working to 
protect the railroads, the investors and the public. As 
soon as the capitalists found that certain States would 
not allow them to earn interest on railroad investments, 
they refused to invest more money in those States. 
No new roads were constructed; the equipment that 
wore out was not replaced. While the rates at which 
wheat was carried to market remained low, a great deal 
of wheat did not get carried to market at all, owing to 
lack of the physical means of transportation. The 
Legislatures could prevent high charges, but they could 
not prevent deficient service ; and deficient service was 
a worse evil than high charges. Under these circum- 
stances tJie farmers found themselves compelled to 
allow to the railroads a fair profit.^ Consequently, the 
very men who had been most active in passing rate laws, 
from 1870 to 1874, were the readiest to repeal them, in 
1878 ; and even in the States where the Granger policies 
had taken firmest root, the sentiment developed rapidly 
in favor of constructive legislation, which should both 

1 New York Times, March 20, 1877. 

* Uvdercuneaia w Amarioan PolUics (1915), by Arthur T. Hadl^» 70-7L 



812 THE SUPREME COURT 

protect the public from railroad extortion and abuses, 
and the railroads from unjust or confiscatory laws. 
**The laws were finally repealed, not because the people 
had tired of them or regarded them unwise or unjust/* 
wrote a Granger advocate, "but because it was hoped 
that the Commission system would prove more efficient. 
It was offered as a compromise measure, and was ac- 
cepted as such by the railroad managers, who, in their 
eagerness to rid themselves of the restrictions imposed 
by the Granger laws, gave every assurance of complete 
submission to the requirements of the proposed legisla- 
tion/* ^ This compromise, embodying the new view of 
the public in dealing with the railroad problem, took the 
shape of statutes constituting State Railroad Commis- 
sions with power to fix rates after due investigation, and 
to frame and administer other regulatory provisions.* 
When the validity of such statutes finally came before 
the Court, the composition of that tribunal had been 
greatly changed by death and resignation; and the 
trend of its decisions was far more Nationalistic than it 
had been in the early years of Waite's Chief Justiceship. 
Hence, in 1886, when the case of Stone v. Farmers Loan 
& Trust Co., 116 U- S. 307, was decided, the validity of 
a Mississippi statute providing for a railroad commis- 
sion with full regulatory powers was sustained; but 
the Court further held that, even though the railroad 
charter granted a specific power to the corporation to 
fix its tolls and charges, this provision was subject to the 
implied condition that such charges must be reasonable ; 
and for the first time it intimated that the question of 
what was a reasonable rate might be for the Courts to 

1 The RaUroad Quettion (1899)» by Ymwm Larrabee. 

* State Legidatum Regvlaiing RaUroad Trc^, by Charies C. Savage, Amer, 
Law Reg. (1884), n.s., XXIII; ConstUuHonalUy of Railroad Commieeions, by 
Charles C. Savage, Amer. Law Rev. (1885), XIX; see also FtUey v. RaUroad 
(1881), 5 Fed. 641. 



WAITE AND FOURTEENTH AMENDMENT SIS 

decide, and not (as Waite himself had stated nine years 
previously) solely for the Legislature. "From what 
has thus been said it is not to be inferred that this 
power of limitation or regulation is itself without limit. 
This power to regulate is not a power to destroy, and 
limitation is not the equivalent of confiscation. Under 
pretense of regulating fares and freights, the State can- 
not require a railroad corporation to carry persons or 
property without reward ; neither can it do that which 
in law amounts to a taking of private property for pub- 
lic use without just compensation, or without due pro- 
cess of law.'' By this significant sentence, the corpo- 
rate interests of the country and the Bar were given 
warning that the powers which the Granger Cases had 
recognized as possessed by the State Legislatures were 
by no means as unlimited as had been generally sup- 
posed. Two years later, in 1888, in Dow v. BetdelmaUy 
125 U. S. 680, the Court remarked that the facts of the 
case did not present "such confiscation as amounts to 
a taking of property without due process of law." 
Finally, in 1890, thirteen years after the Granger Cases^ 
the Court held in Chicago^ Milwaukee & St. Paul 
R. R. V. Minnesota^ 134 U. S. 418, that not only was the 
reasonableness of rates a question for ultimate judicial 
decision, but also that any determination of rates by 
legislative sanction which deprived a railroad of the 
right to judicial investigation of their reasonableness 
was invalid. As has been said, the Court "repudiated 
the doctrine of uncontrolled rights on the part of the 
Legislatiu^ to make rates, as emphatically as it 
repudiated the doctrine of uncontrolled rights on 
the part of agents of the corporation in the Granger 
Cases" ^ Judges Bradley, Gray and Lamar dissented, 

^ Railway Passenger Bates (1891), by Arthur T. Hadley ; RaUtoay TraneportaUom 
Us History and its Law (1885), by Arthur T. Hadl<^. 



814 THE SUPREME COURT 

on the ground that the decision overruled the Granger 
Cases (which it undoubtedly did) ; they held that the 
only limitations on the power of the Legislature 
to determine the reasonableness of rates was that its 
action must constitute ^'due process '\ that is, that it 
must not be arbitrary or fraudulent ; and they further 
held that the Fourteenth Amendment did not forbid 
the taking of property for public uses without just com- 
pensation, but only the taking without due process. 
While it was generally felt that the opinion of the dis- 
senting Judges was the more correct as a matter of 
strict law, nevertheless, this decision of the Court in 
1890 was undoubtedly the more in accord with the 
general trend of judicial decisions and the temper of the 
times.^ ^'Nothing has done more to sustain the value 
of American railroad securities,*' wrote a well-known 
jurist in 1895, "or to create greater confidence therein 
than the knowledge that beyond and above the sover- 
eign power of the State, there is the supreme authority 
of the Nation over interstate as well as foreign com- 
merce, while beyond and above that is the ultimate 
final doctrine of vested rights which neither State nor 
Nation, jointly or separately, can invade or impair." * 
On the other hand, the radical, anti-corporation portion 
of the community regarded the decision with some anx- 

^See espedally The Railroad QueOion (1809), by William Larrabee; and for a 
oomprehenaion of the interest in tJie subject at this time, see Railroads, Their Origin 
and PrdUeme (1878), by Charles Francis Adams ; The Railtoaye, the Farmer and the 
FMio (1885), by Edward Atkinson ; The People and the RaUwaye (1888), by James 
Appleton Morgan ; The Relation of the Railroads to the People, etc. (1881), by Blar- 
shfdl M. Kirkham ; The RaUwaye and the Republic (1886), by James F. Hudson ; 
RaUiaay Secrecy and Trueta (1890), by John M. Bonham ; The West and the Railroads, 
by Sidney Dillon, North Amer, Rev. (1891), CLIII; Railway Rates and Qoeemment 
Control (1892), by Marshall M. Kkrkham. 

* Federal TMrairds upon State Regulation of RaOroad Rates, by \^^lliam L. Dana, 
Hatv. Law Rev, (1895), IX ; and as to this whde railroad rate question, see especially 
Contemporairy American History (1914), by Charles B. Beard, 71 et seq.; The Legal, 
Legislative and Economie Battle over Railroad Rates, by William W. Cook, Han. 
Law Rev. (1921), XXXV. 



WAITE AND FOURTEENTH AMENDMENT 815 



J 



iety. It noted that Judge Brewer, a newly-appointed 
Judge, had disclaimed all belief in the correctness of the 
Munn decision and had said that *Hhe paternal theory 
of government is to me odious."^ "We have even 
reason to believe that unless the people of the United 
States are on the alert, as railway managers always are, 
there is, with further changes in the personnel of the 
Court, danger of its deviating from the sound principles 
of law laid down in its decision in the Granger Cases,** 
wrote Governor Larrabee of Iowa. 

While that portion of the Court's decision in Munn v. 
Illinois which announced the State power to fix corporate 
rates was, for many years, the point on which public in- 
terest centered, it was soon realized by the Bar that the 
broad views announced, relative to the classes of business 
subject to the exercise of such power, were likely to have 
an even more extensive and revolutionary eflFect upon 
the course of legal and economic history. In 1888, 
James Bryce wrote that the Granger Cases "evidently 
represent a diflFerent view of the sacredness of private 
rights and of the powers of a Legislature, from that en- 
tertained by Chief Justice Marshall and his contem- 
poraries. They reveal that current of opinion, which 
now runs strongly in America, against what are called 
monopolies and the powers of incorporated companies. 
. . . The Court feels the touch of public opinion." * 
As early as 1891, in an article entitled "A New Consti- 
tutional Amendment", it was said : "In a commercial 
emergency, the oracles of the law have been approeched. 
. . . They now give forth a response, which startles 
lawyers and laymen. . . . For the first time, it is ap- 
preciated that there has lain dormant for a century a 
vigorous principle of the common law, an element of 

» Brewer, J., in Budd v. Nw> York, 148 U. S. 517. 

* The American CommomoeaUh (1888), by James Bryce, 1, 267. 



S16 THE SUPREME COURT 

Anglo-Saxon government, which, in the hands of an 
aristocracy, has often been an instrument of wrong and 
oppression, and which may, in the hands of the people, 
eflFect a despoliation of property owners, surpassing the 
encroachments of the Crown at the worst periods of 
English history. . . . Years ago, the Court introduced 
the Slavery struggle with the Dred Scott decision. To- 
day, it may be that it has introduced the property 
struggle, with the decision of Munn v. Illinois. . . . 
The principle is one which can only be regarded with 
anxiety and alarm by conservative minds. Speculation 
falters in guessing at the uses to which it may be put in 
experimental legislation by those who beUeve in the 
theory of State control. ... A learned ex-Judge of 
one of the Federal Courts remarked on reading the 
opinions : * If this Government is to endure, the views 
expressed in the dissenting opinion of Mr. Justice 
Field must be adopted as the law of the land.' *' ^ On 
the other hand, it was said that though the Munn 
Case seemed to ^'strike a telling blow at individualism 
and lends a strong support to the socialistic ideas of the 
day", yet that "the doctrine may be regarded rather 
as an effort of individualism to stem the rising tide of 
combination, rather than as socialistic, a stand made 
by the individual rather than a move forward of 
socialism." * 

In spite of all apprehensions and of Judge Field's 
foreboding, the State Legislatures refrained for many 
years from unduly extending their control of private 
business ; and the Court had occasion to apply the doc- 

^A New CofuHtvHonal Amendment, by Charies C. Marshall, Amer. Law Ree. 
(1891), XXIV, stating that the case had been "conspicuous for a torrent of adverse 
criticism." Everett V. Abbot in Justice and the Common Law, in 1918, said : "The 
Grongar C(W« are still to be justified. . . . Public interest and public right are two 
very different things." 

* The Doctrine of the United States Supreme Court of Property Affected by a PubUo 
Intereet, and ita Tendeneiee, by W. Fred Fisher, Yale Law Joum. (1895), V. 



WAITE AND FOURTEENTH AMENDMENT 817 

trine of "business clothed with a public interest'*, to 
but few businesses, other than those involved or dis- 
cussed in the Granger Cases .^ Nevertheless, the right 
of control still remained where it was placed by the Court 
in 1877 ; and the existence of such a right in a State 
Legislature served as a warning, and as a check on cor- 
porate pretensions. Until the year 1914, however, it 
was generally regarded by law writers that under this 
decision, any business in which there was a virtual mo- 
nopoly as a permanent condition inherent in the nature of 
things, might at any time be subjected by the Legisla- 
ture to a regulation of its charges, the conditions which 
might produce such virtual monopoly being various — 
natural limitations such as available sources of supply, 
restricted opportunities of access, necessity of conduct 
of business within a certain location, difficulties in dis- 
tribution, large scale of the business and absence of 
effectual substitutes.^ In 1914, a momentous decision 
of the Court in a case involving the regulation of fire 
insurance seemed to broaden the foundation of power 

^ For later diacmwions of the principles involved, see Bvdd v. New York (1802), 
143 U. S. 517 : Brass v. North Dakota (1894), 158 U. S. 891 ; Covington etc. Turnpike 
Road Co. V. Sandford (1896), 164 U. S. 578; Smuth v. Arnes (1898), 169 U. S. 466, 
Cotting V. Kansas City Stockyards Co. (1901), 183 U. S. 79. It is interesting to note 
that Judges Brewer and Field dissenting in the Bvdd Case, in 1892, fifteen years 
after the Munn Case, expressed the belief that the Court would abandon its doc- 
trine. Twenty years have elapsed since the Budd Case, without any change of the 
Court's doctrine. See also Block y. Hirsh, 41 Sup. Ct. Rep., April 18, 1921. 

* This was practically the explanation of the Oranger Case given a year later by 
Judge Bradley in the Sinking Fund Cases, 99 U. S. 700, 747, in 1878, "that when 
an employment or business becomes a matter of such public interest and importance 
as to create a common charge or burden upon the citizen ; in other words, when it 
becomes a practical monopoly, to which the citizen is compelled to resort, and by 
means of which a tribute can be exacted from the community, it is subject to regu- 
lation by the legislative power." See also Social Reform and the ConstituUon (1911), 
by Frank J. Goodman ; Increased Control of State Adioities by Federal Courts, by 
Charles A. Moore, Proc. Amer. Pol, Science Ass. (1901) ; The Coal Mines and 
the Public, by Heman W. Chaplin (1902); The Coal Mines and the Law, 
by Bruce Wyman, Green Bag (1902), XIV; A Word More as to the Coal Mines, 
by Heman W. Chaplin, Oreen Bag (1902), XIV ; Control of the Market, by Bruce 
Wyman (1901); Public Service Company Rates and the Fourteenth Amendment, 
Hart. Law Rev. (1901)» XV ; Popular Law Making (1910)» by Frederic J. Stimaon. 



S18 THE SUPREME COURT 

of State regulation, and to base it purely on the "public 
interest" requiring such a regulation, as determined by 
the Legislature.^ But, while the legislative power of 
regulation was, until recent years, extended to few addi- 
tional cases of private business " clothed with a public in- 
terest'*, it was applied to a large number of varied cor- 
porate interests the control of which has been justified 
by the semi-public nature imparted to them by the pos- 
session of special franchises; and the extent of the 
authority of the State Legislatures to regulate the 
charges of water, gas, electric light, telephone, street 
railway, bridge, turnpike, irrigation, ore-carrier and 
numbers of other like corporations has been the subject 
of a mass of litigation and decisions by the Court.^ 

Having thus, as early as 1877, limited both the Priv- 
ilege and Immunity Clause and the Due Process Clause 
of the Fourteenth Amendment, the Court under Chief 
Justice Waite gave also a restricted meaning to the 
Denial of the Equal Protection of the Laws Clause. 
About ten decisions were rendered involving this por- 
tion of the Amendment ; but in only one case was the 
action of the State found to come within its proscrip- 
tion.^ In Missouri v. LevriSy 101 U. S. 22, the Court 
stated that all that this Clause meant was ^^ that no per- 
son or persons shall be denied the same protection of the 
laws which is enjoyed by other persons or other classes 
in the same place under like circumstances." In 1886, a 
case was decided in which the country expected that the 

^ Oerman Alliance Insurance Co. v. Kansas, 288 U. S. 889; see especially Business 
Jurisprudence, by Edward A. Adler, Harv. Law Rev. (1914), XXVIII ; Labor, Capir 
tal and Business ai Common Law, by Edward A. Adler, ibid. (1916), XXIX; Notes 
on the Federal Poioer to Regtdate Commodity Prices, Cong. Rec., June 16, 1917. 

* See Spring Valley Waterworks y. Sckottler, 110 U. S. 847, as early as 1884 ; and 
see Public Service Company Rates and the Fourteenth Amendment, by Nathan 
Mathews, Jr., and William G. Thompson, Harv. Law Rev. (1901), XV. 

s In Yick Wo V. Hopkins (1886), 118 U. S. 856 ; see also Missouri v. Lewis (1880), 
101 U. S. 22; Fire Ass. etc. v. New York (1886), 119 U. S. 110; Hayes v. Missouri 
(1887), 120 U. S. 68; Dowy. Biedetman (1888), 125 U. S. 680; Pembina Mining Co. 
V. Pennsykfania (1888), 125 U. S. 181. 



WAITE AND FOURTEENTH AMENDMENT 819 

Court would finally settle a great question long agitated 
in the community : how far, under the Amendment, a 
State might impose upon corporations a different system 
of taxation from that imposed upon individuals. The 
question had been argued with supreme ability by 
George F. Edmunds, William M. Evarts and Roscoe 
Conkling in 1882 and 1886, in two cases involving Cali- 
fornia taxes on the Southern Pacific Railroads. The de- 
cision of the Federal Circuit Courts had been in favor of 
the corporation tax involved. "If confirmed by the 
Supreme Court, it will add greatly to the protective 
usefulness of the Fourteenth Amendment," said the 
Independent. "It will impose a restriction upon the 
taxing power of the States, adapted to guard against 
abuses of the power, and promote the general interests 
of justice among the people." * The question was not 
decided at this time, in 1886, since the case was disposed 
of on another point ; but Judge Field in a concurring 
opinion stated his regret that the Court had not passed 
on the question whether, in the tax assessment in- 
volved, "an unjust discrimination had been made be- 
tween the corporation's property and the property of 
individuals, to its disadvantage, thus subjecting it to an 
unequal share of the public burdens, and to that extent 
depriving it of the equal protection of the laws." "At 
the present day," he said, "nearly all great enterprises 
are conducted by corporations, and a vast portion of the 
wealth of the country is in their hands. It is, therefore, 
of the greatest interest to them, whether their property is 
subject to the same rules of assessment and taxation as 
the property of natural persons. . . . The question 

1 County of San Mateo v. Southern Faeific R, R. (1885), 116 U. S. 188; Santa Clara 
County V. Southern Pacific R. R. (1886), 118 U. S. S94 ; Independent, Nov. 80, 1882 ; 
New York Tribune, Dec. 19, 1882 ; New York World, Jan. 28, 1888, giving high praise 
to ConkUng's argument, and speaking of the "novel aggression of sandhill radical- 
ism upon corporation and capital, as embedded in the Constitution of California." 



S20 THE SUPREME COURT 

is of transcendent importance, and it will continue to 
come here, until it is authoritatively decided, in har- 
mony with the great Constitutional Amendment, which 
insures every person, whatever his position or associa- 
tion, the equal protection of the law ; and that neces- 
sarily implies freedom from the imposition of unequal 
burdens under the same conditions." In later years, 
the Court finally disposed of the question by confirming 
fully the power of the State to discriminate between 
corporations and individuals in methods of taxation.' 

It is interesting to note that throughout the period of 
Chief Justice Waiters term of office, the Court evinced 
considerable apprehension at the number of cases which 
were being presented to it under the Fourteenth Amend- 
ment. As early as 1878, at a time when less than 
twenty cases had involved the Amendment, the Court 
gave the following warning, through Judge Miller, in 
Davidson v. New Orleans, 96 U. S. 97 : "It is not a little 
remarkable, that while this provision has been in the 
Constitution of the United States, as a restraint upon 
the authority of the Federal Government, for nearly a 
century, and while, during all that time, the manner in 
which the powers of that Government have been exer- 
cised has been watched with jealousy, and subjected 
to the most rigid criticism in all its branches, this special 
limitation upon its powers has rarely been invoked in 
the judicial forum or the more enlarged theater of public 
discussion. But while it has been a part of the Con- 
stitution, as a restraint upon the power of the States, 
only a very few years, the docket of this Court is crowded 
with cases in which we are asked to hold that State 

^ It is interesting to note that it was not until the year 1885 in this case of County 
qfSan Mateo v. Southern Pacific R, R., 116 U. S. 138, that the Court for the first time 
expressly recognized a corporation to be a "person " within the meaning of the Four- 
teenth Amendment; and a distinct decbion to that effect was made in 1888 in 
Pembina etc. Mining Co, v. Penmylvania, 125 U. S. 181. 



WAITE AND FOURTEENTH AMENDMENT 321 

Courts and State Legislatures have deprived their own 
citizens of life, liberty or property without due process 
of law. There is here abundant evidence that there 
exists some strange misconception of the scope of this 
provision as found in the Fourteenth Amendment. In 
fact, it would seem, from the character of many of the 
cases before us, and the arguments made in them, that 
the clause under consideration is looked upon as a means 
of bringing to the test of the decision of this Court the 
abstract opinions of every unsuccessful litigant in a 
State Court of the justice of the decision against him, 
and of the merits of the legislation on which such a deci- 
sion may be founded." And in 1885, in Missouri Pacific 
Railway Co. v. Humes, 115 U. S. 512, the Court, through 
Judge Field, expressed "its increased surprise at the 
continued misconception of the purpose of the provi- 
sion"; and it again asserted that the "hardship, im- 
policy, or injustice of State laws is not necessarily an 
objection to their constitutional validity", and that 
"this Court is not a harbor where refuge can be found 
from every act of ill-advised and oppressive State legis- 
lation." So long as the State's action is not purely 
arbitrary, and the enforcement of the law is "attended 
with the observance of those general rules which our sys- 
tem of jurisprudence prescribes for the security of pri- 
vate rights, the harshness, injustice or oppressive char- 
acter of the law will not invalidate them as affecting life, 
liberty or process without due process of law." 

These expressions of alarm, while scarcely required 
by the actual number of cases then presented, were 
later to be justified. For while less than seventy cases 
were decided under that Amendment in the sixteen years 
between 1873 and 1888 inclusive, about seven hundred 
and twenty-five were so decided in the thirty years from 
1888 to 1918. 

VOL. m — 11 



CHAPTER THIRTY-FOUR 

THE CIVIL RIGHTS ACTS 

1875-1884 

While the scope of the Fourteenth Amendment and 
the degree of its application to the financial, economic 
and social legislation of the period were thus being grad- 
ually developed by Chief Justice Waite and his Asso- 
ciates, the greatest growth of this branch of the law did 
not begin until after Waiters death in 1888. The mean- 
ing and effect of that Amendment, however, so far as 
it concerned the negro race for whose protection it had 
been primarily adopted, were fully and definitely settled 
by Waite and his Court, in a series of eight cases between 
1876 and 1884.^ 

The conservative and restricted interpretation which 
the Court, under Chief Justice Chase, had placed on 
the Privilege and Immunity Clause of the Amendment 
had given a warning to the extreme Reconstructionists 

^ It may be noted that the Thirteenth Amendment was proclaimed to be in force, 
Dec. 18, 1805 ; the Fourteenth, July 28, 1868 ; the Fifteenth, March 80, 1870. 
The statutes passed in enforcement of the Amendments were as follows: the 
Civil Rights or Enforcement Act of April 9, 1866 ; the Civil Rights or Enforcement 
Act of May 81, 1870, Act of Feb. 28, 1871 ; the Ku Klux Act of April 20, 1871 ; 
the Civil Rights Act of March 1, 1875. See Documentary History cf Reconitruo- 
turn (1906), by Walter L. Fleming; The Federal Enforcement Acts, by William W. 
Davis, Studiee in Southern History and Politics (1914) ; Essays on the Civil War and 
Reconstruction (1904), by William A. Dunning; Reconstruction, FoUHoal and Eco- 
nomic (1907), by William A. Dunning. 

In April, 1872, the Civil Rights Enforcement Act of April 9, 1866 (passed prior 
to the Fourteenth Amendment) was considered in Blyew v. United States, IS 
Wall. 581, but its constitutionality was not passed upon. This Act had been held 
constitutional in cases in the Federal Circuits Courts by Judge Swayne, in Ken- 
tucky in 1866, and by Chief Justice Chase, in Maryland in 1867, and Horace White 
said in his L^e of Lyman TrumbuU (1913), 274-275, that : "If either of these cases 
had been taken to the Supreme Court on appeal at that time, the Civil Rights Act 
of 1866 would doubtless have been upheld by that body." 



THE CIVIL RIGHTS ACTS 82S 

that their hopes as to the validity of National Legis- 
lative protection to the negro might be dashed. When 
the additional Civil Rights Act of 1875, which directly- 
penalized discrimination against the negro in public 
conveyances, hotels and elsewhere, was under debate 
in Congress, it was pointed out in the press that its 
validity was highly doubtful. "There can be little 
doubt," said the Nation^ "that if it were not for the 
fatal habit we have fallen into since the war of regard- 
ing the Central Government practically above the law 
and the Constitution, whenever the negro is concerned, 
the mere suggestion of the constitutional points ought 
to have killed the bill forever. It is plainly unconsti- 
tutional. . . . The Fourteenth Amendment has twice 
come before the Supreme Court; and on neither of 
these well-known occasions was the decision of the 
Court of such a character as to lend much encourage- 
ment to those who believe the new Amendments to have 
introduced very revolutionary principles as to the re- 
lations of the States to the General Government. . . . 
In the light of these decisions, it may safely be inferred 
that the Supreme Court must look with extreme sus- 
picion upon a law, upsetting the domestic law of States 
on the subject of schools, of common carriers, of inn- 
keepers, and substituting for them the new and strange 
system invented by the authors of this bill. In the 
interest of the negro, we trust that it may never reach 
the Court. Deeply as we sympathize with his wrongs, 
we have no expectation or hope of seeing them righted, 
by hounding on his old masters to acts of violence and 
lawlessness, by the passage of equally violent and law- 
less Acts of Congress. The Reconstruction period is 
ended, and the negro in future will occupy such a posi- 
tion as his industry and sobriety entitle him to. Such 
bills as the one we have been considering do nothing 



824 THE SUPREME COURT 

for him but turn his friends into enemies." * The 
probable action of the Court was thus correctly prophe- 
sied ; for within a year after this Civil Rights Act of 
1875 passed, two decisions were rendered which entirely 
demolished the Radical Reconstructionist plan of pro- 
tecting the rights of the negro by direct Federal legis- 
lation. On March 27, 1876, the Court, in United States 
V. Reese^ 92 U. S. 214, held unconstitutional sections 
three and four of the earlier Civil Rights Enforcement 
Act of May 31, 1870, which penalized inspectors in 
State elections for refusing to receive and count votes 
and for obstructing any citizen from voting. In an 
opinion rendered by Chief Justice Waite, the Court 
held that under the Fifteenth Amendment, Congress 
had only power to enforce "by appropriate legislation" 
the right to exemption from discrimination in the ex- 
ercise of the elective franchise on account of race, color 
or previous condition of servitude; that the statute 
in question was not confined to such a limited class of 
discrimination, but extended broadly to all discrimina- 
tions and obstructions ; that, so construed, it was an 
unconstitutional interference with the rights of the 
States. To the old argument against the Court's 
power to overthrow an Act of Congress, the Chief Jus- 
tice repUed that, while Congress was supreme within 
its legislative sphere, the Courts, "when called upon 
in due course of legal proceedings, must annul its en- 
croachments upon the reserved powers of the States 
and the people." The decision in this case had been 
long looked for with much anxiety by those opposed 
to Federal interference in State elections ; and the care 
with which the Court considered the case was shown by 

1 Nation, Sept. 17, 1874; see also TA^ ConMuHonality qf the CivU BighU Law, by 
William Archer Cooke, Southern Law Rev, (July, 1875), N.s., 1, 193 : "There may 
be a partisan feeling moving the spirit of the law ; in a legal sense, we have nothing 
to fear from it if the same feeling does not invade the Bench/' 



THE CIVIL RIGHTS ACTS 825 

the fact that while it was argued, January 13, 1875, 
by Attorney-General Williams and Solicitor-General 
S. F. Phillips against the veteran Henry Stanbery and 
B. F. Buckner, the Court reserved its decision for 
fifteen months. Concomitant with this case, the Court 
rendered another decision which came as a heavy 
blow to those who were seeking to protect the 
negro voter. In United States v. Cruikshank, 92 
U. S. 542, indictments had been found for conspi- 
racy under section six of the statute, which forbade 
any person "to injure, oppress, threaten or intimi- 
date any citizen, with intent to prevent or hinder his 
free exercise and enjoyment of any right or privilege 
granted or secured to him by the Constitution or laws 
of the United States/' Frauds and violence against 
the negroes in Louisiana State elections were involved 
in this case; and the defendants were charged with 
conspiring to prevent citizens in the enjoyment of their 
right to peaceably assemble with others, of their right 
to petition for redress of grievances, of their right to 
bear arms and of their right to vote ; also with con- 
spiring to falsely imprison and murder and thus de- 
prive citizens of their livejs and liberty without due 
process of law. Arguments had been heard in March, 
1875, the Attorney-General and the Solicitor-General 
appearing for the Government, and David Dudley 
Field, Reverdy Johnson, Philip Phillips, John A. Camp- 
bell and R. H. Marr for the defendants. The decision, 
handed down, over a year later, was a notable victory 
for the defendants' eminent counsel. The Court held 
that the various rights so set up were not rights which 
citizens enjoyed by virtue of, or which were secured to 
them by, the Constitution of the United States ; and 
hence, the actions set forth in the indictment did not 
come within the purview of the statute. "The right 



S26 THE SUPREME COURT 

of the people peaceably to assemble for lawful pur- 
poses existed long before the adoption of the Consti- 
tution • . . and always has been one of the attributes 
ol citizenship imder a free government/' the Court 
said. "'It was not, therefore, a right granted to the 
people by the Constitution/' This same was held 
true as to the right to bear arms. With respect to the 
right to due process, while the Fourteenth Amend- 
ment prohibits a State from denying due process, the 
Amendment does not add anything to the right which 
a citizen already possessed. '^It simply furnishes an 
additional guaranty as against any encroachment by 
the States upon the fimdamental rights which belong 
to every citizen as a member of society. . . . The 
power of the National Government is limited to the 
enforcement of this guaranty." The right to vote 
was held to come from the States only, and it was only 
right of exemption from discrimination on account 
of race or color under the Fifteenth Amendment, 
which came from the United States. Inasmuch as 
the indictments did not allege such discrimination, 
they could not be upheld. "We may suspect," said 
the Court, "that race was the cause of the hostility, 
but it is not so averred." 

The practical effect of these decisions was to leave 
the Federal statutes almost wholly ineffective to pro- 
tect the negro, in view of the construction of the Amend- 
ments adopted by the Court, the lack of adequate 
legislation in the Southern States, and the extremely 
limited number of rights which the Court deemed in- 
herent in a citizen of the United States, as such^ imder 
the Constitution. The decisions, nevertheless, were 
believed by all, except the Radical opponents of the 
South, to be wise and to open the door for more sane 
and liberal methods of dealing with the negro problem 



THE CIVIL RIGHTS ACTS S27 

in the South. "' The fatal defect in the legislation 
consists in an assumption, which, if it were true, would 
revolutionize our whole system of government, and 
as remarked by the Supreme Court, clothe Congress 
at its discretion with jurisdiction in respect to the 
entire domain of civil rights heretofore belonging ex- 
clusively to the States,*' said the Independent. "To 
assume State powers as the method of punishing and 
preventing wrong in the States would be an experi- 
ment with our poUtical system that had better be 
omitted. The ostensible end will not justify it. South- 
em questions, so far as they are purely State ques- 
tions, must be left to the States themselves, and to those 
moral influences which finally shape the course of legis- 
lation. The General Government cannot authorita- 
tively deal with them, without producing more evils 
than it will remedy.'* ^ It further pointed out that, 
as the Court did not concur with the imderlying theory 
on which the statutes were based, namely, that the 
Amendments gave to Congress the power to enact 
ordinary police legislation penalizing trespasses and 
crimes committed by individuals in the States, the de- 
cision should serve as a warning to Congress to keep 
within the scope of its constitutional powers. Simi- 
larly, the New York Times said that the source of a 
good many blunders made in the legislation was ''the 
tendency to confound the right which one citizen must 
respect in another with the rights whose enjoyment the 
State must guarantee to all its citizens. The United 
States have neither the power nor the obligation to do 
police duty in the States, a fact which both Judges and 
Legislators have committed serious mistakes in ignor- 

^ Independent, April 6, 18, 1876; New York Times, March 8, 29, 1876; New York 
Tribune, March 29, 1876; New York Herald, March 28, 1876. Chicago Tribune, 
March 22, 29, 1876; New York World, March 28, 1876; Harper* e WeMy, March 
20, 1875, at the tune of the argumeiit. 



828 THE SUPREME COURT 

ing/' That the decision marked the commencement 
of a new era in the exercise of legislative power, and 
formed, like the SUmghterlumse Case decision, a curb 
on the breadth of power theretofore asserted by Con- 
gress was ably pointed out by the New York Tribune. 
^'During and since the war, Congress has often acted 
as if it were supreme, not merely within but outside 
of its constitutional limitations. For some error in 
this direction, there was much excuse. A powerful 
party persistently tried to make the Constitution of the 
United States the left wing of Lee*s army. The same 
party had so construed the Constitution as to make 
it the bulwark of slavery.*' Under such conditions, 
public opinion rejected the theory that in time of war 
the Nation did not have full power to defend itself » 
and supported Congress in its asserted power to adopt 
any measure which it deemed necessary to public wel- 
fare. But, after the war, said the Tribune^ "greedy 
and malignant partisanship began to demand, as neces- 
sary to the public welfare, measures which were only 
needful for the maintenance of unworthy or corrupt 
men in power. Of these measures, the Enforcement 
Act was one of the most odious. Under it, shameful 
abuses have been perpetrated ; " and it concluded im- 
pressively: "It will now lie dead upon the statute 
book, to remind future generations of Americans that 
no conceivable abuse of the Constitution by one party 
can justify disregard of the Constitution by the other." ^ 
The more partisan Republican papers, like the 
Chicago Tribune^ regarded the decisions with mixed 
views. After saying that "for clearness of thought 
and trimness of expression'* the opinions would "com- 
mend the new Chief Justice to the confidence of his 
countrymen", it stated that it was "fortunate, in so 

1 See also Springfield lUpubliean, March 28» 29, 1876. 



THE CIVIL RIGHTS ACTS 829 

far as it restrains Congress from enacting penal legis- 
lation in elections beyond the power conferred upon it 
by the Constitution, the infraction of which would be 
seriously dangerous, no matter what party were in power. 
But it is unfortunate, in so far as it may, for a time, 
open up the opportunity for serious abuses, and perhaps 
terrorism in the South. . . . The present law, being 
practically inoperative, will exercise no restraint upon 
those who desire to interfere with the votes of the 
colored people at the South. The necessity for fur- 
ther and proper legislation, to carry into effect the 
provisions of the Fifteenth Amendment, will be another 
reason, however, for renewed effort on the part of the 
Republican Party to regain control of Congress." The 
Democratic papers of course applauded the decision. 
''It may be described as the final and authoritative 
enunciation of the doctrine of the duaUty of the Ameri- 
can system of Government and the dual nature of 
American citizenship," said the New York World. 

The Radical Reconstructionists and their press saw, 
with anger and dismay, their whole scheme of legis- 
lation overthrown; and, as one party organ said, 
under the Court's construction, the statute was "only 
a pretense, keeping a promise to the colored man's ear 
and breaking it to his hope", and "if the Amendments, 
intended to secure all citizens of the United States 
from legal discriminations on accoimt of color, fail to 
express their intention, the blunder is unprecedented." 

But both supporters and opponents agreed in 
the view that the opinions rendered in the cases pro- 
claimed the new Chief Justice a great lawyer. " Chief 
Justice Waite, in this decision and in the terms of its 
utterance, has vindicated his disposition and capacity 
to emulate the fame of Jay, Marshall and Taney," 
said the New York World; and the New York Times 



8S0 THE SUPREME COURT 

said : *^ So fax as they may be regarded as reflecting his 
influence upon the Court, they afford abundant evi- 
dence that his appointment was a judicious one, adding 
strength and dignity to that great tribunal. • . . The 
decisions deal with constitutional questions of the highest 
order, and deal with them in a way to render still more 
firm the confidence of the people in the impartiality and 
wisdom of the Court, and to enhance the value of that 
department of the Government as a means of securing 
the rights of citizens. It is the highest function of the 
Supreme Court to interpret the National Constitution." 
Viewed in historical perspective now, however, there 
can be no question that the decisions in these cases 
were most fortunate. They largely eliminated from 
National politics the negro question which had so long 
embittered Congressional debates ; they relegated the 
biu*den and the duty of protecting the negro to the 
States, to whom they properly belonged; and they 
served to restore confidence in the National Court in 
the Southern States. As an eminent Southern lawyer 
has said: ''When the decision was reached and the 
prisoners were released, the utmost joy succeeded [in 
Louisiana], and with it a return of confidence which 
gave best hopes for the future. . . . What gave satis- 
faction to the South and strength to bear the afflic- 
tion in which they found themselves was the deter- 
mination of the Court to maintain the true charac- 
ter of the Government, and to hold, notwithstanding 
the excited feeling growing out of the war, that the 
existence of the States, with powers for domestic and 
local government including regulation of civil rights, 
the rights of persons and property, was essential to the 
perfect working of our complex form of government." ^ 

^ Fifty Years* Experience in Practice at the Bar, address of Carleton Hiint» LL. B., 
at a meeting of the Louuiana Bar Association, June 6, 1908. 



THE CIVIL RIGHTS ACTS S81 

A year after these decisions. President Hayes par- 
tially adopted the policy of leaving the South to work 
out its problems free from National interference, by 
withdrawing the regular army from Louisiana and 
South Carolina in April, 1877. An attempt by the 
Democratic Congress to repeal the Civil Rights En- 
forcement Acts was vetoed in 1877 by the President; 
but the Democratic success in the election of 1878 
brought about a two years' fight for such repeal, 
and a bill was actually passed, as a rider to an Appro- 
priation Act, forbidding the United States marshals 
to use military forces in the execution of election laws. 
It was not until 1894, under President Cleveland, that 
the chief obnoxious provisions of the Enforcement Acts 
were finally abolished. 

Meanwhile, the extent to which the Fourteenth 
Amendment could be invoked for the protection of the 
negro was being further explained by other decisions 
of the Court. In 1880, in Strander v. West Virginia^ 
100 U. S. 808, the Court reiterated that the chief de- 
sign of the Amendment ^'was to protect an emanci- 
pated race and to strike down all possible legal dis- 
criminations " ; and it held that a State statute which 
confined jury duty to white persons violated the Amend- 
ment, by failing to secure to negroes the equal protec- 
tion of the laws guaranteed to them by the National 
law and Constitution. The validity of the section of 
the Civil Rights Act, which authorized removal into 
the United States Courts when the equal rights of a 
citizen were denied in the State Courts, was upheld by 
the Court on the ground that, as the Amendment pro- 
vided that Congress might enforce it by appropriate 
legislation, removal of cases into United States Courts 
had been *^ an acknowledged mode of protecting rights, 



8S2 THE SUPREME COURT 

ever since the foundation of the government.** ^ That 
Congress still possessed some power of protecting the 
negro against discrimination was shown in Ex parte 
Virginia^ 100 U. S. 339, in 1880, a case which involved 
the actions of one Coles, a Coimty Court Judge 
of Virginia held in custody on a Federal indictment 
charging him with excluding negroes from jury service. 
The Court held that he was not entitled to release on 
a ])etition for habeas corpus to the Judge of the United 
States District Court. "A State acts by its legisla- 
tive, its executive or its judicial authorities," said the 
Court. "It can act in no other way. The Consti- 
tutional provision, therefore, must mean that no agency 
of the State, or of the officers or agents by whom its 
powers are exerted, shall deny to any person within 
its jurisdiction the equal protection of the law.** Since 
the Amendment was enacted to secure equal rights, and 
since Congress was given power to enforce its pro- 
visions against the State, "such legislation must act 
upon persons, not upon the abstract thing denomi- 
nated a State, but upon the persons who are the agents 
of the State in the denial of the rights which were in- 
tended to be secured.** Strong dissents were filed by 
Judges Field and Clifford, who denied that Congress 
had the power "to exercise coercive authority over 
judicial officers of the States in the discharge of their 
duties under the State laws.** They claimed that such 
power would reduce the States "to a humiliating 
and degrading dependence upon the Central Govern- 
ment ; engender constant irritations, and destroy that 
domestic tranquillity which it was one of the ob- 
jects of the Constitution to ensure. . . . Those who 
regard the independence of the States in all their re- 

^ See the Nation, March 4, 1880 ; see alao Virginia ▼. Atoe* , 100 U. S. 818, linuU 
ing the operation of the Removals Act to action of a State official occurring prior 
to trial; Bush v. Kentucky, 107 U. S. 110. 



THE CIVIL RIGHTS ACTS 883 

served powers . . . cannot fail to view with the grav- 
est apprehension for the future" an indictment of a 
State Judge in a Federal Court.^ If this decision, said 
the Nation^ " is to be carried to its logical results, (it) 
implies a long, and we may add, an unexpected stride 
in the direction of centralization." 

In Need v. Delaware, 108 U- S. 870, the Court held 
that the Fifteenth Amendment ipso fado rendered in- 
operative the provisions of the Constitution and laws 
of Delaware, in force at the time of its adoption, re- 
stricting jurors to white persons qualified to vote ; and 
that the absence of any statute, in conflict with the 
Fifteenth Amendment since its adoption, constituted a 
presumption '"that the State recognizes as its plain 
duty" the binding force of the Amendment. The 
Court found, therefore, that there was no denial of 
equality by the State, and hence no right of the de- 
fendant to remove his case into a United States Court. 
But on the facts presented, showing an actual dis- 
crimination against negroes in the drawing of the jury 
by State oflScers, it held that "the refusal of the State 
Court to redress the wrong by them committed was a 
denial of a right secured to the prisoner by the Consti- 
tution and laws of the United States," and it reversed 
the judgment of the State Court. 

^ The final outcome of thia case was interestingly commented on by the Nation. 
March 25, 1880: "One of the Virginia Judges, Judge Hill, whose indictment for 
not summoning negroes on juries has been sustained by the late decision of the 
United States Supreme Court has been, at Lynchburg, tried before Judge Rives 
and a jury composed of ten white and two colored men, and acquitted without ar- 
gument, the evidence against him having completely broken down. We presume 
that what brought him into trouble was the difficulty which exists in many parts of 
the South of finding negroes mentally and morally qualified to sit on juries. Those 
who think the chief end of Courts of law is the disusing of justice between liti- 
gants and between the State and criminals, and not the exemplification of social 
and political equality will feel that a certain amount of discretion in making up 
juries must be lodged somewhere, and that if those who are engaged in the duty and 
give the necessary guarantees as to character, are to be pursued criminally whenever 
their use of discretion does not satisfy local politicians, far more valuable things 
than any man's right to be summoned on a jury will suffer seriously." 



884 THE SUPREME COURT 

In 1888, however, the Court rendered two decisions 
which practically put an end to attempts on the part 
of the Federal Government to settle the negro ques- 
tion by means of indictments in the Federal Courts. 
In United States v. Harris^ 106 U. S. 629, which involved 
the constitutionality of section two of the Ku Klux Act 
of April 20, 1871, making it criminal for two or more 
persons to conspire or go in disguise upon the highway 
or upon another's premises for the purpose of depriv- 
ing any persons of the equal protection of the laws and 
privileges and immunities under the laws, the Court 
held the section invalid, as unwarranted by the pro- 
visions of any of the Amendments, which, in granting 
to Congress the power to enforce their provisions, did 
not authorize Congress to legislate directly as to the 
acts of private persons.^ In the Civil Rights Cases y 
109 U. S. 3, decided October 15, 1883, the Civil Rights 
Act of March 1, 1875, was finally held unconstitutional. 
This statute had made it a crime for any person to 
deny full and equal enjoyment of the accommodation 
of inns, public conveyances and places of public amuse- 
ment. The Court, through Judge Bradley, held the 
law to be beyond the power of Congress, and again 
stated that the Fourteenth Amendment did not invest 
Congress with power to legislate on subjects which 
are within the domain of State legislation, or to create 
a code of municipal law for the regulation of private 

^ The Nation, April 20, 1871» at the time of the passage of this Ktt Klux Act 
had accurately predicted the decision of the Court as to its validity, and had said : 
"Its central idea develops itself into apian by which the United States Courts may 
exercise full criminal and civil jurisdiction over any and all acts of violence to the per- 
son and property of private citizens ; by which, in short. Congress and the National 
tribunals may assume and wield a complete police power throughout the States." 
See contra, Amer, Law Rev, (1870), V, 249. After the decision of the case, the 
Nation said, Aug. 81, 1882, that for its "disloyal" view of the subject in 1871, "we 
were severely criticised, at the time, by those who, like the late Mr. Sunmer, thought 
that what the country wanted was 'the centralization of liberty' and 'the impe- 
rialism of equal rights/ Nevertheless, the view we advanced is precisely that now 
laid down by the Supreme Court." 



THE CIVIL RIGHTS ACTS 8Sfl 

rights, but only authorized Congress to enforce its 
provisions by "appropriate legislation for correcting 
the effect of such prohibited State laws and State acts 
and thus to render them effectually null, void and in- 
nocuous/' In other words, the legislation which Con- 
gress was authorized to adopt was "not general leg- 
islation upon the rights of the citizen, but corrective 
legislation." Congress could not step into the do- 
main of local jurisprudence and lay down rules for the 
conduct of individuals in society towards each other. 
The Court further held that refusal of accommodation 
to a negro could not be justly regarded as imposing any 
badge of slavery or servitude upon him; and it said 
that "it would be running the slavery argument into 
the ground, to make it apply to every act of discrimi- 
nation which a person may see fit to make as to the 
guest he will entertain'' ; hence the statute could not 
be upheld as a proper means of enforcing the Thir- 
teenth Amendment. An interesting and vivacious 
dissenting opinion was given by Judge Harlan, who 
regarded the statute as clearly valid under the Thir- 
teenth Amendment, and said that he could not "re- 
sist the conclusion that the substance and spirit of 
the recent Amendments of the Constitution have been 
sacrificed by a subtle and ingenious verbal criticism." 
"The decision settles the point forever, that the Four- 
teenth Amendment merely adds new Umitations upon 
State action to those already existing in the Consti- 
tution, and does not change in any way the funda- 
mental structure of the Government," said the Nation ; 
and the Independent said: "It is important for both 
the State and the Federal Government to keep within 
the sphere assigned to it. In this way, and in no other 
way, can our duplicate system of government be har- 
moniously and successfully worked;" and it stated 



S36 THE SUPREME COURT 

that though '^several leading colored men have ex- 
pressed great indignation and disappointment, the 
Court is clearly right. The question as to the dass 
of rights involved belongs exclusively to the States. 
There is the proper place to look for a remedy against 
any abuse of these rights." ^ Harper's Weekly said 
that the decision commended itself to every intelligent 
mind and showed the groundlessness of the fears, re- 
cently expressed, of a 'dangerous centralizing tend- 
ency in the government.*' It stated that the decision 
was in strict accord with "the true doctrine of National 
supremacy, with dii^inctly defined State authority — 
one of the great traditions of the Supreme Court '*; 
and that since the "long and terrible Civil War sprang 
from the dogma of State sovereignty, invoked to pro- 
tect and perpetuate slavery, it was natural that, at its 
close, the tendency to magnify the National authority 
should have been very strong, and especially to defend 
the victims of slavery. ... In a calmer time, the laws 
passed under that hmnane impulse are reviewed, and 
when found to be incompatible with strict constitutional 
authority, they are set aside. It is another illustration 
of the singular wisdom of our constitutional system.** 
"The Court has been serving a useful purpose in thus 
undoing the work of Congress,** said the New York 
Times; and it urged this memorable word of warning 
to all those who were inclined to look to the National 
Government for aid against local abuses, which should 
be cured locally. "The fact is, that, so long as we 
have State governments, within their field of action 
we cannot by National authority prevent the con- 
sequences of misgovemment. The people of the 
State are dependent on their own civilized ideas and 

I Independent, Feb. 1, Oct. 25, 1883; New York World, Jan. 23, 1888; Harper's 
Weekly, Feb. 3, 1883; New York Times, Jan. U, 1883; New York Herald, Jan. 90, 
1883. 



THE CIVIL RIGHTS ACTS 837 

habits for the benefits of a civilized administration of 
laws." 

On March 3, 1884, in Ex parte Yarborotigh^ 110 U. S. 
651, that portion of the Civil Rights Acts punishing 
conspiracy *Ho injure, oppress, threaten or intimidate 
any citizen in the free exercise or enjoyment of any 
right or privilege secured to him by the Constitution 
or laws oi^ the United States ", was upheld as a valid 
exercise of the power granted to Congress to enforce the 
Fifteenth Amendment — an Amendment which the 
Court said "does, praprio vigore, substantially confer 
on the negro the right to vote, and Congress has the 
power to protect and enforce that right." But the 
Coiui; further held that, independently of this Amend- 
ment, it was "essential to the healthy organization of 
the government itself", that Congress should have 
the power to protect the citizens in the exercise of such 
constitutional rights.^ The case in question involved 
serious interference in Georgia with negro-voting at 
a Congressional election ; but, as Judge Miller pointed 
out, there were other forms of interference with elec- 
tions fully as serious, against which Congress must 
have power to protect the Government, viz., bribery : 

If the recurrence of such acts as these prisoners stand con- 
victed of are too common in one quarter of the country, and 
give omen of danger from lawless violence, the free use of 
money in elections, arising from the vast growth of recent 
wealth in other quarters, presents equal cause for anxiety. 
If the Government of the United States has within its con- 
stitutional domain no authority to provide against these 
evils, if the very sources of power may be poisoned by cor- 

1 "The Ku Kluz Klan gets no encouragement from the Supreme Court. It was 
decided yeaterday* in the well known Ku Kluz Cases that the Federal Government 
has power to prevent fraud and intimidation at elections. The most remarkable 
thing about these cases is that the question should ever have been raised." New 
York Tribune, March 4, 1884. But for a limitation of the power of Congress in 
respect to punishment of election offenses, see James v. Bounnan, 190 U. S. 127, 
inl90S. 



SS8 THE SUPREME COURT 

ruption or controlled by violence and outrage, without l^al 
restraint, then, indeed, is the country in danger, and its 
best powers, its highest purposes, the hopes which it inspires 
and the love which enshrines it, are at the mercy of the 
combinations of those who respect no right but brute 
force on the one hand, and unprincipled corruptionists on 
the other. 

This case in 1884 was the last in which the scope of 
the Civil War Amendments was considered while Waite 
was Chief Justice ; and the decisions of the Court, in 
the twenty years since Waiters death, have not added 
substantially to the doctrines established. That the 
interpretation given by the Court to the Amendments 
was a surprise to many statesmen, and a disappoint- 
ment to those who saw, or thought they saw, in them 
a more comprehensive chart of liberty, has been fre- 
quently pointed out. ^^It was information that was 
new to the framers . . . when they were told that by 
those Amendments it was not intended to add anything 
to the rights of one citizen as against another; that 
it was not designed to enable Congress to legislate 
affirmatively or directly for the protection of civil 
rights, but only to use corrective and restraining 
measiu*es as against the States so as to secure to the 
black race the right to be dealt with as equals. It 
was information that was new, as well as unwelcome, 
that the provisions creating National citizenship and 
prohibiting the abridgement of the privileges thereof 
• • • added nothing to existing rights, but simply pro- 
vided additional guarantees for such as already existed/' 
Nevertheless, as a historian of the Court has well said : 
"Now, after the lapse of years, when the temper and 
spirit in which the text of the Amendments was penned 
have cooled and the views of men have matured, it 
is seen that the value of the Coiui: as the great con- 



THE CIVIL RIGHTS ACTS 839 

servative department of the Government was never 
greater than then/* ^ 

As a result of the above cases, the effect of the 
Amendments upon the negro race may be summed up 
as follows. The first section of the Fourteenth Amend- 
ment is a prohibitory measure, and the prohibitions 
operate against the States only, and not against acts 
of private persons ; the fifth section only gives Congress 
power, by general legislation, to enforce these pro- 
hibitions, and Congress may, within bounds, provide 
the modes of redress against individuals when a State 
has violated the prohibitions; and though Congress 
cannot act directly against the States, Congress may 
regulate the method of appeal to United States Courts 
by any person whose right under the Amendment has 
been affected by action of the States. As to the Fif- 
teenth Amendment, though theoretically it is capable 
of being enforced to a certain extent by direct Congres- 
sional action. Congress has, in fact, taken few steps 
towards such enforcement; and only a few acts of a 
State or of a State oflScer have been found by the 
Courts to violate it. Meanwhile, the Southern States, 
by constitutional and statutory provisions, which have 
been in general upheld by the Court, have found 
methods of limiting the negro right to vote.* Of the 

^ See Address of Samuel Shellabarger at the Bar Meeting, on Blaicfa 96, 1888, 
on the death of Chief Justice Waite, 126 U. S. app. ; History qf the Suprems Court 
qfthe United States, by Hampton L. Carson (1889), 485. 

> The Fourteenth Amendment and the States (1912), by Charles Wallace Collins, 
67; Is the Fifteenth Amendment Void? by A. W. Mason, Harv. Law Res, (1910), 
XXin; LegislaHoe and Judicial History of the Fifteenth Amendment (1909), by 
John Mowry Blathews ; The Fifteenth Amendment, by William C. Coleman, Colum' 
Ina Law Ree, (1910), X; Constitutionality cf Race DistincHons and the Baliimore 
Negro Segregation Case, ibid. (1011), XI. See American Political Ideas (1920), 
by Charles E. Merriam : "In 1890, Mississippi began the process of constitutional 
limitation of the right to vote which has been carried on until the colored vote in 
the South has been rendered almost ineffective. This result has been brought 
about by means of educational requirements, property qualifications and the poll 
tax. The so-called 'grandfather' clauses were instituted and the whites eiduded 
by other provisionB were included by stipulating that descendants of those who 



S40 THE SUPREME COURT 

Enforcement Laws enacted in the Reconstruction 
period, only a small part remain even nominally in 
force. Of the forty-seven sections of the three statutes, 
forty-two have either been repealed directly, or ren- 
dered obsolete by such laws as the Disabilities Act of 
1898, or declared invalid by the Court; and as has 
been well said, they have disappeared, because "they 
were in fact out of joint with the times. They did 
not square with public consciousness, either North or 
South. They belonged logically to a more arbitrary 
period. They fitted a condition of war, not of peace, 
and suggested autocracy, rather than a democracy." ^ 
While the Court was thus greatly restricting the 
National authority under the War Amendments to the 
Constitution, its trend towards the enlargement of the 
field and importance of the sovereignty of the States 
and especially of the State police power was also clearly 
marked by the doctrine which it now announced in 
cases arising under the Impairment of Obligation of 
Contract Clause of the Constitution. As early as 
1878, in Beer Co. v. Massachusetts^ 97 U. S. 25, it had 
shown that it was prepared to go to great lengths in 
sustaining State legislation interfering with corpo- 
rate charters ; but it was not imtil 1880 that, in Stone 
V. Mississippi^ 101 U. S. 814, it rendered the decision 
which greatly modified the doctrines of the Dartmouth 
College Case as to the degree of control over its cor- 

were Toten in the year 1867, might be registered." South Carolioa adopted such 
proviaions in 1895, Louisiana in 1898, Alabama in 1901, North Carolina and Vir- 
ginia in 1902, Georgia in 1908. In general, the Supreme Court has upheld these 
provisions ; see WiUianu v. Musissippi (1898), 170 U. S. 218 ; Giles v. Harris (1903), 
189 U. S. 475. In Ouinn v. United States (1917), 288 U. S. 847, however, the 
"grandfather" clause of Oklahoma was held unconstitutional. See also The Right 
qf the Federal Courts to Punish Offenders against the Ballot Box, by D. H. Pingrey, 
Arner. Law Reg. (1890), XXXVII ; Racial Discnminaium, by D. H. Pingrey, ilfid. 
(1892), XL. 

1 The Federal Enforcement Ads, by William W. Davis» Studies on Southern His- 
tory and Polities (1914). 



THE CIVIL RIGHTS ACTS 841 

porations retained by a State; and while admitting 
that the doctrines of that ease had ^'become so im- 
bedded in the jurisprudence of the United States as 
to make them, to all intents and purposes, a part of 
the Constitution itself", it nevertheless read into those 
doctrines an exception which, never before so distinctly 
announced, produced a profound effect on the rela- 
tions of the State toward its corporations,^ The facts 
of the case were as follows : lotteries had been illegal 
in Mississippi prior to 1867, but in that year the '* car- 
pet-bag" government chartered a lottery corporation 
in consideration of the payment of further sums and a 
percentage of its receipts; when the people of Mis- 
sissippi adopted their Constitution in 1868, ^'with a 
view to the resumption of their political rights as 
one of the United States", they embodied in it a 
prohibition of all lotteries. This Constitution, it was 
claimed by the corporation, was an impairment of the 
obligation of its contract with the State. The case 
was argued by Philip Phillips against A. M. Clayton 
and Van H. Manning. The Court, in a notable opin- 
ion by Chief Justice Waite, held that the existence of 
any contract which might be impaired depended on the 
authority of the Legislature to bind the State; and 
that while the Legislature might make irrevocable 
grants of property and franchises, it could not "bar- 
gain away the public health or the public morals", 
i.e. its police power. "Government is organized with 
a view to their preservation, and cannot divest itself 
of the power to provide for them. • • • The contracts 
which the Constitution protects are those that relate 
to property rights, not governmental." Hence, it 

^ See previous cases, Boyd v. Alabama (1877), 94 U. S. 645 ; Beer Co. v. Magsor 
ehuetU (1878), 97 U. S. 25, and NorthwwUm Fertilizing Co, v. Htfde Park (1878), 
97 U. S. 659; see, however. New Orleans v. EotuUm (1886), 119 U. S. 265, where 
the Louisiana Constitution itself protected the lottery. 



342 THE SUPREME COURT 

held that a corporation acceptmg a lottery charter 
only acquired a permit or license, which was subject 
to future legislative or constitutional control or with- 
drawal, if deemed advisable or necessary for the public 
morality. This doctrine that a State Legislature 
might not, by contract, limit the future exercise of the 
State police power over the subject matter of the con- 
tract was again set forth in Butchers Union etc. Co. v. 
Crescent City Co., Ill U. S. 746, in 1884. In this 
case, Louisiana had in 1869 granted to a slaughterhouse 
company a twenty-five year monopoly (a monopoly 
which the Court had sustained in the Slaughterhouse 
Cases in 1873), but under the provisions of the State 
Constitution of 1879, which forbade the existence of 
a monopoly, the State granted slaughtering rights to 
another corporation. The Court held that, since the 
original monopoly had been created by the State in 
its exercise of the police power, the State might, in be- 
half of pubUc health, alter its view and destroy sudi 
a monopoly, and that its action did not impair the obli- 
gation of the contract contained in its prior law. This 
decision undoubtedly went to great extremes in up- 
holding the authority of the States over rights granted 
by corporate charters ; and it was viewed with appre- 
hension by the conservative portion of the public. 
"The Supreme Court of the United States has just 
made a new anti-monopoly decision which is of great 
importance in its bearing on rights of property and con- 
tracts under the Constitution," said the Nation. "The 
curious thing in this case is, that there is nothing on the 
face of the opinion to show that the public health in New 
Orleans would be at all safer with the slaughterhouse bus- 
iness in the hands of several companies, than in the hands 
of one. The Constitutional Amendment, moreover, 
is distinctly directed at the 'monopoly' feature of the 



THE CIVIL RIGHTS ACTS 843 

contract ; and, as far as we can see, the only effect of 
the case is to give any State the right to destroy the 
obligation of the most solemn contracts, provided the 
Judges at Washington can extract from its action some 
shadow of a reason, growing out of what they regard 
as the cause of 'health' or 'morals/ This is a wide 
definition of the police power, and gives the Supreme 
Court and the State Legislatures a power of interfer- 
ence with contracts and property, such as nobody ever 
dreamed they possessed. Take this decision in con- 
nection with that on the legal tender question, and 
compare the two. Is it not plain that the Judges have 
adopted a latitudinarian system of construction, which 
may make lawyers and laymen alike look forward, with 
less apprehension than they otherwise would, to the 
infusion of some new blood into the Court, as the con- 
sequence of a change of parties ? " * 

* Nation. Aug. 28, 1884. 



CHAPTER TmRTY-FIVE 

INCREASE OP NATIONALISM 

1881-1887 

After a period of seven years without substantial 
alteration of the personnel of the Court, three changes 
occurred in the years 1881 and 1882, which seem to 
have had a profound effect upon the future tendency 
of its decisions. On January 21, 1881, Judge Swayne 
resigned, at the comparatively youthful age of seventy- 
six, and after nineteen years of judicial service ; ^ 
and on March 14, 1881, President Garfield appointed 
in his place Stanley Matthews of Ohio. Matthews 
was fifty-six years old; he had served as a United 
States Attorney under President Buchanan, and had 
been a Republican Senator from Ohio from 1877 to 
1879. He had been previously appointed to a place 
on the Court by President Hayes in the closing days 
of his Administration; but the Senate, for political 
reasons and because of newspaper charges that he was 
too closely allied with corporate interests, had failed 
to confirm him. This second nomination was again the 
subject of great criticism and opposition ; but the Sen- 
ate, finding insufficient grounds for any of the charges, 
confirmed his appointment on May 12, by the dose vote 
of twenty-four to twenty-three. As has so often hap- 
pened, later events proved Matthews to be a wise and 

1 See note on the death of Swayne» June 8, 1884, Amer, Law Rev. (1884), XVUh 



" s 
Si 

p I 



INCREASE OP NATIONALISM 845 

upright jurist, and he "lived to hear his detractors 
sound his praise/' ^ 

In the same year, on July 25, 1881, Judge Cliflford 
died, at the age of seventy-eight after twenty-three 
years on the Bench ; * and in his place President Arthur 
appointed Horace Gray of Massachusetts, on Decem- 
ber 19, 1881. Gray was confirmed, the next day, by 
a vote of fifty-one to five; he was then fifty-three 
years of age, and had served as Judge of the Supreme 
Judicial Court of Massachusetts since 1864, and as 
Chief Justice since 1873.' In 1882, Judge Himt, who 
had been incapacitated from serving on the Bench for 
the past five years, resigned; and President Arthur, 
to the siuprise of most of the Bar, filled the vacant 
position by the appointment of Roscoe Conkling of 
New York, on February 24, 1882. This action raised 

^ Hayes sent the name of Matthews to the Senate, Jan. 26, 1881. See violent 
editorials against Matthews in the New York Sun, Jan. 27, Feb. 1, 2, 4, 9, 11, 12, 
16, 19, March 7, 19, 23, 24, 29, May 12, IS, 1881 ; see also Stanley Matthetos, by 
Charles T. Grove, in Oreat American Lawyere (1908), VII. In Life o/ RuXherfard 
Birchard Hayes (1914), by Charles R. Williams, II, 327, note, it is said that "the 
appointment of Matthews was received by a large part of the press with a storm 
of disapproval because Mr. Matthews had been a corporation attorney. Mr. Mat- 
thews proved on the Bench that Mr. Hayes' judgment of his character and fitness 
was altogether sound." 

* The Nation, July 28, 1881, said as to Oifford : "His mental faculties had been 
impaired for some time previous to his death, and his place on the Bench has been 
practically vacant, in consequence. He refused to resign, however, in the hope 
that the election of a Democratic President might render certain the appointment 
of a Democratic successor. ... As a Judge, his industry and conscientious ac- 
curacy were remarkable, as well as the rigidity of his political convictions. . . . 
His partisanship, however, was chiefly the result of the narrow legal view of the 
relation of the States to the General Government which the old-fashioned New 
England Democrat always took, and bore no resemblance to the bitter and unscru- 
pulous spirit of faction with which the politics of our day threatens to taint the 
Judiciary." The BowUm Daily AdoeHieer, July 26, 1881, said as to Clifford : " With- 
out brilliant qualities, he had what was far more serviceable, unfailing good sense, 
dear judgment, boundless capacity for labor, a capacious memory and great love 
of justice." See also Amer, Law Rev. (1881), XV, 686. For a violent expression 
of the views of Clifford's political opponents, see letters of "Warrington" in Spring- 
fidd Weekly Republican, April 1, 1868, Dec. 18, 1869. 

*See Amer. Law Ree. (1882), XVI, 187; the Nation, Dec. 22, 1881, spoke of 
Gray's " conspicuous fitness for the position" ; and see especially tributes to Gray 
after his death by Charles Francis Adams and by Creorge F. Hoar, in Mase, Hiel. 
8oe.Proe..edSer..X\l. XVIII. 



846 THE SUPREME COURT 

a storm of disapproval. '^No nomination could have 
surprised the country more," said Harper^ s Weekly. 
"The nomination of Gray has been received with 
universal approval, that of Conkling with universal 
amazement," and it stated that Conkling's career as 
a politician had not inspired the country with confi- 
dence in him as a magistrate, and that he was ^^singu- 
larly unfitted to be a Judge," "Mr. Conkling is a 
lawyer only in name," said the Nation^ "and must make 
a poor Judge. He has passed his life in politics. • • . 
Legal learning, he has not. . • . The mystery is 
deepened when we reflect that he has been offered the 
Chief Justiceship of the same Court once before, and 
declined it as beneath his notice." While this criticism 
of Conkling's legal ability was probably imfair, never- 
theless, his political career had not won for him the 
confidence of the commimity. Conkling, however, 
after being confirmed by the Senate on March 2, by a 
vote of thirty-nine to twelve, settled the controversy 
by declining the position. Thereupon, on March 13, 
1882, President Arthur, to the complete satisfaction 
of the Bar, appointed Samuel Blatchf ord of New York. 
Blatchford, who was confirmed, March 27, was sixty- 
two years of age, and had been Judge of the United 
States District and Circuit Courts in New York since 
1867.^ 

Judge Woods died in 1881, and to succeed him Presi- 
dent Cleveland appointed Lucius Quintus Cincinnatus 
Lamar of Mississippi, on December 6, 1887. After 
opposition in the Senate, Lamar was confirmed, on 
January 16, 1888, by a vote of thirty-two to twenty- 
eight ; he was sixty-two years of age, and though he 
had no judicial experience, he had been a professor 

^Harper' 9 Weekly, March 11, 26, 1882; NaHm, Maich 2, 1882; Amer. Law 
Rev. (1882), XVI, 835, for article on Blatchford; see also Nation, Aprfl 28, 1885, 
*'The Preoideiit and the Judiciary." 



INCREASE OP NATIONALISM 847 

of law, a United States Senator from 1875 to 1885, and 
Secretary of the Interior for the previous three years. 
It may also be noted that he was the first Democrat 
appointed on the Court since Judge Field in 1862, and 
the first Judge who had served in the Confederate 
Army. 

With these changes in its composition, the Court 
began to show a decided reaction from the policy which 
it had maintained from 1872 to 1880, with respect to 
the sovereign powers of the States. A marked dis- 
position to enhance the powers of the National Govern- 
ment by a liberal construction of the Constitution, 
and to widen the scope of the jurisdiction and powers of 
the National Judiciary became increasingly apparent ; 
and this distinctly Nationalistic era in its history con- 
tinued for the next ten years. 

With respect to one class of cases, however, those in- 
volving the Commerce Clause of the Constitution, the 
Court had shown from the outset a tendency to limit 
strictly the sovereignty of the States. With the immense 
development of the railroad and telegraph systems of 
the country, the increased facility for the doing of 
interstate business and the multiplication of commer- 
cial corporations after the Civil War, this Clause of 
the Constitution began to assume an importance in 
the history of the law which it had never before at- 
tained. Up to 1840, the number of cases in Court 
requiring its construction had only been five, and up to 
1860 only twenty, while the subjects of legislation in- 
volved had been practically confined to navigation, im- 
migration, slavery and the sale of liquor. By 1870, 
the nimiber had increased to thirty, in 1880 to seventy- 
seven, and in 1890 to one hundred forty-eight, in- 
volving a great variety of topics — State action 
relative to peddlers, liquor, railroads, and telegraphs 



S48 THE SUPREME COURT 

and immigration and quarantine (both seaboard and 
internal), and manifold forms of taxation.^ 

Under Chief Justice Chase, only a few interstate 
commerce cases had been considered, but in each the 
Court had taken a pronoimced stand in favor of State 
regulation; and in the case which had the most im- 
portant effect upon the business of the country, the 
Court had relegated to the States complete control 
over the great insurance companies of the country, 
by holding in Paul v. Virginia^ 8 WalL 168, in 1869, 
that the negotiation of insurance policies and contracts 
and the business of insurance was not "conmierce'' 
within the purview of the Constitution. 

From the beginning of Chief Justice Waiters term 
of oflfice, however, the Court reversed its policy and up- 
held the National authority over conunerce in practically 
every case of importance coming before it. In 187S, 
the Commerce Clause was held to impose considerable 
limitation on the taxing powers of the States. In 
Philadelphia & Reading R. R. v. Pennsylvania, IB Wall. 
232, a tonnage freight tax was held invalid as being a 
regulation of interstate commerce, when applied to 
freight originating or carried outside the State: "It 
is of National importance," said Judge Strong, ""that 
over that subject there should be but one regulating 
power, for if one State can directly tax persons or prop- 
erty passing through it, or tax them indirectly by levy- 
ing a tax upon their transportation, every other may ; 
and thus commercial intercourse between States re- 
mote from each other may be destroyed. The produce 
of Western States may thus be effectually excluded 
from Eastern markets, for though it might bear the 
imposition of a single tax, it would be crushed under 

^ These figures are takes from The Commerce Clause qf the Federal ConstUution 
(1898)» £. Parmalee Prentice and John 6. Egan. 



INCREASE OF NATIONALISM S49 

the load of many/* The eflfect of this decision upon 
the development of the great transcontinental trade, 
and the unrestricted movement of wheat, ore and coal 
in this country cannot be overestimated. At the same 
time, the Court, by its decision in the second case of 
Philadelphia & Reading Railroad v. Pennsylvania, 
15 Wall. 232, showed that it was not inclined to defeat 
the State's power to tax, any further than was abso- 
lutely necessary; and it upheld a State tax on the 
gross receipts of railroads, notwithstanding that such 
receipts were made up in part from freights trans- 
ported in interstate commerce. "It is not every- 
thing that affects commerce that amounts to a regu- 
lation of it within the meaning of the Constitution," 
said Judge Strong. "The ultimate effect of the tax 
may be to increase cost of transportation, but it is not 
a tax on transportation itself." Judges Miller, Field 
and Hunt, however, dissented, holding that a tax on 
gross receipts was in fact for the privilege of trans- 
portation within the border of the States, and they 
laid down "the broad proposition that by no device or 
evasion, by no form of statutory words, can a State 
compel citizens of other States to pay to it a tax, con- 
tribution or toll, for the privilege of having their goods 
transported through that State" and that "the full 
recognition of this principle is essential to the har- 
monious future of this country. . . . The inter- 
state conmierce today far exceeds in value that which 
is foreign, and it is of immense importance that it 
should not be shackled by restrictions imposed by any 
State in order to place on others the burden of support- 
ing its own government, as was done in the days of 
the helpless Confederation." 

In 1876, the Court held unconstitutional a Missouri 
statute imposing a license tax on persons peddling gooda 



360 THE SUPREME COURT 

of foreign origin, in Welton v. Missouri^ 91 U. S- 275 ; 
but it still declined to lay down any general rule as to 
the extent of the scope of the interstate commerce 
clause, saying that: "It would be premature to state 
any rule which would be universal in its application 
to determine when the conmiercial power of the Federal 
Government over a commodity has ceased, and the 
power of the State has commenced. It is sufficient 
to hold now that the commercial power continues un- 
til the commodity has ceased to be the subject of dis- 
criminating legislation by reason of its foreign charac- 
ter.*' ^ In the same year, the Court greatly enhanced 
the powers of the National Government by upholding 
the exclusive right of Congress to regulate the subject 
of inmiigration as a question of National concern sus- 
ceptible only of a imiform rule; and in Henderson v. 
New York and Chy Lung v. Freeman^ 92 U. S. 259 and 
275, it held invalid laws of New York, Louisiana and 
California, affecting that subject.^ One result of this 
decision was the enactment of the first general Immi- 
gration law, the Act of August 3, 1882 ; another was the 
aggravation of the Anti-Chinese agitation in California, 
and the disturbances arising out of this troublesome 
question. The Nation indorsed the Court's action, 
as "sound and wholesome", and stated that since the 
question of immigration was National, not local, and 
since State regulation produced confusion and in- 
justice. Congress alone must regulate; but it pointed 

^ In connection with the class of discriminatory legislation involved in this case, 
see Commercial RetaUalion Between the Siatee, by Edward B. Whitn^, Amer, 
Law Rev, (1885), XIX. 

' The New York World, March 22, 26, 1896, opposed the decision as an infringe- 
ment of the right of the State to protect itself against pauperism. The New York 
Times, March 21, 24, 29, pointed out that since immigration had been held to be a 
subject which concerned all the States, Federal legislation was now an imperative 
duty and that Congress must "take some action giving to the States the protection 
which they cannot provide for themselves.** See also Edye v. Robertson, 112 U. S. 
580. 



INCREASE OP NATIONALISM 361 

out that ^Mt appears from the Anti-Chinese outbreak 
on the Pacific Coast that the decision is felt in Cali- 
fornia to be a blow at the defences erected by that 
State against the Mongolian invasion." ^ The con* 
tinuance of the agitation produced by this decision 
resulted in the negotiation of the Treaty with China 
of October 6, 1881, and in the later Chinese Exclusion 
Acts of 1882, 1884 and 1888. A similar class of State 
statutes restricting commerce was held invalid in 
Inman Steamship Co. v. Tinker^ 94 U. S. 238, in 1877, 
in which a tonnage fee imposed by New York on all 
vessels entering its ports was held to violate the pro- 
hibition of the Constitution against the imposition of 
a tonnage tax by a State. Judge Swayne, stating that 
the Commerce Clauses of the Constitution "had their 
origin in a wise and salutary policy", said that : "The 
confusion and mischiefs that would ensue if this re- 
striction were removed are too obvious to require com- 
ment. The lesson upon the subject taught by the 
law before us is an impressive one." In 1878, a Mis- 
souri statute prohibiting the entry into the State be- 
tween certain months of the year of any Texas or 
Mexican cattle, was held in Hannibal & St. Joseph 
R. R. V. Huseriy 95 U. S- 465, to be an inter- 
ference with interstate commerce. The Court said 
that a State "may not, under the cover of exerting its 
police powers, substantially prohibit or burden either 
foreign or interstate . commerce . . . beyond what 
is absolutely necessary for its self-protection", and it 
stated that, as the range of the police powers "some- 
times comes very near to the field committed by the 
Constitution to Congress, it is the duty of the Court 
to guard vigilantly against any needless intrusion." 
This case, in connection with the case on the immigra- 

1 See also Fottm' v. New Orleana (1877). 94 U. S. 246. 



852 THE SUPREME COURT 

tion law of New York decided two years prior, showed 
a distinct advance in the disposition of the Court to 
restrict the doctrine of the application of the State 
police power in matters of interstate commerce. A 
Reconstruction statute of Louisiana requiring all car- 
riers to give equal rights in their conveyances to all 
persons without discrimination on account of race or 
color was held invalid, as a regulation of interstate 
commerce, in Hall v. De Cuir, 95 U, S. 485, the Court 
saying, '"if the public good requires such legislation, 
it must come from Congress and not from the States/' 
The right of a State to grant a charter to a telegraph 
corporation to the exclusion of another such corpora- 
tion doing an interstate business was denied, in ISTS^ 
in Pensacola Telegraph Co. v. Western Union Tele- 
graph Co., 96 U. S. 1, Chief Justice Waite saying that 
the powers granted to Congress by the Constitution 
"are not confined to the instrumentalities of commerce, 
of the postal service known or in use when the Consti- 
tution was adopted, but they keep pace with the prog- 
ress of the country, and adapt themselves to the new 
developments of time and circumstances. ... As 
they were intrusted to the General Government for 
the good of the Nation, it is not only the right but the 
duty of Congress to see to it that intercourse among 
the States and the transmission of intelligence are not 
obstructed or unnecessarily encumbered by State legis- 
lation. The electric telegraph marks an epoch in the 
progress of time. In a little more than a quarter of a 
century it has changed the habits of business, and be- 
come one of the necessities of commerce. It is in- 
dispensable as a means of intercommunication, but 
especially is it so in conmiercial transactions." The 
fact that Congress, by the Act of July 24, 1866, had 
authorized any telegraph company to construct its 



INCREASE OP NATIONALISM 858 

line along any of the military or post roads of the United 
States was held to "amount to a prohibition of all State 
monopolies in this particular." This decision, said a 
prominent law journal "promises to rank in unpor- 
tance with Othhons v. Ogden and the Dartmouth College 
Case.** ^ The limits on the power of a State to inter- 
fere with interstate commerce carried on by drummers 
were set forth in an able opinion rendered in 1887 in 
Rabbins v. Shelby County Taxing Districts 120 U. S. 
489, in which it was stated that "in the matter of inter- 
state conunerce the United States are but one country 
and must be subject to one system of regulations and 
not to a multitude of systems." The right of a State 
to prohibit the introduction of liquor from other States 
by a common carrier was denied in Bowman v. Chicago 
and Northwestern Ry. Co., 125 U. S. 465, in 1888, and 
an Iowa statute on the subject was held invalid as a 
regulation of interstate commerce. 

Each of these cases marked an advance of National 
power, and the "centralizing tendencies of the Court" 
were the subject of much comment by law writers.* 
In fact, there was substantially but one class of cases 
affecting interstate commerce in which the State powers 
were upheld, namely, those involving the right of the 
State to control its bridges, wharves and ferries.' 

1 Souihem Law Rev, (1878), n. b., IV. 

' Recent Centralimng Tendeneiee in the Supreme Court, by FVederic P. Powers, 
Pol. 8ei. Qu. (1890). V. 

* See aUtnan v. Phiiadelphia (1866), 8 Wall. 718; Eeeanaba, ete. Co, v. Ckieago, 
Wiggine Ferry Co. t. Eaet St. Louis, and Parkereburg, etc. Co. v. ParkerAurg (1888), 
107 U. S. 678, 865, 691 ; WiUameUe Iron Bridge Co. v. Haieh (1888), 125 U. S. 1 ; 
and see also Miller v. New York (1888), 109 U. S. 885, in which a bill in equity to 
enjoin the construction of the Brooklyn Bridge on the ground of its bdng an ob- 
struction to nayigation was dismissed, the Court holding that Congress had au- 
thorised the structure and that Congress had plenary power over nayigation under 
the Commerce Clause. For an interesting commentary on the Court's recession 
from its position in the Wheeling Bridge Case, in favor of the rights of the States, 
see The Commerce Clause and the State, by A. H. Wintersteen, Amer, Law Reg. 

(1889), xxxvn. 

VOL. ni — 12 



354 THE SUPREME COURT 

None of the Court's decisions on the Commerce 
Clause, however, so seriously impaired the power of 
the State or so potently affected the future of the coun- 
try, as its final decision, in 1886, settling the extent of the 
control of a State over railroad rates. While National 
regulation of all railroad rates by virtue of the power 
contained in the Commerce Clause had been urged by 
eminent jurists as early as the year 1874, as the only 
adequate remedy for the evils then existing in the 
railroad situation, the country and the Courts were 
not as yet prepared for what then seemed a radical 
measure.^ Nevertheless, that such National control 
was contemplated as an eventual possibility was very 
interestingly shown in an opinion rendered by Judge 
Bradley in 1875, in Baltimore and Ohio R. R. v. Mary- 
land, 21 Wall. 456. In this case, the railroad charter 
granting a right to build a branch between Baltimore 
and Washington, fixed the maximum fare at $2.50 and 
provided that one fifth of the passenger receipts should 
be paid to the State. It was urged by the railroad that 
this was an unconstitutional interference with inter- 
state commerce. The Court, however, held to the con- 
trary, and in answer to the query, **has the public no 
remedy against such exorbitant fares and freights 
exacted by a State or by a railroad or steamship com- 
pany ? " said that if any " system of exactions be es- 
tablished in these States, as materially to impede the 

^ Railroad Legislation, by C. F. Adams, Jr., Amer. Law Rev, (1867), II; Legt^" 
laHve Control of Railroads, by S. S. Wallace, Southern Law Rev. (1874), III ; Legis- 
lative Control of Railroads, by F. L. Wells, Western Jurist (1877), Xll, sayixig : 
**0f late years, this has become a very important question, accidents on railroads 
and abuses practiced are becoming so numerous." The Federal Pouter over Comr 
meree (1892), by W. D. Lewis; The Commerce Clause of the ConstiiutUm (1908), 
by F. H. Cooke ; Law of Interstate Commerce (1905), by F. N. Judson ; Regulation 
of Commerce under the Federal Constitution (1907), by T. H. Calvert; American 
Railroad Rates (1905), by Walter C. Noyes; Law cf Railroad Rates Regulation 
(1905), by Joseph H. and Bruce Wyman. The Legal, Legislative and Economic 
Battle over Railroad Rates, by William W. Cook, Harv. Law Rev. (1921), 
XXXV. 



INCREASE OP NATIONALISM 366 

passage of produce, merchandise, or travel from one 
part of the country to another, it is hardly to be sup- 
posed that the case is a casus omissus in the Consti- 
tution. Commercially, this is but one country, and 
intercourse between all its parts should be as free as 
due compensation to the carrier interest will allow. 
This is demanded by the * general welfare* and is dic- 
tated by the spirit of the Constitution at least. Any 
local interference with it will demand from the National 
Legislature the exercise of all the just powers with 
which it is clothed." Whether Congress had the power 
*'to establish and facilitate the means of communica- 
tion between the different parts of the country, and 
thus to counteract the apprehended impediments 
referred to," Judge Bradley said, "is a question which 
has exercised the profoundest minds of the country. 
. . . But it is to be hoped that no occasion will 
ever arise to call for any general exercise of such a 
power, if it exists." ^ In 1877, in the Oranger Cases, 
Chief Justice Waite had distinctly stated that until 
Congress should act, the States had plenary control 
of rates, whether interstate or intrastate, "so far as they 
are of domestic concern", and that State regulation of 
railroads operating within a State was valid, "even 
though it may indirectly aflPect those without the 
State." While the correctness of this statement was 
widely doubted by many members of the Bar, and 
received strong criticism in legal journals, it was ac- 
cepted generally as the law, until, in 1886, in Waha^h, 
St. Louis and Padjic Ry. Co. v. Illinois , 118 U. S. 557, 
the Court practically overruled the Granger Cases in 
this respect, and held that a State had no power to 
regulate railroad rates for transportation within the 

^ See especially RegttlaHon of InUrstaie Traffic on Railtoays by Congress, by Isaac 
F. Redfield, Amer. Law Reg. (1874), XXII; Federal Restraints upon Stale Regula- 
tion of RaUroad Rates, by William F. Dana, Harv, Law Rev. (1895), IX. 



856 THE SUPREME COURT 

State, when that transportation was a part of an inter- 
state commerce transaction. "The decision is of the 
highest importance/' said the Nation. "It utterly 
demolishes the pretension of State Legislatures and 
railroad commissions. . . . The principles are very 
clearly stated, and are fundamental to the existence 
of the Union and to the existence of trade." ^ As a 
result of this decision, the railroad question became a 
truly National problem, and there arose an imperative 
demand for National regulation. That such regulation 
of this vitally important means of communication be- 
tween the States should have been deferred until so 
late a date as 1887, and that control of railroads cross- 
ing State boundary lines should so long have been left 
exclusively with the States, are singular facts in our 
National development. From the year 1822, when it 
enacted the Cumberland Road Bill (which was vetoed 
by President Monroe) until the year 1862, Congress 
had undertaken to exercise its constitutional power to 
regulate interstate commerce in only two classes of 
subjects — construction of interstate bridges and exten- 
sion of admiralty jurisdiction. In 1862, Congress in- 
corporated the various Pacific Railroad Companies; 
but as its exercise of authority in these cases was sup- 
posed by many legislators and jurists to arise out of 
the "war power" or to be based on the Post-roads 
Clause of the Constitution, the scope of the Commerce 
Clause in connection with incorporation and regulation 
of railroads remained still an unsettled question.^ 

> Nation. Oct. 26, 1886. 

s In United States v. Union Pacific R. A. Co. (1875), 91 U. S. 72, the Court said 
that, at the time of the railroad's charter in 1862, "the war of the rebellion was 
in progress; and the country had become alarmed for the safety of our Pacific 
possessions, owing to complications with England" ; that the road was a military 
necessity to protect an exposed frontier; that it was intended to open up "vast 
unpeopled territory lying between the Missouri and the Sacramento Rivers which 
was practically worthless without the facilities afforded by a railroad"; that it 



INCREASE OP NATIONALISM 857 

In 1866, a mild and tentative move was made towards 
the exercise of its power of National regulation when 
Congress, at the instance of the railroads themselves, 
passed an act authorizing railroad companies chartered 
by the States to carry passengers, freight, etc., "on 
their way from any State to another State, and to re- 
ceive compensation therefor, and to connect with roads 
of other States so as to form continuous lines for trans- 
portation of the same to the place of destination." 
In 1873, Congress provided that "no railway within 
the United States whose road forms any part of a line 
or road over which cattle, sheep, swine or other ani- 
mals shall be conveyed from one State to another", 
should confine animals for longer than twenty-eight 
hours without unloading for water, rest, and feeding. 
In the same year, the Senate authorized the Select 
Committee on Transportation Routes to the Seaboard 
to investigate and report "upon the subject of trans- 
portation between the interior and the seaboard." 
This Committee reported that the existing defects and 
abuses were insufficient facilities, unfair discrimina- 
tion and extortionate charges — the latter due to 
stock-watering, capitalization of surplus earnings, con- 
struction rings, extravagance and corruption in man- 
agement and consolidations of companies. In 1874, 
a bill moderately regulating railroads was passed in 
the House. In 1878, John H. Reagan of Texas intro- 
duced in the House a bill to regulate railroad com- 
panies engaged in interstate commerce. In 1885, the 
Senate appointed a committee to investigate the sub- 
ject of regulation of interstate commerce by railroads, 

was necessary for the transportation of the mails, and army and Indian supplies ; 
that it was not then conceived possible to be built by private resources alone ; and 
that though it had actually been built "at less cost of time and money than had 
been considered possible, no argument can be drawn from the wUdom thai comes 
ofim the fad." 



358 THE SUPREME COURT 

which reported, January 18, 1886 ; and as a result of 
this action. Congress enacted the Interstate Commerce 
Commission Act of February 4, 1887, and President 
Cleveland appointed the first Conmiission, with Judge 
Thomas M. Cooley as its Chairman. This was the 
first broad exercise of Congressional power over inter- 
state common carriers — a power which, fifteen years 
later, was destined to be so greatly extended. It is 
to be noted that this initial step was regarded with 
grave apprehensions by the State-Rights Democrats.^ 
'"I dread to set in motion a doubtful and dangerous 
power, which will soon become a factor of immense in- 
fluence in the party politics of the Republic," said 
Senator Morgan of Alabama, in the debates : 

If Congress, instead of holding the States in check by a 
constant distrust or denial of their powers, will open their 
way to the full and free control of the men and corporations 
engaged in domestic commerce, through civil and criminal 
laws, and will hold over the States its corrective authority 
so as to prevent any of them from doing injustice to the 
other States or their people, the States will soon settle all 
the knotty problems about long and short hauls, pools, 
drawbacks, bribes and bonuses, and will close the doors 
of their penitentiaries upon those who offend against their 
laws, made to secure the people against wrong and the 
honest freedom of commerce against injustice and obstruc- 
tion. ... I admit all that has been said about the wrongs 
and injustice that people have suffered through the over- 
bearing insolence and oppression of the railroad companies. 
Their greed is destructive to the people, and the govern- 
ments, from whom they derived their powers ; but in find- 
ing a remedy for this evil, I neither wish to find for the 
people a new master, remote from them and their influence, 
in the Congress of the United States, nor to place in the 
hands of that master a power over their trade and traffic, 
more dangerous than the power of the railroad companies. 

^ ^S^h Cong,, 2d Sess.^ 400, Jan. 6, 1887, 



INCREASE OF NATIONALISM 869 

In 1888, twenty-five years after the first National 
railroad charter had been granted, the Court, in a 
striking opinion by Judge Bradley, upheld the power of 
Congress to establish highways and bridges from State 
to State as essential to its complete control and regu- 
lation of interstate commerce — California v. Central 
Pacific R. JR., 127 U. S. 1. Thus was settled the great 
question of Internal Improvements, which, since the 
early years of the Nation, had been a topic of such 
sharp political division.^ 

In connection with National control of railroads 
under the Commerce Clause, such National regulation 
received a further extension, through the development 
of substantive doctrines of equity and commercial law 
in the decisions of the United States Courts. By 
reason of the financial crisis, the Granger legislation, 
and the corrupt manipulations of promoters and stock- 
jobbers, applications to these Courts for the appoint- 
ment of receivers and for the liberal exercise of this 
extraordinary jurisdiction in behalf of judgment cred- 
itors, bondholders and mortgagees, increased enor- 
mously in number between 1871 and 1878. "No 
branch of equity jurisprudence has developed more 
rapidly during the past three years than the law of 
receivers," said a leading law review in 1876, and an- 
other spoke of "the magnitude of the proportion of 
railroad litigation.'* ^ In 1879, Chief Justice Waite 
remarked in Fosdick v. SchaU, 99 U. S. 235, that : "Rail- 

^ See Power of Congrm to Enact Ineorporation Laws, by Victor Morawets, Harv. 
Law Rn. (1918), XXVI ; and see especially, WiUon v. Shaw (1907), 204 U. & 24. 

' See Right of Adion agai'Mt Receivers, by James L. High, Southern Law Ree. 
(1876), N. 8., II; Receivers of Railways, by Leonard Jones, ibid, (1878), n. b.. IV; 
Rights of Material Men Against Mortgages, ibid, (1881), n. 8., VII; lAabilUy of Re- 
cevoers. Western Jurist (1876), X; High on Receivers (1876); Claims and Equities 
Affecting the Priority of Railroad Mortgages, by Leonard A. Jones, Amer. Law Rev, 
(1878), XII; LiabUUies Incurred by Receivers of RaUroads, ibid, (1888), XVII; 
Railroad Receiverships, ibid, (1886), XIX; Law qf Railroads and Other Corporate 
Securitiea (1879), by Leonard A« Jooea. 



860 THE SUPREME COURT 

road mortgages and the rights of raih*oad mortgagees 
are comparatively new in the history of judicial pro- 
ceedings. They are peculiar in their character and 
affect peculiar interests." And he pointed out that, 
in receivership proceedings in equity, concessions from 
strict legal rights must oftentimes be made, to secure 
advantages that would operate for the general good of 
all interested. '^This results almost as a matter of 
necessity from the peculiar circumstances which sur- 
roimd such litigation." The case was an interesting 
example of the flexibility of the law of equity audits 
adaptation to new and modem conditions of life and 
business; for the Court held that a railroad receiver 
might be authorized to pay debts incurred for labor, 
supplies, and permanent improvements, in priority 
to the claims of the mortgage bondholders. In 1881, 
the whole subject of railroad receivership was given 
thorough consideration by the Court in Barton v. 
Barbour^ 104 U. S. 126, in which the question was in- 
volved whether a railroad receiver could be sued with- 
out permission of the Court appointing him. The 
Court, in holding that such permission must be ob- 
tained, stated that railroad insolvencies and receiver- 
ships presented a ''new and changed condition of 
things"; that unlike the procedure with reference to 
insolvent banks, insurance and manufacturing com- 
panies, where receivers were appointed to wind up the 
company and distribute the assets, a railroad receiver 
was appointed, as a rule, to continue the operation 
of the railroad ; that the public was vastly interested 
in such a receivership, and it was because of this pub- 
lic right that a Courtis receiver should not be inter- 
fered with by suits maintained in another jurisdiction. 
Judge Miller dissented, saying that: "The rapid ab- 
sorption of the business of the coimtry of every char- 



INCREASE OF NATIONALISM 861 

acter by legally authorized corporations, while produc- 
tive of much good to the public, is beginning also to 
develop many evils. Not the least of these evils arise 
from the failure to pay their debts and perform the 
duties which by the terms of their organization they 
have assumed." He pointed out that in his Circuit, 
of the fifty or more railroads, '"hardly half a dozen 
have escaped the hands of the receiver " ; that the re- 
ceiver rarely paid the debts of the company, but fre- 
quently injured prior creditors by creating new and 
superior liens on the property. He believed that no 
authority or principle could be found to support the 
Court's decision, and that a plaintiff injured by the 
operation or breach of contract by a receiver ought to 
be allowed to sue such receiver in any Court which had 
jurisdiction.^ 

In 1884, a new form of receivership was originated in 
the Circuit Courts in the Wabash Railroad Cases, 
through an application made for the first time by the 
railroad company itself for the appointment of a re- 
ceiver. This new precedent was soon followed by 
most railroads in financial straits. The result of this 
new and modem development of an old equitable doc- 
trine was an enormous increase in the work of these 
Courts and the assumption of new duties and new re- 
sponsibilities, presenting many novel questions for de- 
cision, and, above all, requiring the control of railroads 
to be taken from the hands of State commissions and 
State officials and placed in the custody and direction of 
the judicial branch of the National Government.* 

1 For an early case of the appointment of a receiver to wind up a corporation, 
see ConngUm Drawbridge Co. v. Shepherd (1858), 21 How. 112, and Wkite Water 
Valley Canal Co, v. Vallette (1859), 21 How. 414; for one of the earliest cases of 
appointment of a receiver to run a railroad, see Broiuon v. La Croese and Milwaukee 
R, R. (1864), 1 Wall. 405. 

* See Wabaeh R. R, v. Central Trust Co,, 22 Fed. 272, 20 Fed. 62S, in 1884 ; and 
Quiney, etc. R. R, v. Humphreye (1892), 145 U. S. 82, New-Faehioned Receieerekipe^ 
by D. H. Chamberlain, Harv, Law Ree. (1896), X. 



862 THE SUPREME COURT 

One further form of regulation of the raUroads found 
expression in a series of important cases, in which the 
extent of the liability of railroad corporations and of 
other common carriers was settled by decision of the 
Judiciary, without legislation by Congress. In 1873, 
in Michigan Central R. R. v. Mineral Springs Manu- 
facturing Co., 16 Wall. 318, the Court held that, though 
a railroad might limit its common law liability by 
special contract assented to by the consignor, an im- 
signed general notice on the back of a receipt did not 
constitute such a contract, even though taken by the 
contractor without dissent. The parties were not on 
an equality in their dealing with each other, said Judge 
Davis : "The law, in conceding to carriers the ability 
to obtain any reasonable qualifications of their respon- 
sibility by express contract, has gone as far in this di- 
rection as pubHc policy will allow. To relax still fur- 
ther the strict rules of common law applicable to them, 
by presuming acquiescence in the conditions on which 
they propose to carry freight when they have no right 
to impose them, would, in our opinion, work great harm 
to the business community." In New York Central 
JR. R. V. Lockwood, 17 Wall. 357, in a notable opinion by 
Judge Bradley, the Court held that a common carrier 
could not stipulate for exemption from responsibility 
for the negligence of himself or his servants ; that the 
customer had no real freedom of choice, no reasonable 
and practicable alternative; that the corporations 
were in a position to control the business, and it was 
against public policy to allow them to use this public 
position as a means to exempt themselves from liabil- 
ity for negligence. "The carrier and his customer do 
not stand on a footing of equality. The latter is only 
one individual of a million. He cannot afford to higgle 
or stand out and seek redress in the Courts. His busi- 



INCREASE OF NATIONALISM 868 

ness will not admit such a course." ^ In 1876, in 
Bank of Kentucky v. Adams Express Co.^ 93 U, S. 174, 
it was held that public policy would not permit an 
express company to contract for exemption for loss 
by fire caused by the negligence of its agent, a rail- 
road company: "The foundation of the rule is, that 
it tends to the greater security of consignors, who 
always deal with such carriers at a disadvantage." In 
1884, in Hart v. Pennsylvania R. JR., 112 U. S. 331, the 
Court upheld a form of contract confining the carrier's 
liability to a certain valuation of the shipment, even 
in case of loss by negligence. In 1880, in Pennsylvania 
Co. V. Roy, 102 U. S. 451, the liability of a railroad for 
injury to a passenger riding in a Pullman car was first 
adjudicated ; and in Pickard v. Pullman Southern Car 
Co.y 117 U. S. 34, in 1886, the nature of the sleeping 
car business was considered, in a case holding invalid 
a statute of Tennessee taxing sleeping cars running in 
interstate commerce. In 1884, the fellow-servant rule 
(established in this country in 1841) was considered in 
Chicago y Milwaukee and St. Paul R. R. v. Ross^ 112 
U. S. 377, in which it was held that the rule should not 
be extended to apply to persons having supervision 
or control ; and that, therefore, a train conductor was 
not a fellow servant with other train employees. In 

^ Again in Smdhem Express Company v. CMweU (1875), 21 Wall. 264, the Court 
oonadered the question of public policy in relation to common carriers, upholding 
a clause in an express company contract requiring claims for loss or damages to be 
made within ninety days. "Common carriers do not deal with their employers 
on equal terms," said Judge Strong. "There is, in a very important senae^ a ne- 
cessity for their* employment. ... In fact, they are without competition, except 
as between themselves, and that they are thus is, in most cases, a consequence 
of advantages obtained from the public. It is, therefore, just that they are not 
allowed to take advantage of their powers, and of the necessities of the public to 
exact exemptions from that measure of duty which public policy demands. But 
that which was public policy a hundred years ago has undergone changes in the 
progress of material and social civilization. There is less danger than there was of 
collision with highwaymen. Intelligence is more rapidly diffused. It is more ea^ 
to trace a consignment than it was. . . . The business of common carriers is 
more increaaed and subdivided. . . . Thus his hazard is greatly increased.*' 



S64 THE SUPREME COURT 

1886, it was held in the Express Cases^ 117 U. S. 1, that 
raiboad companies were not required at common law 
to furnish to all express companies equal faciUties for 
doing business upon their passenger trains. 

While National control over the instrumentalities 
of interstate commerce was thus being enhanced 
and supported by judicial decision, the Court, since 
1879, had shown its increasingly Nationalistic tenden- 
cies in other directions in a series of important 
cases* 

On May 5, 1879, it rendered a decision in the Sink- 
ing Fund Cases, 99 U, S. 727, in which it announced for 
the first time the wide extent of the control which the 
Government might exercise over corporations char- 
tered by Congress. While the Impairment of ObU- 
gation of Contract Clause in the Constitution applied 
only to the States, it was contended by the railroads, 
party to these suits, that the Due Process Clause con- 
tained in the Fifth Amendment constituted an equally 
strong limitation upon the power of the Federal Gov- 
ernment, and that this latter clause rendered invalid 
the Act of May 7, 1878, by which statute Congress had 
amended the charter of the Union Pacific Railroad by 
requiring it to establish a sinking fund with the United 
States Treasury for the redemption of the Government 
loan. The Court, at the outset of its opinion rendered 
by Chief Justice Waite, remarked that it was indis- 
putable that "^the United States are as much bound 
by their contracts as are individuals. If they repudiate 
their obligations, it is as much repudiation, with all 
the wrong and reproach that term implies, as it would 
be if the repudiator had been a State or a mimicipaUty 
or a citizen." It, nevertheless, laid down the very 
broad rule that, under the power to amend the charter, 
which it had expressly reserved. Congress retained the 



INCREASE OF NATIONALISM 865 

power to establish by amendment, "whatever rules 
Congress might have prescribed in the original charter 
for the government of the corporation in the adminis- 
tration of its affairs'', so long as the amendment should 
act prospectively and not upon past and executed trans- 
actions. And it held that the sinking fund provision 
was sustainable, on the ground that "it is a reasonable 
regulation of the administration of the affairs of the 
corporation, and promotive of the interests of the pub- 
lic and the corporators. It takes nothing from the 
corporation or the stockholders which actually be- 
longs to them. It oppresses no one, and inflicts no 
wrong. It simply gives further assurance of the con- 
tinued solvency and prosperity of a corporation in 
which the public are so largely interested, and adds 
another guaranty to the permanent and lasting value 
of its vast amoimt of securities." The conclusion thus 
reached was strongly opposed by three Judges, Field, 
Strong and Bradley, each of whom in a separate dis- 
senting opinion displayed his fear that the Court's 
decision would encourage repudiation of contracts. 
Judge Strong said that the doctrine was a very grave 
and dangerous assertion. "It is especially dangerous 
in these days of attempted repudiation, when the good 
faith of the Government is above all price." Judge 
Bradley said that : "The initiation of this species of 
legislation by Congress is well calculated to excite 
alarm. It has the effect of announcing to the world and 
giving it to be understood that this Government does 
not consider itself bound by its engagements. It sets 
the example of repudiation of Government obligations. 
It strikes a blow at the public credit. It asserts the 
principle that might makes right. It saps the foun- 
dation of public morality." Judge Field said that the 
decision would "tend to create insecurity in the title 



366 THE SUPREME COURT 

to corporate property in this country. It, in eflfect, 
determines that the General Government, in its deal- 
ings with the Pacific Railroad Companies, is under no 
legal obligation to fulfil its contracts, and that whether 
it shall do so is a question of policy and not of duty/' 
"I am aware,** he said, "of the opinion which prevails 
generally that the Pacific railroad corporations have, 
by their accumulation of wealth, and the numbers in 
their employ, become so powerful as to be disturbing 
and dangerous influences in the legislation of the coun- 
try; and that they should, therefore, be brought by 
stringent measures into subjection to the State. This 
may be true ; I do not say that it is not ; but if it is, 
it furnishes no justification for the repudiation or 
evasion of the contracts made with them by the govern- 
ment. The law that protects the wealth of the most 
powerful, protects alsojthe earnings of the most humble ; 
and the law which would confiscate the property of 
the one would in the end take the earnings of the 
other." 

"This decision lays down certam fundamental prin- 
ciples which we are glad to see again affirmed by the 
tribunal of highest authority," said the Nation. And it 
criticized Judge Bradley's dissenting opinion as "ex- 
tremely acrimonious", and said that "such language 
from a Judge, who joined in reversing the Legal Tender 
decisions and in laying down the doctrine that Congress 
may legislate backward indefinitely upon contracts 
between citizens, is not calculated to promote harmony 
between the legislative and judicial branches of the 
Government, or to make an agreeable impression on 
the public mind." The Springfield Republican also 
considered that the Court had "gone to the root of the 
matter and taken the general ground, towards which 
its decisions have been long tending, that grants of 



INCREASE OP NATIONALISM 367 

rights and privileges by the Federal Government are 
revocable, unless an express covenant to the contrary 
is made." ^ 

Announced at a time when corporate pretensions 
and assumptions of power were rapidly mounting, and 
when corporate corruption of Legislatures was fla- 
grant, this decision, confirming in the Federal Govern- 
ment enormous powers of control over corporate char- 
ters, constituted a warning, not only to railroads, but 
to all corporations doing an interstate business that, 
if the Government should ever assume to regulate them 
by enforcing National incorporation, the scope of its 
regulation would be subject to few limitations.* The 
decision served also as a complete answer to the charges 
which had been made from time to time, after the 
Legal Tender decision, that the Bench had been filled 
with "railroad attorneys" for the purpose of obtaining 
decisions favoring these corporations.' The absurdity 
of this charge had been clearly demonstrated when, 
in 1877, the Court decided the Granger Cases sustaining 
the State maximum rate laws, against the violent oppo- 
sition of all the railroads and financial interests of the 
country. The criticism of the Court had, however, broken 
out again when, on January 6, 1879, only four months 
before the decision in the Sinking Fund Cases ^ the Court 

1 NaJtion, May 8, Nov. 18, 1879; Springfield RepMiean, May 7, 1879. 

*An interesting illustration of the power which Congress reserves to itself in 
granting charters appears in Netoport and Cindnnaii Bridge Co. v. United Siatee 
(1882), 105 U. S. 470, in which a corporation constructing a bridge across the Ohio 
River at Cincinnati obtained permissive legislation from Congress containing a 
reservation by Congress of its right to withdraw its assent. The Court held that 
the franchise thus obtained "was a species of property, but from the moment of 
its origin was dependent on the will of Congress*', and the company' ran the risk 
of its withdrawal. It was, of course, possible that this power might be abused by 
Congress, but "for protection against unjust or unwise legislation, within the lim- 
its of recognized legislative power, the people must look to the polls and not to 
the Courts." 

* See History cfihe Supreme Court oj the United States (1912), by Gustavus Myers, 
528-577, written from the Socialist point of view. 



S68 THE SUPREME COURT 

held in United States v. Union Pacific R. JR., 98 U. S. 
569, that the Government had no right to recover for 
itself or its stockholders the enormous sums lost through 
the notorious Credit Mobilier frauds in 1864-1866, 
attendant on the securing of amendments to the rail- 
road charter, and through the corrupt construction, 
coal and Pullman Car contracts made by the officers 
and promoters. These frauds had caused a Natioi^al 
scandal and had resulted in a Congressional investi- 
gation in 1872, and the passage of the Act of March 3, 
1873, under which the Attorney-General was directed 
to institute a suit in equity against stockholders and 
others who secured stock not paid-up or illegal profits 
from contracts made with themselves, to compel the 
restoration of unlawfully obtained property to the cor- 
poration or to the Government, ** whichever shall in 
equity be held entitled thereto.*' The suit so brought 
finally reached the Supreme Court in 1876, when it 
was exhaustively argued, and a reargument was had 
in 1878. Of the charges (which for the purposes of 
the case were admitted by the demurrer to be true) 
the Court, in its decision, said that "'more unmitigated 
frauds were never perpetrated on a helpless corporation 
by its managing directors than are set forth in this 
bill." Yet, as the Court pointed out, the frauds were 
committed against the corporation itself, and against 
such innocent stockholders as had paid in full for their 
stock, but not against the Government. The corpo- 
ration, however, was not seeking reUef in Court, and 
"as to the directors and stockholders who took part 
in these fraudulent contracts they are particeps crirainis 
and can have no relief. This class probably included 
nine-tenths in value of the stockholders.'* But the 
Government, on the other hand, was not in a position 
to obtain reUef in equity ; it was a creditor under its 



INCREASE OF NATIONALISM 869 

contract with the raiboad and under its mortgage, and 
must be supposed to have guarded its rights thereunder. 
To the Government's contention that it was a trustee 
for the public and had visitorial powers to correct 
frauds, the Court answered that such j)owers could be 
exercised only in relation to municipal, charitable and 
religious corporations, or to restrain a private cor- 
poration from vUra vires acts. To the argimient that 
the Government's rights should be liberally construed, 
in view of the liberal aid which it had givep to the rail- 
road, the Court stated that "it was a wise liberality 
for which the Government has received all the advan- 
tages for which it has bargained, and more than it ex- 
pected", and though the corporation "since it has 
grown to a vigorous manhood . . . may not have 
displayed the gratitude which so much care called 
for ... it is but another instance of the absence 
of human affections which is said to characterize all 
corporations." An,d the Court added that "a Court 
of Justice is not called on to inquire into the balance of 
benefits and favors on each side of this controversy, 
but into the rights of the parties as established by law, 
as found in their contracts, as recognized by the es- 
tablished principles of equity, and to decide accord- 
ingly," There was no doubt that the Court was en- 
tirely correct in holding that no recognized principle 
of law authorized the maintenance of any such suits, 
and as the Springfield Republican rightly said: "The 
Credit Mobilier suit came to the end foredoomed. 
To turn a bad trade into a good one by means of a sub- 
sequent lawsuit is a task as hopeless for Congress as 
for anybody." This decision, putting an end to the 
Government's effort to make the guilty parties dis- 
gorge for the benefit of a badly looted railroad and a 
cheated government, was highly imsatisfactory to the 



370 THE SUPREME COURT 

country.^ That the Court, however, did not intend 
to allow the guilty to escapee, in a case properly main- 
tainable at law, was seen in WardeU v. Railroad Co., 
103 U. S. 651, in 1881, in which one of the fraudulent 
coal contracts made between the Union Pacific Rail- 
road and a prospector, in the benefits of which contract 
the railroad directors were to share under the guise of 
a separate corporation to whom the contract was as- 
signed, was held to be "utterly indefensible and illegal. 
• . . Their character as agents forbade the exercise 
of their j)owers for their i>ersonal ends against the in- 
terest of the company/* ^ And that the Court was also 
fully aware of the corrupt lobbyism prevalent in that 
era, and that it did not intend to allow any of the parties 
participating in such illegal actions to recover in suits 
arising therefrom had been shown by its decision, four 
years before, in 1875, in Trist v. Child, 21 Wall. 441. 
In this case, involving a contract for legal services in 
relation to the passage of an Act of Congress, the Court 
had said : "The foundation of a republic is the virtue 
of its citizens. They are at once sovereigns and sub- 
jects. As the foundation is undermined, the structure 
is weakened. When it is destroyed, the fabric must 
fall. Such is the voice of universal history." After 
pointing out that the contract was to obtain the passage 
of a law to pay a private claim without reference to 
its merits, " by means, which, if not corrupt, were 
illegitimate", Judge Swayne had continued (undoubt- 
edly referring to the Credit Mobilier) : "If any of the 

^ Springfield Republican, Jan. 7, 1879. The Independent, Dec. 4, 1873, had said 
at the time of the defeat of the Government in the Circuit Court in this case that 
"the best lawyers in Congress last Winter stated that a suit brought in a respect- 
able Court could have no other result. The country may as well understand 
that when Congress, through lobbying or otherwise, makes improper grants to cor- 
porations, the Courts cannot rectify the end." 

* In 1891, in Qriswold v. Hazard, 141 U. S. 260, the Court upheld a judgment for 
oiver sixteen million dollars against the president of the Credit Mobilier, and others. 



INCREASE OF NATIONALISM S71 

great corporations of the country were to hire adven- 
turers who make market of themselves in this way to 
procure the passage of a general law, with a view to 
the promotion of their private interests, the moral 
sense of every right-minded man would instinctively 
denounce the employer and employed as steeped in 
corruption, and the employment as infamous. . . . 
The same thing in lesser legislation, if not so prolific 
of alarming evils, is not less vicious in itself, nor less 
to be condemned/' The country applauded this de- 
cision. "The whole American people will cordially 
thank the Supreme Court for its authoritative ex- 
pression that services of this kind cannot be the basis 
of any valid contract for compensation," said the 
American Law Review. The Nation said that while 
it remained to be considered whether the decision 
would "prove effective to remove wholly, or in any 
considerable degree, the grossly evil practices which 
it so strongly condemns '\ nevertheless, the opinion was 
stated in "very plain language, coming from the high- 
est tribunal in this country, and language very much 
needed at this time. . . . The Supreme Court has been 
at the pains to say, in a manner not likely to be for- 
gotten or misunderstood, that all and the best of the 
present lobby business in Congress is pernicious, im- 
moral and void; and it has also indirectly read the 
Court below a pretty strong lecture upon the impro- 
priety of a judicial tribunal lending its aid to carry out 
these nefarious transactions. ... A disorganized, in- 
competent Congress is a continuing, abiding demand 
for a lobby, and it is a demand which has not hitherto 
failed, and will not hereafter fail, to produce a supply. 
Whoever wishes the lobby annihilated must first see 
to it that the business of Congress shall be conducted 
in such a way that it can, with reasonable certainty. 



872 THE SUPREME COURT 

be done without a lobby. . . . The conclusion of the 
whole matter is, that special legislation breeds a lobby, 
and a lobby breeds fraudulent claims and the corrui>- 
tion of Congress." ^ 

In two cases in 1880, the Court took another ad* 
vanced step in proclaiming a far greater field for Con- 
gressional legislation than had hitherto been supposed 
to exist under the Constitution, when it upheld in 
sweeping terms the authority of the National Grovern- 
ment to protect by legislation its own functions, agen- 
cies and sovereignty. In Ex parte Sieboldy 100 U. S. 
371, the Court upheld convictions for ballot stuffing 
at Congressional elections in Baltimore and Cincin- 
nati, and held valid those sections of the Enforcement 
Laws of May 31, 1870, and February 28, 1871, which 
made it a Federal crime for a State election officer at 
a Congressional election to neglect to i>erform any duty 
required of him by State or Federal law. In Tennessee 
V. DaviSy 100 U. S. 257, an even greater extension of 
National authority was promoted when the Court 
sustained the constitutionality of the Act of July 13, 
1866, providing for the removal into the United States 
Courts of any civil suit or criminal prosecution begun 
in a State Court against a Federal officer acting under 
any Federal revenue law. The defendant, a deputy 

^ Lobhying at WashingUm, Amer. Law Rev. (1875), IX ; Nation, April 22» 1875. 
An agreement to divide fees with a Government officer for securing an appoint- 
ment as counsel was emphatically denounced in 1880 in Meguire v. Corwine, 101 
U. S. 108 : *'No legal right can spring from such a source, " said Judge Swayne. 
"They are the sappers and miners of the public welfare and of free government 
as well. The latter depends for its vitality upon the virtue and good faith of those 
for whom it exists, and of those by whom it is administered. Corruption is always 
the forerunner of despotism." The duty of a Government officer to refrain from 
pecuniary interest in its contracts was forcibly set out by Judge Field in Osoanyon 
V. Winchester Arms Co., 103 U. S. 261, in a suit by the Turkish Consul-General in 
1881. *'A11 such positions are trusts to be exercised from considerations ci duty 
and for the public good. Whenever other considerations are allowed to intervene 
and control their exercise, the trust is perverted and the community suffers. . . . 
Personal influence to be exercised over an officer of Government, in the procnre- 
ment of contracts, ... is not a vendible article in our system of law and 



INCREASE OF NATIONALISM 873 

collector, being indicted for murder in the State Court, 
alleged that the killing was in self-defense and while 
engaged in discharge of his official duties, and he sought 
to remove his trial into the United States Court. The 
Court held that Congress had power to authorize such 
removal, as indispensable to the enforcement of the 
National laws and to the supremacy of the National 
Government in their execution. This decision, said 
the Nation J "practically destroys State Sovereignty 
with regard to criminal law in a class of cases in which 
it has hitherto always been supposed to be intact." 
When this case was considered with Ex parte Virginiay 
in this same year, holding that a State Judge who dis- 
criminated against negroes in the impaneling of a jury 
was indictable under the Civil Rights Act, it was not 
astonishing that these decisions were profoundly dis- 
turbing to those who opposed centralizing tendencies. 
"They have attracted but little attention at the North," 
said the Nation^ "but at the South these decisions have 
been received with many expressions of hostility, as 
being aimed at what is left of the once cherished doc- 
trine of State-Rights. They are really, however, of 
as much importance to one region as to another, and 
are destined, unless we are much mistaken, to play a 
prominent part in the future constitutional develop- 
ment of the country. . . . Important and far- 
reaching changes have been brought in the relation of 
the State to the General Government." And the 
American Law Review also pointed out how vividly the 
Siebold Case illustrated a growing disp>osition to en- 
hance the importance of the National Government.^ 

Another form of the extension of the protecting arm 
of the United States Government to its officials was 
upheld in Ex parte CuHiSy 106 U. S. 371, in 1882. This 

1 Nation, March 4» 11. 25, 1880; Anuf. Law Rev, (1881), XV. 



374 THE SUPREME COURT 

case which involved the constitutionality of the Act 
of August 15, 1876, prohibiting solicitation of money 
for political purposes from oflScers or employees of the 
United States, had aroused great public interest, 
owing to the scandals growing out of the political assess- 
ments levied in the Garfield Presidential campaign. 
The Court ruled that the law was clearly within the 
just scope of legislative power, as its object "was to pro- 
tect the classes of officials and employees provided for, 
from being compelled to make contributions for such 
purposes, through fear of dismissal if they refused." 
The newspapers very generally endorsed this decision 
and its "calm, luminous and vigorous language*' ; and 
referred to "the outspoken popular disapproval of 
the past assessments, the whole system of which must 
be rooted out." ^ "Political assessments should be 
legally proscribed. This is the imperative demand of 
public sentiment," said the Independent; and the 
Philadelphia North American said that it would be 
received "with little surprise and with very general 
satisfaction. ... It constitutes an important step 
in the direction of civil service reform." 

In 1884, the Court delivered the most sweeping opin- 
ion as to the extent of Congressional power which had 
ever theretofore been rendered, when the question of 
the constitutionality of the Act of Congress, enacted 
after the war, making Treasury notes legal tender was 
presented for the first time in Juilliard v. Greenman^ 
110 U. S. 421. The right to issue legal tender notes 
had been sustained in Knox v. Lee^ in 1871, as an exer- 
cise of the war power under the Constitution ; but that 
case had not definitely settled the status of notes issued 

^See Independent, Dec. 14, 28, 1882; New York Tribune, Dec. 20, 27. 1882; 
New York Times, Dec. 19, 1882; Philadelphia North American, Dec. 20. 1882; 
and see also editorials on the decision in practically all th<e New York, Boston and 
Chicago papers. 



INCREASE OF NATIONALISM 375 

in time of peace. Meanwhile, since 1872, the compo- 
sition of the Court had been greatly changed, death 
or resignation having removed from the Bench, Chief 
Justice Chase, and Judges Nelson, Davis, Strong, 
Swayne and Cliflford, and their places having been 
taken by Chief Justice Waite, and Judges Blatchford, 
Harlan, Woods, Matthews and Gray, while of the 
former Court only Judges Field, Miller and Bradley 
still remained. The case now presented had been pend- 
ing in the Court for five years. It was finally argued 
on January 2, 1884, by Senator George F. Edmunds 
and William Allen Butler, against Benjamin F. Butler, 
James McKeen and Thomas H. Talbot.^ On March S, 
1884, the Court rendered a 4^cision, through Judge 
Gray, which was concurred in by all the Judges except 
Field, and held in the broadest terms that the words 
"necessary and proper" in the Constitution "include 
all appropriate means which are conducive or adapted 
to the end to be accomplished, and which in the judg- 
ment of Congress will most advantageously effect it" ; 
that under its power "to borrow money". Congress 
might "issue the obligations of the United States in 
such form, and impress upon them such qualities as 
currency for the purchase of merchandise and the 
payment of debts ... as accord with the usage of 
sovereign governments " ; that the power of making 

1 See Nation, May 29, 1879 : "Messrs. Butler and Chittenden have undertaken 
to bring before the Supreme Court, by means of a test case, the power of Congress 
to issue or keep afloat legal tender paper money in time of peace. . . . The conten- 
tion is that the Act of May SI, 1878, directing reissue of legal tender, is unconsti- 
tutional." The Nation said. Jan. 8, 1880: "The Supreme Court has denied Mr. 
Edmunds* motion to advance the Butlei^Chittenden legal tender case on the calen- 
dar, on the ground that it will not hear constitutional cases in the absence of a full 
Bench. Judge Hunt's place is now vacant, and we shall therefore have to wait for 
it to be filled before the case can come up. This is perhaps a wise rule, in view of 
what happened in the Hepburn v. Griswoid case ; but we hope it is not true that 
Court, as it now stands, is equally divided on this point, and that the new Justice 
will have the casting vote, for, if so, the temptation to find out the opinion of the 
lawyer who is nominated, before he gets the nomination, will be strong, if not ine- 
sistible." 



876 THE SUPREME COURT 

papier money, issued for such purposes, legal tender for 
the payment of private debts was "universally under- 
stood to belong to sovereignty, in Eiurope and America, 
at the time of the framing and adoption of the Consti- 
tution"; that the power to make the notes of the 
Government a legal tender in payment of private debts 
** being one of the powers belonging to sovereignty in 
other civilized nations, and not expressly withheld 
from Congress by the Constitution*', the impressing 
of such legal tender quality was "an appropriate means, 
conducive and plainly adapted '* to the execution of 
express powers granted to Congress by the Consti- 
tution. "Such being our conclusion in matter of law, 
the question whether at any particular time, in war 
or in peace, the exigency is such . . . that it is, as 
matter of fact, wise and expedient to resort to this 
means is a political question, to be determined by Con- 
gress when the question of exigency arises, and not a 
judicial question, to be afterwards passed upon by the 
Courts/* Judge Field in dissenting, lamented that: 
"What was in 1862 called the * medicine of the Consti- 
tution * has now become its daily bread. So it always 
happens that whenever a wrong principle of conduct, 
political or personal, is adopted on the plea of neces- 
sity, it will be afterwards followed on a plea of 
convenience. . . . From the decision of the Court 
I see only evil likely to follow." The extraordinary 
length to which the decision carried the implied powers 
of Congress, and especially the announcement of the 
doctrine that the National Government possessed all 
powers belonging to other sovereignties, unless with- 
held by express constitutional restriction, elicited 
vigorous criticism from many newspapers and jurists.^ 

^ Chftiles FrsnciB Adams in his Memoirs of Horace Gray termed the deciaon : 
"One <A the most significant and far-reaching changes ever worked by judicial 
ooDstnictioii in constitutional jurisprudence. Largely as the result of his influence. 



INCREASE OF NATIONALISM 877 

The financial and industrial effect of the decision 
also disturbed a large portion of the public who were 
unconcerned with the radical legal doctrine asserted 
by the Court. The decision of Judge Strong in the 
Legal Tender Cases of 1871 "strained the Constitution 
to its extremest limits, and was far from being satis- 
factory to the legal minds of the country", said the 
Independent^ shortly before the decision. "If now the 
Supreme Court should substantially sustain the Green- 
back theory as to the legal tender power of Congress, 
. • • it would seem to us to be creating a new 
Constitution by the process of interpretation, . . . 
an improper and dangerous straining of language." ^ 
After the decision, which more than confirmed its 
worst apprehensions, the Independent said that it was 
"evident that a very radical change of opinion has 
occurred in the Court", which it did not consider an 
improvement, and it termed the Court's new doctrine 
"a dangerous theory, which makes a new Constitution, 
in the process of interpreting it." "The decision makes 
the Constitution • • • different from what it has been 
supposed to be for now nearly a century. Nobody, 
until the exigency created by the late war, ever dreamed 
that Congress had any power to make the debt obli- 
gations of the Government a legal tender in the dis- 
charge of private contracts; and then it was done 
on the ground solely of an imperative necessity. . . . 
The Court now excludes all circumstances and all 
limitations. . . . This mode of construction, if ap- 
plied in other relations, would sweep away all the 
reserved p>owers of the States, and, at the pleasure of 

as exercised and expieased in this case . . . the National Legislature was clothed 
with broad and undefined Parliamentary powers, covering practically the whole 
field of sovereignty, in all matters where the exercise of such power was not ex- 
pressly inhibited to it." Mass, Hist, 8oc. Proe,, 2d Ser., XVI, XVm. 
^Independent, Oct 25, 1883, March 1$, 20, 1884. 



378 THE SUPREME COURT 

Congress, reduce them to the condition of mere mmiici- 
palities." The New York Times strongly denounced 
the decision as one "which, while it must command 
obedience, cannot command respect, a decision weak 
in itself and supported by reasoning of the most de- 
fective character, inconsistent with the previous de- 
cisions of the Court on like issues, and singularly, 
almost ridiculously, inconsistent with the traditional 
interpretation of the Constitution, with the spirit of 
that instrument and its language" ; and it stated that 
the Court had evolved a doctrine "directly opposed 
to the words of the Constitution, avowedly based upon 
the theory of sovereignty held at a time when there was 
not a considerable republic in the world, and bestow- 
ing upon Congress a power which it did not dare to 
claim in stress of war." And the Louisville Courier 
Journal said that the decision had introduced "a new 
regime. The whole constitutional bulwark is destroyed 
at one stab, and unbridled license in currency legis- 
lation is submitted for constitutional restraint/* 
After stating that it was not clear to a plain demo- 
cratic mind that foreign customs ought to be a guide 
to American Judges, in construing American law, it 
charged that the Court had "violated the letter and 
spirit of the Constitution", and had "consulted its own 
conception of political and economic expediency, instead 
of the commands of the organic law." The Nation^ in 
an editorial entitled "A New View of the Constitution ", 
said : " The system of construction adopted in this case 
is one which weakens the Court itself and enlarges the 
power of Congress, and makes a long stride in the direc- 
tion of centralization. . . . The rule adopted by the 
Court enables Congress to do what it pleases, makes it 
the judge of what is appropriate to the exercise of the 
implied powers of the Constitution, and makes the only 



INCREASE OF NATIONALISM 879 

limit of these the general doctrine of * sovereignty *, 
which is either one of arbitrary power, or at the best the 
authority enjoyed by the English Parliament." An 
eminent writer in the American Law Review spoke of 
Judge Gray's novel contribution to law in his statement 
that Congress has powers "incidental to sovereignty'* ; 
and he concluded : " It is i>ermitted to those who revere 
the Court and the Constitution, and believe in public 
honor, to hope that in future decisions that Court will 
recur to the doctrines and guidance of Madison, Mar- 
shall and Webster, on this question, and restore to our 
country the blessings of real, honest, constitutional 
money. . . . Senator Bayard has well said that the 
Supreme Court has put B. F. Butler on his feet.** And 
a Mississippi Greenbackian wrote that " we feel a just 
pride in the fact that the Supreme Court has fully sus- 
tained our views.*' ^ Another jurist said, with a i>essi- 
mistic prophecy which subsequent events did not fulfiU : 
"The Court has fallen, and it is not probable it can 
ever again act as an effective check upon the popular 
will, or should it attempt to do so, that it can prevail." 
Some newspapers, while regretting not only the legal 
doctrines of the decision but the encouragement which 
it would give to inflation of the currency and radical 
paper money legislation, felt that, as a practical ques- 
tion. Congress could be trusted to deal sanely with the 
situation. "Fortunately, for the country, the de- 
cision involves for the present a theoretical question 
only," said the Boston Advertiser ^ "but some day the 

^ The Legal Tender Que^ion, by H. H. Neill, Pol, Sci. Qu, (1886), I ; The Legal 
Tender Decitiona of 188^, by D. H. Chamberlain, Amer, Law Rev, (1884), XVIII ; 
■ee ibid., A Reply, by Thomas H. Talbot ; Nation, March 6, 20, 1884 ; Legal Ten- 
der, by James B. Tliayer, Harv. Law Rev. (1887), I; Brooks Adams in Atlantic 
Monthly (1885), LV ; Harper's Weekly, March 15, 1884 ; New York Tribune, March 
4, 17, 1884; New York Times, March 4, 1884; Boston Daily Advertiser, March 4, 
1884 ; Louisville Courier Journal, March 5, 11, 1884 ; Cincinnati Enquirer, March 
4. 6, 1884 ; see also Pkiladelphia Press, March 4, 1884 ; Philadelphia North Amer- 
ican, March 12, 1884. 



880 THE SUPREME COURT 

question will be severely practical, and then the coun- 
try must look to Congress rather than to the Supreme 
Court for the determination of what constitutes sound 
money." Harper* s Weekly stated that, since the Court 
was composed of "a body of very able lawyers and of 
conservative and patriotic men, and as there is at present 
no very strong party feeling or pressure of any kind", 
this opinion must be regarded with great respect and 
of very great weight. Nevertheless, it could not be re- 
garded but as surprising, it said, that the Court should 
apparently assert "that the power of Congress is as 
supreme as that of Parliament, except that it cannot 
exercise powers expressly withheld." Still, though the 
decision "recognizes in Congress the constitutional au- 
thority of indefinite inflation, the practical reply to 
the possible peril of such a recognition is that Congress 
would never have hesitated to use such authority, 
if it had felt strong enough and had believed that the 
exigency demanded the action. In an emergency. 
Congress has always exercised supreme National pow- 
ers, and the true conservative restraint upon its ac- 
tion lies in the intelligence and honesty of the country." 
The New York Tribune said that: "Timid observers 
will probably think that this is a dangerous decision, 
and anti-monopolists will doubtless flatter themselves 
that it contains the promise of the issue of fiat money, 
whenever they can get control of Congress. But 
there is practically no reason for fear, or rejoicing 
either, for that matter." Later, this paper expressed 
the hopeful view that, while the decision had been 
described as "a public misfortune", reviving the green- 
back agitation and exposing the country to complete 
debauchment of the currency, "whenever a majority 
in Congress can find a convenient excuse for inflation, 
this, however, is not an opinion warranted by past ex- 



INCREASE OF NATIONALISM 881 

perience. The greenback agitation died out, not because 
the people supposed the issue of legal tenders uncon- 
stitutional, but because they discovered that the legal 
tender quality was of no use. . . . (The people and 
Congress) are not restrained, . . . except by a sense 
of duty and intelligent care for the consequences. 
But those restraints ought to be the more powerful, 
since it appears that the honor and welfare of the Na- 
tion dei>end, not up>on any supposed fences by which 
the people may be penned in, but upon their own 
good faith and good sense." 

In only a few of the more radical Democratic papers 
was any endorsement of the decision to be found. 
Representative of these was the Cincinnati Enquirer , 
which termed it one of the most important judicial 
decisions ever made in this country, "the eflFects of 
which will be greater for the good of the toiling mil- 
lions than those of any other decision made by the 
Supreme Court. The fact that all the Members of 
the Court joining in the opinion have been Republicans 
and were appointed by Republican Presidents bars the 
money-power from saying it was a Democratic party 
decision. We are sorry to say that Justice Field dis- 
sented from this most righteous determination. . . . By 
the true friends of the people. Republicans and Demo- 
crats, who bore the brunt of battle with the money- 
power, this edict of our Supreme Court will be received 
with utmost satisfaction. We will hear no more of 
inflationists and the * rag-baby.' " 

One immediate effect of the decision was the intro- 
duction into Congress of resolves for a Constitutional 
Amendment to limit the powers of Congress as to the 
issue of legal tender notes, such measures being pro- 
posed by Thomas F. Bayard of Delaware and A. H. 
Garland of Arkansas in the Senate, and Orlando B. 



882 THE SUPREME COURT 

Potter and Abram'Hewitt of New York in the House. 
"The decision has already become a subject of politi- 
cal discussion, and he must be blind to the profound 
significance of the great question which has been opened 
by that decision who fails to see that in some form it 
must become a fruitful source of agitation," said a 
leading Democratic paper, which strongly opposed 
the decision. "People should insist upon having 
clearly defined constitutional metes and bounds to 
protect their liberties and rights, instead of depending 
upon the caprices of the unlimited sovereignty which 
the Supreme Court dwells upon with such compla- 
cency. . . . Without strict limitation, Grovemment 
becomes a despotism, and as it has steadily moved in 
the direction of centralization and *the highest sover- 
eignty', the Republican party has been marking all 
the stages of its progress by fragments of these safe- 
guards, these muniments of the fundamental law." 
And an equally strong Republican opponent, referring 
to the proposed Amendments, said that they showed 
that the decision had attracted deserved attention 
by Congress.^ 

Coming only a few months before the Presidential 
election of 1884, when the Democratic party was re- 
turned to power after twenty-four years, the decision 
may be said to have marked the climacteric of the 
broad tide of Nationalism which had, with ebbs and 
flows, been sweeping over American constitutional 
law. 

^ LouUviUe Courier-Journal, March 11, 1884 ; Independent, Match 20, 1884. 

Potter's Amendment provided that Congress should not have power to make 
anything but "gold or silver coin a tender in payment of debts, except after a dec- 
lantion of war, when the public safety may require it." Bayard's and Hewitt's 
Amendments were similar except as to the last clause. Garland's Amendment 
limited the issue of legal tender notes to $350,000,000 except on a two-thirds vote 
of each House. 48th Cong., 1st Seas., 1745, 1756, March 10, 1884. See also The 
Proposed Amendments to the Constiiuiion, by Herman V. Ames, Amer. Hist, Ass, 
Rep, (1896), II. 



INCREASE OF NATIONALISM 888 

In 1886, the rights of the United States Government 
even within the territorial boundaries of the States 
were broadly upheld in Van Brocklin v. Tennesseey 
117 U. S. 151, in which the power of a State to tax real 
estate belonging to the National Government was 
unequivocably denied.^ And another example of the 
National control within State boundaries was given, 
when the Court sustained the plenary right of the 
National Government to legislate in control and for the 
protection of its tribal Indian wards located in a State, 
in United States v. Kagama (1886), 118 U. S. 875.« 

In 1887, the Court extended even farther the im- 
plied powers contained in the Constitution, by up- 
holding, in United States v. Arjonay 120 U. S. 479, the 
validity of the statute punishing the counterfeiting 
of notes and bonds of foreign governments. It held 
that, as international comity required that protection 
be afforded to such foreign securities, and as failure 
to give such protection would create under inter- 
national law a right of complaint, ^^a law which is 
necessary and proper to afford this protection is one 
that Congress may enact, because it is one that is 
needed to carry into execution a power conferred by 

^ In 1876, in Kohl v. United States, 91 U. S. 867, the right of the United States 
to take land by eminent domain within a State was first upheld. Judge Strong say- 
ing that the right is " the offspring of political necessity ; and it is inseparable from 
sovereignty, unless denied to it by its fundamental law. ... It is a right which 
nuty be exercised within the States, so far as it b necessary to the enjoyment of the 
powers conferred upon (the United States) by the Constitution" ; and that though 
it was true that this power of the Federal Government "has not heretofore been 
exercised adversely, the nonuser of a power does not disprove its existence." 

> See also United States v. A3 Gallons of Whiskey (1876), 93 U. S. 188. That an 
Indian bom a member of one of the Indian tribes was not a citizen of the United 
States, even though he had severed his tribal relation, was held in 1884, in Elk v. 
WUkins, 112 U. S. 94. "The National legislation has tended more and more to- 
wards the education and civilization of the Indians, and fitting them to be citizens," 
said Judge Gray. "But the question whether any Indian Tribes or any members 
thereof have become so far advanced in civilization that they should be let out 
of the state of pupilage and admitted to the privileges and responsibilities of citi- 
zenship, is a question to be decided by the Nation whose wards they are and whose 
citizens they seek to become, and not by each Indian for himself." 



884 THE SUPREME COURT 

the Constitution on the Government of the United 
States exclusively. There is no authority in the United 
States to require the passage and enforcement of such 
a law by the States. Therefore, the United States 
must have the power to pass it and enforce it them- 
selves ... or be unable to perform a duty which they 
owe to another nation, and which the law of nations 
has imposed on them as part of their international 
obligations.'' Having in the Legal Tender Casey in 
1884, deduced a power in Congress from its possession 
by other sovereignties, the Court now held, in 1887, 
that Congress must be held to possess a power, because 
of the fact that the States did not possess it. The 
decision was an interesting example of the very broad 
views of the Constitution at which the Court had 
arrived. 



CHAPTER TfflRTY-SIX 

EXPANSION OP JUDICIAL POWERS 

1885-1889 

In 1885 9 the Court rendered a decision which marked 
a new era in the development of the domain of National 
power and which restricted in a large measure the 
sovereignty of the States. Since the case of Osbom v. 
Bank of the United States in 1824, there had been prac- 
tically no instance in which the Courts of the United 
States had sustained an action against a State official 
for administering an unconstitutional law. On the 
contrary, attempts to sue such officials had been dis- 
countenanced and defeated in many cases, on the 
ground that they were in violation of the Eleventh 
Amendment prohibiting suits against a State. Be- 
tween 1875 and 1885, however, conditions had arisen 
in many States in this country which made of the 
Eleventh Amendment simply a shield for State dis- 
honesty. Owing to the devastation due to the Civil 
War, the corruption of their "carpet-bag" Legis- 
latures and the financial depression after the panic 
of 1873, many Southern States had attempted to de- 
fault in the payment of bonds issued or guaranteed 
by them. The extent of this repudiation had become 
a National scandal. "Today more than $100,000,000 
and, if we include interest, more than $200,000,000 are 
due to creditors from repudiating States. . . . The 
whole country is in disgrace by reason of this horrid 
spectacle," said the Independent, in 1883. "Public 
VOL. m — 18 



886 THE SUPREME COURT 

morality has suffered from the foul contagion. Mu- 
nicipal corporations have caught the disease. . . . 
Repudiation is simply the highwayman's morality. 
When practiced by States, it is power against right. 
As an exhibit of sovereignty, it is the sovereignty of 
rascality. State repudiation in this country is a crimi- 
nality that has behind it millions of offenders. The 
people are the State and control its action." ^ The 
Court, nevertheless, in almost every attempt made to 
enforce compliance by a State with its obligations, was 
confronted with the Eleventh Amendment. Though 
determined to uphold principles of honesty in business 
and to enforce rigidly the Impairment of Obligation 
of Contract Clause of the Constitution in suits involv- 
ing private individuals, it had thus far met with an 
insuperable obstacle in suits involving State officials. 
The situation was well illustrated by three cases de- 
cided in 1883. In Louisiana v. Jumely 107 U. S. 711, 
the Court upheld the right of the State and its officers 
to be exempt from a mandamus suit requiring officials 
to apply funds in the State Treasury to payment of 
State bonds. Judges Field and Harlan vigorously 
dissented, stating that they would continue to do so, 
"until the prohibition inserted in the Constitution, 
as a barrier against the agrarian and despoiling spirit 
which both precedes and follows a breach of public 
faith, is restored to its original vigor"; otherwise, 

^ Independefd, May 3, 1883, Feb. 19, April 30, 1885 ; The Supreme Court and Stale 
Repudiation^ by John N. Pomeroy, Amet, Law Ree, (1883), XVII ; see Can States 
be Compelled to Pay Their Debts? by Bradley T. Johnson, Amer, Law Rev. (1878), 
XII; Suing the State, by George M. Davie, Amer, Law Reg. (1884), XXXII; The 
Eleventh Amendment, by Allen C. Braxton, Virg. Bar Ass. (1907), XX; The EUv- 
enth Amendment, by VHIliam D. Guthrie, in Magna Carta (1914) ; Suability of 
States by IndividwUs, by Judge Jacob-Trieber, Amer. Law Rev. (1907), XLI ; The 
Eleventh Amendment and the Non-Suability of a State, by A. H. Wintersteen, Amer. 
Law Rev. (1896), XXX; Suit Against a State, by A. D. Lauer, Amer. Law Reg. 
(1893), XLI; Georgia Bar Ass. Report (1896), 171; Washington StaU Bar Ass. 
Report (1887), 127. 



EXPANSION OF JUDICIAL POWERS 387 

they said, "public faith will be the synonym of 
public dishonesty." * In Cunningham v. Macon & 
Brunstoick R. R.y 109 U. S. 446, the Court held that a 
bill in equity by mortgage bondholders to foreclose 
on a railroad whose bonds had been endorsed by the 
State of Georgia, which had been taken possession of 
by that State, could not be maintained, since the State 
was an indispensable party and could not be sued.^ 
In New Hampshire v. Louisiana^lOS U. S. 76, the Court 
refused to sanction an attempted evasion of the 
Eleventh Amendment by creditors who had assigned 
their bonds to a State which accepted them simply 
for the purpose of bringing suit.' 

While these decisions were undoubtedly wise and 
in full conformity with the Constitution, they pro- 
foundly disturbed the conservative element of the 
community, which saw in them only encouragement 
for future municipal and State defaulters; and they 
even evoked a demand for the abolition of the Eleventh 
Amendment. "We do not believe in the wisdom or 
justice of this Amendment at all," said the Inde- 
pendent. "It ought to be amended out of the Con- 
stitution. • . . The repudiation of State debts under 
the cloak of this Amendment has become the shame 
and disgrace of our country, and the proper remedy 
to arrest this enormous evil is to give to the Federal 
Courts the power which the Eleventh Amendment 
took away, and authorize Congress by appropriate 
legislation to carry that power into full and complete 

^ The premium bond troubles of Louiaana were alao involved in New Orleatu 
Board of Liquidation v. Bart (1886), 118 U. S. 186 ; see Wolff v. New Orleane (1881), 
103 U. S. 358; Louisiana y. PHebury (1882), 105 U. S. 278. 

' Creditors of South Carolina were held to be similarly remediless in 1886, in 
Hagood v. Southern, 117 U. S. 52. 

* See, however. South Dakota v. North Carolina, 192 U. S. 286, in 1904, in which 
a State was allowed to recover on bonds of another State. As to this case see John 
Arehibtdd Campbdl (1920), by Henry G. Connor, and see also severe attack by 
Ganmi Patteson in Virginia Law Reg. (1905), X, 855. 



S88 THE SUPREME COURT 

eflfect/* * "The Supreme Court should be able to 
compel a State to pay its debts. With this power 
lodged in the Supreme Court and lodged in Congress, 
the system of State repudiation would come to an 
end, greatly in the interests of justice." A resolve was 
actually introduced in the House for the repeal of the 
Eleventh Amendment and for the grant to Congress 
of the power to provide by appropriate legislation for 
enforcement of the obligation of contracts entered into 
by any of the States of the Union.* Fortunately, no 
such radical move was found necessary ; for the Court, 
in 1885, finally enounced a doctrine as to suits against 
State officials which, to a certain extent, relieved the 
situation, and marked a new era in the relations of the 
National Judiciary and the States. The case in which 
this momentous decision was made was one of a long 
series from 1881 to 1887, involving the notorious 
Mahone-Riddleberger legislation in Virginia, by which 
that State had practically repudiated $11,000,000 out 
of a refunded debt of $30,000,000, had cut in half the 
interest on its outstanding bonds, and had repealed 
the provisions of law which made coupons on its bonds 
receivable in payment of taxes.' This violation of 
the State's express agreement with its bond and coupon 
holders had been held by the Court, in 1881, in Hartman 
V. GreenhoWy 102 U. S. 672, to be invalid as an impair- 
ment of obligation of contract; and in an answer to 

^ NaHon, March 8, 1883; Independent, Feb. 1, March 15, 1888. 

* Ji7th Cong., 2d Sees., 1356, Jao. 19, 1883. The Amendment was introduced by 
William R. Moore of Tennessee. It provided for rescinding the Eleventh Amend- 
ment -and that "The Congress shall have power to provide by appropriate legis- 
lation for the legal enforcement of the obligation of contracts entered into by any 
of the States of the Union." 

* For details of this and subsequent legislation and the litigation arising out of 
it, see Nation, April 30, 1885 ; see also Independent, March 29, April 5, 12, 19, 1882 ; 
Hietory of the Virginia Debt Controversy (1897), by William R. Royall; The R^ 
adjuster Movement in Virginia (1917), by Charles C. Pearson ; The ConstUuiumaliiy 
of Repudiation, by D. H. Chamberlain, and A Reply, by John S. Wise, North Amer, 
Rev. (1884), CXXXVUI. 



EXPANSION OF JUDICIAL POWERS 389 

the argument that legislation as to receipt of taxes, 
binding future Legislatures, might result in crippling 
the power and resources of the State in time of war or 
other great calamity, Judge Field had said, quoting 
the Virginia Court of Appeals: " *At such a time, 
however, the honored name and high credit secured 
to a State by unbroken faith, even in adversity, will, 
apart from all other considerations, be worth more to 
her in dollars — incalculably more — than the com- 
paratively insignificant amount of interest on a portion 
of the public debt enjoyed by breach of contract. ' The 
Court thus expressed a great truth, which all just men 
appreciate, that there is no wealth or power equal to 
that which ultimately comes to a State when in all 
her engagement she keeps her faith unbroken." In 
an eflfort to avoid the force of this decision, Virginia 
had proceeded to pass legislation imposing such re- 
strictions upon bondholders as practically to destroy 
the commercial value of the bonds and coupons ; and 
when bondholders declined to comply with these new 
restrictions, the State oflScers attempted to distrain 
their property in payment of taxes. It was at this 
point that the Court, in 1885, proclaimed a doctrine 
which relieved the situation, and which made the pro- 
visions of the Eleventh Amendment far less onerous 
than they had been hitherto supposed to be. In 
Poindexter v. Greenkow, 114 U. S. 270, it pointed out 
that there was a clear distinction between a suit against 
a State or a State oflScial to compel it or him to per- 
form an obligation of the State, and a suit against a 
State official to recover damages for an act performed 
in carrying out an unconstitutional State law; and 
that no official could claim exemption from personal 
responsibility for acts committed under such an in- 
valid law. Accordingly, it sustained a suit in detinue 



390 THE SUPREME COURT 

against a city treasurer, and held that the treasurer 
could not justify, under an unconstitutional State 
statute, his action in seizing property after the tax- 
payer had made a valid tender of coupons in payment 
of his tax. There is an important distinction between 
the government of a State and the State itself, and 
governing officials within the sphere of their agency 
are the State, but outside of their agency are lawless 
usurpers, individual trespassers, said Judge Matthews, 
in substance. "This distinction between the govern- 
ment of a State and the State itself is important. To 
deny it or blot it out obliterates the Une of demarcation 
that separates constitutional government from abso- 
lutism, free self-government based on the sovereignty 
of the people, from that despotism, whether of the one 
or the many, which enables the agent of the State to 
declare and decree that he is the State, to say ^U^tat^ 
c^est Moi.* . . . How else can these principles of 
individual liberty and right be maintained, if, when 
violated, the judicial tribunals are forbidden to visit 
penalties upon individual offenders, who are the in- 
struments of wrong, whenever they interpose the 
shield of the State? The doctrine is not to be toler- 
ated. The whole frame and scheme of the poUtical 
institutions of the country. State and Federal, protest 
against it. Their continued existence is not compatible 
with it. It is the doctrine of absolutism, pure, simple 
and naked; and of communism, which is its twin; 
the double progeny of the same evil birth.** Judges 
Bradley, Miller, Gray and the Chief Justice dissented, 
saying that: "A State can only act by and through 
its constituted authorities and it is represented by 
them in all the ordinary exhibitions of sovereign power. 
It may act wrongly; it may act unconstitutionally; 
but to say that it is not the State that acts is to make 



EXPANSION OF JUDICIAL POWERS 391 

a misuse of terms, and tends to confound all just dis- 
tinctions. It also tends, in our judgment, to inculcate 
the dangerous doctrine that the Government may be 
treated and resisted as a usurpation whenever the 
citizen, in the exercise of his private judgment, deems 
its acts to be unconstitutional." They asserted that 
against unconstitutional oppression by the State or 
its oflScers, the citizen had sufficient redress by habeas 
corpus, by defense to prosecutions, by injunction or by 
mandamus ; but this right, they said, is "a very diflFer- 
ent thing from the right to coerce the State into a fulfill- 
ment of its contracts." That these suits were attempts 
to coerce the State, they held to be plain. "It is use- 
less to deceive ourselves by an adroit use of words, 
or by a train of metaphysical reasoning. . . . This is 
the first time, we believe, since the Eleventh Amend- 
ment was adopted, in which a State has been coerced 
by judicial proceedings at the suit of individuals in 
the Federal Courts." ^ 

With this decision and similar decisions in the next 
year, 1886, there began a new epoch in the relation of 
the Federal and State powers. **It marks another rev- 
olution in constitutional construction, which will be 
regarded by some as a virtual change of the Consti- 
tution itself, and by others as an adaptation of con- 
flicting parts to the broad requirements of justice," 
said the Nation; and it added, with considerable 
grounds for the statement: "Since the State can act 
only through its agents, of whom the tax collector is 

^ See Afdoni v. Qreenhow (1888), 107 U. S. 760, and the comment on this case in 
NcMon, March 8, 1888; Ex parte Crouch, Ex parte Royall (1884). 112 U. S. 178, 
181 ; Alien v. BaUimare A Ohio R. R. Co, (1885), 114 U. S. 811 ; Carter y. Green- 
how, 114 U. S. 817; PleaeanU ▼. Greenhaw, 114 U. S. 828; Marye v. Pareone, 114 
U. S. 325; Barry v. Edmunds (1886), 116 U. S. 550; RoyaU ▼. Virginia (1886), 

116 U. S. 572; Stewart y. Virginia (1886), 117 U. S. 612; Ex parte RoyaU (1886), 

117 U. S. 241. See also Nation, April 23, May 7, 1885, Feb. 4, 11, March 4, 1886; 
Ex parte Ayere (1887), 128 U. S. 448; McCvUough y. Vvrginia (1808), 172 U. S. 102. 



892 THE SUPREME COURT 

one, the point [made by the Court] seems to be forced, 
and although in accord with principles of justice, yet 
practically a change of the Constitution and one of 
exceeding gravity/* A few weeks later, the Nation 
pointed out how largely the partisan line had broken 
down in the Court, in the consideration of the broad 
issue. "The question of State-Rights in its most ex- 
treme form was directly involved in this matter, and 
it might have been expected that the strong Repub- 
lican bias of our highest Bench would have produced 
a close approach to unanimity against the traditional 
Democratic side of that issue. It certainly might have 
been supposed that the one representative of the Demo- 
cratic party in the Court would plant himself firmly 
upon the Eleventh Amendment. ... In point of 
fact, Judge Field took the contrary ground, while it 
was from the lips of a Republican Judge, speaking for 
three party associates, as well as himself, that there 
issued a rather heated protest against the attempt of 
the Court to treat the Eleventh Amendment as a mere 
jingle of words, to be slurred over by cunning subtle- 
ties and artificial methods of interpretation, so as to 
give it a little compliance, without regarding its sub- 
stantial meaning." Still later, the Nation pointed out 
with great force, "the great triumph of honesty over 
fraud", and the immense importance of these cases in 
bringing constitutional law into conformity with morals. 
"If they are accepted without resistance, they will 
make the first victory of the Supreme Court over a 
really recalcitrant and angry State. . . . Until the 
present time, the United States has never been vic- 
torious in its Judiciary department over a State deter- 
mined to defy it. . . . There have been many other 
cases before the Supreme Court in which acts of State 
Legislatures have been declared unconstitutional and 



EXPANSION OF JUDICIAL POWERS 893 

void, but never, when the State has used all its civil 
power, its intellect and obstinacy, backed finally by 
a united public opinion, to frustrate the constitutional 
demands of hated creditors. These decisions are, then, 
the first absolutely peaceable triumph of the Consti- 
tution and its honest principles over the narrowness, 
bitterness and often dishonesty of local popular will, 
and as such they form an epoch in constitutional his- 
tory. It is a triumph of the regular power of the Na- 
tional Government over the irregular power of the 
State." 

While there were, in subsequent years, some vacil- 
lations and inconsistencies in the decisions of the Court 
involving State officials, the principles laid down in the 
various Virginia Coupon Cases have been, in general, 
the foundation for an extension of National power over 
the States which has had a profound effect on the course 
of American law.^ 

In this connection, it should be noted that, in spite 
of its tendency to uphold the authority of the Nation 
in the exercise of political power, the Court showed 
itself as determined to defend the rights of an indi- 
vidual, when trespassed upon by an officer of the Na- 
tional Government, as when injured by the action of a 
State officer; and in a memorable opinion in 1882, it 
had applied to the National Government itself the 
same principles of distinction between the right to sue 
a Government officer for his personal illegal acts and 
the right to sue the Government itself, which it later 
applied to the State. In United States v. Lee, 106 U. S. 
196, the son of Gen. Robert E. Lee sued to recover 
possession of eleven hundred acres known as the Ar- 
lington estate, which was formerly the property of 

^ PMie Service Rates and the Fourteenth Amendment, by Nathan Mathewa, Jr. 
and William G. Thompson, Harv. Law Reo. (1901), XV. 



894 THE SUPREME COURT 

Mrs. Lee as heir of her grandfather, George Washington 
Custis Lee. This estate had been bid in by the United 
States Government at a tax sale during the Civil War, 
and later used as a National Cemetery, being in the 
possession and under the control of the defendants 
in this case, who were military officers placed in charge 
by the President. In the lower Court, the Attorney- 
General of the United States, Charles Devens, had, 
without making the United States a party to the suit, 
filed a motion to dismiss, on the ground that the prop- 
erty belonged to the Government and was in actual 
possession of its officers, and that therefore the Court 
was without jurisdiction to entertain the suit.^ The 
Court, in a notable opinion rendered by Judge Miller, 
considered with great fullness the doctrine of immunity 
of the Government from suits without its consent, 
and held that this immunity did not apply when suit 
was brought against Government officials in unlawful 
possession of property. "No man in this country is 
so high that he is above the law. No officer of the 
law may set that law at defiance, with impunity. All 
the officers of the Government, from the highest to 
the lowest, are creatures of the law and are bound to 
obey it."' "Shall it be said," he asked, "that the 
Courts cannot give a remedy when the citizen has been 
deprived of his property by force, his estate seized and 
converted to the use of the government without lawful 
authority, without any process of law and without 
compensation, because the President has ordered it 
and his officers are in possession?" To sanction this 
would be to sanction tyranny. "The evils supposed 
to grow out of the possible interference of judicial 
action with the exercise of powers of the Grovemment 

^ The case was argued March 10-13^ 1882, reargued Oct. 18, 19, 1882, and decided 
Dec. 4, 1882. William J. Robertson, W. J. Shipman and S. F. Beadi appeared 
for Lee. 



EXPANSION OF JUDICIAL POWERS 396 

'essential to some of its important operations, will be 
seen to be small indeed compared to this eviV^ More- 
over, said Judge Miller, answering the arguments of 
the Attorney-General: "Hypothetical cases of great 
evils may be suggested by a particularly fruitful imag- 
ination in regard to almost every law upon which de- 
pend the rights of the individual or of the Government, 
and if the existence of laws is to depend upon their 
capacity to withstand such criticism, the whole fabric 
of the law must fail/^ And he concluded with a strik- 
ing characterization of the Judiciary, as inherently 
the weakest of the three branches of the Government : 
"Dependent as its Courts are for the enforcement of 
their judgments, upon oflScers appointed by the Execu- 
cutive and removable at his pleasure, with no patronage 
and no control of purse or sword, their power and in- 
fluence rest solely upon the public sense of the necessity 
for the existence of a tribunal to which all may appeal 
for the assertion and protection of rights guaranteed 
by the Constitution and by the laws of the land, and 
on the confidence reposed in the soundness of their 
decisions and the purity of their motives. From such 
a tribunal no well-founded fear can be entertained of 
injustice to the Government, or purpose to obstruct 
or diminish its just authority." In accordance with 
its opinion, the Court, finding the tax sale illegal, gave 
judgment for the Lee heirs and ousted the Government 
from possession. An elaborate dissenting opinion, 
concurred in by Chief Justice Waite and Judges Brad- 
ley and Woods, was given by the new Judge, Gray, in 
which it was contended that the suit was simply an 
action, "to invade the possession of the sovereign and 
to disregard the fundamental maxim that the sover- 
eign cannot be sued." 
Though the decision is now regarded as one of the 



896 THE SUPREME COURT 

glories of American law, there were varied views taken 
of it at the time of its rendition. The greater part of 
the Bar, however, shared in the feelings which were 
very strikingly expressed in the New York World that : 
"All self-respecting Americans will rejoice to learn 
that the Supreme Court has restored to the heirs of 
General Robert E. Lee the Arlington estate, which 
for twenty years past has been lawlessly and violently 
held by the Government without a penny of compen- 
sation to the owners. . . . The decision is of especial 
interest and importance at this time, as reaffirming 
conspicuously the supreme sovereignty of the Law, 
'the State's collected will', above all the heats and 
fluctuations of popular and sectional passion. The 
highest tribunal of the Union by its decision, in short, 
has recognized the wisdom and solidity of a response 
made by Judge Shipman to one member of the Court, 
during the proceedings — a response which will, let 
us hope, become proverbial in American thought and 
speech. *Do I understand your position to be,' said 
one of the Supreme Court Judges to Judge Shipman, 
* that if the title to a piece of land on which the Govern- 
ment has set up a lighthouse should be disputed, the 
claimant might bring an action of ejectment, and if 
successful, remove the lighthouse?' * Certainly,' re- 
plied the intrepid lawyer. * That is my position. Far 
better extinguish all the lighthouses in the land than 
put out the light of the Law. ' " ^ 

The decision appealed also to independent journals 
like the SpringHeld Republican^ as being **very sensible 
law" ; and while it ** greatly modifies the doctrine that 
the Government cannot be sued by the private citizen, 
it correspondingly strengthens the safeguards of pri- 

^ New York World, Dec. 5, 1882; Springfield Republican, Dec. 7, 1882; Amer- 
Law Rev. (1888), XVII, 444; New York Commeroial AdveiiUer^ Dec. 5, 1882. See 
»l80 Pkiladel^ia Frees, Dec. 6, 1882, 



EXPANSION OF JUDICIAL POWERS S97 

vate right in property. ... It was in one of the 
most despotic of those monarchies in the last century 
that the stubborn miller, whose windmill adjoined, 
and still adjoins, the palace of Frederick the Great, 
repUed to the covetous eflForts of his Majesty to get 
possession, * There are still Courts in Berlin, sire^ and 
he relied on the Courts to protect him, as they did." 
On the other hand, a writer in the American Law Re- 
view expressed the view that the decision was an in- 
fringement on the sovereignty of the United States, 
and that the rule that the Government cannot be sued 
has had "its vitality almost wholly emasculated, by the 
further ruling that the principle cannot be invoked 
by any officer of the Government against whom, in 
the discharge of his duty, an action is brought. The 
reasoning of the majority is certainly forcible, even 
plausible ; but that of the minority through Mr. Jus- 
tice Gray is invincible. . . . The majority opinion 
goes so far that a recoil will be the natural result." 
And a paper of extreme views on the subject of the 
war bitterly attacked the decision, which, it said, 
"will strike the man who fought to preserve that very 
Court, and the bones of whose comrades lie whitening 
on these plains, with something like a feeling of dis- 
gust, if not amazement. . . . The argument used by 
the Court in granting possession was, in brief, that 
pubUc officers, acting under the power of sovereign 
prerogative while the Government was repelling trea- 
son, were answerable, after that treason had been 
crushed, to judicial authority. That authority now 
revokes the action of the Government done under 
peculiar and, we think, justifiable circumstances. The 
future action of this Government's officers will be 
watched with interest." 

Concomitant with the policy of the Court in setting 



898 THE SUPREME COURT 

its face against State repudiation of its bonded obli- 
gations was its firm condemnation of all attempts by 
States to avoid compliance with their solemn legis- 
lative contracts in corporate charters containing ex- 
emptions from State taxation. While holding, that 
such charters must be construed with utmost strictness 
against the corporations, and that no exemption from 
taxation was to be established by implication or other 
than by the most express phraseology, it continued to 
adhere to its doctrine, first enounced in 1854, that it 
was competent for a State Legislature to grant to a 
corporation an irrevocable tax exemption and that 
such a grant could not be impaired by a subsequent 
Legislature. This doctrine had always met with power- 
ful resistance from State officials, and had been the 
subject of constant and numerous dissents by members 
of the Court itself. Nevertheless, in 1878, it had been 
reaffirmed in an eloquent opinion rendered by Judge 
Swayne in Farrington v. Tennessee^ 95 U. S. 679. " Con- 
tracts," he said, ^^mark the progress of communities 
in civilization and prosperity. They guard, as far as 
possible, against the fluctuations of human affairs. 
They seek to give stability to the present and certainty 
to the future. They gauge the confidence of man in 
the truthfulness and integrity of his fellow-man. They 
are springs of business, trade and commerce. Without 
them. Society could not go on. Spotless faith in their 
fulfillment honors alike communities and individuals. 
Where this is wanting in the body politic, the process 
of descent has begun, and a lower plane will be speedily 
reached. To the extent to which the defect exists 
among individuals, there is decay and degeneracy. 
... A Republican government can have no foun- 
dation other than the virtue of its citizens. When that 
is largely impaired, all is in peril. It is needless to 



EXPANSION OP JUDICIAL POWERS 899 

lift the veil and contemplate the future of such a people. 
History but repeats itself. The trite old aphorism that 
'honesty is the best policy' is true alike of individuals 
and communities. It is vital to the highest welfare." ^ 
But while still refusing to invalidate these tax exemp- 
tions, the Court plainly showed, in the trend of its 
decisions, a reflection of the public sentiment which 
was being aroused by the arbitrary, corrupt and 
monopolistic activities of many of the corporations 
of the day. For as in the Granger Cases and in the 
Sinking Fund Ca^e it evidenced its intention to 
strengthen the control of both State and National 
Governments over such corporations, so now it dis- 
played an equally marked tendency to restrict the 
scope of corporate tax exemptions and to uphold the 
State's denial of their legal existence, wherever pos- 
sible. As Judge Brown said, later: '^ Exemptions 
from taxation are not favored by law. ... It is 
not too much to say that Courts are astute to seize 
upon evidence tending to show that such exemptions 
were not intended, or that they have become inopera- 
tive by changes in the original constitution of the 
companies." * Here, as elsewhere throughout the 
law, the Court was responsive to the spirit of the 
times and to the new and constantly increasing de- 
mand for the subordination of private rights and 
privileges to the interests of the public welfare. 

^ See NcAum, Jan. 2, 1879; WaskingUm Unwertiiy v. Rowe (1860), 8 Wall. 480, 
and Humphrey ▼. Pegues (1878), 10 Wall. 244; Exemption from TaxaHon by Legie* 
lative Coniraet, by James F. Colby, Amer. Law Rev. (1878), XIII. 

s Yamo ds Mist. Rwer Valley R. R. v. Adams (1001), 180 U. S. 1, 22; see also 
especially Morgan v. Louisiana (1870), 08 U. S. 217 ; WaekingUm UnivereiJty v. 
Rouee (1800), 8 Wall. 489; Humphrey v. Peguee (1878), 10 Wall. 244; Sioux City 
Street Ry. Co, v. Sioux City (1801), 188 U. S. 08; Ford v. Delta is Pine Land Co. 
(1807), 104 U. S. 662; Grand Lodge of Louisiana v. New Orleans (1807), 186 U. S. 
143; Covington v. Kentucky (1800), 178 U. S. 281; Legislative Tax Exemption 
Contracts, by Ernest W. Huffcut, Amer. Law Rev. (1801), XXIV; The Nature cf 
Tax Exemptions, by Frank J. Goodnow, Columbia Law Rev. (1018), Xm. 



400 THE SUPREME COURT 

Another form of repudiation continued to be 
sternly discountenanced by the Court, in a long series 
of opinions in which it declined to modify its doctrine, 
announced as early as 1863, with reference to munic- 
ipal [bonds, valid when issued but subsequently held 
illegal by State Courts. During Chief Justice Waite's 
term of service, nearly two hundred cases involving 
such bonds were decided by the Court, and in very few 
instances were the efforts of the municipalities to es- 
cape payment successful. Attempts to avoid payment 
of bonds, by the creation of a new municipal corpo- 
ration in place of the corporation issuing the bonds, 
were dealt with by the Court in Barkley v. Levee Com- 
missioners and BroughUm v. Pensacola^ 93 U. S. 258, 
266, in 1876 ; and an attempt by the city of Mobile 
to escape payment of its debts, by dissolution of the 
mimicipal corporations and legislative creation of a 
new corporation containing less territory but sub- 
stantially the same population and property, was de- 
feated in Mobile v. Watson, 116 U. S. 289, in 1886.^ 
In Louisiana v. Pilsbury, 105 U. S. 278, the contract 
contained in bonds issued by the city of New Orleans 
was held to be impaired by extraordinary legislation 
which provided for bonds the time of whose payment 
both as to principal and interest was to be determined 
by chance in a lottery.* 

^ A singalar case involving the failure of a county in Miaaouri to pay ita bonds 
was Findlay v. McAllister (1885), 118 U. S. 104, in which a bondholder was held 
to have good cause for an action for damages against persons conspiring as "the 
Taxpayers' Association of Scotland County*' to prevent by threats, etc. sale of 
property seised under levy. To hold otherwise, said Judge Woods, "would allow 
an organized band of conspirators fraudulently and malicioudy to obstruct and 
defeat the process of the Courts and render a judgment nugatoiy and worthless. 
Such a conclusion would be contrary to the principles of the common law and of 
right and justice.'* 

' In a few cases, the Court found itself forced so to construe the law and the Con- 
stitution as to permit municipalities to escape payment of their honest debts; but 
in most of such instances, it expressed its regret that such should be the result of 
its decision. In Meritoether v. Oarrett (1880), 102 U. S. 472, it held that the public 



EXPANSION OP JUDICIAL POWEBS 401 

One result of this firm policy of the Court in re- 
quiring cities and counties to pay their debts was to 
awaken in parts of the country — notably in Missouri, 
Iowa, Kansas, Wisconsin, Michigan and the Southern 
States — a considerable feeling of hostility, which led 
to the introduction of a bill in Congress, in 1878, pro- 
viding that no municipal or public corporation should 
be sued in the United States Courts. Such juris- 
diction, it was said, "leads to centralization*' and "de- 
prives a State of a free and right exercise of its sover- 
eignty." Congress took no action; and the general 
public agreed with the Nation in saying that : "Instead 
of interfering to make repudiation easy for these bodies, 
it is the plain duty of Congress to arm the National 
Courts with whatever additional powers are necessary 
to be used in bringing them to a sense of their legal 
obligations."^ The antagonism to these Courts, on 
account of their decisions in the municipal bond cases 
committing county officials to jail for refusal to levy 
taxes to pay bonds, remained active in several States for 
many years ; and as late as 1893 the Governor of Mis- 
souri sent a message to the State Legislature, reviewing 
the situation with respect to such imprisoned officials, 
and recommending that action should be taken by the 
State "to assert the outraged dignity of the State 
against usurpation of power by the Federal Judiciary." * 

property and taxes of the City of Memphis, whose charter had been repealed and 
whose property was in the hands of a receiver appointed by the State, were not 
liable to respond to a suit for payment by bondholders; Judges Strong, Swayne 
and Harian dissented on the ground that the State receivership legislation, "cer- 
tainly very extraordinary and unprecedented in the histoiy of the country", was 
an impairment of the obligation of the contract contained in the bonds issued by 
the dty. See also Amy v. Shdby County Taxing IHstrict (1885), 114 U. S. 887; 
Louinana v. Nm Orleans (1883), 100 U. S. 285. 

^Nation, Jan. 2, 1879. "The Federal Judiciary and the Repudiators." The 
Nation, on Aug. 8, 1878, had made a suggestion that Congress appropriate no public 
money for the benefit of counties guilty of fraud or refusing to pay interest on their 
loans", citing certain counties and townships in Kansas as "shameless defaulters." 

> Amer. Law Rev, (1803), XXVII, 303. 



402 THE SUPREME COURT 

While the Court, between 1878 and 1889, was thus 
steadily strengthening the political and governmental 
powers of the Nation and its control over the indus- 
trial and economic interests of the country, these powers 
and this control were being further enhanced by the 
immense increase in litigation which came within the 
jurisdiction of the inferior Courts of the United 
States — an increase caused, not merely by the growth 
of subjects of litigation, but also by the extension of 
National jurisdiction through Congressional action. 
Mention has already been made of the volume of cases 
in these Courts which arose out of municipal bond re- 
pudiation, out of the Reconstruction Laws, out of the 
enlargement of the scope of admiralty, out of State rail- 
road regulation, out of railroad receiverships, and out 
of the insistence by litigants on testing the validity of 
State statutes under the Fourteenth Amendment.^ 
Notwithstanding all this increased burden upon the 
United States Courts, Congressional legislation, be- 
tween 1867 and 1885, had opened still further fields 
of jurisdiction. 

An early attempt by Congress to enlarge the juris- 
diction of the Supreme Court itself had been defeated 
by a decision of vast importance rendered by the Court, 
in 1875 in Murdoch v. Memphis, 20 Wall. 590, a case 
which involved a question whose decision seemed des- 
tined to affect profoundly the whole subsequent legal 

^ The increaae in litigation in the United States Courts had resulted in demands 
for reorganisation of the National Judiciary system and for relief of the Supreme 
Court from its overcrowded docket. Projects of rdief introduced in Congress at 
various times from 1876 to 1884, failed to pass, though advocated by the American 
Bar Association and by the Bar in general. It was not until the Circuit Court 
of Appeals Act of 1891 that any adequate remedial legislation was secured. See 
articles in Amer. Law Rev. (1876), X; (1884), XVIII; (1889), XXUI; Amer. 
Law Reg. (1881-82), XXIX, XXX (1884), XXXII ; NatU m, Feb. 10, 1876, May 18, 
1882, April 24, 1884; North Amer. Rev. (1881), CXXXII; and see espedally full 
summaiy of the effort for reform of the Judiciary system, Amer. Bar Ass, Jowm. 
(1921), VII, 24 et seq. 



EXPANSION OP JUDICIAL POWERS 40S 

history of the country and which arose as follows. 
By the Act of February 5, 1867, Congress in amending 
the original Judiciary Act of 1789, had enacted (among 
other changes) a new section in place of the famous 
Twenty-Fifth Section relative to writs of error to State 
Courts. It had omitted the last clause of the old Act 
which had in express terms limited the power of the 
Supreme Court, in reversing the judgment of a State 
Court, to a consideration of errors on the face of the 
record and of errors respecting Federal questions only. 
The issue presented was, whether Congress, by this 
omission, intended that the Court should, on future 
writs of error, examine into all errors in the record, 
whether respecting Federal questions or otherwise. 
If the Court should decide that this was the intention, 
not only would its work be enormously increased, but 
the class of matters coming within its jurisdiction and 
presented for decision would be revolutionized. Such 
was the importance of the case that, after it had been 
first argued, January 21, 1873, by W. J. Scott and J. B. 
Heiskell against W. T. Otto, B. M. Estes, J. M. Car- 
lisle and J. D. McPherson, it was reargued at the re- 
quest of the Court on April 2, 3, 1873, by the same 
counsel and by Philip Phillips and Benjamin R. Curtis, 
who "in response to the invitation of this Court'*, 
appeared as amid curiae. The contention was made 
by counsel that the new statute was passed just after 
the overt acts of rebellion had been suppressed by 
the force of Federal arms, but while it was uncertain 
how far the spirit of opposition, though covert, yet 
remained both alive and active, and that the new 
statute showed an apprehension that Federal justice 
would be obstructed by local and State animosities 
and revenges, and that the record in State Courts 
might artfully suppress the fact that Federal questions 



404 THE SUPREME COURT 

had been actually adjudicated. It was pointed out 
that other Congressional legislation about the same 
time, providing for extension of the right of habeas 
corpus and for removal into the United States Courts 
in case of the existence of local State prejudice, showed 
a general intention on the part of Congress to enlarge 
the jurisdiction of those Courts. That these conten- 
tions were correct, and that it was the real intention 
of Congress to provide, by this amendment, that every 
question passed on by the State Court should be open 
for reconsideration in the Supreme Court, is highly 
probable. Undoubtedly, the whole trend of the legis- 
lation of the period sustained this view. The Court, 
nevertheless, in an opinion by Judge Miller rendered 
on January 11, 1875, over one and a half years after the 
argument, held that Congress, by dropping the clause 
from the old Judiciary Act, had not intended to change 
the law as it had existed for eighty years ; and that, 
if it had actually intended such a change, it would have 
legislated in express and affirmative terms.^ In reach- 
ing this conclusion, it is evident that the Court was 
largely injBuenced by a consideration of the alarming 
results which would have followed from the opposite 
interpretation of the statute. For it stated that if a 
party could bring here, for decision on all matters in- 
volved, any case from a State Court, by merely raising 
a Federal question, and if the Court, on examination 
in conference, finding the Federal question clearly 
untenable, were obliged to examine the rest of the 
record and decide all points involved, it would follow 
that there would be "no conceivable case so insignificant 
in amount or unimportant in principle that a perverse 
and obstinate man may not bring it to this Court by 

^ See The Enforcement of State Law by State Courts^ by Henry Schofield, lUinoie 
Law Rev. (1908), m. 



EXPANSION OP JUDICIAL POWERS 406 

the aid of a sagacious lawyer raising a Federal ques- 
tion in the record — a point which he may be wholly 
unable to support by the facts, or which he may well 
know will be decided against him, the moment it is 
stated/' Hence, it said, it would require "a very bold 
reach of thought, and a readiness to impute to Congress 
a radical and hazardous change of a policy vital in its 
essential nature to the independence of the State Courts, 
to believe that that body contemplated or intended" 
such a result. Judge Bradley in dissenting, believed 
that Congress did intend exactly this "radical'* change, 
however unwise it might be, and that the omission of 
the original clause from the Judiciary "meant some- 
thing and effected something." ^ 

While this decision restricted the jurisdiction of the 
United States Courts, the legislative policy which Con- 
gress had adopted during the war, and which it now 
continued to pursue, led to extension of such juris- 
diction in many directions. By the Acts of March 3, 
1863, and of April 9, May 11, and July 27, 1866, 
Congress had authorized the removal into these Courts 
of any prosecution in a State Court based on acts 
committed under National authority in suppressing the 
Rebellion; and these statutes had been vigorously 
upheld in Mayor of Nashville v. Cooper^ 6 Wall. 247, 
in 1868, the Court saying : "It is the right and the duty 
of the National Government to have its Constitution 
and laws interpreted and applied by its own judicial 
tribunals. . . . The decisions of the Courts of the 
United States, within their sphere of action, are as 
conclusive as the laws of Congress made in pursuance 

^ For other examples of decisions by which the Court sought to relieve itself of 
the rapidly growing volume of cases on its docket, see Staie Railroad Tax Caws 
(1876), 92 U. S. 575, in which a rule was laid down to govern the granting of injunc- 
tions against State tax laws by the Circuit Courts; and see Hawes.v, OcJcland 
(1882), 104 U. S. 450, laying down the rule for suits brought by stockholders against 
their own corporations; HutUingUm v. Palmer (1882), 104 U. S. 482. 



406 THE SUPREME COURT 

of the Constitution. This is essential to the peace of 
the Nation, and to the vigor and eflScieney of the gov- 
ernment." ^ By the Act of March 2, 1867, Congress 
gave to plaintiffs the right to remove a case from the 
State Courts under certain conditions, that right having 
theretofore been confined to the defendants ; and the 
Court held, in Chicago & Northwestern Railway Co. v. 
Whitton, 13 Wall. 270, in 1872, that such a right of 
removal was not properly an exercise of appellate 
jurisdiction, "but rather an indirect mode by which 
the Federal Court acquires original jurisdiction of the 
cause"; and that there was no constitutional ob- 
jection to such a provision, "where a plaintiff discovers, 
after suit brought in a State Court, that the prejudice 
and local influence, against which the Constitution 
intended to guard, are such as are likely to prevent him 
from obtaining justice." 

By the Act of March 3, 1875, passed two months 
after the decision in Murdoch v. Memphis^ Congress 
still further enlarged the powers of the Circuit Courts 
by granting to them for the first time jurisdiction in 
all suits arising under the Constitution and laws of 
the United States. This statute greatly increased 
the classes of cases removable from the State into the 
National Courts ; and since, in cases taken on writ of 
error or appeal from the Circuit Court to the Supreme 
Court, all questions whether Federal or State, pre- 
sented on the record were passed upon by the latter 
Court, Congress thus practically enabled that Court 
to review matters, which the decision in Murdoch v. 
Memphis had tended to eliminate from its consider- 
ation. Naturally, the United States Courts soon be- 

1 See Juitiee$ v. Murray (1870), 9 Wall. 274, in which the Court held that so 
much of the Act of March 8, 1868, as authorized removal of a case after judgment, 
for retrial in the Federal Court on the facts and the law, was unconstitutional, as 
a violation of the Seventh Amendment ; as to this case, see Nmo York Time9» March 
21, 1870. See also McKee v. Rmus (1870), 10 Wall. 22. 



EXPANSION OF JUDICIAL POWERS 407 

came overwhelmed with litigation.^ Examples of two 
classes of cases which were thus brought within the 
National control, were illustrated by decisions in the 
following important cases, in 1884 and 1885. In Ames 
V. Kansas y 111 U. S. 449, which was an action brought 
by the State of Kansas to invalidate the consolidation 
of one of its corporations, the Kansas Pacific Company, 
with the Union Pacific Railway Company, the Court 
held that a suit brought by a State in a State Court 
was removable into the Circuit Court; and that the 
fact that the Supreme Court had original Federal juris- 
diction of suits by a State did not exclude Congress 
from granting similar jurisdiction to inferior Federal 
Courts. "It rests with the Legislative department of 
the government to say to what extent such grants shall 
be made," said Chief Justice Waite, **and it may safely 
be assumed that nothing will ever be done to encroach 
upon the high privileges of those for whose protection the 
constitutional provision was intended." In the Pacific 
Railroad Removal Cases ^ 115 U. S. 1, the Court held that 
a suit against a railroad chartered by the United States 

^ Eariy Removal Acts had grown out of fear of prejudice in State Courts against 
the National Government. See Act of Sept. 24, 1789, Act of Feb. 2, 1815, Act 
of March 9, 1815, Act of April 27, 1816, growing out of opposition of New England 
to the War of 1812; Act of March 2, 1833, growing out of nullification in South 
Carolina ; Act of July 27, 1866, and Act of March 2, 1867, growing out of conditions 
in the Southern States; see also Civil Rights Act of March 1, 1875. Gordon 
V. Longest, 16 Pet. 97, in 1842 was the first instance in which a State Court refused 
to a party a right to remove his cause to the Circuit Court of the United States; 
and the Court had said in that case: "One great object in the establishment of 
the Courts of the United States and regulating their jurisdiction was to have a tri- 
bunal in each State presumed to be free from local influence, and to which all who 
were non-residents or aliens might resort for legal redress. But this object would 
be defeated if a State Judge, in the exercise of his discretion, may deny to the party 
entitled to it a removal of his cause. " 

See Removal cf Cases, by J. F. Dillon, Southern Law Rev. (1876), II; Removal of 
Suits from SUxU to Federal Courts, by Allen B. Magruder, Amer. Law Rev. (1878), 
XIII. Remowd cf Causes from State Courts to Federal Courts, by John F. Dillon 
was published in 1877, and a third edition in 1881, of which the American Law 
Review (1881), XV, said: "The expansion of the monograph, from 105 pages in 
1877 to 168 pages in 1881, illustrates the appalling growth of case law in this 
country, and the strong tendency of the Federal Judiciary to assert vigorously 
thdr own jurisdiction.*' 



408 THE SUPREME COURT 

arose "under the laws of the United States", and was 
therefore removable into the Circuit Court. The de- 
cision had important results in the Western States, as 
it transferred the trial of tort cases to a large extent 
from the State to the United States Courts.^ 

The enhancement of the National power through 
these Removal Acts and the ensuing decisions of the 
Court aroused a considerable sentiment of jealous 
opposition in the States, and their resentment at the 
extent to which litigants, especially corporations, took 
advantage of the right to remove suits into the United 
States Courts led to the enactment in many States of 
statutes providing that no corporation should be per- 
mitted to do business within the State, without first 
filing an agreement not to remove any case from a 
State Court. The constitutional validity of these State 
laws was tested as early as 1874, and in Home Insurance 
Co. V. Morse, 20 Wall. 445, such an act of Wisconsin 
relative to fire insurance companies was held invalid, 
the Court deciding that both individuals and corpora- 
tions had a right to appeal to the Courts of the United 
States, which right was protected by the Constitution ; 
and in 1887, this doctrine was reaffirmed in Barron v. 
Bumside, 121 U. S. 186, in which the Court held in- 
valid a statute of Iowa relative to removal of suits by 
foreign corporations. The decision was attacked by 
many writers as hostile to the interests of the Western 
States, which had "particularly suffered from foreign 
corporations, especially railroad and insurance.'* * 

Another enlargement of the powers of the National 

^ See also for construction of the Removals Act of 1875, Starin v. New York 
(1885)» 115 U. S. 248; DelraU v. Dean (1883), 106 U. S. 587. 

' Recent Ceniralimng Tendencies in the Supreme Court, by Frederic P. Powers, 
PoL Sci, Qu. (1890), X. It has not been easy to reconcile the various opinions 
of the Court on the right of the States to legislate as to removals — see Doyle v. 
Continental Insurance Co. (1877), 04 U. S. 585 ; Donald v. PkU. & Reading R R, 
(1016), 241 U. S. 320 ; The Constiiutionaliiy of Statutes Prohibiting R$i^ to the 
Federal Courts, by Frank Lacy, Amer. Law Rev, (1000), XLIL 



EXPANSION OF JUDICIAL POWERS 409 

Judiciary was made by Congress by the Act of March 3, 
1885, in which it restored the right of appeal to the 
Supreme Court in cases of habeas corpus arising out 
of the restraint of any person in violation of the Con- 
stitution or laws of the United States. This right of 
appeal had been in abeyance for seventeen years, ever 
since the Act of February 5, 1867, granting such an 
appeal had been repealed in 1868, at the time of the 
McCardle Case. The effect of this repeal, enacted in 
the passionate era of Reconstruction, had been disas- 
trous in maiiy ways, and most especially since it left 
final action in habeas corpus cases with the District 
and Circuit Judges, unrestrained by decisions of the 
Supreme Court. These inferior Court Judges, partic- 
ularly in the Southern and Western States, had gone 
to so great lengths, in the issue of writs on behalf of 
persons restrained by State authority, that their as- 
sumption of power had greatly alarmed those who 
believed in the necessity of preserving intact the re- 
spective lines of National and State authority. The 
Federal Judges have asserted power "to annul the 
criminal judgments of the State Courts, and to pass 
finally and conclusively upon the validity of the crimi- 
nal codes, the police regulations, and even the Consti- 
tutions of the States*', wrote a noted jurist in 1884.^ 

^ Afnues cf the WrU qf Habeas Corpus, by Seymour D. Thompson, Amer. Law 
Ree. (1884), XVIII ; Abuse in Habeas Corpus Cases by Federal Judges, Amer. Law 
Bee, (1896), XXX, 254; Repwt of CommiOee on the Judiciary, Maich 8, 1884, 
Amer. Law Reg. (1884), XXXII. See Ex parU Parks (1876), 93 U. S. 18, for his- 
tory of habeas corpus in the Federal Courts. By the original Judiciary Act of 1789, 
the power of the Federal Judges to issue writs of habeas corpus did not extend to 
persons restrained by State authorities or unless in custody under or by color of 
the authority of the United States or committed for trial Ix^ore some Court of the 
United States. The first extension arose out of Nullification in South Carolina, 
the right of habeas corpus being extended by the Act of March 2, 1888, to any 
persons restrained "from any act done or omitted to be done in pursuance of a law 
of the United States or on any order of any Judge or Court thereof." The next 
extension arose out of the conflict with Great Britain in the McLeod Case, when 
by Act of Aug. 29, 1842, foreigners, restrained by a State or other Court in viola- 
tion of intematibnal rights, were given right to habeas corpus, with appefA V> the 



410 THE SUPREME COURT 

Consequently, Congress was called upon for action, and 
a bill was reported restoring the right of appeal to the 
Supreme Court, the House Committee on the Judiciary 
stating in its report that: ^'The jurisdiction assumed 
by Federal Judges, if allowed to continue, and continue 
unrestrained and unquestioned, cannot fail to bring 
the two judicial systems into serious and powerful 
conflict unless the State Courts shall tamely submit 
to be shorn of the jurisdiction they have exclusively 
exercised since the Government existed. . . . With 
this right of appeal restored, the true extent of the Act 
of 1867 and the true limits of the Federal Courts and 
Judges under it will become defined, and it can then 
be seen whether further legislation is necessary." ^ 

During the entire fifteen years of Waite's term of 
oflSce, the Court's growing hesitation to limit the powers 
of the National Legislature was further illustrated by 
the fact that in only eight cases did it exercise its func- 
tion of declaring Acts of Congress unconstitutional. 
Three of these cases related to Reconstruction legis- 
lation, already noted. Of the other five, only one — 
the Trade Mark Cases, 100 U. S. 82, decided in 1879 — 
had an important effect upon the history or develop- 
ment of the country ; in this case the Act of Congress 
providing for registration of trademarks was held in- 
valid, on the ground that its scope was not confined to 
the only subject on which Congress had power to legis- 
late, namely, commerce between the States and with 
foreign nations; and the Court again expressed its 
regret at being obliged to take this action, saying that : 
"A due respect for a coordinate branch of the govem- 

Supreme Court. The Reconstruction Act of Feb. 5, 1887» extended right of habeu 
corpus to "all cases where any person may be restrained of his or her liberty in 
violation of the Constitution or of any treaty or law of the United States." 

1 See as to this Act of Maich 8, 1885, Ex TparU BoycM {\9»S), 117 U. S. 241; Ctm- 
mngham v. NeagU (1890), 1S5 U. S. 1. 



EXPANSION OF JUDICIAL POWEBS 411 

ment requires that we shall decide that it has tran- 
scended its power, only when that is so plain that we 
cannot avoid the duty." ^ Nevertheless, though the 
Courts' action in this respect was highly circumspect, 
it gave rise, at this period to a more careful and 
scholarly examination into the legal and historical 
basis for the exercise of the power of the Court to pass 
upon the validity of an Act of Congress, than had 
hitherto been made. As will be recalled, the exist- 
ence of this power had been attacked by the Demo- 
crats (the Republicans of those days) in 1802 and again 
in 1819, and by the Republicans in 1857 and 1867, but 
on all these occasions the attack had been made by 
poUticians and had been based on political prejudices. 
In 1885, the basis of the power became subject to 
investigation and consideration by jurists of distinction ; 
and a number of valuable articles were written presenting 
each side of this controversy — the beginning of a long 
line of publications which has lasted to the present day.' 

^ The cases holding Federal statutes unconstitutional during Waite's term were : 
United Staiet v. Reese (1876), 92 U. S. 214, one of the Reconstruction laws; United 
States y. Fox (1878), 95 U. S. 670, a statute making criminal actions wholly within 
the domain of the State police power, such as the fraudulent incurring of debts; 
Trade Mark Cases (1879), 100 U. S. 82; Kitbum v. Thompson (1881), 108 U. S. 
168, a House Resolution punishing a witness for contempt, in relation to a matter 
over which Congress had no jurisdiction to inquire ; UnUed States v. Harris (1888), 
106 U. S. 629, a Reconstruction law ; Cieil Rights Cases (1888), 109 U. S. 8, a Re- 
construction law; Boyd v. United States (1886), 116 U. S. 616, an internal revenue 
law, held to violate the Fourth and Fifth Amendments, as to which see especially 
New York World, March 81, 1876 ; Callan v. Wilson (1888), 127 U. S. 540, a District 
of Columbia statute held to deprive persons of rights to trial by jury. As to the 
striking feature of the cases, that the Court did not divide on political lines, since 
in all these cases a Republican Court set aside Republican legislation, see Address 
of Oeorge F. Hoar, before the Virginia Bar Ass,, Virg. Law Reg. (1899), IV, and 
The Supreme Court of the United States, by Charles Hume, Amer. Law Ree. (1899), 
X,411. 

' See Relation of the Judiciary to the Constitution, by William M. Meigs, Amer. 
Law Rev. (1885), XIX; A Plea for the Constitution of the United States of America 
Wounded in the House of its Guardians (1886), by George Bancroft; Observations 
on Mr. George Bancroft's Plea for the Constitution (1886), by Richard C. McMur- 
trie; Judicial Power and Unconstitutional Legislation, by Brinton Coxe, pub. 
posthumously in 1898; The Legislature and the Courts, by Charles B. Elliott, Pot. 
8ei. Qu. (1890), V. 



CHAPTER TfflRTY-SEVEN 

CHIEF JUSTICES FULLER AND WHITE 

1888-1918 

On March 23, 1888, Chief Justice Waite died at the 
age of seventy-one and after fourteen years' service 
on the Court. ^ "While impartial criticism may not 
assign to him the extraordinary rank in the esteem of 
the profession attained by his predecessors," said John 
Randolph Tucker at the Bar Proceeding on his death, 
"yet it may with entire truth be affirmed that in the 
soundness of his judgment, in the diligence of his re- 
search, in the clearness of his statements of legal prin- 
ciples and in the tact and skill displayed in the conduct 
of the business of the Court, he was a worthy succes- 
sor. ... It must be confessed that the period of 
service covered by his term was more fraught with 
difficulties, more full of new responsibilities and de- 
manded more labor, learning and ability than in any 
previous period." Waiters great contribution to Ameri- 
can law and to American history was of course his 
expounding of the scope of the War Amendments ; and 
of this phase of his career a most striking account was 
given by Samuel A. Shellabarger, at the Bar Pro- 
ceedings. He stated that just before the vote on the 
confirmation of Waite, Senator Sumner had asked him 
about Waiters character, saying : " I hesitate. I fear we 
stand at an epoch in the country's life, in the midst of 
revolution in its constitutional progress, at a nascent 
stage in the development of some of its institutions; 

^ See 126 U. S. App. proceedings of tlie Bar, March 26» 1888. 



CHEEP JUSTICES FULLER AND WHITE 418 

and I long for a Chief Justice like John Marshall, who 
shall pilot the country through the rocks and rapids in 
which we are.** "I asked Mr. Sumner," said Shella- 
barger, "to point the President to a few John Marshalls 
standing *in waiting', and I would guarantee the imme- 
diate nomination of at least one of them to the Chief 
Justiceship. Mr. Sumner said he would require some 
time to *look around.' ... As neither the time nor 
the spirit in which the new Amendments were gendered 
nor the text of these Amendments was characterized 
by eminent conservatism, therefore to many of us who 
engaged in framing these Amendments, the nomination 
of Waite *gave pause.' When, therefore, Waite's 
great opinions construing these Amendments came, one 
in Minor's Case in 1874, holding that the Fourteenth 
Amendment does not add to the privileges and immu- 
nities of American citizens but simply adds guarantees 
for the protection of privileges theretofore existing, 
and especially when the great opinion appeared in 
1876 in Cruikshank's Case, also holding that the Four- 
teenth Amendment adds nothing to the rights of one 
citizen against another, and . . . that these framers did 
not design to enable Congress to legislate affirmatively 
and directly for the protection of civil rights, but only 
to use corrective and restraining legislation as against 
the States, .... many of the framers of these Amend- 
ments received information regarding their intentions, 
which was new, and was not calculated to allay the 
apprehensions with which they saw Chief Justice Waite 
go upon the Bench. Still I am bound to say now, 
when the lapse of years has matured men's views and 
cooled their feelings regarding the results of the late 
war, and succeeding decisions have explained and 
supplemented these early decisions and have guarded 
against what was believed to be their erroneous tend- 



414 THE SUPREME COURT 

encies, that I am inclined to think the judgment of 
history will be, that he has been, in the main, steadily 
right regarding these Amendments, especially in view of 
the restraining effect of the later decisions. I am in- 
clined to think that the position in which is now left 
the power of the National Government in providing 
for the defence of the civil and political rights of the 
people, as members of the Nation, especially as that 
position is defined in such cases as Ex parte Virginia, 
Ex parte Siebold, Stravder v. West Virginia, and other 
later and kindred decisions, is safe and is conservative 
of our institutions ; and that the great Court of which 
Chief Justice Waite has been so long the head will be 
entitled to, and will receive, the gratitude and venera- 
tion of the people of this Republic, in the generations 
to come, for having guided the Republic safely through 
many perils and for having fixed its institutions upon 
high, just and stable foundations." 

As Waite's successor. President Cleveland, after con- 
sidering Judge Miller, John G. Carlisle of Kentucky 
and many others, finally decided upon the appointment 
on May 2, 1888, of Melville Weston Fuller of Illinois. 
Fuller, who was fifty-five years of age and who had had 
no previous judicial experience, was confirmed by the 
Senate on July 20, 1888, by a vote of forty-one to 
twenty. Fuller's Chief Justiceship lasted twenty-two 
years, his death occurring on July 4, 1910, in his seventy- 
seventh year. His successor was Edward Douglass 
White of Louisiana, who had been an Associate Judge 
on the Court since 1894, and who served as Chief 
Justice until his death on May 19, 1921. 

The period covered by the Chief Justiceships of 
Fuller and White is too recent and too clearly within 
the view of living men to warrant detailed description, 
nor can an adequate account be written until the lapse 



CHIEF JUSTICES FULLER AND WHITE 416 

of time shall afford a true historical perspective. No 
attempt, therefore, is made here to present more than 
a sketch in broad outlines of the general course of the 
Court's status and decisions, in the thirty years from 
1888 to 1918, with especial reference to their connec- 
tion with the history of the country.^ These years were 
a period of unprecedented National growth. They pre- 
sented a vast variety of legal questions arising out of the 
new status of the United States as a world power and 
in control of territorial possessions, as well as out of the 
multitudinous attempts by State Legislatures and by 
Congress to solve by legislation the complex social and 
economic problems of modern times. 

The cases involving constitutional questions pre- 
sented to the Court fall in general into three broad 
classes: first, those involving the debatable ground 
between the sphere allotted to the National Govern- 
ment by the Constitution and that reserved to the 
States; second, those involving the respective rights 
of individuals and the States in their relations to each 
other ; third, those involving the powers of the National 
Government under the Constitution over matters 
relating to which either the States have no authority 
or have authority only until Congress shall have de- 
cided to legislate.^ With respect to the first and 
second classes, the bulk of the cases have arisen under 
the Commerce Clause and the Fourteenth Amendment. 

In interpreting the Fourteenth Amendment, while 
the Court has shown a consistent and progressive 
tendency to uphold the legislation of the States, it has 
developed no new principle which was not already 

^ The extent to which the new legal problems and decbionB engaged public at- 
tention has been indicated in this chapter by copious citation of articles in leading 
law journals, all of which (with the exception of three) came into existence during 
the period from 1888 to 1918. 

'See Judicial ConstUutional AmendmerUt by Frederic R. Coudert, Yale Lau 
Jaum. (1904), XIII. 



416 THE SUPREME COURT 

established or foreshadowed before the death of Waitc 
Its work has been largely in applying settled principles 
to new conditions and to new forms of legislation. 

With respect to the Commerce Clause, on the other 
handy there has been an immense development of the 
law, and an expansion of National power through 
affirmative action of Congress in new directions which 
had not been dreamed of prior to Waiters death. It 
is for this new tendency and for the increase of National 
functions under other clauses of the Constitution, 
especially in relation to the control of the mails, the 
taxing power, and the acquirement and government 
of new territorial possessions that the thirty years 
since 1888 have been a notable era in the history of 
American law. As early as 1885, Judge Thomas M. 
Cooley wrote : "Everything gravitates to Washington, 
the highest interests and the most absorbing ambitions 
look to the National Capital for gratification ; and it 
is no longer the State, but the Nation that in men's 
minds and imagination is an ever-present sovereignty- " 
In 1887, Judge Miller said: "While the pendulum of 
public opinion has swung with much force away from 
the extreme point of State-Rights doctrine, there may 
be danger of its reaching an extreme point on the other 
side." "The ceaseless accun!iulation of power" in the 
National Government became the theme of law writers 
throughout the years from 1890 to 1910. "The tend- 
ency in the country towards a centralization of power 
is increasing ; the field of the National Government is 
constantly widening; a Unity is growing out of a 
Union, and the primary source of all this nationalizing 
power is the Commerce Clause," wrote Judge Walter 
E. Noyes in 1907; and three years later, James M. 
Beck wrote : "The insistence upon the reserved rights 
of the States has become little more than a political 



CHIEF JUSTICES FULLER AND WHITE 417 

platitude. There is little, if any, real popular senti- 
ment of sufficient strength to protect the States against 
the encroachment of the Federal Government. . . . 
Men have been trained by imperative economic in- 
fluences to look to the Central Government as the real 
poUtical government, and to the States as little more 
than subordinate provinces, useful for purposes of 
local police regulation and nothing more. This tend- 
ency seems to be in the very nature of events. It is 
the work of no especial political party or of any political 
leader. . . . The American people think Nationally 
and not locally, as they once thought locally and rarely 
NationaUy.'* ^ 

The first great case sustaining the National power, 
decided after the accession of Chief Justice Fuller, was 
the Chinese Exclvsion Casey Chae Chan Ping v. United 
States y 130 U. S. 581, in 1889, in which the Act of 
October 1, 1888, prohibiting entry of Chinese laborers 
and in violation of the Treaty with China was upheld 
as within the power of Congress.* This case was 

1 Eiitory qf Miekigan (1885), by Thomas M. Cooley, 271 ; A New NaHon, by 
Hollis R. Baileyt Harv. Imw Rev, (1805), IX; James Bryce in his American Com- 
momoealth (1888), I, wrote: "It is dear that the development of the Constitu- 
tion as between the Nation and the States has not yet stopped and present appear- 
ances suggest that the centralizing tendency will continue to prevail." See also 
Recent Centralvdng Tendendee in the Supreme Court, by Frederic P. Powers, Pel, 
8ci. Qu, (1890), V; The Comjnerce Clause and the State, by A. H. Wintersteen, 
Amer, Law Reg. (1889), XXXVII ; Politics and the United States Supreme Court, 
by Walter D. Coles, Amer. Law Reo, (1898), XXVII ; The Power to Regulate Inter- 
state Commerce and the Police Powers qf the State, by Herbert B. Shoemaker, ibid. 
(1895), XXIX; Judicial CenbralimtUm, by L. H. Pool, YaU Law Joum. (1902). 
XI ; Deeelopment qf the Commerce Clause, by Walter C. Noyes, ibid. (1907), XVI ; 
NuUificoHm by Indirection, by James M. Beck, Harv. Law Reo. (1910), XXm. 
Simeon £. Baldwin in his address to the American Political Science Association in 
1912 on The Progressive Unfolding qf the Power qf the United States, asked : "How 
far will this process of expansion go ? " Amer. Pol. Sci. Rev. (1912), VI ; Expansion 
qf Federal Power, by Judge Francis L. Smith, Virginia Law Reg. (1911), XVII. 

* The Chinese Exclusion Cases, by M. J. Farrelly, Amer. Law Rev. (1894), XXVIII ; 
see for practical application of the doctrine. United States v. Sing Tuck (1904), 194 
U. S. 161 ; United States v. Ji Toy (1905), 198 U. S. 258 ; Chin Low v. United States, 
208 U. S. 8; Administrative Action in Immigration Proceedings, by Thomas R. 
Powell, Harv. Law Rev. (1908), XXII; The Control qf Immigration as an Admiu^ 

VOL. in — 14 



418 THE SUPREME COURT 

followed by the extreme decision made in Fong Ytie 
Ting v. United States , 149 U. S. 698, three years later, 
in 1893, in which the power of a sovereign nation to 
forbid the entrance of foreigners or to expel or deport 
them was upheld as absolute and unqualified, and the 
Act of May 5, 1892, was held valid.^ This opinion by 
Judge Gray seemed to justify the old Alien Law of 
1798, and there was a strong dissent by the Democratic 
Judges Fuller and Field, and by Judge Brewer, who 
stated that it was ^'a blow against constitutional 
liberty", and that it contained within it "the germs of 
an assertion of unlimited and arbitrary power, in 
general incompatible with the immutable principles of 
justice, inconsistent with the nature of our govern- 
ment/' 

In 1890, in Oeofroy v. Riggs, 133 U. S. 258, the Court 
broadened the field of National action by holding that 
it was within the scope of the treaty power to regulate 
alien inheritance of lands in the States.^ The power 
of the President to direct the United States marshals 
to afford protection to the lives of the Federal Judges 
was upheld, in 1890, in Cunningham v. NeagUy 135 U. S. 
1 ; and a marshal who shot a man in defense of Judge 
Field, though given no statutory authority, was held 
to be acting "in pursuance of a law of the United 

istraUve Probl&m, by Paul S. Pierce, Amer, Pol, Sci. Rev. (1909), III; AdminUtra' 
tive Decinon in Connection toUh Immigration, by Louis F. Post, ibid. (1916), X. 

That Congress, however, cannot regulate the citizenship of a Chinaman was 
held in United Slates y. Wong Kim Ark (1898), 169 U. S. 649. 

> In 1912, in Zakonaite v. Wolf (1898), 226 U. S. 272, the deporUtion of alien 
prostitutes under the Act of Feb. 20, 1907, was upheld ; and see Hoke v. United 
States (1913), 227 U. S. 808; and see KeUw v. United States (1909), 213 U. S. I88» 
as to the limit of Congressional power over aliens in this country. 

' These decisions culminated in Missouri v. Holland (1920), 252 U. S. 416, up- 
holding the Migratory Bird Treaty with Canada; see also National Supremacy, 
Treaty Power v. StaU Power (1913), by Edward S. Corwin; Federal Treaties and 
State Laws, by C. N. Gregory, Michigan Law Rev. (1907), VI; The Treaty Power 
and lU Relation to State CourU, by William C. Coleman, Amer. Law Rev. (1909), 
XLni ; The Extent qf the Treaty-Making Power, by William £. Mikell, Amer. Law 
Reg. (1909), LVU. 



CHIEF JUSTICES FULLER AND WHITE 419 

States/' This was the broadest interpretation yet 
given to implied powers of the National Government 
under the Constitution.^ The plenary power of Con- 
gress over the Territories was upheld in broad terms 
in Corporation of Latter Day Saints v. United States^ 
136 U. S. 1, sustaining the statute annulling the charter 
of the Mormon Church, the Court reaflSrming a decision, 
rendered five years before, holding that the "people 
of the United States as sovereign owners of the National 
Territories have supreme power over them and their 
inhabitants." * The announcement of the Original 
Package doctrine, in Leisy v. Hardin^ 135 U. S. 100, as 
applicable to articles in interstate commerce was re- 
garded as the "most crushing blow against the rights 
of the States which has ever been dealt by that tri- 
bunal." ' At the same time it was made clear in 
Chicago, Milwaukee & St. Paul R. R. v. Minnesota^ 134 
U. S. 418, that the right of the State to regulate corpo- 
rate rates, established by the Granger Cases in 1878, was 
not unlimited, but was confined to a right to fix reason- 
able and nonconfiscatory rates and reviewable by the 
Court under the Due Process Clause.* 
In 1892, the National power received further expan- 

^ Power of the General Oovemment to Protect tie Officers and to Control Anarchy, 
by Joseph B. Thompson, Amer. Law Reo. (1901), XXXV. 

' Polygamy was prohibited by Congress in 1867 but the statute remained a dead 
letter until the Edmunds Act in 1882, and the Tucker Act in 1887. Utah was 
admitted as a State in 1895, under an Act forbidding polygamous and plural mar- 
riages. For other cases as to the Mormon Church and polygamy, see Reynolds v. 
United States (1879), 98 U. S. 145; Miles v. United States (1881), 103 U. S. 304; 
Clawaon v. United States (1885), 114 U. S. 477; Murphy v. Ramsay (1885), 114 
U. S. 15; Cannon v. United States (1885), 116 U. S. 55; Snow v. United States 
(1886), 118 U. S. 346 ; United States v. The LaU Corporation of the Church of Jesus 
Christ of Latter Day Saints (1893), 150 U. S. 145. See also Independent, Jan. 
16, 1879, May 6, 1886, as to argument of G. T. Curtis for overruling of Reynolds 
v. United States; Nation, April 23, 1885. 

» Amer. Law Rev. (1890), XXIV, 474, 490. 

« See also Budd v. New York, 143 U. S. 517, in 1892; Legal Theories of Price 
Regulation, by Arthur T. Hadley, Yale Law Joum, (1892), I ; Can Prices be Regu- 
lated by Law? by William D. Lewis, Am/er. Law Reg.(lB9S)j XXXII ; A New Canon 
on Constitutional Construction, by Richard C. McMurtrie, ibid. 



420 THE SUPREME COURT 

sion through the decision in Ex parte RapieVy 143 U. S. 
110, upholding the power of Congress to exclude lot- 
teries from the use of the mails ; and the extent of the 
scope of this clause of the Constitution relative to 
postroads was illustrated, twelve years later, in 1904, 
by a decision upholding the fraud-order legislation. 
Public Clearing House v. Coyne^ 194 U. S. 497.* In 
1892 also, the power of the United States to sue a State 
in order to fix boundaries — a power which had been 
vigorously denied in the debates in Congress succeeding 
the Mexican War, — was upheld in United States v. 
Texas, 143 U. S. 621. 

In 1893, the Court restated and reiterated the doc- 
trine which Judge Story had originated, in 1842, in 
Svyift V. Tyson, that upon questions of general com- 
mercial law the Court would ascertain the law for itself 
and would not be bound by State decisions. Year by 
year, and especially since Burgess v. Seligmany 107 U. S. 
20, in 1883, the Court had developed this formulation 
of a body of National law, distinct from State law and 
applicable in the National Courts, until it had become 
a distinct factor in the increase of National power. 
Now, in Baltimore & Ohio R. R. v. Baugh, 149 U. S. 
368, it applied its doctrine in a case involving the 
question whether certain railroad employees fell within 
the fellow-servant rule under the general law, rather 
than within the rule as applied in the State. Judge 
Field wrote a vigorous dissent, terming the doctrine 
"an invasion of the authority of the State, and to that 
extent a denial of its independence.'* Eight years 
later, the doctrine received a notable application and 
extension when Judge Brewer announced, in Western 
Union Tel. Co. v. Call Publishing Co., 181 U. S. 92, 

^ See The Expansion of Federal Control Through the Regulation of the Mails, by 
Lindsay Rogers, Harv. Law Ree, (1913), XXVII ; The Power of the States to Inter- 
fere with the Mails, by Undsay Rogers, Virg. Law Rev. (1916), m. 



CHIEF JUSTICES FULLER AND WHITE 421 

that "the principles of the common law are operative 
upon all interstate commercial transactions, except so 
far as they are modified by Congressional enactment" ; 
and in Kansas v. Colorado, 206 U. S. 46, in 1907, the 
Court said that "the Court is practically building up 
what may be not improperly called Interstate Common 
Law/' ^ 

In 1894, the growing power of the National Govern- 
ment over the railroads was shown when a railroad rate 
order of a Texas State Commission was held invalid in 
Reagan v. Farmer Loan & Trust Co., 154 U. S. 362.^ 

The year 1895 was notable for the decision of three 
great cases in which the public took the liveliest inter- 
est. In the first, decided January 21, the Court passed 
for the first time on the application of the Sherman 
Anti-Trust Act to commercial corporations, and in 
United States v. E. C. Knight Co., 156 U. S. 1, — the 
Sugar Trust Case, — held that, on the facts presented, 
the corporations involved in the combination refining 
sugar were not engaged in interstate commerce. The 
result was a disappointment to those who relied on the 
Act as a destroyer of the trusts. The second case 
involved the constitutionality of the Income Tax im- 
posed in the Wikon-Gorman Tariff Act in President 
Cleveland's Administration, Pollock v. Farmers* Loan 
and Trust Co., 157 U. S. 429, 168 U. S. 601 ; and the 
unfortunate circumstances attending this case aroused 
further bitter attacks upon the Court. At its first 
decision, April 8, 1895, the Court held a tax on real 

^ The Common Law JuriadictUm of ^ United Staiee Courts, by Alton B. Parker, 
Yale Law Joum. (1907), XVII ; Relation of Judicial Decieione to Law, by Alexander 
Lincoln, Han, Law Rev, (1907), XXI; The Common Law of the Federal Courts, by 
Edward C. Eliot, Amer. Law Rev, (1902), XXXVI ; Decisions of ike Federal Courts 
on Questions of State Law, by William M. Meigs, Amer, Law Ree, (1911), XLV; 
see especially for criticisms of the extent of the doctrine. Holmes, J., dissenting 
in Kuhn ▼. Fairmont Coal Co,, 215 U. S. 349. in 1910. 

* The Right of ike Public to Regulate Charges^ by Walter Clark, Amer. Law Rev. 
(1897), XXXI. 



422 THE SUPREME COURT 

estate income unconstitutional, unless levied in the 
manner required for a direct tax ; as to other income, 
the Court was evenly divided. Judge Jackson being 
absent owing to illness. A reargument being ordered, 
a second decision was made May 20, 1895, in which 
Judge Jackson (three months before his death) par- 
ticipated; but owing to the fact that Judge Shiras 
changed his mind after the first decision, the Court, by 
a vote of five to four, held the whole tax invalid.^ 
Violent criticism followed this event (the result of 
which was the adoption of the Sixteenth Amendment, 
in 1913) .2 

Equally violent assaults upon the Court followed 
from a decision rendered, seven days later, in the third 
great case. In re Debs, 158 U. S. 564. For the past 
five years, legal questions growing out of labor strikes 
had been presented more and more frequently to the 
inferior Federal Courts through applications for in- 
junctions, chiefly by owners and Federal receivers of 
railroads. In 1893, the Supreme Court had for the 
first time been called upon to deal with the subject in 
Pettibone v. United States y 148 U. S. 197, arising on an 
indictment for conspiracy to impede the administration 
of justice, by obstruction of processes issued by an 
inferior Federal Court in the serious strike and riots 
which took place, in 1899, in the Coeur d'Alenes in Idaho. 
The Debs Case grew out of the great Pullman strike and 

^ See Amer. Law Rev, (1895), XXIX, 524, 489, 742 : "The Sugar Trust decision 
and the Income Tax decision counterbalance all the good it has done in seventy 
years ... a wound inflicted on the rights of the American people;" Pollock v. 
Farmert* Tjoan & Trust Co., by Francis R. Jones, Harv, Law Rev. (1895), IX; The 
ConstUutionalUy oif the Income Tax, by William D. Lewis, Amer, Law Reg, (1895), 
XXXIV ; What is Now an Indirect Tax, by liouis D. Richardson, ibid, 

' Recent Constitutional Amendmenls, by Grordon £. Sherman, Yale Law Joum, 
(191S), XXIII; The Income Tax and the Constitution, by Edward B. Whitney. 
Harv, Law Rev. (1907), XX; Direct Taxes under the Constitution, by Charles T. 
Bullock, Pol. Sci, Qu. (1900), XV ; The Income Tax Amendment, by £. R. A. Selig- 
man, ibid, (1910), XXV; The IncovM Tax Amendment, by Dwight W. Morrow, 
Columbia Law Rev. (1910), X. 



CHIEF JUSTICES FULLER AND WHITE 42S 

riots of 1894, and its decision, on May 25, 1895, is to be 
regarded as one of the datum posts in American legal 
history. The Court, in a notable opinion by Judge 
Brewer, upheld an injunction issued by the lower Court, 
restraining the defendant from obstructing trains en- 
gaged in interstate commerce or in carrying the mails. 
"The strong arm of the National Government may be 
put forth to brush away all obstructions to the freedom 
of interstate commerce or the transi>ortation of the 
mails," said Brewer. "If the emergency arises, the 
army of the Nation, and all its militia, are at the service 
of the Nation to compel obedience to its laws.*' While 
holding that the Government had a property right in 
the mails sufficient to warrant its suing in equity, he 
stated that the Court did not care to place its decision 
upon this ground alone. "Every government, en- 
trusted by the very terms of its being with powers and 
duties to be exercised and discharged for the general 
welfare, has a right to apply to its own Courts for any 
proper assistance in the exercise of the one and the 
discharge of the other. . . . Whenever the wrongs 
complained of are such as affect the public at large, and 
are in respect of matters which by the Constitution are 
entrusted to the care of the Nation, and concerning 
which the Nation owes a duty to all the citizens of 
securing to them their common rights, then the mere 
fact that the Government has no pecuniary interest in 
the controversy is not sufficient to exclude it from the 
Courts or to prevent it from taking measures therein to 
fully discharge those constitutional duties.'' 

This decision, sustaining President Cleveland's ener- 
getic action in employing both the military and civil 
forces of the Government to end the strike, caused a 
great sensation, and was widely indorsed by conserva- 
tive and patriotic men, as a strong support to the 



424 THE SUPREME COURT 

stability of the Nation. Such an application of Na- 
tional power to a labor situation, however, was a long 
step towards centralization of authority ; and as a legal 
writer said, while **all must applaud the promptness 
and vigor with which the Federal power acted, saving 
the country perhaps from a reign of anarchy and blood- 
shed. . . slowly but inevitably one after another of 
these State police powers is being brought within the 
limits of Federal jurisdiction."^ The decision gave 
great offense to certain labor elements in the commu- 
nity ; and as it was rendered only a week after the de- 
cision in the Income Tax Case, it was criticized as an 
illustration of the prejudice of the Court in favor of 
capital. 

The public discussion and hostility which grew out 
of these three decisions in 1895, each of which was 
asserted to have been in favor of "the propertied 
class ", was signalized by the insertion of a plank in the 
platform adopted at the National Convention of the 
Democratic Party in Chicago in 1896, which, in that 
campaign of somewhat hysterical political passion, was 
termed an anarchical attack on the Judiciary. In 
reality, the plank was an extremely mild expression of 
views, when compared with many former criticisms 
which had been made in conservative newspapers and 
law journals.^ The general situation, however, and 

^ Federal Power to Regviate InteretaU Commerce artd the Police Powers qf the SUde^ 
by Herbert B. Shoemaker, Amer, Law Rev, (1895), XXIX ; Uee qf the Army in Aid 
qfthe Cixril Power, by C. M. Lieber, ibid. (1898), XXXII; see also note as to Presi- 
dent Cleveland's authority to use the army, iind, (1896), XXVIII. 

* See Amer, Law Rev, (1896), XXX, 579, as to the Democratic platform. The 
oontroverted plank was as follows: '*We declare that it u the duty of Congress 
to use all the constitutional power which remains after that decision, or which may 
come from its reversal by the Court as it may hereafter be constituted, so that the 
burden of taxation may be equally and impartially laid, to the end that wealth 
may bear its due proportion of the expenses of the government. . • . We denounce 
arbitrary interference by Federal authorities in local afiPairs as a violation of the 
Constitution of the United States and as a crime against free institutions, and we 
object to government by injunction as a new and highly dangerous form 



CHIEF JUSTICES FULLER AND WHITE 4«5 

especially the Income Tax decision, produced a re- 
awakening of the type of assault on the Court which had 
appeared successively in 1821, 1833, 1857, 1868, 1886 — 
namely the demand that the Court should be shorn of 
its alleged "usurped" power to pass upon the validity 
of Acts of Congress. All the fallacious arguments which 
had been used in previous eras were reproduced, and, 
as formerly, reiterated without any attempt to ascertain 
the historical facts as to the "usurpation", and as to 
the contemporary view of Marhury v. Madison in this 
respect.* Most violent and voluble of all the Court's 
critics was Governor Sylvester Pennoyer of Oregon, who 
wrote: "We have during this time been living under 
a government not based upon the Federal Constitution, 
but under one created by the plausible sophistries of 
John Marshall. The Supreme Court has not contented 
itself with its undisputed judicial prerogative of inter- 
preting the laws of Congress which may be ambiguous, 
but it has usurped the legislative prerogative of de- 
claring what the laws shall not be. Our constitutional 
government has been supplanted by a judicial oligarchy. 
The time has now arrived when the government should 
be restored to its constitutional basis. The duty is plain 
and the road is clear. If Congress at the next session 
would impeach the nullifying Judges for the usurpa- 

of opprefldon by which Federal Judges, in contempt of the law of the States and 
ri^ts of citizens, become at once Legislators, Judges and executioners; and we 
approve the bill, passed at the last session of the United States Senate and now 
pending in the House, relative to contempts in Federal Courts, providing for triab 
by jury in certain cases of contempt." 

^ The Income Tax Deeinon and the Power of the Supreme Court to Nullify Aete of 
Congreee, by Sylvester Pennoyer, Amer. Law Rev. (July, 1895), XXIX; The Caee 
qf Marbury v. Madison, by Sylvester Pennoyer, ibid. (1896), XXX; Due Proeeee 
qf Law, by T. W. Brown, ibid, (1898), XXXII ; see in defense of the Court, Origin 
qf the Supreme Judicial Power, by Robert L. Fowler, ibid. (1895), XXIX; The 
Supreme Court at Expounder qf the ConetUuHon, by T. C. Rosenberger, ibid. (1896), 
XXX; The Judiciary, iie Qrotring Power and Influence, by Boyd Winchester, 
ibid. (1898), XXXII ; The Jurisdiction to Declare Void Ads qf Legislation, by 
Richard C. McMurtrie, Amer, Law Beg. (1898), XLI. 



426 THE SUPREME COURT 

tion of legislative power, remove them from office, and 
instruct the President to enforce the collection of the 
income tax, the Supreme Court of the United States 
would never hereafter presume to trench upon the 
exclusive powers of Congress; and thus the Govern- 
ment, as created by our fathers, would be restored, with 
all its faultless outlines and harmonious proportions." 
Another critic, a prominent Georgia lawyer, wrote on 
the "Aggressions of the Federal Courts", including 
among them, the issue of injunctions in criminal mat- 
ters, the decision of the NeagU Casey the interference 
with municipal governments by Federal injunctions and 
receiverships, the annulment of statutes, the permis- 
sion of corporations to sue in Federal Courts, the control 
of State railroad rate legislation, labor injunctions and 
the Debs Casey the Sugar Trust Ca^ey the "jailing of 
Sovereign States", and Federal Court management of 
railroads.^ 

Coincident with these attacks on the Supreme Court, 
there had arisen severe criticisms of the extension of 
the power of the National Judiciary through its increas- 
ingly wide exercise of equity jurisdiction and extensive 
employment of injunctions. "Government by injunc- 
tion" had become a term of judicial opprobrium con- 
stantly echoed by the laboring class.* The abuse of 

^ Aggressions cf the Federal Courts, by John W. Akin, Amer. Law Ree. (1896), 
XXXII. Camm Patteson in Judicial Usurpation of Power, Virginia Law Reg. 
(1905), X, said: "The greatest danger which threatens the American Republic, 
is the judicial usurpation of power. . . . The fatal extension of the power of the 
process of injunction was the greatest step of all. It tore down and trampled under 
foot the chief protection of our liberty. . . . The so-called protection of the 
United States mail was used as a mere pretext to cover the unauthorized usurpa- 
tion of power." 

* Protest against Administering Criminal Law by Injunction — the DAs Case, 
by William D. Lewis, Amer. Law Reg. (1894), XLII; see especially symposium 
on labor injunctions in Chicago Times Herald, Sept. 19, 1897; Qovemment by In- 
junction, by Charles N. Gregory, Harv. Law Rev. (1898), XI ; Strikes and Trusts, 
Amer. Law Rev. (1893), XXVII; The Modem Use of Injunctions, by Frederic J. 
Stimson, ibid. (1895), X; Injunction in the Federal Courts, by William A. Woods, 
Yale Law Joum. (1896), VI ; Qovemment by Injunction, by W. 6. Peterkin, Vir^ 



CHIEF JUSTICES FULLER AND WHITE 427 

Federal railroad receiverships was a source of complaint 
in the business world. State Legislatures, lawyers and 
Judges questioned the freedom of assumption of juris- 
diction by the United States Circuit Courts — "the 
innate viciousness of a receivership rfegime/* ^ 

Discussions had also arisen, in connection with the 
situation, as to the advisability of some statutory 
change in the doctrine evolved by Chief Justice Taney 
in the Letson Case, in 1844, under which corpo- 
rations were held citizens of the State of their charter 
for purpose of suit in the Circuit Courts on grounds of 
diverse citizenship. This doctrine had never met full 
acceptance by Judges of the Court, and with the 
enormous development of corporate activities, and of 
"tramp" corporations, it had become more and more 
unpopular, since it resulted in the removal of almost 
all important litigation against corporations into the 
Circuit Courts and out of the State jurisdictions. A 
bill had been introduced in Congress in 1894 to restore 
the law as to the right of corporations to sue in such 
Courts to its status at the time of Marshall's decision 
in the Deveaux Case, in 1804. Congress failed to act, 
though strong arguments were made in the law journals 
of the country against retention of this privileged posi- 
tion for corporations.* 

ginia Law Reg. (1898), III : Strikes and Courts of Equity, by William D. Lewis, 
Amer, Law Reg. (1898), XL VI ; The Court* s View qf Injunction in Labor Disputes, 
by 6. G. Groat, Harv. Law Rev. (1908), XXIII ; Injunctions Against Strikes, and 
Boycotts, by James W. Bryan, Amer. Law Rev. (1906), XL. 

^ Memorial cf the Legidature qf South Carolina on Receivers qf Railroad Corpora" 
turns and ike Equity Jurisdiction qf United States Courts, in Amer. Law Rev. (1894), 
XXVIII; The Court Management qf Railroads, by Se}rmour D. Thompson, ibid. 
(1893), XXVII; CrUicisms of the Federal Judiciary, by Judge William H. Taft, 
ibid. (1895), XXVIII; RaUroad Receiverships in the Federal Courts, by Judge 
Henry C. Caldwell, ibid. (1896), XXX; New Fashioned Receiverships, by D. H. 
Chamberlain, Harv. Law Rev. (1896), X; Mandatory Injunction, by Judge Jacob 
Kldn, Harv. Law Rev. (1898), XII; Suits Against Receivers, by W. A. Coutts, 
Amer. Law Rev. (1904), XXXVm; (1905), XXXIX; Jurisdidtum qf Federal 
Equity Courts, by Benjamin F. Keller, ibid. (1918), XLVII. 

^Congress Should Abrogate Federal Jurisdiction Over Corporations^ by Alfred 



428 THE SUPREME COURT 

In 1896, the Court announced the broadest definition 
of the right of Congress to legislate for the general wel- 
fare when it sustained the taking by eminent domain 
of the Gettysburg battlefield for a National cemetery, 
in United States v. Gettysburg Electric Ry. Co., 160 U. S. 
668: "Such a use," said the Democratic Judge, Peck- 
ham, "seems necessarily, not only a public use, but one 
so closely connected with the welfare of the Republic 
itself as to be within the powers granted to Congress by 
the Constitution for the purpose of protecting and pre- 
serving the whole country/* This decision, taken in 
connection with the Debs Case, showed that the Court 
was practically prepared to support any action taken 
by the National Government and reasonably necessary 
for its self-preservation and welfare. 

In this same year, a decision upholding the pajonent 
to claimants of the sugar bounty granted by the 
McKinley Act aroused severe criticism, since the Court, 
while expressly declining to rule on the validity of the 
bounty legislation, held the claim under the circum- 
stances to be one which Congress had power to recog- 
nize and pay. United States v. Realty Co., 163 U. S. 274. 
"The Nation, speaking broadly, owes a *debt* to an 
individual, when his claim grows out of general prin- 
ciples of right and justice ; when, in other words, it is 
based upon considerations of a moral or merely hon- 
orary nature, such as are binding on the conscience or 

Russell, Harv. Law Rev, (189S), VII ; Federal Juriedidum in Case ef CorporaHon*, 
by Seymour D. Thompson, Amer. Law Rev. (1895). XXIX: Jud^e William H. Taft 
vigorously controverted the position taken in the foregoing articles, see CriUeiewie 
of the Federal Jtidieiary, Amer, Law Rev, (1895), XXIX; see also JuriedicHon of 
Federal Courte in Actione in which Corporatiane are Parties, by Judge Jacob Trie- 
ber, ibid, (1905), XXXIX; A Legal FicHon with its Wings Clipped, by Simeon E. 
Baldwin, ibid, (1907), XLI ; Jurisdiction of Federal Courts over State Corporatums, 
by P. J. Altiser, ibid, (1909), XLIII ; The Supreme CouH and Enforcement of SiaU 
Laws by StaU Courts, by Henry Schofield, Illinois Law Rev, (1908), m ; Should 
Federal Courts Ignore State Laws, by Henry £. Mills* Amer. Law Rev, (1900), 



/. 



CHIEF JUSTICES FULLER AND WHITE 4ie9 

the honor of an individual, although the debt could 
obtain no recognition in a Court of law." This deci- 
sion was attacked as ^'a departure from the ancient 
tenets of law"; as "partisan and class favoring"; 
" dangerous and revolutionary " ; "if not hastily repudi- 
ated it may work an epoch like Dred Scott . . . the 
one decision denying the rights of man, the other 
violating the rights of the whole people." ^ 

In 1897, the Court, to the shock of the business world, 
for the first time announced, in United States v. TranS" 
Missouri Freight Ass.y 166 U. S. 290, that railroad pools 
were illegal imder the Sherman Act directed against 
combinations in restraint of interstate trade ; ^ eleven 
years later, when the case of Loewe v. Lawlor^ 208 U. S. 
274, was decided in 1908, the labor-unions were equally 
shocked to find that a labor boycott obstructing the 
free fiow of commerce between the States came also 
within the prohibition of the Sherman Act.' 

In 1899, there began the long series of cases growing 
out of the Spanish War, which occupied much of the 
attention of the Court during the next six years. The 
first to be decided were a group of prize cases in which 
various important points of international law were 
settled.* These were followed, in May, 1901, by the 

^ Caiut Uutio nalUy qf a Bounty on Sugar, by William D. Lewis, Amer, Law Reg, 
(1802), XXXI; Sugar Bounty Cases, by Joseph Wheless, Amer, Law Rev. (1896), 
XXX; Sugar Bounty Cases, by H. CampbeU Black, ibid, (1805), XXIX; Sugar 
Bounties, by Charles F. Chamberlayne, Harv. Law Rev. (1892), V; and see Field 
v. Clark (1892), 149 U. S. 649; Skip Subsidies and Bounties, by H. F. Robinson, 
Columbia Law Rev. (1902), II. 

* Case cf the Trans-Missouri Freight Association, by 6. S. Patterson, Amer. Law 
Reg. (1897), XLV. 

* The Danbury Hatters Case, lU Possible Efffed on Labor Unions, by Theodor 
Megaarden, Amer. Law Rev. (1915), XLIX. 

* The Pedro (1899), 175 U. S. 854; The Buena Ventura (1899), 175 U. S. 384; 
The Paquete Habana (1900), 175 U. S. 677, 180 U. S. 458; The Adula (1000), 
176 U. S. 861; The Panama (1000), 176 U. S. 535; The Benito Estenger (1000), 
176 U. S. 568; see The Law of Blockade, by Charles N. Gregory, Yale Law Joum. 
(1908), XII ; Recent Developments and Tendency qf the Law o/ Prize, by Heniy M. 
Holt, ibid.; The Doctnne qf Continuous Voyage, by Charles B. EUiott, ibid. (1903), 



480 THE SUPREME COURT 

notable cases, lasting until 1905, in which the status and 
constitutional rights of Cuba, of the newly acquired 
territory of Porto Rico and the Philippines and of 
Hawaii were at last definitely settled.^ "This judi- 
cial drama of truly Olympian proportions" constituted 
by far the most important fact in the Court's history 
during the period since Waite's death, and has been 
interestingly summarized as follows.* "When the 
Spanish War had resulted in the cession to the United 
States of Porto Rico and the Philippines, the question 
of their constitutional status at once arose. It entered 
immediately into the political arena, and in the Presi- 
dential campaign of 1900 divided, with the cry of 
'Imperialism', political parties and their adherents. 
The discord which it created in the judicial forum was 
no less pronounced. The De Lima^ Dooley and Bidwell 
Cases presented in concrete form the questions whether 
the Island of Porto Rico, after its cession by Spain, 

Xni ; Right qf a BeUigererU to Destroy a Captured Prim, by Francis T. Swayze, 
Earv. Law Rev. (1904), XVIII; Doctrine cf Continuotu Voyage, by Charies N. 
Gregory, ibid. (1910), XXIV ; Questions qf International Law Involved in the Spanish 
War, by W. W. Goodrich, Amer. Law Rev. (1898), XXXII; Rights of Belligerents 
and Neutrals from the American Point qf View, by Alexander P. Morse, Amer. Law 
Reg. (1898), XLVI. 

1 Neeley v. Henkel (1901), 180 U. S. 109; De Lima v. Bidteell (1901), 182 U. S. 
1; Downes v. Bidwell (1901), 182 U. S. 244; Dooley v. United States (1901), 182 
U. S. 222; Dooley v. United States (1901), 188 U. S. 151; The Diamond Rings 
(1901), 188 U. S. 176; Hawaii v. Mankichi (1908), 190 U. S. 197; Kepner v. United 
States (1904), 195 U. S. 100; Dorr v. United States (1904), 195 U. S. 188; Trono 
V. United States (1905), 199 U. S. 521, and Rasmussen v. United States (1905), 197 
U. S. 516; Porto Rico v. Tapia (1918), 245 U. S. 689. The tremendous interest 
taken in the decision by the Court as to the status of the new territories is illus- 
trated by the enormous number of articles in the law journals, 1899-1906, 
citation of which is not practicable ; but see The Causes and Results of our War 
with Spain from a Legal Standpoint, by Judge Elmer B. Adams, Yale Law Joum. 
(Dec., 1898), VIII ; The Final Phase qf the Insular Tariff Controversies, by Henry 
M. Hoyt, ibid. (1905), XIV; The Legal Status of the PkiUppines, by Lebbeus R. 
Wilfrey, ibid.; The Hawaiian Case, by Emlin McClain, Harv. Law Rev. (1904), 
VII ; The Decisions of the Supreme Court in the Insular Cases, by John W. Burgess, 
Pol. Sci. Qu. (1901), XVI; The Insular Cases, by Carman F. Randolph, Columbia 
Law Rev. (1901), I; The Insular Decisions of 1901, by Edward B. Whitney, ibid. 
(1902), II. 

* See Edward Douglass White, by John W. Davis, Amer, Bar Ass. Joum, (1921), 

vn. 



&^ 

tit 
bill 



a 

is 



s? 



11 



CHIEF JUSTICES FULLER AND WHITE 431 

ceased to be * foreign country', within the meaning of 
the existing tariff laws of the United States ; and sec- 
ondly, to what extent, if at all, the island fell within the 
revenue clauses of the Constitution, and the require- 
ment that duties, imposts and excises should be uni- 
form throughout the United States. The division of 
opinion on the Court was sharp and pronounced. The 
first view was that of Mr. Justice Brown, alone. He 
plowed a lonely furrow and held that, while Porto Rico 
had ceased to be * foreign coimtry' within the meaning 
of the Dingley Act, yet, as to future legislation (the 
Foraker Act of April 12, 1900), the uniform clause did 
not apply ; that Porto Rico became by the cession * terri- 
tory appurtenant ' to the United States, but not a part of 
it; and that even over continental and contiguous 
territory, the Constitution went only as the result of 
express Congressional action. As against this. Chief 
Justice Fuller and Justices Harlan, Brewer, and Peck- 
ham maintained that Porto Rico, at least upon the 
ratification of the treaty, became a part of the United 
States, and as such could be dealt with only in the 
manner which the Constitution provides; or, in the 
language of the hour, the ^Constitution follows the 
flag.* Between these two extremes were to be found 
Justices White, McKenna, Shiras and Gray, who main- 
tained that the government of the United States has 
power to acquire and hold territory without immedi- 
ately incorporating it into the United States, and that 
Congress can determine when acquired territory has 
reached that state where it is proper that it should enter 
into and form a part of the American family ; and that 
Porto Rico, though not a foreign country in an inter- 
national sense, since it was subject to and under the 
sovereignty of the United States after the treaty of 
cession, continued to be foreign to the United States in 



482 THE SUPREME COURT 

a domestic sense because it had not been incorporated 
into the United States, but was merely appurtenant 
thereto as a possession. These views were defended 
with a wealth of reasoning and a warmth of argument 
worthy of the greatness of the issue, but with the curious 
result that the judgment in the De Lima and Dooley 
Cases was concurred in, though for wholly diflPerent 
reasons, by Justices Brown, Harlan, Brewer, Peckham 
and the Chief Justice ; while that in the Dowries Case 
was supported by Justices Brown, White, McKenna, 
Shiras and Gray. . . . Judge White's *idea of incor- 
poration ' was destined to prevail. ... In Hawaii v. 
Mankickiy in 1903, the constitutional guaranties of 
trial by jury were held inapplicable to the Hawaiian 
Islands, Justice White taking occasion for himself and 
Justice McKenna to reiterate their views in Downer v. 
Bidwelly and Justices Fuller, Brewer, Harlan and Peck- 
ham filing the customary dissent. A year later came the 
case of Dorr v. The United States in which the opinion 
written by Justice Day, who meanwhile had come upon 
the Bench, held that the right of trial by jury was not 
extended by the Federal Constitution, without legisla- 
tion and of its own force, to the Philippine Islands, 
ceded to the United States by Spain, but not incorpo- 
rated into the United States by Congressional ac- 
tion. . . . Finally, in Rasmussen v. United SiateSy 
the question arose with reference to Alaska, and at last 
Justice White, writing for a clear majority of the Court, 
was able to repeat with authority the views he had all 
along maintained. . . . Justice Harlan, although con- 
curring in the instant result, nailed his colors to the 
mast on the main question and went down fighting to 
the last. Years later, in speaking of the controversy. 
Chief Justice White evidenced the depth of his con- 
viction by the remark, ' Why, sir, if we had not decided 



CHIEF JUSTICES FULLER AND WHITE 433 

as we did, this country would have been less than a 
Nation!'*' The capsheaf of the doctrine of incor- 
poration was applied in Porto Rico v. Tapiaj in 1918, 
when the Court held that rights guaranteed by the 
Constitution might be withheld by Congress from an 
imincorporated territory even though Congress had 
granted United States citizenship to the inhabitants 
of such territory. 

Growing out of the Spanish War, there were also a 
series of important cases, decided from 1899 to 1901, in 
which the Court sustained (in all but one) the power of 
the United States to levy taxes of various kinds in the 
nature of an excise or stamp tax, including a tax on 
transmission of property by death.^ 

In 1903, the decision in the great Lottery Case, 
Champion v. AmeSy 188 U. S. 321, gave an enormous 
impetus to the extension of National power over inter- 
state conmierce, and the decision in Perry v. Haines, 
191 U. S. 17, by which the Federal Admiralty juris- 
diction was for the first time held to extend to inland 
canals, greatly broadened the field of the National 
Courts.* 

In 1904, the decision in Northern Securities Co. v. 
United States ^ 193 U. S. 197, deciding the Sherman Act 
to be applicable to the case of a holding company, for 
the first time showed that this law had teeth.* In 

I See KnowUon v. Moore, 178 U. S. 41, in 1000; Nitxd v. Anus, 178 U. S. 809, 
in 1800; in Fcdrhank v. United States, 181 U. S. 288, in 1001, a sUmp tax on a 
foreign bill of lading was held unconstitutional. 

*'* It treated the profession and the country with a general surprise . . . jealousy 
and alarm." Amer, Law Rev, (1008), XXXVII, Oil. 

* The Northern SeeurUies Co,, by Edward B. Whitney, Yale Law Joum. (1002), 
XI ; A Reply, by D. H. Chamberiain, ibid. (1008), Xm ; Northern Seeuriiies Case, 
by Christopher C. Langdell, Harv, Law Rev. (1008), XVI, XVII ; see press com- 
ments on Uie Northern Securities Case, in Amer, Law Rev, (1004), XXVII. iVor- 
them Securities Case, by Carman F. Randolph, Columbia Law Rev, (1008), III; 
Northern Securities Decision, by George F. Canfield, ibid, (1004), IV ; The Supreme 
Court and the Sherman Anti-Trust Act, by William F. Dana, Harv. Law Rev, (1008), 
XVI ; The Northern SeeurUies Decision, by Henzy W. BikU, Amer. Law Reg, (1004), 



4S4 THE SUPREME COURT 

Buttfield V. Stranahan, 192 U. S. 470, the Court upheld 
a statute vesting wide regulative power in an Executive 
Department. By holding that Congress had legislated 
on the subject "as far as was reasonably practicable", 
and that it had the power "to leave to Executive 
officials the duty of bringing about the result pointed 
out by the statute," the Court vastly increased the 
extent of Executive authority. This tendency of Con- 
gress to vest the Executive with power to make regu- 
lations, as a substitute for specific legislative enactment, 
has of late years been the source of considerable adverse 
criticism.* 

In 1905, State sovereignty was greatly impaired by a 
decision in South Carolina v. United States^ 199 U. S. 
487, that State agents selling liquor must pay a Federal 
license tax. "Under the assumed necessity of pro- 
tecting the taxing power of the Government of the 
United States," said Judge White dissenting, "it 
establishes a doctrine which in its potentiality strips 
the States of their lawful authority. . . . The ancient 
landmarks are obliterated and the distinct powers be- 
lli. In Minnsiota v. Northern SecurtHe$ Co,, 184 U. S. 540, in 1902, the Cooit 
had held that a State can have no power to sue one of its own citixens in an original 
suit in the United States Supreme Court. A decision as to the legality of the com- 
pany was not made, therefore, until the Government suit was decided in 1904. 

^ But see The Adminietraiive Powers of the President, by John A. Fairlie, Michi- 
gan Law Rev. (190S), U; The Administrative Law cf the United States, by Frank 
J. Goodnow, Pol. Sei. Qu. (1904), XIX ; Condueiveness of Adminietrative Deier- 
miTuxtion in the Federal OovemmenU by Thomas R. Powell, Amer. Pol. ScL Ra. 
(1907), I ; Administrative Exercise cf Legislative and Judicial Power, by Thomas 
R. Powell, ibid. (1912, 191S), XXVII, XXVIII ; Jurisdictional LimitaHona upom 
Commission Action, by Bruce Wyman, Harv. Law Rev. (1914), XXVII; Judicial 
Determination by Administrative Commissions, by Charles W. Needham, Amer. Pol. 
Sei, Rev, (1916), X ; The Land Department as an Adminietrative Tribunal, by Charies 
P. Pierce, ibid.; see also Monongahda Bridge Co. v. United States (1910). 216 
U. S. 177 ; Soms Powers and Problems of the Federal Administrative, by Jasper Y. 
Brinton, U, cf P. Law Rev, (1918), LXI; Administrative Legislation, by John A. 
Fairlie, Michigan Law Rev, (1910), XVIII. Judicial Review of Adminielratim 
Action by the Federal Supreme Court, by G. £. F. AlberUworth, ibid. (1921). 
XXXV ; Judicial Review of Administrative Findings, by Nathan Isaacs, Yale Law 
Joum, (1921), XXX; Judicial Review of Commissioners, by Lawrence Curtis, 2Dd, 
Ha^. Law Rev, (1921), XXXIV. 



CHIEF JUSTICES FULLER AND WHITE 4S6 

longing to both the National and State Governments 
are reciprocally placed the one at the mercy of the other, 
so as to give to each the potency of destroying the 
other." 

In this year, 1905, the decision in Lochner v. New 
Yorky 198 U. S. 45, holding the New York bakers' ten- 
hour-law imconstitutional — one of the very few cases 
in which the Court has ever held invalid any State 
legislation designed to protect the laboring class for the 
welfare of society — aroused widespread public discus- 
sion, and evoked another series of attacks, such as had 
taken place, ten years previously, in 1896, over the 
Court's alleged exercise of an usurped power in passing 
upon the validity of statutes. It is to be noted that 
its critics wholly failed to distinguish between the act 
of holding a State statute void, and the act of holding a 
Congressional statute void. Not only are these two 
functions utterly distinct but they have difiFerent con- 
stitutional bases, and difiPerent arguments to support 
them.^ 

^ See Introductory Chapter, supra, 14-19. Some of the attacks on the Court's 
power were : Judicial UsurpaUon cf Power, by Camm Patteson, Virginia Law Reg, 
(1905), X; The Great Usurpation, by William Trickett, Amer. Law Rev. (1906), 
XL; Judicial DiipensaHon from Congreesional Stalvies, by William Trickett, ibid, 
(1907), XLVI; paper by Judge Walter Clark, April 27, 1906, Amer. Law Reg,, 
UV; Government by Judiciary, by L. B. Bpudin, Pol, Sci. Qu, (1911), XXVI; 
The Usurped Power of the Courts, by Allan L. Benaon, Pearson's Mag, (1911), XVI ; 
Usurpation qf Power by Federal Courts, by James B. McDonough, Amer, Law Rev, 
(1912), XLVI; Government by Judges, by Walter Clark, Sen, Doe. 610, SSd Cong,, 
£d Sees, (1914) ; Withdrawing Power from Federal Courts to Declare Acts cf Conr 
gress Void, by Sen. Robert L. Owen, Sen, Doc, 737, 6Uh Cong,, 2d Sees, (1917) ; 
Back to the Constitution, by Walter Clark, Amer. Law Rev. (1916), L; Annulment 
of Legislation by the Supreme Court, by Horace A. Davis, Amer, Pol. Sci, Rev, (1918), 
VII; Judicial Control over Legislation, by Jackson H. Ralston, Am£r, Law Rev. 
(1920), LIV ; Theodore Roosevelt in The Outlook, Dec. 17, 1910, April 15, 1911. 
Jan. 6, Feb. 24, March 21, 1912. 

Some defenses of the Court were as follows : The Supremacy of the Judiciary, by 
A. Ingles Qark, Harv. Law Rev. (1903), XVII; Written and Unwritten Constitu- 
tions in the United States, by Emlen McQain, Columbia Law Rev. (1906), VI; The 
Supreme Law cf the Land, by Blackburn Esteriine, Amer. Law Rev. (1906), XL; 
Some Recent Attacks on the American Doctrine of Judicial Power, by William M. 
Meigs, ibid.: The Irreconcilable Confliet, by Judge Robert 6. Street, ibid. (1907), 
XLI (see especially list of articles, p. 695) ; The Function cf the Judiciary, by Perpy 



4S6 THE SUPREME COURT 

In 1907, in the great case of Kansas v. Colorado, 185 
U. S. 125, s. c, 206 U. S. 46, involving the rights of two 
sovereign States and of the Nation in the flow of an 
interstate stream, the Court restated the basic relations 
between the two forms of sovereignty in a Federal 
Government. This case had an important bearing 
upon the National power in relation to the subject of 
conservation, in holding that the United States had no 
power to interfere with the appropriation or use of any 
water within a State, except so far as might be necessary 
to prevent interference with or obstruction of navigable 
waters, or except so far as it occurred on Government 
land, and that it had no right over the general subject 
of reclamation of arid lands within the States.^ 

In 1908, two cases in which Federal statutes were 
held invalid as beyond the power of Congress under the 

Bordwell, Columbia Law Rec, (1007), VII; The Growth of Judicial Power, by Wil- 
liam F. Dodd, Pol. Set. Qu. (1909), XXIV; Congreat and the Supreme Court, by 
H. C. Bowman, ibid, (1910), XXV ; The Establiehment of Judicial Reeiew, by Ed- 
ward A. Corwin, Michigan Law Rev, (1910), IX ; A Government of Law or a Gov- 
emmeni of Men? by Horace H. Lurton, North Amer, Rev, (1911), \6L 198; Is it 
Ueurpation to Hold as Void Uruxmstiiuiional Laws? by W. G. Hastings^ Green Bag 
(1908), XX; The Federal Censorship of Legislatures, by Frederick Green, ibid. 
(191S), XLVII ; The American Doctrine of Judicial Power in Its Early Origin, by 
William M. Meigs, ibid,; Constitutional and Eztrc^onsHtutional Restraints, by 
Robert P. Reeder, U, of P, Law Rev, (1918), LXI ; Unoonetilutional Law and Fed- 
eral Judicial Power, by C. H. Bmr, ibid, (1918), LX; The Fundamental Law and 
the Power of the Courts, by Herbert Pope, Harv, Law Rev, (1918), XXVII ; The 
Judicial Bulwark of the ConstUuiion, by F. £. Melvin, Amer, Pol, Sci, Rev. (1914). 
Vni ; Judicial Power to Declare Legislative Ads Void, by Oscar Haller, ibid, (1914), 
XLVIII; The Process of Judicial Legislation, by Morris P. Cohen, ibid,; The 
Supreme Court, Usurper or Grantee, by Charles A. Beard, Pol. Sci, Qu, (1912), 
XXVni ; Poujer of the Supreme Court to Declare Acts of Congress Unconstitutional, 
by Charles B. Stuart, Sen, Doc, 708, 64th Cong., U Sees, (1917) ; The Power of 
Courts to Declare a Statute Void, by George W. Williams, Amer. Law Rev. (1918), 
LII. See also the Causes of Popular Dissatisfaction with the Administr<aion of 
Justice, by Roscoe Pomid, Amer, Bar Ass, Rev, (1908) ; Courts and Legislation, 
by Roscoe Pomid, Amer, Pol, Sci. Qu. (1918), VII ; The Supreme Court and the 
Constitution (1902), by Charles A. Beard ; The Courts, the Constitution and Parties 
(1912), by Andred C. McLaughlin ; The Power of the Federal Judiciary over Legie- 
lation (1912), by J. Hampden Dougherty; The Doctrine of Judicial Review (1914), 
by Edward S. Corwin. 

^ Suits between States, Kansas v. Colorado, by Carman F. Randolph, Columbia 
Law Rev. (1902), II; Conservation and the Constitution, by W. B. Bosl^, Yale Law 
Joum. (1911), XX. 



CHIEF JUSTICES FULLER AND WHITE 487 

Commerce Clause produced some criticism of the 
Court — The Employers' Liability Cases, 207 U- S- 463, 
and Adair v. United States, 208 U. S. 161 — the latter 
case involving the law prohibiting railroad discrimi- 
nation against union labor. The decision that regu- 
lation of employment with reference to union conditions 
had no reasonable relation to interstate commerce 
caused much surprise and well-justified antagonism. 
"The inability of the Supreme Court to find any con- 
nection between the membership of a labor union and 
the carrying on of interstate commerce seems inex- 
plicable," wrote Richard Olney.^ There is little doubt 
that with further enlightenment of the Court as to con- 
ditions this decision will be and should be overruled. 

In this same year, 1908, the power of the National 
Judiciary was vitally enhanced by a decision which 
caused much well-grounded apprehension among the 
States.' Although in Hans v. Louisiana, 134 U. S. 1, in 
1890, the Court had gone far in sustaining the non- 
suability of a State either by one of its own citizens or 
by citizens of another State, and in even overruling 
Chisholm v. Oeorgia, nevertheless, the twenty years 
since the death of Waite had witnessed a rapidly in- 
creasing series of cases in which suits had been sustained 
to restrain State officials from carrying out State laws 
alleged to violate the Constitution.' In 1891, an 

^ DiscriminaHon agairut Union Labor — Legal f by Richard Olney, Amer, Law Rev, 
(1908), XLII ; The Living Law, by Louis D. Brandeis, lUinoie Law Rev, (1916), X. 

< The Eleventh Amendment, by William D. Guthrie, New York Bar Ase. (1908) ; 
Magna Carta (1916), by William D. Guthrie. 

* RoUton V. Crittenden (1887), 120 U. S. 890; Pennoyer v. MeConnaughty (1801), 
140 U. S. 1 ; see also Ex parU Tyler (1898), 149 U. S. 164; Reagan v. Farmere* Loan 
dt Tnut Co, (1891), 154 U. S. 362; Scott v. Donald (1897), 165 U. S. 58; Smyth 
v. Ames (1898), 169 U. S. 466; Proui v. Starr (190S), 188 U. S. 587; Missouri, 
Kansas A Texas Railway Co. v. Hickman (1901), 183 U. S. 53 ; Chandler v. Dix 
(1904), 194 U. S. 590; Fargo v. Hart (1904), 193 U. S. 490; McNeill v. Southern 
Railway Co, (1906), 202 U. S. 543; Mississippi Railroad Commission v. Illinois, 
etc, Co, (1906), 203 U. S. 335. And see Cavanaugh v. Looney (1918), 248 U. S. 453. 

North Carolina v. Temple (1890), 134 U. S. 22, and FiUs v. McGhee (1899), 172 



438 THE SUPREME COURT 

injunction had been granted to restrain the Governor, 
Secretary of State and State Treasurer of Oregon as 
State Land Commissioners from selling certain land 
under an unconstitutional statute. In 1894, an in- 
junction was granted to restrain the Railroad Commis- 
sion and the Attorney-General of Texas from enforcing 
the State Railroad Rate law by instituting suits for 
penalties. In 1897, State constables of South Carolina 
were enjoined from enforcing an unconstitutional State 
dispensary law; and judgment was allowed against 
the Secretary of State of South Carolina for damages 
for illegal possession of land under color of a South 
Carolina statute. In 1898 and in 1903, the Attorney- 
General of Nebraska was enjoined from enforcing 
against the Union Pacific Railroad an unconstitutional 
railroad rate law of that State. In 1901, the Board of 
Railroad & Warehouse Commissioners of Missouri were 
involved in a suit. In 1904, an attempt was made to 
restrain the Auditor-General of Michigan from assessing 
alleged illegal taxes ; and the State Auditors of Indiana 
were restrained by injunction from assessing the 
American Express Company under an unconstitutional 
tax statute. In 1906, the State Corporation Commis- 
sion of North Carolina was enjoined from enforcing 
orders as to delivery of cars on private sidings by rail- 
road companies ; and an injunction was upheld against 
the enforcement by the Mississippi Railroad Commis- 
sion of an order requiring railroads to stop mail trains 
at county seats.^ The climax of these decisions was 

U. S. 516, were practically the only suits against State officials which the Court 
had deemed to constitute suits against the State and hence not maintainable. 

* See Suits Against a State, by Joseph Wheless, Amer. Law Rev, (1000), XXXTV; 
Suability of States by Individuals, by Judge Jacob Trieber, ibid, (1007), XLI ; SuiU 
Against States, by William Trickett, ibid. ; The Increased Control of State AcHvi^ 
ties by the Federal Government, by Robert P. Scott, Amer. Pol. Set, Rev. (1000), m ; 
The Progressive Unfolding qf the Potoer of the United States, by Simeon £. Baldwin* 
Qrid. (1012), VI. 



CHIEF JUSTICES FULLER AND WHITE 489 

reached, in 1908, in Ex parte Young, 209 U. S. 123, when 
the Court decided that the Attorney-General of the 
State of Minnesota could be enjoined from bringing 
any proceedings to enforce against the Northern Pacific 
Railroad in the State Courts the State Railroad Rate 
Law, and could be fined for contempt if he disobeyed the 
injunction. "We recognize and appreciate to the 
fullest extent the very great importance of this case,'* 
said Judge Peckham, "not only to the parties now be- 
fore the Court, but also to the great mass of the citizens 
of this coimtry, all of whom are interested in the prac- 
tical working of Courts of justice throughout the land, 
both Federal and State, and in the proper exercise of the 
jurisdiction of the Federal Courts as limited and con- 
trolled by the Federal Constitution and the laws of 
Congress/' The decision aroused harsh criticism 
throughout the country. The Legislature of Nebraska 
and the Association of Attorneys-Greneral sent memo- 
rials to Congress demanding legislation; President 
Roosevelt in his Annual Message in 1907 had referred to 
the existing discontent over the situation ; and finally 
Congress enacted a statute, in 1910, forbidding the 
issue of an injunction against a State officer based on 
the unconstitutionality of a State statute, unless after 
hearing in a Court of three Federal Judges, one of whom 
should be a Supreme Court or Circuit Court Judge. 

In 1910, the rights of the States over corporations 
doing an interstate business were considerably re- 
stricted by decisions in Western Union Tel. Co. v. 
KcmsaSy and Lvdwig v. Western Union Tel. Co., 216 U. S. 
1, 146, in which for the first time it was made clear that 
there were limits to the power of a State to tax a 
foreign corporation for the privilege of engaging in 
interstate business. These cases and the further 
decisions in the same year in International Text Book 



440 THE SUPREME COURT 

Co. V. Pigg, 217 U. S. 91, holding that transmission of 
instruction by correspondence was interstate commerce, 
and that a foreign corporation engaging in such business 
could not be required by a State to obtain a license, led 
many lawyers and economists to believe that the situa- 
tion thus created must lead, either to placing inter- 
state business corporations under State control by 
Congressional legislation like the Wilson Liquor Act, or 
to National licensing of such corporations or to National 
incorporation.^ 

On July 4, 1910, Chief Justice Fuller died after 
twenty-two years' service. During the first ten years 
of his Chief Justiceship, the composition of the Court 
itself had been subjected to frequent changes; a va- 
cancy occurring nearly every year. At the death of 
Chief Justice Waite in 1888, the Court had consisted of 
Judges Miller, Field, Bradley, Harlan, Gray, Blatch- 
ford, Lamar and Matthews. Judge Matthews died 
on March 22, 1889 ; and in his place President Harri- 
son appointed, on December 4, 1889, Judge Field's 
nephew, David Josiah Brewer of Kansas, who was con- 
firmed, December 18, by a vote of fiifty-three to eleven. 
Brewer was fiifty-two years old and had been Judge of 
the Supreme Court of Kansas for fourteen years and 
Judge of the United States Circuit Court since 1884. 
Judge Miller died on October 14, 1890, after twenty- 
eight years' service ; and in his place Harrison appointed 
Henry B. Brown of Michigan, December 23, 1890. 
Brown was ftfty-four years old and had been a Judge 
of the United States District Court for fifteen years. 
Judge Bradley died on January 22, 1892, after twenty- 
two years' service ; and in his place Harrison appointed, 
July 19, 1892, George Shiras, Jr., of Pennsylvania, who 

1 CorutituHonal Lata in 1909-1910, by Eugene Wambaugh, Am&r, Pol. Set. Rev, 
(1910), IV; SiaU Taxation cf Interstate Commerce, by H. T. Davenport, Pol, Set 

(fu. (1911. 1912). XXVI, xxvn. 



CHIEF JUSTICES FULLER AND WHITE 441 

was confirmed July 26, after strong opposition. Shiras 
was sixty years old and had had no previous judicial 
experience. The next year, Judge Lamar died, Jan- 
uary 24, 1893, and Harrison selected as his fourth 
appointment to the Court, Howell E. Jackson of Ten- 
nessee, February 2, 1893, who was confirmed February 
18. Jackson was sixty years old and had been a United 
States Circuit Court Judge ; he was the first Democrat 
appointed by a Republican President, since Judge 
Field, in 1861. Within another year. Judge Blatchford 
died on July 7, 1894. The vacancy led to a long and 
bitter struggle between President Cleveland and Senator 
Hill of New York, the former appointing successively 
William B. Hornblower on September 19, 1893, and 
Wheeler H. Peckham, on January 22, 1894. In each 
case, through "Senatorial courtesy", the Senate re- 
fused to confirm, rejecting Hornblower, January 15, 

1894, by a vote of twenty-four to thirty, and Peckham, 
February 16, 1894, by a vote of thirty-two to forty-one. 
Three days after the rejection of Peckham, President 
Cleveland filled the vacancy on February 19, 1894, by 
appointing Edward Douglass White, of Louisiana, who 
was confirmed the same day.^ White was forty-eight 
years old, had been Judge of the Supreme Court of 
Louisiana from 1876 to 1879, and United States Senator 
since 1891. Judge Jackson died on August 8, 1895, 
after a service of but two years ; and on December 3, 

1895, Cleveland appointed Rufus Wheeler Peckham of 
New York — a man fifty-seven years of age, who had 
been a Judge of the New York Court of Appeals from 
1870 to 1886. Judge Field resigned on October 12, 
1897 (to take eflPect December 1), having served on the 
Bench thirty-four years and seven months. President 

^ See notes in Amer, Law Rso. (1894), XXVII, 278, as to White, the Senate, and 
Courtesy of the Senate. 



44i8 THE SUPREME COURT 

McKinley appointed, on December 16, 1897, Joseph 
McKenna of California, who was confirmed January 
21, 1898, after strong opposition. McKenna was fifty- 
five years old ; he had been three times a Member of 
Congress and had served as Judge of the United States 
Circuit Court, and for six months as Attorney-General 
of the United States. McKinley had no further op- 
portunity to make an appointment, as the Court re- 
mained unbroken for four years. On July 9, 1902, 
Judge Gray resigned; and President Roosevelt ap- 
pointed, on August 11, 1902, Oliver Wendell Holmes, 
Jr., of Massachusetts, — a man sixty-one years of age 
who had been Judge of the Massachusetts Supreme 
Judicial Court since 1882, and Chief Justice since 1899.^ 
Judge Shiras resigned February 23, 1903, and Roose- 
velt appointed in his place, William R. Day of Ohio, 
February 19, 1903. Day was fifty-three years old and 
had been Secretary of State from May, 1898, to Feb- 
ruary, 1899, when he had been appointed Judge of the 
United States Circuit Court. Judge Brown resigned. 
May 28, 1906, and Roosevelt appointed, December 3, 
1906, William H. Moody of Massachusetts. Moody 
was fifty-two years of age, and had been a Congress- 
man, Secretary of the Navy and Attorney-General. 
Judge Peckham died, October 24, 1909, and in his 
place President Taft appointed Horace H. Lurton of 
Tennessee, who was confirmed, December 20, 1909. 
Lurton was sixty-five years old and had been a Judge 
of the United States Circuit Court. 

To succeed Chief Justice Fuller, President Taft de- 
cided to promote to the vacant position at the head of 
the Court, Edward Douglass White, who had served as 
an Associate Judge since his appointment by President 

' See Olioer Wendell Holmes, the Jurist, by Leonard A. Jones, Amer. Law Ree. 
(1902), XXXVI ; and see ibid^ 4S7 et seq. for personal description of the Judges 
on the Court in 1902. 



CmEP JUSTICES FULLER AND WHITE 443 

Cleveland, in 1894, and who was then sixty-five years of 
age. The appointment, made on December 12, 1910, 
was notable, not only because it was.the first promotion 
of a Judge of the Court to the Chief Justiceship since 
the appointment of Judge Cushing in 1796, but be- 
cause a Republican President was broad-minded enough 
to promote a Democratic Judge. 

The slight importance, however, which was to be 
attached to the party designations of the Judges upon 
the Court was never better illustrated than during 
Fuller's Chief Justiceship. As was pointed out by one of 
the law journals upon his death: **In view of the 
number of vacancies which will be filled by President 
Taft and the Senate, and the many statements which 
have been made concerning the political importance of 
these appointments, in more than eighteen years since 
the decision in Field v. Clark , in 1892, there has been 
but one case which involved a question of constitutional 
law and in which all the Republican members of the 
Court took one position and all the Democratic mem- 
bers took a contrary position; that case (Snyder v. 
Bettman, 190 U. S. 249, in 1903) was whether a Federal 
inheritance tax, which was collected while the property 
was in the hands of an executor, could constitutionally 
be applied to a bequest to a municipality for public 
purposes; the Court upheld the tax, against the dis- 
sents of the Chief Justice and Justices White and Peck- 
ham; this decision will not be of much practical 
importance, until the people of the United States have 
become far more eager to make bequests to municipal- 
ities than they are today." ^ There was only one other 
case during those eighteen years in which all the Re- 
publican Judges approved the decision and all the 

1 ChufJiutice Fuller, by Robert P. Reeder, Amer. Law Reg. (1911), LIX. Prior 
to Field V. Clark, see only In re Neagle (1890), 185 U. S. 1 ; Handley v. SiuU 
(1891), 189 U. S. 417; United StaUe v. Texae (1892), 148 U. S. 621, in 1892. 



444 THE SUPREME COURT 

Democratic Judges disapproved — United States v. 
Sheay 162 U. S. 178, in 1894, a case from the Court of 
Claims. In the cases as to which the most political 
excitement raged, the Instdar Cases and the Northern 
Securities Case, Republican and Democratic Judges 
united in both the majority and the minority opinions, 
and, as so often in the past, the mental attitude of the 
Judge had far more to do with the conclusions of his 
opinion than had his political attitude. Certainly no 
decision could have been forecast by a consideration of 
party lines in the Court. 

Chief Justice White's first Term was signalized by 
the decisions, on May 15, 1911, of the great Standard 
Oil Co. and American Tobacco Co. Cases, 221 U. S. 
1, 106, under the Sherman Anti-Trust Act, which 
produced a profound sensation in the country and re- 
vived the hopes, somewhat shaken by previous de- 
cisions, that the National power was adequate to deal 
with the trusts. 

In 1911, the Court for the first time gave real eflFect 
to the Thirteenth Amendment prohibiting slavery or 
involuntary servitude, by holding a peonage law of 
Alabama to be in conflict with its provisions, Bailey v. 
Alabama, 219 U. S. 219.^ 

In 1912, it was clearly shown that the Court was not 
grasping for power, when, in Pacific States Telephone 
and Telegraph Co. v. Oregon, 223 U. S. 118, it decided 
that the right of the State to adopt the initiative and 
referendum was a political and not a judicial question, 
and therefore non-justiciable by the Court. "It is the 
Government, the political entity, which is called to 
the bar of the Court," said Chief Justice White, "not 
for the purpose of testing judicially some exercise of 
power assailed on the ground that its exertion has 

1 See also Reynolda ▼. United SUUeg (1917), 2S5 U. S. 188. 



CmEP JUSTICES FULLER AND WHITE 445 

injuriously affected the rights of an individual because 
of repugnancy to some constitutional limitation, but to 
demand of the State that it establish its right to exist 
as a State, republican in form." Such an issue was 
held not to be within the reach of judicial power. 

In 1913, Congressional power to legislate as to the 
newspaper press of the coimtry by prescribing publi- 
cation of details of ownership was upheld, as incidental 
to its control of the mails and postroads ; and by this 
decision in Leiois Puhlisking Co. v. Morgan^ 229 U. S. 
288, a fertile field for National legislation was opened 
up, advantage of which will undoubtedly be taken in 
the future. 

In 1913, also, the National power over railroads 
received a tremendous impetus through the opinion 
rendered in the Minnesota Rate Ca^es^ 230 U. S. 352, in 
which there was asserted more clearly than hitherto the 
power of Congress to legislate as to intrastate railroad 
rates when intimately connected with interstate rates. 
"The execution by Congress of its constitutional power 
to regulate interstate commerce is not limited by the 
fact that intrastate transactions may have become so 
interwoven therewith that the effective government of 
the former incidentally controls the latter. ... If the 
situation has become such, by reason of the inter- 
blending of the interstate and intrastate operations of 
interstate carriers, that adequate regulation of their 
interstate rates cannot be maintained without imposing 
requirements with respect to their intrastate rates which 
substantially affect the former, it is for Congress to 
determine, within the limits of its constitutional 
authority over interstate commerce and its instruments, 
the measure of the regulation it should supply.*' ^ The 

^ Power cf Cofngre$9 to Regulate Railway Ratee, by Victor Morawets, Han. Law 
Am. (1905), XVm; Railroad RaU Regtilatum, by Adelbert Moot, ibid. (1906), 



446 THE SUPREME COURT 

next year, the power of Congress to regulate long and 
short hauls was upheld in the Intermountain Rate Cases, 
234 U. S. 476. 

In 1914, the doctrine of the Granger Cases received 
a restatement, and the scope of the State police power, 
especially with reference to the regulation of corporate 
rates, was defined in exceedingly broad terms in German 
Alliance Insurance Co. v. Kansas, 233 U. S. 389.^ In 
1916, the power of the National Executive received a 
notable extension, when, in United States v. Midwest 
Oil Co., 236 U. S. 459, President Taft's action in with- 
drawing public lands from settlement without express 
statutory authority was upheld, on the ground that a 
long-continued practice, known to and acquiesced in by 
Congress, implied authority. In the same year, the 
power of the Court to determine controversies between 
States and to enforce its decree against a State was 
finally settled, in Virginia v. West Virginia, 238 U. S. 
202. The Fifteenth Amendment was for the first time 
given real effect when the "Grandfather Clause'* of the 
Oklahoma Constitution was held to violate it, in Guinn 
V. United States, 238 U. S. 347. The right of Congress 
absolutely to prohibit the introduction of any article in 



XIX; Power of Congress to Preecribe Railroad Raie*, by Frank W. Hackett, ibid, 
(1907), XX; The Power of Congress to Regtdate Commerce^ by Frank J. Goodnow, 
Pd. Set. Qu. (1910), XXV; Tke Minnesota Rate Cases, by John Bauer, Pol, ScL 
Qu. (1914), XXIX; The Minnesota Rate Cases, by Hannis Taylor, Harp. Law Ree. 
(1918), XXVII ; The Commerce Clause and Intrastate Rates, by William C. Cole- 
man, Columbia Law Rev. (1912), XII; The Minnesota RaU Cases and the 14th 
Amendment, by Charles W. CoUinB, Amer. Law Rev. (1914), XLVII; The Evolw 
tion cf Federal Regtdation of Intrastate Rates — The Shreoeport Rate Cases, by Wil- 
liam C. Coleman, Harv. Law Rev. (1914), XXVIII ; The Vanishing Rate-Making 
Power of the States, by William C. Coleman, ibid. (1914), XIV; The Minnesota RaU 
Cases and the Fourteenth Amendment, by William C. Coleman, Amer. Law Ree. 
(1914), XLVIII ; Federal Control of Intrastate Railroad Rates, by Hany W. Bikl^ 
U. of P. Law Rev. (1915), LXIII. 

^ The United States Supreme Court and Rate Regulation as Affected by the Dis- 
tribution of Goeemmental Powers in the Constitution, by Robert P. Reeder, Amer. 
Law Reg. (1909), LVII; United States Supreme Court and Rate Regulation, by 
Douglas D. Storey, U. of P. Law Rev. (1916), LXIV. 



CHIEF JUSTICES FULLER AND WHITE 447 

foreign trade was upheld, in Weber v. Freedy 239 U. S. 
325, and Brolan v. United States, 236 U. S. 216. 

In 1916, the eflfect of the Income Tax Amendment was 
construed in Bruskaber v. Union Pacific R, J?., 240 
U. S. 1. The power of the States to obstruct or deny 
removal of cases into the United States Courts was 
again restricted and redefined in Donald v. Philadelphia 
and Reading Coal & Iron Co., 241 U. S. 329.^ 

In 1917, the power of Congress to regulate the in- 
strumentalities of interstate commerce received a 
radical extension, when the Court upheld the Adamson 
Eight-Hour Law, in Wilson v. New, 243 U. S. 332.* 

In the years succeeding the accession of White to the 
Chief Justiceship, the composition of the Court rapidly 
changed, Judges Peckham, Brewer, Harlan, Lurton, 
Lamar and Hughes leaving the Bench within the space 

1 See gwpra, m, 408. 

' The original plan of this book did not contemplate the consideration of any 
cases later than 1917 ; but in order to show the steady development and judicial 
support of the powers of the National Government, during the years 1918 to 1921, 
the following cases should be noted. 

The Selective Service Act was upheld in SdeeUve Draft Cmm, 245 U. S. 866, and 
OMman y. UniUd States, 245 U. S. 474, in 1918. The Espionage Act was upheld 
in Schenek v. United States, 249 U. S. 47, and Debe v. United States, 249 U. S. 211, 
in 1919, and m Sehaefer v. United States, 251 U. S. 466, in 1920, and m MUwavkee 
Publishing Co. v. Burleson, 255 U. S. 407, in 1921. The Government wartime con- 
trol of railroads was upheld in Northern Pacific A. R. v. North Dakota, 250 U. S. 
185, and the Government wartime control of telegraph and telephones in Dakota 
Central Telephone Co. v. Sotdh Dakota, 250 U. S. 168, in 1919. The Wartime Pro- 
hibition Act was upheld in Hamilton v. Kentucky Distilling Co., 251 U. S. 146, and 
in Ruppert v. Cqffey, 251 U. S. 264, in 1919. 

The national power to regulate by treaty the subject of migratory birds was up- 
held in an epoch-making decision in Missouri v. Holland, StBSL U. S. 416, in 1920. 
The Volstead Prohibition Act and the 18th Amendment were upheld in National 
Prohibition Cases, 258 U. S. 850, in 1920. The 19th Amendment was upheld m 
Hawke V. Smith, 258 U. S. 221, 281, in 1920. The Farm Loan Act of 1916 was up- 
held in Smith v. Kansas City Title Co., 255 U. S. 180, in 1921. The Trading with 
the Enemy Act was upheld in Stoehr v. Wallace, 255 U. S. 289, in 1921. 

The chief Acts of Congress held invalid were four : the Child Labor Law of 1916, 
in Hammer v. DagenhaH, 247 U. S. 251, in 1918; the Income Tax Law of 1916, 
taxing stock dividends, in Eisner v. Macomber, 252 U. S. 189, in 1920 ; the Income 
Tax Law of 1919, taxing salaries of United States Judges, in Evans v. Core, 253 
U. S. 245, in 1920; and the Lever Food Control Act of 1917, in United States v. 
L. Cohen Grocery Co., 255 U. S. 81, in 1921. 



448 THE SUPREME COURT 

of seven years — President Taf t having an opportunity 
to appoint five Judges, a majority of the Court, and 
President Wilson, three. On March 28, 1910, Judge 
Brewer died after a service of twenty years and in his 
place, Taft appointed Charles Evans Hughes of New 
York, who was confirmed May 2, 1910. Hughes was 
forty-eight years of age and had been Governor of 
New York, but had had no previous judicial experience. 
On November 20, 1910, Judge Moody resigned, and in 
his place Taft appointed Willis Van Devanter of 
Wyoming, who was confirmed December 16, 1910. 
Van Devanter was fifty-one years old and had been 
an Assistant Attorney-General and Judge of the United 
States Circuit Court. On December 15, 1910, the 
appointment of Joseph Rucker Lamar of Georgia was 
confirmed to fill the vacancy caused by the promotion 
of Judge White. Lamar was fifty-three years old, 
and had served upon the Supreme Court of Georgia. 
Judge Harlan died on October 14, 1911. To the vacant 
place. President Taft appointed on February 19, 1912, 
Mahlon Pitney of New Jersey, who was confirmed 
March 13, 1912. Pitney was fifty-four years old and 
had been Judge of the Supreme Court and Chancellor 
of New Jersey. Judge Lurton died on July 12, 1912, 
and President Wilson appointed on August 19, 1914, 
James Clark McReynolds of Tennessee, a man fifty- 
two years of age who had served as Attorney-General 
for a year and a half. Judge Lamar died on January 
2, 1916, and in his place Wilson appointed on January 
28, 1916, Louis D. Brandeis of Massachusetts, who was 
confirmed on June 1, 1916, by a vote of forty-seven to 
twenty-two, after a long and bitter contest. Brandeis 
was fifty-nine years old and had had no previous 
judicial experience. On June 10, 1916, Judge Hughes 
resigned in order to accept his nomination as Republican 



CHIEP JUSTICES FULLER AND WHITE 449 

candidate for the Presidency, and in his place Wilson 
appointed on July 14, 1916, John H. Clarke of Ohio, a 
man fifty-eight years of age, who had served as Judge of 
the United States District Court. ^ 

During these thirty years from 1888 to 1918, there 
were two radical extensions and two restrictions of the 
Court's jurisdiction through Congressional action. By 
the Act of March 2, 1907, appeals by the Government 
in criminal cases were authorized on rulings by inferior 
United States Courts on demurrer, plea in abatement 
and motion to quash.^ By the Act of December 23, 
1914, the Court was authorized to review on certiorari, 
cases in the State Courts in which the decision is against 
the validity of a State statute claimed to violate the 
Constitution. This was the first important change in 
the Twenty-Fifth Section of the Judiciary Act of 1789 ; 
and it had long been advocated by the American Bar 
Association. It enabled the Court in the future to 
take jurisdiction in such cases as the Ives Case^ in which 
the New York Court of Appeals had held the Work- 
men's Compensation law of that State repugnant to the 
Constitution, and in similar cases in which the State 
Courts had hitherto been less progressive in their con- 
stitutional doctrines and more inclined to hold State 
laws invalid.^ By the Act of 1891 establishing the 

^ Chief Justice White died. May 19, 1921 ; and to succeed him. President 
Harding appointed William Howard Taft, June 80, 1921. 

'The statute had been recommended as early as 1902 by Attorney-General 
Knox. It was enacted largely through President Roosevelt's insistence, after the 
decision by Judge Humphreys in United States v. Armour & Co., 142 Fed. 808, 
holding the packers, indicted under the Meat Inspection Law, to be entitled to 
immunity because of having testified before the Bureau of Corporations ; see also 
69th Cong., 2d Sese,, debate in Senate, Feb. 4, IS, 1907; United States v. Sanges 
(1892), 144 U. S. SIO, in which it was held that the United States has no power 
to sue out a writ of error in a criminal case. 

' Prior to 1825, the decided cases averaged 24 a year; from 1826 to 1880, 58; 
in 18S6 there were 37 cases disposed of; in the five years from 1846 to 1850, an 
average of 71. In the October, 1890, Term, there were 1816 cases on the docket 
and the Court disposed of 617; in the October, 1891, Term, there were 1582, of 
which 496 were disposed of, and at this time it took three years to itach a case for 

VOL. ni — 15 



460 THE SUPREME COURT 

Circuit Court of Appeals, Congress afforded a marked 
relief to the Court by restricting its appellate juris- 
diction; and by the Court of Customs Appeals Act 
of 1909, the Court was further relieved of customs 
cases. 

aigument. The Needi qf the Supreme Court, by William Strong, North Amer. Bee. 
(1895), CXXXII; and see 140 U. S. App. as to the effect of the Act of 1881. 



CHAPTER THIRTY-EIGHT 

COMMERCE AND THE POLICE POWER 

1888-1918 

In all this development of the National sovereignty 
during the thirty years after the death of Chief Justice 
Waite, one feature deserves more detailed comment, 
namely the awakening of Congress to the realization of 
the vast power wrapped up in the Commerce Clause, 
its increasing exercise of that power, and the breadth 
of the decisions by which the Court has sustained such 
exercise of power.^ 

As was said in 1907 : "The development of the power 
was for one hundred years rather in a negative way 
than in a positive way. The Court was called upon to 
say what the States could not do, instead of what 
Congress could do — except as the one necessarily 
followed from the other. . . . The tendency in this 
country towards a centralization of power is increasing. 
The field of the National Government is constantly 
widening. ... A Unity is growing out of a Union, 
and the primary source of all this Nationalizing power 
is the Commerce Clause."* 

The first important exercise by Congress of its power 
under the Commerce Clause, was the Interstate Com- 
merce Act of 1887 ; but while this law was construed 

^ For an early appreciation and fear of this tendency, see The Supreme Court and 
Intergtate Commerce, by Charles A. Culbertson, Amer. Law Rev, (1890), XXIV. 

' The Constitutional Opinion of Justice Holmes, by Felix Frankfurter, Harv, Law 
Rev. (1916), XXIX; Development cf the Commerce Clause in the Federal ConstUu- 
Hon, by Judge Walter C. Noyes, Yale Law Journ, (1907), XVI. 



452 THE SUPREME COURT 

and applied by the Court in a vast number of cases, it 
was not until six years later that Congress took further 
advantage of its constitutional powers to regulate 
common carriers engaged in interstate and foreign 
commerce, by the passage of the Safety Appliance Act 
of 1893 (further developed by the Acts of 1896, 1908 
and 1911) ; and by the Barter Act of 1893 regulating 
bills of lading and the liability of sea-carriers.^ In 
1903, however, the enactment of the Elkins Act was 
followed by a series of statutes regulating such car- 
riers — the Automatic Coupler Act of 1903, the Hours 
of Service Acts of 1907 and 1916, the Employers' 
Liability Acts of 1905 and 1908, the Carmack Amend- 
ment of 1906,* the Hepburn Act of 1906,' the Interstate 
Express Company Act of 1906, the Transportation of 
Explosives Act of 1909, the Mann-Elkins Act of 1910 
regulating also telegraph, telephone and cable com* 
panics, the Boiler Inspection Acts of 1911 and 1915, the 
United States Shipping Board Act of 1916 regulating 
carriers by water, the Bills of Lading Act of 1916, the 
Adamson Act of 1916 regulating hours of labor and 
wages of railroad employees, the Car Service Act of 
1917. All of these statutes, except the first Employers' 
Liability Act, were upheld by the Court.* In sustaining 
the power of Congress over carriers, it reached an 
extreme point when, in the Adamson Law Case in 1917, 
it upheld the right to fix wages and hours of labor in 
case of an emergency and for the purpose of keeping 

* The Hairier Ad ; Recent Legidatum in the United States Reepeeiing BiUe qf Lading, 
by Everett P. Wheeler, Amer. Law Ren, (1899), XXXm; The Barter Ad, 
by Frederick Green, Hart, Law Rev. (1902) XVI. 

* See Adame Express Co. v. Croninger (1913), 226 U. S. 491. 

* United States v. Delaware & Hudson Co. (1909), 218 U. S. 866; CansHhOianal 
Questions Ineoleed in the Commodity Clause of the Hepburn Ad, by William D. 
Lewis, Harv. Law Res. (1908), XXI ; Recent ProUems on Railway Legislation, by 
WillUm Z. Ripley, Pol. Sei. Qu. (1912), XXVU. 

« The National Employers' LiabilUy Ad, by Jacob Trieber, Amer, Law Rev. (1915). 
XLIX. 



COMMERCE AND THE POLICE POWER 463 

interstate traffic open and continuous.^ "A majority of 
the Court has established a doctrine the application of 
which it is to be hoped the good sense of Congress will 
strictly confine within the limits of an urgent necessity." 
This comment, written shortly after the decision, prob- 
ably expresses the general view of the public. 

The second important exercise by Congress of its 
power under the Commerce Clause was an attempt on 
its part to exercise the National authority for the 
purpose of enlarging the powers of the States. By the 
decisions of the Court in Baimnan v. Chicago & North- 
toestem R. R., liS U. S. 465, in 1888, and in L^isy v. 
Hardin^ 135 U. S. 100, — the Original Package Case — in 
1890, which denied the validity of State prohibition 
laws affecting intoxicating liquors during the period of 
interstate transportation, the power of the States to 
enforce their liquor legislation effectively had been 
seriously impaired — "an invasion by the Federal 
Government of State domain and a National destruc- 
tion of State prohibition." * By the Wilson Act of 
1890, Congress restored to the States their control over 
liquor upon its arrival within the State ; but this statute 
resulted in little benefit to the prohibition States, since, 
while the Court held it constitutional, it also held that 

> See Wilson v. New (1917), 243 U. S. 882; The CorutUtdionalUy rf the EighU 
Hour RaUroad Law, by M. H. Lauchheimer, Columbia Law Ree. (1916), XVI ; Due 
Process and the Adamson Law, by Thomas R. Powell, ibid, (1917), XVII; Railway 
Strikes and the Constitution, by Arthur F. Ballantjme, ibid,; The Adamson Act 
Decision, by Frank W. Hackett, Amer. Law Rev. (1918), LII; The Supreme Court 
on the Adamson Law, by C. W. Burr, Minnesota Law Rev, (1918), I ; The Adamson 
Law Decision, by C. K. Burdick, CornM Law Qu. (1917), II; The Supreme Court 
and the Adamson Law, by Thomas R. Powell, U. of P. Law Rev, (1917), LXV. 

' See The L aw Ooveming an Original Package, by John B. Uhle, Amer, Law Reg, 
(1890), XXXVIII ; Recent CentraHxing Tendencies in the Supreme Court, by Fred- 
eric P. Powers, Pol, Sei. Qu, (1890), V; see also Amer, Imw Rev, (1890), XXTV, 
474, 490; Lyng v. Michigan (1890), 185 U. S. 161; Eilenbecker v. Plymouth Co. 
(1890), 184 U. S. 81 ; In re Rahrer (1891), 140 U. S. 545 ; Crou^ v. Christensen 
(1890), 187 U. S. 86; Rhodes v. Iowa (1898), 170 U. S. 412; Vance v. Vandercook 
Co, (1898), 170 U. S. 488 ; Adams Express Co. v. Iowa (1905), 196 U. S. 147 ; louis- 
wille di Nashmlle R. R. v. Cook Brewing Co, (1912), 223 U. S. 70. 



454 THE SUPREME COURT 

the word "arrival" meant not physical arrival within 
the State but commercial arrival by delivery to the 
consignee, the status of interstate transportation not 
being concluded until such delivery. The same doc- 
trine as to the want of power in the States to interfere 
with the objects of interstate transportation when in 
their original packages was applied by the Court to 
State legislation on the subjects of oleomargarine and 
cigarettes.^ For thirteen years, the National power 
over liquor transportation growing out of this Original 
Package doctrine reigned supreme. "The Interstate 
Conunerce Clause, intended to be a harmonizer among 
the States, has been made a weapon of offense by which 
the liquor producing States have compelled prohibition 
States to receive intoxicating liquors willy-nilly, and 
thus have made the enforcement of local prohibition 
laws substantially impossible," said Assistant Attorney- 
General Denison, in 1914. "So there has arisen what 
amounts to a direct offensive warfare by the Federal 
Government, in alliance with certain States, against 
the domestic, social and economic policies of other 
States." To put an end to this situation, Congress 
passed the Webb-Kenyon Act of 1913, penalizing the 
shipment or transportation of liquor intended to be 
received, possessed or sold either in original package or 
otherwise in violation of State laws. Though the 
constitutionality of this law was doubted by President 
Taft and by most of the Bar, it was supported by the 
Court in decisions which gave greatly added scope to 
the power of Congress to transfer its authority to the 

* See SchoUenberger v. Pmruyhania (1898), 171 U. S. 1, as to a SUte oleomar- 
garine law ; and see the Oleomargarine Act of 1902 restoring control to the States ; 
Austin V. Tennessee (1900). 179 U. S. 348 ; Cook v. MarahaU Co. (1905), 196 U. S. 
«61 ; The IscOeet Phase qf the Original Package Doctrine, by Shackelford Miller, 
Amer. Law Rev. (1901), XXXV; Whai is the Original Package Doctrine, by Morris 
M. Townley» ibid. ; The Original Package Ineptitude, by William Trickett, Cotum- 
bia Law Rev. (1906), VI. 



COMMERCE AND THE POLICE POWER 456 

States.^ The Reed Amendment of 1917, also supported 
by decisions of the Court, was the cuhnination of this 
form of National legislation.^ 

The third important example of the exercise by 
Congress of its power under the Commerce Clause, the 
Sherman Anti-Trust Act of 1890, has been the subject 
of extensive judicial construction, from 1896 until the 
present day. At first, the meaning of the terms of 
this Act was supposed by Congress to be free from 
doubt, and though there was some criticism by the 
Bar. an article in a law journal in 1893 expressed the 
general view: *'The Act has been criticised because 
it contains no definition ; but the common law terms 
used in it seem to be sufficient. The language is 
searching and the provisions are drastic.'* This con- 
fidence in the clarity of the language of the Act was 
soon dispelled. Owing to the unfortunate manner in 
which the facts were alleged and proved in the first 
decided case. United States v. E. C. Knight Co.^ 166 
U. S. 1, the opinion, holding the operations of the sugar 
refiners involved to be legal, served to discourage 
further attempts to invoke the statute in relation to 
commercial business. Decisions followed, in 1898 hold- 
ing railroads to be subject to the law, in 1904 holding 
stockholding corporations to be within its purview, in 
1908 holding combinations of laborers in a boycott to 
be liable under the law.^ In 1911, twenty-one years 

1 Clark DiHiUing Co, v. Woftem Maryland R, R, (1917), 242 U. S. Sll ; The WM 
Act, by AUen H. Kerr, YaU Law Joum, (1918), XXII; State Rights and the Webb- 
Kenyan and the Liquor Law, by Winfred T. Deniaon, Columbia Law Ren, (1914), 
XTV ; Unlawftd Poesession of Liquor and the Webb-Kenyon Act, by liadsay Rogers, 
ibid. (1916), XVI, and see especially long list of articles on the Webb-Kenyon Act 
cited in Decieiona of the Supreme Court, 191^-1917, by Thomas R. PoweU, Amer, 
Pol, Sci. Rev. (1918), XII. 

' The Reed Bone-Dry Amendment, by J. K. Graves, Virginia Law Rev, (1917), IV ; 
United States v. Hill (1918), 248 U. S. 420; United States v. Simpson (1920), 252 
U. S. 465; Life, Liberty and Liquor, by Lindsay Rogers, Virginia Law Rev, (1919), VI. 

^Strikes and Trusts, Amer. Law Rev. (1893), XXVII. For discussion of the 
Tnuta and the Sherman Act at varying stages in its early career, see the following 



456 THE SUPREME COURT 

after the passage of the Act, decisions in the Standard Oil 
Co. and American Tobacco Co. Cases, 221 U. S. 1, made 
more clear the general scope and limitations of the Na- 
tional control of combination in restraint of interstate 
trade.^ Later decisions have not materially extended the 
National power. When it appeared that mireasonable 
restraint and improper methods by which the restraint 
was attained or maintained were to be controlling fea- 
tures in determining thelegality of the corporate combina- 
tion, it became more and more the general beUef that 
the National power over these interstate combinations 
should be exercised in regulation, rather than in destruc- 
tion, and that the economic evils — the evils of monop- 
oly control and unjust and imfair business methods — 
must be remedied, without attacking the principle of 
mere combination. It was largely on this theory that 
the Clayton Act and the Act establishing the Federal 
Trade Commission were adopted, in 1916.^ In addition 

articles : The Economic and Social Aspects of Trusts, by George Gunton, Pol. Soc. 
Qu. (1888), m; "Monopoly" under the National Anti-Trust Act, by William F. 
Dana, Hart. Law Reo, (1894), VII; Federal Trust Regulation, by Carman F. Ran- 
dolph, Pol 8ci. Qu, (1897), XII; Federal Anti-Trust Law, Report of Committee 
on JuriBprudenoe and Law Reform, Amer, Bar Ass. Rep. (1897), Amer. Law Res. 
(1897), XXXI; The Anti^Trust Act, The Case qf the Trans-Missouri Trafic Asso- 
ciation, by William D. Guthrie, Earv. Law Rev. (1897), XI ; Anti-Trust Legislation, 
by Frederick H. Cooke, Amer. Law Rev. (1899), XXXIU ; Trusts, by J. B. Clark, 
pa. Sci. Qu. (1900), XV. 

^ The Supreme Court and the Anti-Trust Act, by Victor Morawetz, Columbia Law 
Rev. (1910), X; The Sherman Anti-Trust Law, by M. S. Hottenstein, Amer. Law 
Rev. (1910), XLIV ; Has the Sugar Case been Overruled? by Stuart Chevalier, Odd.; 
The Standard Oil Decision, by H. A. Wilgus, Michigan Law Rev. (1911), IX; The 
Federal Anti-Trust Act, by Robert L. Raymond, Harv. Law Rev. (1910), XXIIl; 
"Anti-Trust** Legislation and Litigation, by William B. Homblower, Columbia 
Law Rev. (1911), XI ; The Standard Oil and Tobacco Cases, by Robert L. Raymond, 
ibid. (1911), XXV; The OU and Tobacco Cases, by Albert H. Walker, Amer. Law 
Rev. (1911), XLV ; The Recent Trust Decision, by H. R. Seager, Pol. Sci. Qu. (1911), 
XXVI; Recent Interpretation of the Sherman Act, by George W. Wickeraham, 
Michigan Law Rev. (1911), X; The Supreme Court and the Sherman Anti-Trust 
Act, by Harold Evans, Amer. Law Reg. (1911), UX; The Standard Oil Case and 
American Tobacco Cases, by Harold Evans, U. of P. Law Rev. (1912), LX; The 
Federal Anti-Trust Act, by Roland L. Foulke, Und. (1918), LXII ; What the Sherman 
Anti-Trust Act has Accomplished, by Alfred Hayes, Amer. Law Rev. (191S), XLVII. 

' Unfair Competition, by W. H. S. Stevens, Pol. Sci. Qu. (1914), XXIX; The 
New Anti-Trust Ad, by Henry R. Seager, ibid. (1915), XXX; The Federal Trade 



COMMERCE AND THE POLICE POWER 467 

Congress legislated regarding monopolies and restraint 
of trade by enacting sections 73 to 77 of the Wilson 
Tariflf Act in 1894 as to combinations of importers, and 
in the Panama Canal Act of 1912, forbidding ownership 
by common carriers of competing water lines, and in 
the Hepburn Act of 1916 making it unlawful for a rail- 
road to transport, except for its own needs, any article 
manufactured, mined or produced by it directly or 
indirectly. 

Until the year 1903, Congress had confined the 
exercise of its powers imder the Commerce Clause almost 
entirely to the subject of intoxicating liquor, common 
carriers and trusts. In that year, however, the decision 
of the Court in the great case of Champion v. AmeSy 
188 U. S. 321, upholding the Act of 1895 by which 
Congress forbade all transportation of lottery tickets 
in interstate commerce, disclosed the existence of a 
hitherto imsuspected field of National power. While 
the Court] expressly stated that, in sustaining the right 
absolutely to prohibit interstate conunerce in lottery 
tickets, it must not be understood to uphold a general 
right to exclude any and all articles from such com- 
merce, nevertheless, the reasoning on which the opinion 
was based left a very wide discretion to Congress. 
Hitherto, it had been largely left to the States imder the 
exercise of the police power to decide each for itself 
what articles of commerce should or should not be 
brought within the State or produced within the State 
for transportation elsewhere. Now the Court an- 
nounced the doctrine that Congress might decide to 
what extent and under what regulations such articles 
might be transported. The decision caused much 
uneasiness among those who feared the vesting of such 

Commwion and DmdopmerU qf the Law tokich Led to It$ EetablishmerU, by James A. 
Fayne, Amer. Pd. 8ci. Rev. (1915), IX. 



468 THE SUPREME COURT 

broad powers in the National Government and such 
extinction of the State police powers; and many 
sympathized with Chief Justice Fuller's remark in his 
dissenting opinion that "our form of government may 
remain, notwithstanding legislation or decision, but, as 
long ago observed, it is with governments, as with 
religions, that the form may survive the substance of 
the faith." Many agreeing with the author of an 
article entitled: "Is Congress a Conservator of the 
Public Morals?", stated that the decision was to be 
viewed with alarm.^ "The case is of extraordinary 
interest and of far-reaching consequence. The Court 
has unfolded a vast power wrapped up in the Commerce 
Clause," said another writer. "The police powers of 
the State are extinct, so far as their exercise bears upon 
any of the subjects entrusted to Congress by the Con- 
stitution, notably upon intercommunication with the 
States or with foreign parts. In the execution of the 
powers over commerce and over the mails, Congress 
may enact laws which regulate the internal affairs of 
States that are not in any way dependent upon or 
connected with communication with the exterior," 
wrote another. The practical result of the case was 
the creation of a Federal police power — the right to 
regulate the manner of production, manufacture, sale 
and transportation of articles and the transportation of 
persons, through the medium of legislation professing 
to regulate commerce between the States. Congress 
took very swift advantage of the new field thus opened 
to it. In 1903 and 1905, it passed the Animal Con- 
tagion Disease and the enlarged Animal Quarantine 

^See Amer. Law Rev, (1904), XXXVIII; Three Constitutional Questions, by 
Alfred Russell, ibid. (1904), XXXVII; Is There a Federal Police Potoerf by Paul 
Fuller, Columbia Law Rev. (1904), IV ; The Exclusive Power of Congress to Regulate 
Interstate and Foreign Commerce, by David W. Brown, ibid.; LoAest Devdopment 
qf the Interstate Commerce Power, by Edward B. Whitney, Michigan Law 
Rev, (1902), I. 



COMMERCE AND THE POLICE POWER 459 

Acts ; in 1906, the Pure Food Act ; in 1905 and 1906, 
the Metals Hallmark Acts; in 1905, 1912, 1915 and 
1917, the Plant Quarantine Acts; in 1907, the Meat 
Inspection Act ; in 1909 and 1914, the Narcotics Acts ; 
in 1910, the White Slave Traffic Act; in 1910, the 
Insecticide Act; in 1912, the Apple-Grading Act and 
the Adulterated-Seed Act; in 1913, the Serums and 
Toxins Act ; in 1916, the Warehouse Act and the Grain 
Standards Act ; in 1916, the Child Labor Act.^ 

All this legislative activity in fields theretofore re- 
served to State action was the subject of constant com- 
ment by legal writers,^ and the pendency in Congress 
of bills to regulate child labor in the States by debarring 
the products of such labor from interstate transporta- 
tion presented the question as to the limits of Congres- 
sional power in a new light. "The new proposition is 
this," said Attorney-General Knox in 1907, "that 
Congress has the power to regulate commerce, includ- 
ing its instrumentalities, and likermse power to regulate 
the persons by whom articles of commerce are produced 
in respect to matters not connected with commerce . . . , 
to prohibit articles of value, which are in themselves 
innocuous and which are lawfully made or produced in 
a State, for reasons not aflFecting interstate commerce."^ 

1 See Hi^lUe Egg Co. v. UniUd States (1911), 220 U. S. 45, suBtaining the Pure 
Food Act; Hoke v. United States, 227 U. S. 808, sustaining the White Slave Traffic 
Act; and United States v. Jin Fuey Moy (1910), 241 U. S. 894, sustaining the Nar- 
cotics Act of 1914. 

' Power of Congress to Regttiate Commerce, by Frank J. Goodnow, Pol, 8ei. Qu. 
(1910), XXV ; Powers of Regidalion Vested in Congress, by Max Pam, Harv. Law 
Ree. (1910), XXIV; Federal Control qf Interstate Commerce, by George W. Wicker- 
sham, ibid. (1910), XXIII ; Nature and Scope of the Power of Congress to Regulate 
Commerce, by Frederick H. Cooke, Columbia Law Rev. (1911), XI; The Exclusive 
Power of Congress over Interstate Commerce, by Charles W. Needham, ibid. 

* The Exclusiveness of the Power of Congress over Interstate and Foreign Commerce, 
by James S. Rogers, Amer. Law Rev. (1005), LIU; Recent Devdopments in the Law 
Relating to Interstate Commerce, by Morris M. Cohn, Amer. Law Rev. (1908), XLII ; 
The Development qf the Federal Power to Regulate Commerce, by Philander C. Knox, 
Yale Law Joum. (1908), XVII ; Pou)er of the States over Commodities Excluded by 
Congresefrom Interstate Commerce, by Lindsay Rogers, Yale Law Joum. (1915)» 



4i60 THE SUPREME COURT] 

Fear of this legislative trend was expressed before 
the American Bar Association in 1917 : " This case was 
undoubtedly the Pandora's box from which burst forth 
with amazing speed and ever-increasing velocity the 
tendency to federalize and centralize, beyond the 
dreams of Alexander EEamilton, a government whose 
centripetal forces had already been too greatly strength- 
ened as a result of the Civil War. It was the beginning 
of that steady, unending, unceasing movement in Con- 
gress to stretch far beyond its real meaning and far 
beyond what any fair construction, however liberal, 
warranted the Commerce Clause of the Constitution. 
This movement has progressed so steadily, has been 
pressed so persistently, and has gone so far that it 
threatens to utterly annihilate our dual system of 
government, to utterly destroy the police powers of 
the several States, and finally to be about to deprive 
our people of the inestimable blessings of local self- 
government, imless it be checked speedily and sharply."^ 
That there was a limit to Congressional power under 
the Commerce Clause was finally settled by the Court 
in Hammer v. Dagenharty 247 U. S. 251, in 1918, when it 
held the Child Labor Law of 1916 unconstitutional.* 

While, however, the so-called National poKce powers 
may be restricted imder the Commerce Clause, it is to 
be noted that there seems to be very little restriction on 
the extent to which the National Government may 
regulate, under the taxing power, the production, manu- 
facture, sale and transportation of articles within the 
States. As early as 1869, it was held, in Veazie Bank v. 

XXrV; CongresnoTud Prohibitum qflnierstate Commerce, by Thomas I. Parkinson* 
Columbia Law Rev. (1916), XVI; Working towards a Federal Domain, by R. L. 
Schuyler, Pol. Sci. Qu, (1913). XXVII. 

^ The Regtdatum cf Commerce Between the States, by Thomas W. Hardwick, Amer. 
Bar Ass, Rep. (1917). 

^hntaee The Federal P<nDer to RegidaU Child ljdH^phyWiS)i^ 
Law Rev. (1914)» LXII. 



COMMERCE AND THE POLICE POWER 461 

FennOy 8 Wall, 633, that the taxing power might be 
exercised for the purpose of destroying or regulating 
the thing taxed; and in 1904, this doctrine received 
further affirmation in the decision in McCray v. United 
States, 195 U. S. 27, involving the Oleomargarine Act.^ 
The number of subjects, the manufacture and sale of 
which Congress has regulated in great detail is large and 
constantly increasing, of which the following statutes 
are an example — the Oleomargarine Acts of 1886 and 
1902 ; the Filled Cheese Act of 1896 ; the Mixed-Flour 
Act of 1898 ; the White Phosphorus Match Act of 1912 ; 
the Harrison Narcotics Act of 1914 ; the Cotton Fix- 
tures Act of 1916. 

While it has thus upheld Congressional powers of 
affirmative action under the Commerce Clause, and 
under the provisions of the Constitution relating to post- 
roads and taxes, and has thus developed a so-called 
National police power, the Court has demonstrated 
an equally strong desire to uphold State legislation 
passed in the exercise of the State police power, when- 
ever such legislation could be construed as no inter- 
ference with the authority of the National Government. 
State laws challenged as violative of the Fourteenth 
Amendment and enacted imder the police power gen- 
erally involve mere questions between the State and 
the individual. But those State laws which are chal- 
lenged as in conflict with the Commerce Clause often 
present questions of the respective rights of the State 
and of the National Governments. The difficulty of 
drawing the line between permissible protection of the 
public welfare by the State and unlawful encroachment 

^ See also ComsU v. Coyne (1904), 102 U. S. 418 ; Federal Taxation cf IniereUde 
Commerce, by Simeon £. Baldwin, Harv. Law Rev. (1908), XXII; Nullification 
by Indirection, by James M. Beck, Und. (1910), XXIII ; Povper of Regulation Vested 
in Congress, by Max Pam, ibid, (1910), XXTV ; May Congress Levy Money ExaC" 
Hone Designated as "Taxes" Solely for the Purpose of Destruction f by John B. 
Waite, Michigan Law Rm. (1906), VI. 



462 THE SUPREME COURT 

on the Nation's power to regulate commerce has been 
recognized by the invention of the popular phrase, 
"the twilight zone." ^ 

The police power of a State, so far as the Federal 
Constitution is concerned, ultimately means that degree 
of interference with individual freedom of action or with 
use of private property in the interest of the public 
welfare, which the Judiciary considers not to be arbi- 
trary, or not to be imduly violative of National rights 
in commerce between the States, at any given time and 
in the light of prevailing conditions. It is the judicial 
interpretation of the concept of private property, the 
fixing of the metes and bounds to the use of such prop- 
erty and to the liberty of the individual.^ By the 
Legislature primarily, but by the Judiciary finally, 
individual rights are adjusted to existing social and 
economic conditions, through the settlement of the 
question of how far governmental regulation may, with- 
out compensation, impose burdens on property or 
action. As a consequence, the idea of vested rights in 
any well governed community must develop correspond- 
ingly to the ever changing conditions of time and place. 
It is in the progressive recognition and application of 
this principle that the Court has performed one of its 
greatest services. 

State statutes regulative or restrictive of individual 

^ The boundary line between the State police power and the Conunerce Clause 
has been the subject of a vast amount of discussion ; for early articles, see What U 
the Test of a Regulation cf Foreign or Interstate Commerce f by Louis M. Greeley, 
Harv. Law Rev, (1887), I, stating that "no class of cases is more perplexing" ; Po- 
lice Power and Interstate Commerce, by William R. Howland, ibid,, TV, attacking 
the decision in Leisy v. Hardin; The Relation of the Police Power qf the States to the 
Commerce Power of the Nation, by Charles C. Binney, Amer. Law Rev. (1891), XXV. 

• Property and Contract (1918), by Richard T. Ely, I, 205-226, II, 699. See 
What is the Police Pov>erf by Walter W. Cook, Columbia Law Rev. (1907), VII; 
The Sociological InterprettUion of Law, by Joseph H. Drake, Michigan Law Res. 
(1918), XVl : "The invocation and application of the police power is nothing more 
than an appeal to the sociological method of interpreting our Constitution and 
Uws." 



COMMERCE AND THE POLICE POWER 46S 

property or action, and passed under alleged authority 
of the State police power, have been attacked in the 
Court in almost six hundred cases during the past 
thirty years. The bulk of these statutes were claimed 
to violate the Fourteenth Amendment ; the remainder 
were claimed by the parties aflFected to constitute an 
interference with National control of conmierce. With 
comparatively few exceptions of importance, the Court 
has upheld the validity of the State legislation.^ Be- 
tween the years 1889 and 1918 inclusive, it has decided 
about 790 cases, in which statutes were attacked imder 
the Due Process and the Equal Protection of the Law 
Clauses of the Fourteenth Amendment. Of these, 422 
involved State statutes passed under the police power ; 
196, State statutes passed under the taxing power ; and 
172, State statutes prescribing administrative or judi- 
cial procedure. Of these 422 cases arising under the 
police power (being those which involved the new and 
progressive social and economic legislation of modem 
times), the Court held the statutes unconstitutional in 
63 cases, two thirds of which, however, involved the 
rates and regulation of public-service corporations; of 
the remainder, 2 involved municipal improvements; 
6, anti-trust laws; and only 14 involved legislation 
affecting the general rights and liberties of individuals. 
The decision in only 2 of these 14 cases involving what 
has been termed "social justice'* legislation aroused any 
widespread criticism, one being Lochner v. New York, in 
1906, which, if not now practically overruled, is certain 
in the near future to be disregarded by the Court ; * 

^ See for detailed synopsis of cases to the year 1912, The Progresiiomeu qf the 
United States Supreme Court, by Charles Warren, Columbia Law Rev, (1918), XIII, 
reprinted as Sen. Doe, SO, 63d Cong,, 1st Sees, (191S) ; A Bulwark to the State 
Police Power, by Charles Warren, Columbia Law Ree, (1913), XIII; The Honor 
Roll of the Police Power, by B. L. Mayes, Amer, Law Ree. (1910), L. 

' But see Police Power and Civil Liberty, by S. Whitney Dunscumb, Jr., Columbia 
Law Rm. (1906)» VI, terming the Court a "bulwark of American liberty", because 



464 THE SUPREME COURT 

the other was Coppage v. Kansas ^ 2S6 U. S. 1, decided 
in 1915, in which a Kansas law forbidding employers 
to coerce, require or influence employees not to join or 
remain in labor-unions was held invalid — a decision 
which, with the increasing development of the aspect 
of the social desirability of labor-unions, is likely to be 
overruled.* 

A similar record was made in cases in which the State 
statutes were challenged under the Commerce Clause 
of the Constitution, and in which the Court has upheld 
the State legislation as within the scope of the poUee 
power in substantially all cases involving State statutes 
promotive of "social justice/' Under the Commerce 
Clause, the Court decided 216 cases, of which 142 in- 
volved statutes passed under the police power, and 94 
under the taxing power In these 142 cases arising 
under the police power, the Court held the State 
statutes unconstitutional in 46, of which 24 were cor- 
poration regulation laws, 9 were liquor and cigarette 
laws, and only 13 were general progressive legislation. 
In no one of these 13 cases was there any strong criticism 
of the decision. 

It may fairly be said that the support which the Court 
has thus given to the police power of the States has been 
one of the most remarkable features of its career. Cer- 
tainly a litigant who hopes to overturn the deliberate 
judgment of a State Legislature as expressed in this 
form of legislation has a very scanty hope of assistance 
from the Court.* 

of this decision. Lawyers and laymen alike have progressed £ar from such an 
opinion at the present time. 

1 The Living Law, by Louis D. Brandeis, lUinois Law Rn. (1916), X; "In the 
Coppage Case, the Supreme Court showed the potency of mental prepossessions." 

' A more detailed statement of laws upheld by the Court will serve to make 
this even clearer. Of laws regulating sales of pure food and other merchandise 
and the conduct of mercantile business, the Court has upheld the law in 92 cases 
challenged under the Fourteenth Amendment and in 11 challenged under the 
Commeioe Clause; and in only 5 cases has it held a law unoonstitutiooal. Ism 



COMMERCE AND THE POLICE POWER 465 

So long as it shall adhere to the course which it has 
followed from 1889 to 1918, there will be no possible 
justification for the demand for recall of Judges or of 
judicial decisions — a cry which was, at its origin, 
based purely on ignorance of the facts as to the Court's 
decisions.^ At present, the demand made by certain 
labor organizations for the abolition of the Court's 
power to pass upon the constitutionality of statutes 
seems based wholly on the claim that the Court has 

regulating wages it has upheld in 12 cases; r^ating to employees' injuries in 9 
cases under the Fourteenth Amendment, and 1 under the Coouneroe Clause; 
workmen's compensation laws in 5 under the Fourteenth Amendment, and in 1 under 
the Conmierce Clause ; other labor laws in 8 cases under the Fourteenth Amend- 
ment, and 1 under the Commerce Clause. In only 3 cases has it held a State stat- 
ute regarding labor unconstitutional. {Lochner v. New York (1905), 198 U. S. 
45 ; Coppage v. Komob (1915), 236 U. S. 1 ; Tmax v. Rai/^ (1915), 239 U. S. 33; 
but see also Adams v. Tanner (1917) , 224 U. S. 590.) Of anti-trust laws,