These misgivings persisted even as he was about to attend the first session of the Court’s new term. Sarah had remained in Bloomington, and he expressed his feelings to her:
If I had felt in Illinois, as I have this week, I never would have come to Washington. . . . What strikes everybody as the highest good fortune, has been to me like ashes. . . . I will try the judgeship and if it don’t suit me, or if I don’t suit it, I will resign.15
On December 10, Davis took his seat at the extreme left of the bench in the Capitol. The Court’s term began on that day, and usually ran until some time in April. For the rest of the year, Davis would sit as a trial judge in Illinois and Indiana.
The basic work of the Supreme Court at that time was quite different than what it is today. Now there are federal courts of appeals in twelve different geographic regions, and a litigant who loses at the trial level must go first to the court of appeals; if he loses there, he may then petition the Supreme Court for review. But the odds against success in this latter endeavor are overwhelming. Of the many thousands of petitions for review each term, the Court customarily grants fewer than one hundred. The votes of four of the nine justices are required in order to grant review, and this practice limits the Court’s decisions to cases of truly national importance.
But in Davis’ time, there were no federal courts of appeals, and one who lost in the trial court could appeal directly to the Supreme Court. And the Court had no discretion to decline to hear an appeal; it was required to decide every case brought to it. So while the Court then did on occasion review a case of great national importance—Davis would write the opinion in such a case four years hence1—such cases were few and far between. The staple of judicial business was cases that were brought into federal court only because the plaintiff and defendant were citizens of two different states. There was no need for any sort of federal legal question to be decided. The result was that the justices spent most of their time on cases which involved property or contract law of a particular state, with no consequences except for the parties themselves.
Davis would repeatedly vow to confine himself to his judicial work. But he was a politician at heart, and frequently intervened, not only with Lincoln, but with various government departments, to obtain clerkships or military promotions for the son of a friend, or the son of a friend of a friend. He wore out his welcome with Lincoln, and complained that Lincoln did not seek his advice on any subject. When Sarah chided him on his absence from home, he replied:
I cannot resign my office now until I have satisfied the public mind that I am competent to discharge its duties. When I have done that, I am perfectly willing to resign and live quietly with you and my children in Illinois.16
After Lincoln was assassinated in April 1865, Davis was appointed administrator of his estate by an Illinois court and took on the extrajudicial duty of dealing with Lincoln’s wife Mary—not an easy task. During the two years he held this position, he increased the value of the estate by prudent investments, and when it was wound up he refused to take any part of the customary administrator’s fees.
In March 1866, the Milligan case was argued to the Supreme Court. Davis’ opinion for the majority pleased the Democrats but displeased the radical element in the Republican Party. The Washington Chronicle proclaimed that “the friends of traitors will be glad that treason, once vanquished upon the battle field and hunted from every other retreat, has at last found a shelter in the bosom of the Supreme Court.” The Philadelphia North American pointed out the common last name of the writer of the Court’s opinion and the President of the Confederacy. Davis, never completely self-assured of his ability as a judge, was hurt by these criticisms. But he held firmly to his view that the opinion was correct, saying:
This Court would be a hell on earth to me unless I can decide questions according to the light which God has given me. I hope that God will give me strength to utter my convictions and never to quail before any political tempest.17
The radical attack on his Milligan opinion, together with his dissatisfaction with that element’s determination to impeach and convict President Andrew Johnson, caused Davis to gradually abandon allegiance to the Republican Party. But he regarded the Democratic Party as still tainted by its association with secession. He found little satisfaction in the day-to-day work of the Court:
I write the shortest opinions of anyone on the bench. If I had to . . . write legal essays as some judges do, I would quit the concern. 18
The ground was now ready for the presidential seed to be planted, and in 1871 a group of Illinois legislators urged him to run for President. He thanked them but said he was not interested. But support for his candidacy began to grow. In early 1872, the call went out for a convention of Liberal Republicans—anti-Grant—to meet in Cincinnati, as described in Chapter 1. Davis was regarded as a front-runner for this nomination until the eleventh hour, when the cabal of newspaper publishers decided to prevent his nomination. The nomination, of course, went to Horace Greeley, and Davis voted for Greeley.
By the time Morrison Waite became Chief Justice in 1874, Davis was sixty years old and not in robust health. The Court’s term, originally less than five months long, now stretched out for more than seven months to accommodate its greatly increased docket. He almost decided to resign, but was persuaded by friends to at least wait until Grant was no longer President.
So one might say that the congressional drafters of the Commission bill had some warning of the fact that Davis would not long remain on the Court. But in order to serve the purposes of the bill, he didn’t need to remain indefinitely; the Commission’s work would surely be finished by March 4, the last day of Grant’s presidency.
At the very time the Electoral Commission bill was moving through Congress, however, the Illinois legislature met to elect a United States senator from that state. The term of Republican incumbent John A. Logan had expired. He sought reelection and was opposed by Democrat John M. Palmer. The Democrats and Republicans in the joint session of the Illinois legislature were almost evenly divided, and the balance of power was held by a small group of Independents. This group, together with the Democrats, gave Davis a few votes in the early balloting, but for a number of ballots after that he received no votes. Then on the thirty-fifth ballot—a week into the session—the same group of Independents and Democrats gave Davis ninety-seven votes— just short of the number needed for election. The following day, he received the necessary additional votes and was elected senator.
Davis knew of the balloting in Illinois but thought he had been eliminated early in the race and was surprised at his election. Yet it fit in perfectly with his plans; he need not look for another job after March 4, 1877. He could still, of course, serve on the Commission, since his senatorial term would not begin until March 4, but in spite of the pleas of the democratically inclined justices named to the Commission, he declined to do so. They would have to find another justice, but another with Davis’ independent status was unavailable. All of the remaining members had been appointed by Republican presidents.
— CHAPTER 7 —
THE MOST SENIOR of the justices designated by name in the law creating the Electoral Commission was Nathan Clifford of Maine. He was a loyal Democrat, steeped in the tradition of Jacksonian democracy. He held high public office in the days of the Democratic ascendancy before the Civil War and was something of an anachronism afterward.
Clifford was born in the village of Rumney, New Hampshire, in 1803. He turned to the study of law, was admitted to the bar, and then moved to Newfield, Maine, to begin his practice and was soon elected as a Democratic delegate to the lower house of the Maine legislature.
He was a large man, in robust health, and willing to work hard. He was selected Speaker for two of his last three terms in that body, and served as a delegate to the Democratic National Convention in Baltimore in 1832. Two years later he was appointed attorney general of Maine, and in 1838 was elected to Congress. He served two terms there b
efore a redistricting deprived him of another term. But when James K. Polk was elected President in 1844, he named Clifford as his Attorney General.
Senator Roscoe Conkling, c. 1860s.
Clifford was called upon by Polk to handle delicate negotiations concerning the conduct of the Mexican War. Polk and his Secretary of State, James Buchanan, disagreed over the conduct of that conflict, and Clifford served as an intermediary between them. After the United States forces had won, Nicholas Trist, the American commissioner, negotiated a treaty with Mexico to conclude the war. But when it was presented to the United States Senate, that body proceeded to amend the treaty. Clifford was one of the emissaries sent by Polk to Mexico to persuade the Mexican authorities to accept the amendments. He remained in Mexico as minister plenipotentiary to that country until Zachary Taylor succeeded Polk as President in 1849.
Clifford then returned to the practice of law in Portland, Maine, and though he argued at least one case before the United States Supreme Court, his work did not bring him financial independence. When in 1857 the New England seat on the Supreme Court became vacant upon the resignation of Benjamin Curtis, Buchanan quite naturally turned to his former colleague in the Polk administration to fill it. Clifford’s nomination brought forth considerable protests from northern antislavery advocates. Though a New Englander, he was known as a dough-face, a northerner with southern sympathies.
The New York Evening Post (January 14–15, 1858) commented:
Mr. Clifford owes his appointment exclusively to his party associations, unsupported by the wishes or recommendation of the bar of his circuit. 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.
On January 12, 1858, the Senate confirmed him by the narrow margin of 26 to 23. The narrowness of the margin showed that the repercussions from the Kansas–Nebraska Act were already dividing the Democratic Party. Every senator from the eleven states which would later secede voted to confirm Clifford, but only four voted that way from the remaining states.
Nathan Clifford would serve twenty-three years on the Court, writing more than his share of the Court’s opinions in that time. But he authored none of that body’s important constitutional opinions, specializing instead in the fields of maritime and commercial law and Mexican land grants. He would remain a Democrat, forgoing an opportunity to retire in hopes that a Democratic President would be able to name his successor. Even when incapacitated by a stroke in 1880, he refused to resign. He lingered on as an invalid until his death in the summer of 1881.
THE SECOND of the two Democrats designated in the Electoral Commission law was Stephen J. Field of California. He was a man of unusual ability, well respected by the bar for his work on the supreme court of California at the time of his appointment to the United States Supreme Court. Modesty, however, was not one of his prominent traits. He coupled with his ability and legal knowledge a determination to see his views prevail, a quality which made him one of the most influential justices of his time. But this characteristic also had its negative side; he would pursue personal disputes to the point of vindictiveness and would act as a judge in a manner which was debatable even by the looser ethical standards of his own day. His experience in the gold-rush days of California, a true chapter of the “wild, wild west”— makes his life more interesting than that of a typical Supreme Court justice.
Field’s biographer, Carl J. Swisher, describes his appearance at the time he took his seat on the Supreme Court:
He was a trimly built man of forty-seven years. Curly, dark brown hair covered his unusually large head, save for a bald spot at the top; and a beard of the same color adorned his chin. Piercing, blue-gray eyes looked out from under heavy brows, eyes which suggested something of the alertness of the brain which lay behind them. His demeanor was that of a solemn, judicial poise.1
Stephen Field was born in Haddam, Connecticut, in 1816. His was a talented family: he would become a justice of the Supreme Court of the United States, his brother David Dudley Field would become a nationally known New York lawyer and politician, and his brother Cyrus Field would lay the transatlantic cable in 1866.
Stephen Field attended Williams College for four years, then went to New York to study law in the office of his brother David. He became a junior partner with his brother and practiced there from 1841 until 1848. In 1849, word of the discovery of gold in California at Sutter’s Mill lured him, along with thousands of others, to the goldfields.
There were only two ways to go there from the East Coast, since there was not yet any transcontinental railroad. One could take a ship around Cape Horn and sail back up the Pacific to San Francisco, or one could take a ship to the Isthmus of Panama, cross the isthmus, and take another ship from the Pacific side up to San Francisco. Field chose the latter route, and after contracting cholera in Panama, he finally sailed through the Golden Gate in late December 1849.
San Francisco was crowded with men newly arrived from all over the world. After a few days in the city, Field took a river-boat up the Sacramento River to the newly established city of Marysville, where he was immediately elected alcalde—an office in the Spanish system of government which corresponded roughly to justice of the peace.
Field was displaced the following year with the arrival of a district judge, William R. Turner, who was appointed under the newly adopted California constitution. Field and Turner had a series of run-ins, resulting in Field’s being cited for contempt and fined a substantial amount of money. Field had his revenge when he drafted a bill which rearranged the state judicial districts so that Turner was transferred to the far northern wilderness of Trinity and Klamath Counties. It was perhaps the first, but certainly not the last, of the personal feuds which dogged him.
He built a very successful law practice in Marysville, and appeared as counsel in the California Supreme Court on sixty different occasions. He became a leader of the state bar, with an annual income of over $40,000, but was not satisfied with his position. In 1857, he was elected to the California Supreme Court, giving up his lucrative practice for a state salary of $6,000 per year. He joined with Justice Peter Burnett and Justice David Terry on that court. Terry had come on the court two years earlier and was possessed of a fiery temper. He resigned from the bench two years later and thereupon challenged United States Senator David C. Broderick to a duel. Broderick was killed. Terry’s temper would come back to haunt Field many years later.
Field sat on the supreme court of California for six years and was its recognized leader at a time when it handed down formative decisions in the law of the state. When Congress created a Tenth Circuit, and a tenth seat on the Supreme Court in 1863, the bar of the Pacific coast supported him for the appointment. His brother David Dudley Field had played a part in the organization of the Republican Party and in the nomination of Lincoln as its candidate for President in 1860. When another old friend of Lincoln’s went to him to urge Field’s appointment, the President agreed that Field was a fit candidate and asked only, “Does David want his brother to have it?” “Yes,” said the other. “Then he shall have it” was the instant reply, and the nomination was sent in that afternoon and confirmed by the Senate unanimously.2
During the thirty-four years he served on the nation’s high court, Field became a champion of property rights. The first major cases to come before the Court involving the Fourteenth Amendment, enacted after the Civil War, were known as the Slaughterhouse Cases. In 1869, a corrupt Louisiana legislature passed a law prohibiting the slaughter of animals throughout greater New Orleans except in the facility of one particular corporation. The other butchers in the city sued, claiming that they were denied their right to engage in a legitimate business. They relied on a provision of the Fourteenth Amendment which forbade a state to deprive any person of the “privileges and immunities” of citizens of the United States.
The Court divided 5 to 4 on
the question, with Justice Miller speaking for the majority which denied relief to the butchers. He observed that the amendment had been adopted for the benefit of the newly freed slaves and not for rival businessmen. Justice Field wrote an impassioned dissent, saying that the Amendment secured to everyone their “common right” as citizens. Field’s expansive view did not prevail in this case, but eventually it would become embedded in the Court’s Fourteenth Amendment jurisprudence through another provision of that amendment.
Field, like his colleagues, was required to sit as a circuit judge—he in California—for a part of the time that the Supreme Court was not in session in Washington. It was this duty which led to a fateful encounter with David Terry. William Sharon, a mining tycoon and senator from Nevada, conducted an amorous affair with a much younger woman, Sarah Hill. When it broke up, she claimed that they had secretly entered into a marriage contract, and sued in state court asking for divorce, alimony, and a part of Sharon’s property. Sharon brought his own lawsuit in federal court, seeking to cancel the purported marriage contract as a fraud and a forgery.
Throughout protracted deposition hearings in the federal case, Sarah Hill became abusive and threatened to shoot one of the opposing lawyers. Sharon’s counsel appealed to the circuit court to restrain her. Field sat with another circuit judge, Lorenzo Sawyer, who was hearing the principal case, and they ordered the marshal to search Sarah Hill for weapons whenever she appeared at a deposition.
The circuit court ruled against Hill on the merits of her case later, but meanwhile Sharon had died and David Terry had become the attorney for Sarah Hill. Two weeks after the adverse decision of the circuit court, they were married. In a later proceeding in the same case, Hill, accompanied by Terry, became violent in the courtroom and had to be restrained over Terry’s strong objection. Hill immediately afterward threatened to kill Field. Terry and Hill were both held in contempt of court.
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