The President’s Judge

By

Thomas G. King

 

 

 

 

Purpose of the paper is to trace the relationship of Abraham Lincoln to the Supreme Court.  I will be reviewing the major Supreme Court decisions of that day. (1861-1864)

 

DAVID DAVIS     FORT SUMTER

Abraham Lincoln was inaugurated President on March 4, 1861.  At that time there was one vacancy on the court.  It was inherited from President Buchanan’s Administration. 

One month after the inauguration, Justice John McLean of Ohio, a long occupant of the bench (one of the two dissenters from the majority in the Dread Scott decision), died.

Justice John A. Campbell of Alabama resigned to join the confederate cause.

The events at Fort Sumter forced the members of the Supreme Court, along with the rest of the nation, to chose sides and face the inevitable decision.  After Fort Sumter, it was necessary to declare for the union or against it.

Three members of the court, those whose states withdrew from the union to combat federal authority, faced their decision with particular foreboding. 

-Justice James M. Wayne of George and Justice John Cartron of Tennessee, turned their backs upon succession despite intimidation financial ruin and pressure from family and friends. 

The Supreme Court that Lincoln encountered was overwhelmingly Democrat.  Only one of the Justices John McLean was a Republican and even he could trace his political roots to Andrew Jackson.  (McLean was Jackson’s first Supreme Court appointment in 1829). 

Four of the Justices’ were from slaveholding states and supported slavery, both publicly and privately. 

Three were northern democrats who supported slavery or at least did not oppose it.  (Democrats of this stripe were called dough faces, because they could be easily twisted and shaped.) 

-Before May 1860, the court had been an even more southern pro-slavery and democratic.  However, during that month, Associate Justice Peter V. Daniel of Virginia (Van Buren) died after 18 years of Supreme Court service.

          -Associate Justice James M. Wayne of Georgia (Andrew Jackson) was second in seniority to McLean.  Wayne was now 71 years old and beginning his 27th year on the court.  He had been a slave owner, from Savannah, a lawyer, a state court judge, mayor, and a democratic congressman.  Before he began his Supreme Court career, he supported slavery, he was the only associate justice who completely agreed with Taney’s Dread Scott decision in 1857. 

Associate Justice John Catron of Tennessee (VanBuren) was next in seniority.  Catron managed Martin Van Buren’s presidential campaign in Tennessee in 1836 and on the very last day of Jackson’s presidency, he was nominated to be an associate justice of the United States Supreme Court. 

          Associate Justice Samuel Nelson of New York (John Tyler) was 68 years old and beginning his 17th year on the court. 

-democrat,

-a trial and appellate court judge,

-spent his boyhood on a farm in upstate New York,

-studied at Vermont’s Middleburry College. 

 

Nelson was friendly to southern interest and his father is rumored to have financed his college education through the sale of a negro slave girl, the fact that may have given the young man an early pro slavery inclination.  Whether or not this was true, his votes on the Supreme Court reveal the tendency to be, if not pro slavery, at least (anti anti-slavery). 

Next in seniority was Associate Justice Robert C. Grier of Pennsylvania (James Polk).[1]

-supported the Supreme Court’s pro slavery positions while taking a centrist position

Associate Justice Nathan Clifford of Maine (James Buchanan) was the junior member of the Supreme Court in 1861.  -twice elected to the U.S. House of Representatives. 

-A democratic party regular,

Clifford was a northern man with southern sympathies.

TANEY

          Roger Brooke Taney,

-Chief Justice at the time of Lincoln’s inauguration,

-career was not stormy until the slavery controversy,

-was interested in colonizing “negroes” in Africa,

-believed slavery would continue as long as “negroes” lived in the United States,

-authored Dred Scott Decision,

-condemned efforts to nullify Fugitive Slave Act,

resentment against him during the war years was almost boundless,

-his views were not held by a majority of the court during the war,

-remained head of nation’s highest court until death October 12, 1864 at age 87. 

 

Regarding the war,

-deemed a peaceful separation of the north and south preferable to a union that was made possible only by military force and coercion,

-denied to federal government the power to sustain itself to save itself from insurrection,

-maintained that constitution bestows no greater power upon the federal government in war than in peace.

 

The Court now lacked one-third of its normal personnel, but the President, harassed by demands and issues upon which the very existence of the nation depended, made no appointments.  The burning need, demonstrated at Fort Sumter, was to prepare for war; all requirements of government were subordinated to military and political considerations in relation to that objective.

          The Constitution of the United States had a provision entitled The Fugitives Slave Law, which stated that; “Negroes” could not be citizens and once a slave, always a slave.[2]

          In his inauguration address, Lincoln stated an intention to support this provision.  There was some difference in opinion on whether it should be enforced by national or state authority.

          On the question of secession, Lincoln stated he believed that the union was perpetual and could not unilaterally be severed by any state or states.  Perpetuity was implied, if not expressed, in the fundamental law of all national governments.  He pleaded with states that had already joined the confederacy to reconsider their positions and with states that had not taken steps toward this union to reflect before entering upon so grave a matter as the destruction of our national fabric.  Lincoln believed that the central idea of succession is the essence of anarchy.[3] [4] [5]

          To the one Supreme Court vacancy that Lincoln inherited from the Buchanan Administration, there were now added two more vacancies. 

The burning need, demonstrated at Fort Sumter, was to prepare for war:

THE PRIZE/BLOCKADE CASES

War vs. Insurrection

Almost two years into the war, the first of the war related cases came before the Supreme Court.  The Lincoln Administration maintained that the conflict was an insurrection and not a war.  If it was a war, that would be an admission to foreign powers to recognize the Confederacy.  The Confederacy desired assistance from foreign powers, such as England, which Lincoln was trying to prevent.

          The President instituted blockade of the entire coastline of the Confederacy.  The blockade was a military necessity, yet it invited complications.  This implied action against another sovereign power; consequently the President’s proclamation granted the South belligerent status. 

          If the conflict was insurrection rather than war, then the seizure of vessels by blockading units was illegal, and foreign trade was thwarted illegally.  If the Supreme Court ruled that it was really war, this would indicate that through blockade the United States had given the Confideracy recognition, and foreign powers would be within their rights to do the same.  On the other hand, if the Court ruled that no war existed either before or after the action of Congress on July 13, blockade of the enemy would be illegal.  Under such circumstances ability of the Union to suppress the South would be doubtful.  Any one of these prospects was gloomy.

          A decision by the Court upholding legality of the blockade would establish that war actually existed.  And although the administration hoped to sustain the legality of the blockade, it had to deny that war existed or face foreign assistance to the South.  With this prospect it is not surprising that the Congress added a tenth Justice to the Supreme Court. (Justice Field of California/Oregon)

          Lincoln’s appointees could be expected to support his policies.

          Justice Robert C. Grier (PA) spoke for the majority.  He was joined by the three Lincoln appointees – Swayne (OH), Miller (IA), and Davis (IL) – and the loyal and devoted Justice James M. Wayne of Georgia.  The court held that Lincoln’s blockade was proper.

          Grier wrote that the true test of whether civil war exists is to determine whether “the regular course of justice was interrupted by revolt, rebellion, or insurrection.”  When interference with civil courts exists, the Supreme Court ruled, civil war exists, and the government may prosecute it as if a foreign foe were invading the country.

          Grier pointed out, it is impossible for Congress to declare war upon one or several of the states.  When an emergency such as insurrection occurs, the President has the responsibility of repelling the invasion and suppressing the insurrection.  Whether it is domestic or foreign challenge, war exists even though the declaration of it is only “unilateral,” said Justice Grier.

          The majority of the Court ruled that the conflict between the North and the South was war – despite the fact that there was no declaration of war.

Justice Grier (PA) ruled that all persons residing within the territory of the Confederacy were liable to treatment as enemies and their property was subject to seizure as “enemies’ property.”  Grier held that the personal allegiance of the owner did not alone determine the status of property.  Four cases were consolidated for argument before the Supreme Court.

-The Amy Warwick all of its claimants were residents of Virginia so the brig was legal prize. 

-The Hiawatha was condemned as prize because it left Virginia on May 18, 1861, although the fifteen days of grace that had been granted by the proclamations expired on May 15, Grier ruled that a vessel in a blockaded port is “presumed to have notice of blockade as soon as it commences. 

-The Brilliante was condemned because it tried to escape through the blockade. 

-The Crenshaw was condemned because it attempted to run the blockade.  All property on board The Crenshaw was condemned as “enemies’ property” except tobacco belonging to Irwin and Company which was bought and paid for before the war began. 

 

          The decision of the Supreme Court reinvigorated a nation that had seen much tragedy and defeat for two long years.  A defeat at the hands of the Court at this time would have shattered the morale of the Union.  Grier (PA), Wayne (GA), Swayne (OH), Miller (IA), Davis (IL) – these were the men whose devotion to the Union secured it during this time of unparalleled challenge.

Davis Davis, Lincoln’s campaign manager of Illinois, was appointed to the court by President Lincoln.

While the Supreme Court was being subjected to the renewed threats of the radicals, it was hearing arguments in two cases of primary importance concerning the question of Legal Tender i.e. unsecured paper money.  As a matter of public necessity, the Lincoln Administration decided to resort to such money in order to bolster Union finances.  Congress enacted the Legal Tender Act authorizing the Treasury to issue 150 million dollars of non-interest bearing notes, which were declared legal tender for all debts of a public and private nature.  Ultimately, 432 million green backs were issued.  The New York World, a popular newspaper of that time wrote that the Constitution does not contain a single word giving government authority to force its paper obligation of money upon the people. 

In Roosevelt versus Meyer, the lower court denied Congress the right to issue paper money without adequate security to support it.  Appeal was made to the highest court of the State.  In September of 1863, the New York Court of Errors ruled in the case of Metropolitan Bank versus VanDyke, that Congress had the power to enact legal tender.  Thus, reversing the Taney decision of the Supreme Court of New York in the case of Roosevelt versus Meyer.  Roosevelt appealed to the Supreme Court.

The question presented was whether Roosevelt was obliged to accept legal tender notes in payment of $8,171, which Meyer owed him.  Roosevelt refused to accept anything except gold.  The case wound up in the Supreme Court.

Justice Wayne (GA) (Jackson) announced that the court had no jurisdiction to reverse the judgment and the dismissal of the case was directed. 

Chief Justice Taney was absent and did not take part in the hearing of the case.  The court ignored Roosevelt’s appeal that his constitutional rights were violated.  To examine these constitutional rights might have led the court to a decision adverse to the administration (war effort).  It interpreted the Judiciary Act narrowly and sidestepped the broad issues involved.  The strong possibility existed that if a court were to review the decision, the administration would have suffered defeat.  Self denial had becomes a means for the friends of Lincoln on the court to prevent interference for the administration.

          Taney privately criticized the decision.  If Taney had not been absent would he have persuaded other justices to rule against the Lincoln block.

Taney was too ill to attend Court when the case was heard, he prepared an undelivered “opinion” that branded legal tender unconstitutional.

          No other case involving legal tender made its way to the Court during the war.  If the Court had had to rule upon the issue an adverse decision was likely.

ARBITRARY ARREST

 

          Clement Valindham, a prominent politician from Ohio and a former member of the House of Representatives and one of the leaders in the Copperhead Movement[6], was arrested for treason without process and arraigned before a military commission on order of major general Ambrose E. Burnside, Commander of the military department of Ohio.  At a public meeting, Vallandigham declared that:

“Present war was a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union but for the purpose of crushing out liberty and to erect a despotism.”

          The New York World, defended him:

“If Mr. Vallandigham has committed any offense against the laws, there are in the State of Ohio, several federal judges, before whom sworn complaints could have been made and a warrant procured for his arrest.” 

Vallandigham argued that he had been arrested without process of law, no warrant, for his arrest had been issued from any judicial officer.  Since he was not a member of the armed forces, he denied that the military commission had jurisdiction over him.  The commission ruled against him and found him guilty as charged.  He was sentenced to confinement for the duration of the war.

Vallandigham requested the civil courts to grant him a Writ of Habeas Corpus. 

In deciding the case, the trial judge declared that in case of military necessity, Civil Courts were without authority to hear applications for a writ of Habeas Corpus.  With victory attained, Lincoln’s Administration thought they could breathe more easily.  But the tempest which churned up by the seizure of Vallandigham would not subside. 

Even the friendly New York Tribune called upon the administration to release Vallandigham stating that they doubt that any good will result from arresting and trying such men as Vallandigham.

Many republicans considered the seizure of Vallandigham an error. 

In an interesting twist, although Vallandigham had been sentenced to confinement for the duration of the war, the President on May 19, acting at his capacity as Commander In Chief, commuted the sentence to banishment.

Vallandigham, accompanied by a military escort, proceeded toward the military lines of the Confederacy in Tennessee.  Having been placed beyond the jurisdiction of the United States, Vallandigham declared in substance,

“I am a citizen of the United States and loyal to them”.

By his action the Chief Executive admitted that the arrest of Vallandigham, if legal, was at least inexpedient.

          Lincoln stated in response to critics;

“Must we shoot a simple-minded soldier boy who deserts, while I must not touch a hair of wily agitator, who induced him to desert?”

          The confederates permitted Vallandigham to slip away and in August of 1863, he appeared in Windsor, Cananda.  In July of 1863, Ohio Democrats nominated Vallandigham for Governor and public demonstrations took place, demanding that he be permitted to return.  A war Democrat, John Brough, running as a Republican, defeated Vallandigham. 

The case wound up in the Supreme Court of the United States, which aroused vast public sympathy to force the Supreme Court to involve itself in a subject that could prove highly embarrassing to it and to the administration as well.  The U.S. claimed that the Supreme Court lacked jurisdiction. 

Justice Wayne (GA) ruled that General Burnside’s action conformed with regulations that provided for the government of the armies, approved by the president and refused to issue a writ for lack of jurisdiction.

Vallandigham remained in Canada but on June 15, 1864, 4 months after the court’s decision, he suddenly turned up in Hamilton, Ohio to address a convention of Democrats.  The Lincoln Administration let him go unnoticed and did not arrest him.  Senator John Sherman demanded that Vallandigham be rearrested.  Lincoln at this point chose to ignore the troublemaker feeling that the election of 1864 was in the offing.  The Supreme Court had at this point, refused to interfere with the administration.  It should be noted with interest that after the war, the Supreme Court reversed the decision.

DAVIS / TANEY / MILLIGAN

          Once the war was over the Supreme Court’s policy of refusing to take action that would endanger federal position was at an end.  The Supreme Court did not restrain the administration while the war raged, but when the last shot was fired, the Supreme Court, even though it was dominated by Lincoln’s appointees, called vigorously for a return to constitutional guarantees.  Roger Taney’s “government of laws” was restored.

          Lamdin P. Milligan was arrested on October 5, 1864, at his home and was taken to a military prison in Indianapolis.  A military commission tried him on the charge of joining the Order of American Knights for the purpose of overthrowing the government of the United States.  The commission found him guilty, and the sentence – death by hanging – was to be carried out on Friday, May 19, 1865.

          In Milligan’s behalf a petition was filed for a Writ of Habeas Corpus, it being claimed that a military commission had no jurisdiction over Milligan, a civilian.  Justice David Davis sitting as a District Judge concluded that the writ should be granted.  The issue was;

Could a military commission exercise jurisdiction over a civilian?

          Not long after Milligan’s arrest – the war ended, Andrew Johnson came to occupy the presidency upon the assassination of Lincoln.  Johnson was urged to commute Milligan’s sentence and did postpone the execution.

The government argued that since a military commission drives its powers from Martial Law, its decisions can be reviewed only by military authority.  They maintained that the president could order the arrest of anyone who assisted the rebels.  Milligan argued that military tribunals for civilians, or non-military persons whether in war or in peace were unconstitutional. 

[Justice Taney must have smiled with favor as he heard his own position argued before the court over which he had presided for so long and which he could not carry with him in the years of civil strife.]

The defense argued that only if the constitution were suspended, could the military commission rightfully exercise jurisdiction over Milligan, a civilian active in an area that was not a battle zone (Indiana). 

In reply, the government admitted that the courts of Indiana were open, but maintained that they would have not remained able to function without the presence of federal troops.  If the military authorities had permitted freedom to the domestic foes of the United States, Indiana would have been hurled into insurrection.  They cited the ruling in Vallandigham to support their position that the military commission is reviewable only by military authority.

          On April 3, 1866, the court decided that military commissions had no jurisdiction and ordered the sentence of the military commission set aside.

Justice David Davis[7] of Illinois spoke on behalf of the court when it ruled unanimously, that Milligan was held and tried illegally.  (It is noted that of the nine justices who comprised the court at the time, five were appointees of Lincoln.

Justice Davis declared that although the Milligan case involved principles that were basic in the concept of American freedom, the decision could not have been entered if the war were in progress.  He stated that now that the public safety is assured, this question can be discussed and decided without passion. [8]

 

          Here was vindication of Chief Justice Taney.  Justice Davis commented that under the Habeus Corpus Act of 1863, the Federal Circuit Court of Indianapolis had jurisdiction of the Milligan case.  They had a right and duty to certify the matters upon which judges disagreed to the Supreme Court.  Justice Davis declared that it was the civil authorities and not the military authority with jurisdiction over Milligan.  In Indiana at that time, the federal authority was always open.  Justice Davis revealed in a letter to William H. Hurndon Lincoln’s former law partner that during the war he had apprised Lincoln that military trials in Illinois where the federal courts were functioning freely were unconstitutional.  Davis concluded that Lincoln himself was opposed to these trials but that he put necessity first.

SUMMARY

 

          If the composition of the Supreme Court would have remained as it was when Lincoln entered the White House with Justice Taney controlling the majority, it is doubtful if the prize cases, the currency cases, and/or the Vallandigham Decisions would have been favorable to Lincoln in the war effort, and hence the Union.  Without Lincoln’s five appointees to the Supreme Court, one could argue that the war effort would have been impaired, lasted longer, or could have a different result.  When the war was concluded and the country returned to normalcy, the basic constitutional principles reverted to their prior war status.  Without the intervention of Davis Davis at the 1860 convention, Lincoln may not have been elected. 

It is interesting to note the possibilities.

 

 

 

 

 

 

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[1] Grier was a “dough faced” democrat

[2] No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

[3] The day following Lincoln’s inauguration, he received word advising him that Sumter in South Carolina would take at least 20,000 men to reinforce.

[4] When Lincoln became President, there was a vacancy in the Supreme Court that represented unfinished business of the Administration of James Buchanan.  Justice Peter V. Daniel, of Virginia and a member of the court since his appointment by Martin VanBuren, died at Richmond on May 31, 1860, vacating the seat that was claimed by the southerners, being one of five held by them at that time.  A month before the end of his presidency, Buchanan submitted to the senate the nomination of Jeremiah S. Black.  But the senate rejected the appointment.  The Chief Justice of the Supreme Court at this time was Chief Justice Taney.  The Taney Court in 1857 had handed down the Dread Scott decision.  Lincoln had warned that the court must be forced to reverse the decision, which provided that negroes could not be citizens and that slaves could be taken into any of the territories of the (United States).  Abraham Lincoln appointed five Justices of the Supreme Court:

[5] -Salmon P. Chase of Ohio, who was sworn in 1864 (Chief)

-Noah H. Swane of Ohio, who was sworn in 1862

-David Davis of Illinois, who was sworn in 1862

-Samuel F. Miller of Iowa, who was sworn in 1862

-Stephen J. Field of California, sworn in 1863

[6]Copperheads were:  -Anti-Lincoln, anti-war, against the draft, encouraged desertion, were for a negotiated peace, wanted Union restored with slavery.

[7] THE CONVENTION

The Republican National Convention was to meet in Chicago, Illinois on May 16, 1860.  David Davis went to Chicago and he found that all the candidates except Lincoln had established headquarters.  Davis rented two rooms in the Tremont House, paying for them himself.  He organized the convention forces for Lincoln and assigned tasks.  It was Davis’ strategy to antagonize no one, but to secure pledges of support for Lincoln as the second choice of each state.  The Lincoln supporters related as to Lincoln:  his Birth in a log cabin, and self education.  Everyone knew how he had beaten Douglas in the debates.  Davis first sought to secure the entire Indiana delegation, originally divided in their preferences between Lincoln, Bates, and McLean.  It has been stated that Davis secured the vote of Indiana for Lincoln on the first ballot by a pledge of a cabinet post to Caleb B. Smith, a prominent lawyer of Indiana.  Lincoln had written to his Chicago headquarters, “make no contracts that will bind me”.  The convention opened in the Wigwam.  Davis arranged for the Lincoln supporters to come early, hours before the convention opened, with the result that many Seward supporters could not get in.  Stories have been related concerning forged tickets being printed to facilitate this effort. 

Under David Davis, the Lincoln people put the New York and other Seward delegates in the front, surrounded them with Illinois and Indiana delegates, and put the Pennsylvania, Ohio, and other doubtful contingents next.  The Lincoln forces had superior access to the delegates from those states whose votes would be decisive.  It has been stated that Davis pledged a cabinet position in exchange for the convention vote of Pennsylvania.  After the first ballot, the vote was 173 ½ for Seward, 62 for Lincoln.  On the second ballot Vermont cast its entire votes for Lincoln.  Pennsylvania withdrew Cameron and cast 48 votes for Lincoln.  After the second ballot, Lincoln won 81, Seward 184 ½, and Bates 35.  Lincoln won on the third ballot.  Davis advised Lincoln not to come to Springfield.  Advice he accepted and thus, avoided a confrontation with the Seward people.

[8] Following the decision, Milligan was released on April 10th from confinement in the military prison at Columbus, Ohio.  He was promptly seized by civil authorities in Indianapolis and was forced to give bail to gain his freedom.  No case was pressed against him, however, and finally he was dismissed.  Since he had been tried illegally by the military commission, in 1868 he filed a suit to collect damages.  The case was tried in the Circuit Court of Indianapolis in Milligan vs. Hovey.  Apparently the jury had very little sympathy for Milligan but realizing that the law provided damages in such a case, it brought in a verdict awarding Milligan $5.00.