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David Davis


IN nothing did Mr. Lincoln show more clearly his faculty of insight into human character than in his selection of men for high official positions. He was sometimes overruled by members of his Cabinet, and men were foisted upon him of whose antecedents he had no knowledge; and occasionally wearied with the constant worry and strife to which he was subjected, he let some men pass, as every President will, who were not qualified for their positions. But of the appointments made by him from his own personal knowledge, and with out extraneous influences, it would be hard to select one which was not admirably appropriate. In this class of appointments made by him entirely on his own volition, one of the best was that of Judge Davis.

The Supreme Court of the United States, though often a Court of Appeals, is one less fettered by precedents than almost any other in the world, and its ablest judges have always been, not lawyers of the minutest technical knowledge of precedent and practice in all the inferior Courts of our own or other countries, but men of broad and comprehensive views, well grounded in all the great principles on which State, national and international law are based ; men with clear notions of equity, and that sound, practical, hard common sense which reaches down at once to the fundamental principle involved in a case, and does not trouble itself with petty technical details. 

John Marshall, the ablest Chief Justice of that court in its whole history, could not compare for a moment with any one of a dozen lawyers we might name in New York or Philadelphia, in minute, almost microscopic knowledge of the various motions, countermotions, demurrers, arrests of judgment, and special pleas by which the progress of justice might be delayed; but he was none the less an able jurist for all that. His knowledge and his clear brain were devoted to the work of expediting justice, not of hindering it. Judge Davis is a man of the John Marshall stamp.

DAVID DAVIS was born in Cecil county, Maryland, March 9th, 1815. His family, which was of Welsh origin, removed during his childhood to Ohio, and he entered very early Kenyon College, Gambier, Ohio, where he graduated in 1832. Thence he went to the Cambridge Law School, and subsequently to the Yale College Law School at New Haven, and after a very thorough and careful preparation, was admitted to the bar in 1835, when but twenty years of age, and settled in Bloomington, Illinois. Business did not come rapidly to the young lawyer, but he studied his cases with great care, looking rather to fundamental principles than to petty details and technicalities, and gradually both courts and people began to find that the Bloomington attorney had mastered his cases so thoroughly, that he was sure of defeating lawyers whose reputation was higher than his own. At this time there was practising in the Circuit Courts of central Illinois, a tall, gaunt, but hard-headed lawyer, a half dozen years his senior, between whom and Davis there sprang up a strong friendship and intimacy. Lincoln (for he it was to whom we refer), though powerful before a jury, often deferred to his younger friend's thorough knowledge of the great principles involved, while Davis in his jury cases availed himself as often as he could of his friend's sledge-hammer logic. The two were in the State Legislature together, and both, we believe, were members of the State Constitutional Convention of 1847; thence for awhile their paths diverged; Lincoln plunging into the thorny path of politics, and being a member of Congress in 1847–9 ; Davis adhering to the law, and being chosen in 1848 Judge of the Eighth Judicial Circuit, in Illinois, a position which he held for fourteen years. Occasionally his old friend Lincoln managed cases in his court; but much of the time he was occupied with political matters. These had little interest for the Judge, who wisely devoted himself to his duties as a jurist. Yet he had joined the Republican party in 1856, had watched with eagerness the great struggle in 1858, between Douglas and Lincoln, his sympathies being wholly with his friend.

In 1860, he was appointed a delegate to the National Republican Convention at Chicago, and labored zealously and heartily for Lincoln's nomination for the Presidency. In the autumn of 1862, there were several vacancies on the Supreme Court bench to be filled, and for one of them, Lincoln, unsolicited, named his friend Davis. The appointment was honorable alike to the President and the Judge; for while the latter was eminently qualified for the position, the former by the nomination gratified alike the public interests, and his own affectionate disposition. Judge Davis entered upon his duties December 8th, 1862. His course on the Supreme Court bench has commanded universal respect. His decisions have often been independent, and sometimes diverse from those of a part of his associates; but the reasons assigned for them were such as commended themselves to every candid mind. Of the reported cases argued during Judge Davis' term (see last volume of Black's, and the eleven succeeding volumes of Wallace), eighty-eight of the opinions of the Court have been delivered by him; while, in nineteen other cases, he has dissented from the majority, whose opinion decided the opinion of the Court. One who has so long held an important judicial position as Judge Davis, and has placed upon record so many opinions, certainly affords to the public an excellent opportunity of forming a correct estimate of his habits of thoughts, in legal matters, at least. The greater part of the cases brought before the Supreme Court are of such a nature as do not involve constitutional questions; but, in those of that kind which he has had occasion to adjudicate upon, be has left upon record no uncertain indication of his views of the scope of the Federal Constitution, and the true relations thereto of the several States; and especially in all cases touching the life and personal liberty of the citizen. One of' the earliest and most important of these cases was that of Milligan, in 1866, who having been arrested, tried, and sentenced to death by a military commission during the recent war, appealed to the Supreme Court, which decided boldly and squarely against the overshadowing of civil tribunals by military authority.

When Judge Davis came to consider the argument put forth by General Butler, in behalf of the Government, that martial law covered with its broad mantle the proceedings of this military commission, and authorized a military commander to suspend all civil rights, and their remedies, and to subject citizens as well as soldiers, to the rule of his will, he said:  "If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them, can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for, and to the exclusion of the laws, and punish all persons as he thinks right and proper without fixed or certain rules.

"The statement of this proposition shows its importance; for, if true, Republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the 'military independent of, and superior to the civil power,' the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled thorn to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable, and in the conflict one or the other must perish.

"This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln ; arid if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war ; how often or how long continued, human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus." The two similar cases of General Garland, a lawyer, and Mr. Cummings, a Roman Catholic priest; the former debarred from practising, and the latter arrested and fined under the action, in Missouri, of the " iron-clad " or test-oath, adopted in 1865, involved the constitutionality of that oath, which was affirmed by the opinion of the Court, a minority (including Judge Davis), dissenting therefrom.

In the case of Brennan vs. Rhodes, 1868, Judge Davis advocated the unconstitutionality of the legal-tender act; and, in the Veazie Bank case, of 1869, concerning the constitutionality of a ten per cent. tax imposed by Congress (July 15th, 1866) on amount of notes issued for circulation by State banks, Judge Davis dissented from the opinion of his colleagues on the ground that the State of Maine had authority to charter the bank and invest it with full banking powers, and that the power of Congress to tax banks was opposed to the right of the State. In his opinion and action upon these and similar cases, Judge Davis has given ample proof of sound judgment, excellent sense, and above all, of clearness of thought. 

His style of expression is simple and lucid; his opinions never overloaded with a profusion of illustrative cases; and his brief, straightforward manner of giving reasons for a judgment is well illustrated in the cases of the Bank of Republic vs. Millard (Wallace, 10), and Barnard vs. Kellogg (Wallace, 11), and others.

At the time of the assassination of President Lincoln, Judge Davis was one of the committee who accompanied the remains of his lamented friend to their last resting place; and at the urgent request of the bereaved family, was appointed administrator upon his estate.

Of late Judge Davis has become alienated from the President, and has been disposed to take sides with the Revenue Reformers and other classes hostile to President Grant's administration. He was nominated for the Presidency by the National Labor Reform Convention, at Columbus, Ohio, February 22d, 1872, and would possibly have received the nomination of the Liberal Republicans at Cincinnati, but for the fact that there were two or three candidates from Illinois, and the convention preferred to select from some State which supported but a single candidate. Judge Davis was wise enough to foresee the glowing future of Chicago, and to purchase largely of the land on which the city is built, and his shrewd foresight has made him a millionaire.

Source: Source: Men of Our Day; or Biographical Sketches of Patriots, Orators, Statesmen, Generals, Reformers, Financiers and Merchants, Now on the state of Action: Including Those Who in Military, Political, Business and Social Life, are the Prominent Leaders of the Time in This Country, by L. P. Brockett, M. D., Published by Ziegler and McCurdy, Philadelphia Penna; Springfield, Mass; Cincinnati, Ohio; St. Louis, Mo., 1872   

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