Chapter I. All Means Which Are Appropriate

Historical and Bibliographical Notes

(in progress)

 

Scene i. August — November 1870

Chief Justice Chase’s Illness

The text begins with my speculation as to the thoughts of Chief Justice Salmon Chase as he undergoes a stroke. Chase had a stroke on or about August 16, 1870, while returning from a trip to Niagara Falls. See J.W. Schuckers, The Life of Salmon Portland Chase 620 (no publisher info. 1874) [hereafter Schuckers on Chase] (Chase was “attacked by paralysis” on August 16, 1870); see also Frederick J. Blue, Salmon P. Chase: A Life in Politics 313 (Kent State Univ. Press 1987) [hereafter Blue on Chase] (Chase experienced stroke “in the summer of 1870”); Alice Hunt Sokoloff, Kate Chase for the Defense 16 (Dodd, Mead & Co. 1971) [hereafter Sokoloff on Kate] (describing Chase’s childhood memory of finding dead drunkard). On Chase’s memories of the night of Lincoln’s assassination, see Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln 740-41 (Simon & Schuster 2005); Sokoloff on Kate, at 110 (quoting Chase’s memory of that night); Mary Merwin Phelps, Kate Chase, Dominant Daughter: The Life Story of a Brilliant Woman and Her Famous Father 172-73 (Th. Crowell Co. 1935) (same); Peg A. Lamphier, Kate Chase and William Sprague: Politics and Gender in a Civil War Marriage 79 (U. Nebraska 2003) (noting Chase’s memory of the “heavy tramp-tramp” of boots). Chase most likely did not get as far as New York City; neither Grand Central Depot (later Terminal) nor Pennsylvania Station had been built, and the terminus for lines west of the Hudson River was the Exchange Place Station in Jersey City, New Jersey. Travelers would then take a ferry to New York City. It is unlikely Chase made the ferry journey in light of his condition.

Chase’s efforts to recover from his stroke are described in Schuckers on Chase, at 620-22; see also Blue on Chase, at 313-15; Thomas Graham Belden & Marva Robins Belden, So Fell the Angels 245-46 (Little, Brown & Co. 1956). Before his stroke, Chase observed a strict daily schedule, arising at six a.m. in the summer and seven a.m. in the winter, then taking a short walk before breakfast. His lunch was always the same: tea and crackers. He dined always at six p.m., having “the standard English three courses and a dessert.” See “Personal,” Harper’s Weekly, June 7, 1873, at 483. These attacks were indeed “strokes”: although Schuckers, writing in 1874, uses the phrase “attack of paralysis,” he does later use the word “stroke” in the same way as the text. See Schuckers on Chase, at 621 (referring to Chase as “bearing the stroke with patience”); see also Albert Bushnell Hart, Salmon Portland Chase 413 (Houghton Mifflin & Co. 1899) (AMS reprint 1972) [hereafter Hart on Chase] (noting that “[i]n August, 1870, he was seized with paralysis”).

It was well known in 1870 that Chase still harbored presidential ambitions. See, e.g., “The President and the Gnats,” Harper’s Weekly, July 16, 1870, at 450 (noting Chase’s ambitions in 1868); “Politics Upon the Bench,” Harper’s Weekly, Apr. 16, 1870, at 242 (“The Chief Justice of the Supreme Court must be considered still a candidate for the Presidency.”); “Presidential Nominations,” Harper’s Weekly, July 22, 1871, at 666 (noting that many prominent Republicans had expected Chase to be the nominee in 1868).

 

The Supreme Court in Session Without Chase

Beginning in 1844, the Court’s Term began the first Monday in December.  In 1866, Congress authorized the Court to set special terms to address its backlog, resulting in frequent October sittings. In 1873, Congress set the beginning of the Term to the second Monday in October, which in the twentieth century was advanced to the first Monday in October.  See “Terms,” The Oxford Companion to the Supreme Court of the United States 864 (Kermit Hall, ed., Oxford Univ. Press 1992).  For the December 1870 Term, however, the Court started hearing oral arguments on November 1, 1870, beginning with Hornsby et al. v. United States, 77 U.S. (10 Wall.) 224 (1870).  Although the United States Reports does not give the date of this argument, the Lawyers’ Edition does; the date of argument is November 1, 1870. See Hornsby et al. v. United States, 19 L.Ed. 900 (1870).  From reviewing the pages before and after Hornsby is reported, it is clear that no oral arguments were heard from May through October, and the first sitting of the Court following this break is on November 1, 1870. Cushman notes that following 1870, the Court sat seven months a year, although she does not say exactly which seven.  See Clare Cushman, Courtwatchers: Eyewitness Accounts in Supreme Court History 205 (Rowan & Littlefield 2011). Then-Attorney General George Williams noted later, “[t]here is but one term of the court in a year, beginning in October and ending generally in May,” but he was not specific as to the timeframe.  See George H. Williams, Reminiscences of the United States Supreme Court, 8 Yale Law Journal 296, 304 (1898). At this point in the Court’s history, oral arguments began at noon.  See Williams, Reminiscences, at 304 (“The daily session of the court commences at noon and continues until 4 o’clock.”). The announcement by the clerk is taken from Carl Brent Swisher, Stephen J. Field: Craftsman of the Law 1 (Archon Books 1963) (quoting cry as it was given in 1863).  Justice Sandra Day O’Connor gives a slightly different announcement, and explains that the wording of the announcement has varied over the years.  See Sandra Day O’Connor, Out of Order: Stories from the History of the Supreme Court 112 (Random House 2013). The description of what the Justices wore is taken from a near-contemporaneous article by Grant’s Attorney General George Williams.  See Williams, Reminiscences, at 304 (“When the court is in session the judges are robed in long, flowing black silk gowns.”).

The description of the Supreme Court chamber at the time is drawn from journalist E.V. Smalley in 1882, quoted in Cushman, Courtwatchers, at 105-06 (quoting E.V. Smalley, “The Supreme Court of the United States,” Century Illustrated Magazine, 163-64 (Dec. 1882)).  That account, as reprinted in Courtwatchers with a photo of the chamber, see Cushman, Courtwatchers, at 106, forms the basis for the description in the text.  See also William H. Rehnquist, The Supreme Court: New Edition 74 (Knopf 2001) (describing chamber). The listing of the busts implicates a disagreement as to who the second and third Chief Justices were.  There is universal agreement upon Jay as the first Chief Justice, but there is not agreement as to whether Marshall was the third or fourth Chief.  See O’Connor, Out of Order, at 26 (noting that Rutledge was never confirmed by the Senate); see also Philip Greely Clifford, Nathan Clifford – Democrat 275 (Putnam 1922) [hereafter Clifford on Clifford] (including Cushing, who never sat, in the count and considering Taney to be the sixth Chief Justice). The description of the busts in this account, denoting Jay, Rutledge, Ellsworth, Marshall, Taney, and Chase as Chiefs, suggests that at the time, Marshall was considered the fourth Chief. The description of the observers is drawn from contemporary accounts, summarized in Cushman, Courtwatchers, at 106-07.

As for the physical description of the Justices,  Nelson’s description is taken from several sources.  See Williams, Reminiscences, at 299-300 (describing Nelson as having “long, flowing hair, white as silver” which gave him a “venerable appearance”; Nelson was an “elegant old gentleman”); Willard L. King, Lincoln’s Manager – David Davis 202 (Harvard Univ. Press 1960) [hereafter King on Davis] (referring to Nelson as “a tall, craggy-faced man of 70, with a white mane and heavy sideburns”), and the picture of the Court in King on Davis, plate following page 208, which depicts Nelson with what, given the current understanding of “sideburns” (as hair extending from above the ear down toward the jaw) may be more accurately described as “side-whiskers” (in which the hair is largely on the cheeks). As this narrative begins near the end of Nelson’s career, there is little to say about him as a judge. See, e.g., Charles Fairman, Reconstruction and Reunion, 1864-88, Part One, Oliver Wendell Holmes Devise History of the Supreme Court Vol. 6, at 3 (MacMillan 1971) (“Nelson walked straightly in the settled paths of the law, fearful of the precipitate course of the party in power.”). Clifford’s description is drawn from a photograph. See Clifford on Clifford, at frontispiece.  Clifford has not enjoyed the acclaim of legal scholars. See, e.g., Fairman, Reconstruction and Reunion, Part One, at 3 (Clifford “was a narrow constructionist opposed to expansive judicial movements”). When Miller was appointed, he had a black beard.  See Charles Fairman, Mr. Justice Miller and the Supreme Court, 1862-1890, photoplate facing page 84 (Harvard Univ. Press 1939) [hereafter Fairman on Miller]; see also King on Davis, at 195 (describing Miller as “black-bearded” at the time Davis joined the Court, soon after Miller).  By 1866, however, Miller was clean-shaven, unlike many of his colleagues.  See, e.g., King on Davis, plate following page 208 (depicting Supreme Court at time of Milligan decision, with a clean-shaven Miller). Field’s description is based upon photographs of Field at the time. See, e.g., Philip J. Bergan, Owen M. Fiss, & Charles W. McCurdy, The Fields and the Law, at cover, frontispiece, 6, and 19 (Fed. Bar Council 1986); Donald Grier Stephenson, Jr., The Waite Court: Justices, Rulings, and Legacy 89 (ABC-Clio 2003) (picture of Strong). For the Bradley description, see Paul Kens, The Supreme Court Under Morrison R. Waite, 1874-1888, at 27 (Univ. South Carolina Press 2010) (citing contemporary observer, who explained that “Bradley is a little dried-up anatomy of a man . . . . He has a big nose, sharp bright little eyes, iron grey hair and a pair of tightly closed lips.  His skin hangs in wrinkles . . . .”).  Kens does not explain who the contemporary observer is, referring the reader to Ruth Ann Whiteside, Justice Joseph Bradley and the Reconstruction Amendments 47-48 (PhD Diss., Rice Univ. 1981).  Williams, Grant’s Attorney General, describes Bradley as “a small, quiet, modest man.”  Williams, Reminiscences, at 303. Bradley, from New Jersey, and Strong, from Pennsylvania, both came from the Third Circuit.  Bradley inherited the Fifth Circuit in the South largely because he was from a Democratic state, while Strong was from a Republican state. See Charles Fairman, Mr. Justice Bradley’s Appointment to the Supreme Court and the Legal Tender Cases, 54 Harvard Law Review 977, 1009-34 (1941).

On Clifford calling the case for argument, it is not clear why Clifford rather than Nelson assumed this responsibility; perhaps Nelson was so far advanced in years.  See Clifford on Clifford, at 276 (noting that Clifford served as acting Chief Justice during period of Chase’s illness, and following his death); see also Williams, Reminiscences, at 297 (“Justice Clifford was the Senior Justice by commission and therefore became Acting Chief Justice upon the death of Chase.”).

On the duration of oral arguments, see O’Connor, Out of Order, at 88 (comparing Supreme Court rules on duration of oral argument and noting that from 1848 to 1925, oral argument was limited to two hours per side).  Cushman notes that in 1849, the Court limited oral argument to two hours per counsel; with two counsel allowed per side, oral argument could run up to eight hours.  In 1871, the Court limited oral argument to two hours per side.  See 78 U.S. (11 Wall.) at ix (rule limiting argument to two hours per side); Cushman, Courtwatchers, at 124.

The description of the activities of the Justices during this oral argument is drawn from the general description of the oral arguments in contemporaneous sources. See Fairman on Miller, at 107 (describing Clifford’s habits: “Leaning forward, he would fire a question at the attorney who was speaking, and, hardly waiting for an answer, would shoot at him another, and then turn toward the lobby with a broad smile, as if to say, ‘Did you see how I got him?’  As long as the lobby remained full this by-play would go on, but when the lobby emptied Clifford would sink back into his seat as if no longer interested in what was going on.”) (quoting W.H. Smith, “Supreme Court and its Justices in Days Following the Civil War,” Sunday Star, Washington, Apr. 22, 1923). On the candy habits of Swayne and Davis, see Fairman on Miller, at 105 (describing well-known mutual candy habits of Swayne and Davis). At this point in American history, a “nickel” was a copper-and-nickel three-cent piece, which was introduced in 1865.  In 1883, the Treasury began to issue the five-cent nickel. See Thomas J. Schlereth, Victorian America: Transformations in Everyday Life 1876-1915, at 79, 81 (Harper Perennial 1991). On Bradley’s oral argument habits, see Williams, Reminiscences, at 303 (noting that Bradley “was accustomed to sit during an argument with his eyes closed, as though he was asleep, but his ears were wide awake and his evident object was to secure concentration of thought by shutting out distractions of sight”). On Field’s oral argument habits, see Fairman on Miller, at 110 (quoting W.H. Smith); Cushman, Courtwatchers, at 114-15 (same).

The first case heard in the December 1870 Term was heard on November 1, 1870.  It was Hornsby et al. v. United States, 77 U.S. (10 Wall.) 224 (1870); see also Hornsby et al. v. United States, 19 L.Ed. 900 (1870) (giving date of argument as November 1, 1870).  The treaty of Guadalupe Hidalgo required the United States to honor contracts concluded and titles obtained under Mexican rule, but in practice American administrators scrutinized and challenged the Mexican land grants. See H.W. Brands, The Age of Gold: The California Gold Rush and the New American Dream 233 (Doubleday 2002). It is not clear if Nelson was present for the argument. Bradley’s diary entry for October 31, 1870, states: “Court to meet. Court met at Washington. Ch. J. Chase + Judge Nelson absent. Resolution respecting Judge Grier.” (Joseph P. Bradley Archives, New Jersey Historical Society, Diary for 1870.) As it is possible that Nelson arrived later on October 31 and sat on November 1, I have included him here.

For lawyers practicing in 2000 and after, and probably well before, the most jarring aspect of Supreme Court practice during the Gilded Age would be that the Justices would eat behind the curtain — while the lawyers were arguing. From the beginning of the early nineteenth century to at least 1902, the Justices ate lunch while court was in session, no more than two at a time to ensure that a quorum remained on the bench.  For discussions of this custom, which must have been discomfiting for the lawyers involved, see Cushman, Courtwatchers, at 123-24, 208; see also George Shiras 3rd, Justice George Shiras Jr. of Pittsburgh, Associate Justice of the United States Supreme Court 1892-1903: A Chronicle of his Family, Life, and Times by George Shiras 3rd Edited and Completed, 1953, by Winfield Shiras and Published by University of Pittsburgh Press 135-36 (Univ. Pittsburgh 1953) (noting that tradition continued through 1890s, and was only discontinued after about 1900). As for the diet of the Justices, Clifford had an enormous appetite and for lunch would have three goblets of boiled eggs.  Clifford on Clifford, at 332. I have speculated as to Swayne’s appetite for chicken.

 

Scene ii. March 1871

Nettie’s Wedding

 The wedding of Jeanette (known as Nettie) Chase and William Hoyt was held March 23, 1871. See “Home and Foreign Gossip,” Harper’s Weekly, Apr. 15, 1871, at 335 (describing the wedding and Nettie’s removal of her glove). Belden & Belden, provide extensive description of the main participants in the wedding. See Belden & Belden, So Fell the Angels, at 246 (describing Chase’s condition); id. at 259-60 (describing Kate’s dress); Lamphier, Chase & Sprague, at 124 (describing Nettie’s wedding).  For Kate’s general description, see John Oller, American Queen: The Rise and Fall of Kate Chase Sprague, Civil War “Belle of the North” and Gilded Age Woman of Scandal x (Da Capo Press 2014) [hereafter Oller on Kate] (summary description), id. at 35 (quoting Carl Schurz’s description of Kate); see also David M. Jordan, Roscoe Conkling of New York: Voice in the Senate 203-04 (Cornell 1971) [hereafter Jordan on Conkling] (quoting Schurz). On Kate’s separation from Sprague at the ceremony, see Phelps, Kate Chase, at 234-35 (noting that Kate and Sprague traveled separately to Nettie’s wedding, Kate with her father and Sprague with the two children the couple had at the time, Willie and Ethel). On the Chase family history, see Sokoloff on Kate, at 15-48.  As Sokoloff explains, Kate was Chase’s second daughter, of his second wife, who bore him two more daughters who died in infancy.  After Kate’s mother died, Chase married for a third time.  Chase’s third wife bore Nettie and another daughter who died in infancy. Both Kate and Nettie were very young when their mothers died. On Chase hating the name “Salmon,” see, e.g., Sokoloff on Kate, at 15.

Kate’s witticism was in fact uttered by the Marquise de Noailles, wife of the French Minister.  I attribute it here to Kate because it is consistent with her character, and because it is a good joke that Kate could have repeated.  See Claude G. Bowers, The Tragic Era: America After Lincoln and the Dark That Followed the Dawn of Peace 259 (1929; Houghton Mifflin Sentry ed. 1962). In general, Kate “exhibited a rare combination of cordiality and aloofness. But her sociability held a fierce resolve: she did not like to lose an argument and, according to the powerful men who loved to mingle with her, ‘in conversation she never came out second.’” Oller on Kate, at 42 (quoting Cleveland Plain Dealer, Aug. 6, 1899). On the use of the word “envoy” rather than “ambassador,” the latter term did not come into wide use until 1893. See John Taliaferro, All the Great Prizes: The Life of John Hay, from Lincoln to Roosevelt 185 (Simon & Schuster 2013). The English representative was the “envoy” until that date, when he became the “ambassador.” Kate’s interaction with the English Envoy is also imagined but rooted in fact – that rejoinder comes from a (possibly apocryphal) story told in “Home and Foreign Gossip,” Harper’s Weekly, June 10, 1871, at 531. The story concerns “a pretty Washington girl” who is not identified, but might well be Kate.

(A word or two is necessary regarding Bowers, The Tragic Era.  The modern view is that The Tragic Era is “a discredited, highly fictionalized work published during the 1920s as the last gasp of a handful of die-hard neo-Confederates.” Douglas R. Egerton, The Wars of Reconstruction: The Brief, Violent History of America’s Most Progressive Era 350 (Bloomsbury 2014). In his introduction to the 1995 edition of W.E.B. Du Bois’s Black Reconstruction in America, David Levering Lewis describes The Tragic Era as a “potboiler” that “congealed racist interpretations of Reconstruction.” Introduction at viii (Lewis), W.E.B. Du Bois, Black Reconstruction in America (1935; Touchstone ed. 1995). There is much to support this view.  Compare Bowers, Tragic Era, at 306-07 (detailing how members of the Ku Klux Klan “merrily” rode about “[s]ince the object was fun”); id. at 311 (suggesting that the Klan started out in good fun, only to have the poor and lawless element corrupt its purpose), with Egerton, Wars of Reconstruction, at 334 (noting influence of Birth of a Nation upon Bowers).  The Tragic Era does, however, provide some period detail that I have used to assist with physical descriptions and characterization, and I use it in conjunction with other sources for this limited purpose.)

As reflected in Eliza Miller’s comments, Nettie’s wedding occurred during Lent. Easter was April 9 in 1871, which would make March 1, 1871, Ash Wednesday, the beginning of Lent.  Lent typically marked the end of the Washington social season.  See Belden & Belden, So Fell the Angels, at 169. Society columnists at the time of the wedding excused the timing of the occasion by relying in part upon Queen Victoria’s decision.  Belden & Belden, So Fell the Angels, at 259.

The description of Sprague is drawn from Bowers, Tragic Era, at 270 (“With his small head and features, his eyes were large and lustrous, and he wore his hair long with an affected carelessness.”) (describing Sprague); see also “Extraordinary Charge Against a Senator,” Harper’s Weekly, Nov. 26, 1870, at 755 (noting allegations made by Sprague political rival that Sprague engaged in commerce with cotton firms in Texas, paying them money used for munitions in the Civil War). Lamphier notes that Sprague “ventured into treasonous waters to get [cotton], and worse yet, attempted to enlist Kate’s father in accomplishing the deed.” Lamphier, Chase & Sprague, at 45. The system was that Northerners could buy cotton from Southerners loyal to the Union if they had appropriate permits issued by the Treasury, that is, from Chase.

The troubled marriage of Kate Chase and William Sprague is discussed in great detail in Belden & Belden, So Fell the Angels (Book II, Chapters I through VI address this period in particular); see also Sokoloff on Kate, at 115 (noting that as early as 1866 Sprague was drinking heavily, visiting houses of prostitution, and sexually assaulting female domestic workers). There were rumors in the Providence newspapers that Sprague intended to apply for a divorce. See Belden & Belden, So Fell the Angels, at 165-66.

The discussion of Chase’s familial situation, although fictionalized, is drawn from Blue on Chase, at 308-11 (citing Chase to Kate Sprague, June 25, 1865, July 25, 1866, Aug. 9, 1866, Nov. 14, 1868, Apr. 15, 1869, Apr. 17, 1869, Chase Papers, Library of Congress); Sokoloff on Kate, at 178-79 (noting awkward position on Chase given the discord between Kate and Sprague).  At this juncture, with Edgewood still under construction, Chase, Kate, and Sprague lived at Sixth and E Street N.W.  See Phelps on Chase, at plate opposite page 150. On Sprague’s cruelty toward Chase and Kate, see Belden & Belden, So Fell the Angels, at 248-49; see also Sokoloff on Kate, at 192 (“Sprague well knew how much the larger increase would have meant to Chase, who was still far from well.  His vote against it was more than an unfriendly act. It was a pointed and cruel one toward a man who had been unfailingly understanding and indulgent toward him.”); “Domestic Intelligence,” Harper’s Weekly, Mar. 4, 1871, at 187 (noting bill setting salaries of Chief Justice at $8500 and Associate Justices at $8000).

 

Miller and Davis Talk at Nettie’s Wedding 

We cannot confirm nor deny the presence of the other Supreme Court Justices at Nettie’s wedding. Given that it was the social event of the season, and their colleague’s daughter was the bride, I suggest that Chase’s colleagues, and their wives, were likely attendees. As to the reason that Justice Davis appears alone, his wife Sarah Davis was frequently in poor health and rarely in Washington; consequently, Davis lived alone at the National Hotel. See Fairman, Reconstruction and Reunion, Part Two, at 22-23.

On Justice Miller and his general character: Miller was generally thought to be one of the towering intellects of the Court, which is all the more remarkable because he was trained in medicine, not law. See, e.g., Fairman, Reconstruction and Reunion, Part One, at 3 (“Samuel Freeman Miller was one of the most remarkable men ever to reach the Supreme Bench, and certainly one of the greatest.”); id. at 1460 (noting that Miller’s “masterful self-confidence had been proved; his instinct for the values of the American constitutional system was sound, and he was devoted to the Court and zealous to promote its usefulness.”); G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 87 (Oxford U. Press expanded ed. 1988) (noting Justice Horace Gray’s opinion that “had Miller’s training been less ‘unsystematic and deficient,’ [Miller] would have been second only to [Chief Justice John] Marshall in stature”); Williams, Reminiscences, at 300-01 (“[Miller] was a born judge.  He had a sound, well balanced mind, full of good, hard sense and the capacity to discriminate between the vital and inconsequential points of a case.”).  Chief Justice Morrison Waite’s biographer Peter Magrath, however, calls Miller “[b]lunt, self-confident, and prone to vanity.”  Peter Magrath, Morrison R. Waite: The Triumph of Character 99 (MacMillan 1963); see also White, American Judicial Tradition, at 87 (“Miller’s temperament seems to have consisted of gruffness superimposed on sensitivity.”); see also id. at 88 (“Miller was a self-assured, opinionated, dominant man who liked to have his own way and occasionally regarded the Court as his own province.”).

Until June 1872, Miller maintained his primary residence in Keokuk, and lived in hotels in Washington, D.C., during the Supreme Court’s term. After completing his circuit-riding duties, he would return spend the remainder of the summer in Keokuk. See Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era 19-20, 167, 187, 211 (Louisiana State Univ. Press 2003) [hereafter Ross on Miller]. An entry in the diary of Judge Matthew Deady of Oregon indicates that Justice Miller and Eliza visited Oregon in August 1871. See Matthew P. Deady, Pharisee Among Philistines: The Diary of Matthew P. Deady 30 (Malcolm Clark, Jr., ed.) (Oregon Hist. Soc’y 1975) (Vol. 1 & 2). Eliza Miller seems to have had intermittent appearances in Washington, D.C.; upon Miller’s arrival at the Court, he lived at the National Hotel, then moved to the Metropolitan Hotel in the winter of 1869-70, where Eliza was at least present for her birthday on December 4, 1869. Eliza then traveled with one Miller daughter and son Irvine to Europe from May 1872 to August 1874, while Miller lived at 53 B Street, S.E. See Fairman, Reconstruction and Reunion, Part Two, at 533-34. The wedding, in March 1871, falls between these points where Eliza’s location can be confirmed. Miller was the father of five children — Olivia, Jane, Patricia, Alida, and Irvine. See Ross on Miller, at 21-22.  Irvine, the youngest, was born in 1860, and thus would be eleven years old at the time of these events. See id. Olivia was already married and no longer at home.

Miller took a dim view of Chase, writing that Chase’s positive traits were “warped, perverted, shriveled by the selfishness generated by ambition.”  Chase judges men by the question, “how can I utilize him for my presidential ambitions?” Blue on Chase, at 320 (quoting Fairman on Miller, at 251-52, quoting Miller letters of May 14, 16, 1873.). Miller wrote of Chase that “[h]is daughters . . . will never consent to his retiring to private life.” Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court 80 (SUNY Press 2003) (quoting letter to Ballinger Nov. 6, 1870). Belden & Belden quotes one of Chase’s associates, without providing a name, as calling him a “moral vampire.”  Belden & Belden, So Fell the Angels, at 200. It seems likely to me that Miller or Davis in fact made this unattributed remark, in light of what can be confirmed about their opinion of Chase.

Chase’s illness naturally prompted speculation as to his replacement, and Miller coveted the position. His speech, which I have imagined, reflects the contrast between the issues facing the country and the issues facing the Court. John Hope Franklin has memorably described the discrepancy between the work of the Court and the burning issues of the day: “[D]uring the critical period in the life of the reconstruction program, when both Congress and the President wondered anxiously whether violence would overturn the Southern governments, the Supreme Court was deeply engrossed with currency questions.” John Hope Franklin, Reconstruction After the Civil War 199-200 (U. Chicago Press, 2d ed. 1994). That said, the Court did not acquit itself particularly well once it addressed these issues, as will be seen in later chapters.

Miller was not enamored of Swayne. “Unduly impressed by his own mediocre talents, Swayne took himself very seriously, and hoping for the Chief Justiceship when Chase died, used his influence against Miller.  For this, and because of his unwavering support of bondholders in the municipal bond cases that pitted railroad against agrarian interests, he won Miller’s undying enmity.” Magrath, Triumph of Character, at 101. Williams said years later that, “Judging from what I have seen and heard, I do not think [Swayne’s] merits have been fully appreciated by his brethren.”  Williams, Reminiscences, at 300. Indeed, one history of the Supreme Court states that “[o]n Taney’s death, a majority of the Justices proposed Swayne as his successor,” Bernard Schwartz, A History of the Supreme Court 150 (Oxford U. Press 1993). Swayne believed Miller to be his rival, and was “affable and ingratiating.” Fairman, Reconstruction and Reunion, Part One, at 3; Fairman, Reconstruction and Reunion, Part Two, at 528 (Swayne was “ingratiating”). Miller did not come to have a high opinion on Swayne, writing to his brother-in-law that Swayne’s “judgment is not clear, nor is he very self-reliant.” Fairman, Reconstruction and Reunion, Part One, at 1460 (quoting letter from Miller to William Pitt Ballinger, June 17, 1869).  Of Swayne’s service in the years following Chase’s death, Fairman writes that “his further service did not add to the vigor of the Court.”  Fairman, Reconstruction and Reunion, Part One, at 1460. After the death of Chief Justice Taney, Davis favored Swayne for the Chief Justiceship; by the death of Chief Justice Chase, however, Davis had come to believe that Miller was the best candidate. See Fairman, Reconstruction and Reunion, Part Two, at 528. All that said, Swayne was indeed an Ohioan.  Even Grant joked about the abundance of Ohioans in high places. Upon appointing a successor to General Meade, he selected General M’Dowell, joking that “poor Ohio ought to have something,” the joke being the overrepresentation of Ohioans in the Cabinet and on the Court. See “Personal,” Harper’s Weekly, Jan. 25, 1873, at 75.

Benjamin Bristow is introduced later in the text. As to his Supreme Court prospects and general biography, see Ross A. Webb, Benjamin Helm Bristow: Border State Politician (U. Press Kentucky 1969) [hereafter Webb on Bristow]; id. at 1 (Bristow born to Kentucky aristocracy); id. at 20 (Bristow family was opposed to slavery); id. at 27 (Bristow suffered damage to hearing and spine due to shelling at Shiloh).; id. at 51 (Bristow appointed Assistant U.S. Attorney in 1865; contrary to modern practice, it appears that he was the only assistant to the U.S. Attorney); see id. at 60, 70 (Bristow became U.S. Attorney in 1866, then resigned to engage in law practice with Harlan as of January 1, 1870).  Bristow’s biographer reports that Davis was one of Bristow’s “most intimate friends,” but does not explain how the men met.  See id. at 122.  Davis’s biographer does not mention Bristow at all. Bristow’s first argument before the Court had been excellent — so capable than Swayne, in his opinion, merely copied out Bristow’s arguments. The case is United States v. Hodson, 77 U.S. (10 Wall.) 395 (1870). Bristow argued the case “so ably . . . that Justice Swayne in his opinion agreed in toto with [his] arguments.” Webb on Bristow, at 74. In the summer of 1870, Bristow was under consideration for several positions at the newly created Department of Justice, including Assistant Attorney General.  He was ultimately offered the post of Solicitor General, which he accepted in October 1870.  See Webb on Bristow, at 71.

On David Davis and his general character: Davis was a confidante of Lincoln. See Goodwin, Team of Rivals, at 150 (noting closeness of Lincoln and Davis from circuit riding days); see also King on Davis, generally, to describe the relationship, and page 242-43 regarding Davis’s administration of Lincoln’s estate.  By the early 1870s, Davis was over 300 pounds.  See King on Davis, at 274. One contemporary observer said that Davis “had a big head and a big body, a big brain and a big heart.” Quoted in King on Davis, at xi; Davis was “also a massive man” in size.  Magrath, Triumph of Character, at 101. Davis “always first the politician and only second the judge.”  Magrath, Triumph of Character, at 101. Miller once said that Davis led “his act of his life by his hope of the Presidency.”  Magrath, Triumph of Character, at 101 (quoting Fairman on Miller, at 373). Davis was friendly with Miller, as they had similarly forthright personalities. See King on Davis, at 195.

For a discussion of Chase’s efforts to obtain the Republican nomination in 1860, see Goodwin, Team of Rivals, at 211-56.  For a discussion of Chase’s efforts to obtain either the Republican or Democratic nomination in 1868, see Schuckers on Chase, at 560 (“In the summer of 1867, the nomination of Mr. Chase in 1868, as the Republican candidate for President, seemed an event likely to happen . . .”), id. at 561 (“But [Chase] observed with astonishment, and with gratification also, the rapid development among Democrats of a strong party in favor of placing him before the country as the Democratic candidate . . . .”); id. at 560-73 (eventual selection of other candidates to represent both parties); see also Belden & Belden, So Fell the Angels, at 199-216.  Sokoloff writes: “Could Chase have been nominated? Had he really had a chance? The answer is undoubtedly yes.”  Sokoloff on Kate, at 148. As to Chase’s expectations in 1872, Hart observed that “[a]n evidence that [Chase] had lost his keenness of observation and discrimination was his continued hope of the Democratic nomination in 1872.” Hart on Chase, at 413. In assessing the reliability of Schuckers’s account, it is worth noting that James A. Garfield, a man of upstanding morality and honesty, contributed to the manuscript. See James A. Garfield, The Diary of James A. Garfield, Vol. II: 1872-1874, at 315 (entry of Apr. 21, 1874) (Mich. State Univ. Press 1967).

The jokes about women’s fashion are adapted from observations in Harper’s. On the style of bonnets at the time, the joke that the bonnet appeared to be “a cross between a locomotive smoke-stack and a custard pie” comes from “Humors of the Day,” Harper’s Weekly, Mar. 22, 1873, at 223. On Red Cloud’s reaction, see “Home and Foreign Gossip,” Harper’s Weekly, June 25, 1870, at 411 (“ ‘Red Cloud,’ the Indian Chief, evidently regards fashionable costume as an absurdity. He is reported to have burst into an uncontrollable fit of laughter when he first saw the ladies of Washington in street costume. Well, it is not strange. Ladies themselves will laugh in 1875 at the fashion plates of 1870.”); see also William S. McFeely, Grant, A Biography 317 (W.W. Norton & Co. 1981) [hereafter McFeely on Grant] (describing trip of Oglala Sioux chief Red Cloud in May 1870). On Eliza’s use of the word “bonnet”: “The bonnet proper had gone out of fashion by the 1870s, but the name was still used for headgear in general.” Notes on the text of Henry James, The Portrait of a Lady 219, 644 (1881, Penguin Classics 2003).

The anecdote regarding Lincoln and Seward, along with the observation that Lincoln would never have dropped in upon Chase for mutual amusement, is set forth in Belden & Belden, So Fell the Angels, at 73 (citing Frederick Seward, Seward at Washington as Senator and Secretary of State, III, at 208); see also Goodwin, Team of Rivals, at 668-69 (noting close friendship between Lincoln and Seward).  Davis was also well known to have a good sense of humor. See “Personal,” Harper’s Weekly, Mar. 17, 1877, at 203 (“Judge Davis . . . seldom loses the opportunity of enjoying a little hilarity, even on the bench, when it can be done without much shock to the bar.”). Davis was also fond of recollecting the anecdote that Lincoln told him, that Chase’s ambition reminded him of a story. A man was plowing his fields with a horse that was plagued by a gadfly.  The neighbors watched for some time, curious that the farmer did nothing about the gadfly.  They finally asked the farmer why he did not kill the fly.  The farmer responded, ‘Let her buzz. It keeps the horse alert and active about his work.’ Chase may have owed both his positions at Treasury and on the Court to that tale. The anecdote is told in Belden & Belden, So Fell the Angels, at 108 (citing multiple sources).

The statement that Chase “was the only human being that I believe Lincoln actually hated,” was made by Montgomery Blair. See Belden & Belden, So Fell the Angels, at 79 (quoting assessment, but not mentioning Blair’s name). Davis, as a confidante of Lincoln, is an appropriate speaker for the quote because Davis also loathed Chase.  While Chase plotted to become President, even while he was Secretary of the Treasury under Lincoln, Davis wrote that: “Eating a man’s bread and stabbing him at the same time, may be questioned.  Chase is doomed to disappointment.  I could tell you things about him that would astonish you.”  King on Davis, at 213 (quoting Davis to Rockwell, Jan. 24, 1864); see also Goodwin, Team of Rivals, at 605 (quoting portion of same letter).  King states that Davis knew that Chase was desperately aware that his own son-in-law, Sprague, had engaged in cotton trading with Texas in violation of the law.  King on Davis, at 213; see also King on Davis, at 277 (quoting Davis letter: “Chase is the most ambitious man, except Douglas, that I ever knew personally.  As long as the Presidency is not reached, everything else . . . is as dust and ashes.”). Miller’s half-hearted assessment of Chase as a “better man than public life generally leaves” is quoted in Blue on Chase, at 320 (quoting Miller letter, May 14, 16, 1873, in Fairman on Miller, at 251-52). As this statement was made after Chase’s death, the original quotation used “was” rather than “is”; I have changed to “is” because this conversation takes place before Chase’s death.

 

On Roscoe Conkling

This description of Roscoe Conkling is drawn from several contemporaneous sources, as well as the published biographies of Conkling. Much of Conkling’s correspondence was destroyed after his death.  As with Miller and Davis, we cannot confirm nor deny the presence of Senator Conkling at Nettie’s wedding. Given that it was the social event of the season, I suggest that Conkling was a likely attendee.

Conkling was a vivid figure during these times, “a type of manly beauty.” Benjamin Perley Poore, Perley’s Reminiscences of Sixty Years in the National Metropolis, Vol. II, at 206 (Hubbard Bros. 1886). Conkling was six foot three inches tall.  Jordan on Conkling, at 35; see also H.W. Brands, American Colossus: The Triumph of Capitalism 1865-1900, at 340 (Doubleday 2010) (Conkling was “blond and gigantic as a viking”) (quoting contemporary source).  By comparison, Lincoln was six foot four, and generally considered extremely tall. That said, Lincoln may have appeared even taller due to the type of hat he wore, and his lanky appearance accentuated his height.

Conkling was very vain.  He had a thin waist, broad shoulders which he kept trim by pummeling a punching bag hanging from the ceiling of his office.  He wore canary yellow waistcoats, twisted his thick hair into blond curl down the center of his forehead, and used lavender ink.  See, e.g., Candice Millard, Destiny of the Republic: A Tale of Madness, Medicine and the Murder of a President 37 (Doubleday 2011); see also Matthew Josephson, The Politicos 1865-1896, at 91 (1938; Commons ed. 2007); see also id. at 84 (Conkling was the “Beau Brummell of the Senate”). Conkling has been memorably introduced in a work of historical fiction as pummeling a punching bag while stripped to the waist. See Thomas Mallon, Two Moons 23 (Harcourt 2000).

In the classic characterization of Conkling by his opponent James G. Blaine, “[t]he contempt of that large-minded gentleman is so wilting, his haughty disdain, his grandiloquent swell, his majestic, super-eminent, overpowering turkey-gobbler strut has been so crushing to myself and to all the men of this House, that I know it was an act of the greatest temerity for me to venture upon a controversy with him.” Quoted in Donald Barr Chidsey, The Gentleman From New York: A Life of Roscoe Conkling 91 (Yale Univ. Press 1935) [hereafter Chidsey on Conkling] (quoting Blaine statement on the floor of the House on April 30, 1866); see also Millard, Destiny of the Republic, at 37 (quoting Chidsey)). Blaine went on, rejecting a comparison to a deceased Representative from New York, Winter Davis; Blaine said sarcastically: “The resemblance is great.  It is striking. Hyperion to a satyr, Thersites to Hercules, mud to marble, dunghill to diamond, a singed cat to a Bengal tiger, a whining puppy to a roaring loan.”  Chidsey on Conkling, at 91; see also Millard, Destiny of the Republic, at 37 (both quoting statement of Blaine on floor of House)).

Conkling had a strong relationship with President Grant, despite the major temperamental differences between the taciturn general and the flamboyant dandy. “Of all the Stalwarts with whom Grant forged an alliance, perhaps the most improbable was Roscoe Conkling.” Ron Chernow, Grant 734 (2017) [hereafter Chernow on Grant]. On July 1, 1870, Grant appointed one of Conkling’s henchmen, Thomas Murphy, as Collector of the New York Customs House, which gave Conkling control of the largest federal office in the United States at the time, which collected 70 percent of the country’s customs revenue. Chidsey, describing Conkling in 1870, explains: “He was the Boss now.” Chidsey on Conkling, at 150.  So Conkling made the appointments to the Customs House — including Chester A. Arthur in December 1871.  See Josephson, Politicos, at 88-89; Millard, Destiny of the Republic, at 36 (citing Hoogenboom on Hayes, at 324, and Doenecke, The Presidencies of James A. Garfield and Chester A. Arthur 12)); see also “Domestic Intelligence,” Harper’s Weekly, Dec. 9, 1871, at 1147 (noting appointment of Arthur as Collector). The attention given to this position in the Gilded Age seems disproportionate now, but this office not only collected 70 percent of the country’s revenue, but also affected the flow of commerce. Ray Ginger notes that the office created “intercity competition,” where Chicago and Boston customs inspectors made less money because the New York Customs House favored certain merchants. Ray Ginger, Age of Excess: The United States from 1877 to 1914, at 100 (1965).

Jordan calls the Collector position “the most powerful nonelective political job in the nation below cabinet level was that of collector of the Port of New York.”  Jordan on Conkling, at 133.  Chidsey states that Arthur was made Collector on March 14, 1872, thus marking the point that Conkling “got control of” the Customs House. See Chidsey on Conkling, at 244. Concerning a different patronage appointment, Harper’s around this time commented on “[h]ow entirely the patronage of the Government is controlled for the personal purposes of Senators.” “The Blessings of Patronage,” Harper’s, Apr. 2, 1870, at 210-11. The New York Customs House did a booming business and had large staff.  A “few dozen” were hired for political purposes, and when no one noticed, twenty or thirty more were hired.  Thus it was “the nesting place of ward-heelers, caucus-riggers and other assorted political handy men in large numbers.”  Jordan on Conkling at 133; see also Chidsey on Conkling, at 244 (“The customs house was a bowl overflowing with the heady punch of patronage.”).

I speculate that Kate’s attraction to Sprague was similar to her attraction to Conkling. See Bowers, Tragic Era, at 252-54 (describing Kate and Kate’s marriage to Sprague); Sokoloff on Kate, at 65, 99 (suggesting that Kate loved Sprague due to his wild, romantic nature — not to mention his wealth — but that she and Sprague were essentially incompatible due to Sprague’s underlying coarseness and lack of intellectual curiosity); Oller on Kate, at 59 (noting that Kate was in love with Sprague when she married him);  see generally Sheila M. Rothman, Woman’s Proper Place: A History of Changing Ideals and Practices, 1870 to the Present 22 (Basic Books 1978)  (“Post-Civil War women had a new and urgent charge to civilize their husbands by curbing their ‘animal’ instincts.”); John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 70 (U. Chicago Press 1988, 2d ed. 1997) (noting that the reigning ethos of the 1870s was that it was woman’s task to control man’s sexual urges). The description of Conkling’s sartorial splendor is drawn in large part from Belden & Belden, So Fell the Angels, at 288 and Emily Edson Briggs, The Olivia Letters: Being Some History of Washington City for Forty Years as Told by the Letters of a Newspaper Correspondent 107 (Neale Pub. Co. 1906) (calling Conkling “the Apollo of the Senate,” and “a very fine diamond considerably off color, unless one of fond of flame”); see also Jordan on Conkling, at 35-36 (describing Conkling’s unique physical and sartorial appearance); id. at 143 (“Physically, he was the handsomest man of his time.”); Chidsey on Conkling, at 5 (“Conkling was a Brummel, in the exact sense that while he did not originate fashions he sported them incomparably, and like the Beau he was clipped, well trimmed, a model of cleanliness, but not garish.”). “Not garish,” at least by the standards of the time.

Conkling was widely rumored to have conducted many affairs. See, e.g., Jordan on Conkling, at 145 (“Tales of the senator’s infidelity were widespread.”); Chidsey on Conkling, at 115 (“A hundred reports linked his name with almost as many women.”); id. at 234 (“[Conkling] probably did sleep with a lot of women.”); Chernow on Grant, at 734 (“[Conkling’s] female conquests were so numerous that John Hay derided him as ‘a patriot of the flesh-pots.’”); see also Jordan on Conkling, at 144 (observing that the ladies packed the gallery to watch Conkling).  The suggestion that Conkling fathered a child out of wedlock who occasionally appeared in the Senate gallery is my own invention. That said, “[t]here is a man in New York State today [in 1935], whom old-timers point out, who bears a striking resemblance to the late Senator Conkling, and whose son shows an even greater likeness. Also, there is a lady, a schoolteacher in one of the southern counties, who sometimes is designated as the product of another Conkling liaison.” Chidsey on Conkling, at 116. Conkling’s wife bore him one daughter, and no sons. See id.

 

Scene iii. May — October 1871

 The Justices in Conference

Memoranda appearing in the United States Reports indicate that Chase and Nelson did not participate in a large number of cases during the December 1870 Term. See, e.g., 77 U.S. (10 Wall.), at v (Chase absent for majority of cases, Nelson absent for portion); 78 U.S. (11 Wall.), at vii (noting that Chase generally absent due to health, and Nelson generally absent due to appointment as Joint High Commissioner to address treaty questions between United States and Great Britain); 79 U.S. (12 Wall.), at v (noting absence of Chase and Nelson for many cases); 80 U.S. (13 Wall.) at ix (noting Nelson heard none of the cases published in the volume as “having been detained at home by indisposition”).

The reargument of the Legal Tender Cases was set for April 12, 1871, but then postponed to April 18, 1871. When Justice Nelson was unable to appear due to illness, the reargument was put off yet another week. See Swisher on Field, at 188. Chase sent a note asserting that he was indisposed. Nelson was similarly incapacitated, and when Field claimed that he was uncharacteristically unwell, he suggested that the matter be heard in October. See Fairman on Miller, at 173. Swayne, being the senior member of the presumed majority of those who voted to take the case, announced that the importance of the question demanded that argument would proceed, and so Chase roused himself from his sickbed to preside at conference two weeks later, on the first of May, as the Court’s term drew to an end. See Fairman, Reconstruction and Reunion, Part One, at 752-59 (noting that rescheduling problems led to Swayne ultimatum, prompting full attendance). The opinion states that on May 1, 1871, judgment was affirmed, and on January 15, 1872, opinions were delivered.  See The Legal Tender Cases, 79 U.S. at 528-29.

The conference described in the text, therefore, is my speculation, grounded in the historical record, of the Justices’ discussion on May 1, 1871. There is no historical record of what the Justices said to one another in conference — this is still true today (as of the Chief Justiceship of John Roberts), to preserve the confidentiality of these deliberations. I have invented the dialogue for the Justices based on their eventual positions in the case, as expressed in their opinions in the Legal Tender Cases, supplemented by the historical record, including various arguments made at the time. The text of the Justices’ opinions in The Legal Tender Cases is available at this link.

For the facts of Knox v. Lee, the first legal tender case, see The Legal Tender Cases, 79 U.S. 457, 457-58 (1872). The discussion of the trial court’s confusing instructions to the jury are at id. 458-59.  The first names of the parties are not included in the opinion, but are set forth on the briefs filed in the case, reprinted in Philip B. Kurland & Gerhard Casper, 6 Landmark Briefs and Arguments of the United States Supreme Court 313, 383 (Univ. Pubs. Amer. 1975). There is no “o” in Phebe Lee’s first name. See id.  The case presenting the slightly different question of whether debts contracted after the passage of the Legal Tender Acts may be paid in paper is Hepburn v. Griswold, 75 U.S. 603 (1870).  For background on Hepburn, and an explanation of why the matter did not come before the Court prior to 1870, see Fairman, Reconstruction and Reunion, Part One, at 700-13; Fairman on Miller, at 149-60; “Legal Tender,” Harper’s Weekly, Mar. 19, 1870, at 178-79 (discussing Legal Tender Acts as wartime expedient).  For the facts of the case, see Hepburn, 75 U.S. at 604-05; see also Fairman, Reconstruction and Reunion, Part One, at 713-19 (analyzing Hepburn). The text of the Justices’ opinions in Hepburn is available at this link.

Prior to the Civil War, the federal currency system consisted entirely of gold and silver, while the state banks under state law could issue paper money redeemable upon demand in coin.  Soon after the war began the state banks were unable to meet demand, and suspended payment upon the notes.  The federal government then had to do the same, to protect its supply of gold and silver. “In essence, this put the government on a paper standard, which Chase proposed to formalize.” H.W. Brands, The Money Men: Capitalism, Democracy, and the Hundred Years’ War Over the American Dollar 109 (W.W. Norton 2006); see also Fairman, Reconstruction and Reunion, Part One, at 678-89; Swisher on Field, at 168.  See generally Ajit V. Pai, Congress and the Constitution: The Legal Tender Act of 1862, 77 Oregon Law Review 535 (1998) (describing congressional debate over the first Legal Tender Act). For a broader discussion of the currency problem, see Richard White, The Republic For Which It Stands: The United States During Reconstruction and the Gilded Age, 1865-1896 (Oxford U. Press 2017). As White explains, at the time prior to the Court’s decision in Hepburn, there were three types of money in the United States. First, there were the greenbacks, “[e]ssentially federal IOUs backed by the credit of the government, greenbacks were unredeemable in either gold or silver.” Id. at 181. Second, there were the bank notes, “also not redeemable for gold or silver,” issued by the national banks, supported by government bonds. Id. at 182. The literature of the period (Horatio Alger’s Ragged Dick, for example, published in 1867) generally refers to “bank notes” to refer to this type of money. Third, while gold and silver were ostensibly the basis of the financial system, they appeared only nominally: “it was nominal because dollar denomination coins were so scarce as to be invisible in ordinary transactions.” Id. at 182.

It is difficult to fully grasp today the significance of the money question.  As H.W. Brands writes, “For the first five generations of America’s independent history — from 1776 till the eve of World War I — a single question vexed American politics and the American economy more persistently than any other. . . . The question was the money question. In simplest form it asked: What constitutes money in the United States? Gold? Silver? Paper currency? Bank notes? Checks?” Brands, Money Men, at 15; see also White, Republic For Which It Stands, at 183 (“Liberals often framed the decision between gold and greenbacks as a choice between sin and salvation.”).

On the general nature of judicial conferences, while I have imagined the tenor of this (and other) judicial conferences, this depiction is consistent with the historical record, which demonstrates that the leading (and antagonistic) minds of the Court at the time were Miller, Field, Bradley, and later Harlan, such that these men will speak the most:

“Miller, Bradley, and Field together served under three Chief Justices, of whom none was an original theorist or inspired stylist. In contrast, each of these three associates had the ability to reshape a Court in his image, but each was prevented from so doing by the resistance of the other two and of Justice John Harlan, who together with Miller, Bradley, and Field made the Court in the 1870s and 1880s a singular collection of strong-minded and conscientious men.”

White, American Judicial Tradition, at 86-87.

The original vote had been five (Chase, Nelson, Grier, Field, Clifford) to three (Miller, Davis, and Swayne). See Hepburn, 75 U.S. at 626 (noting three dissenters); see also David P. Currie, The Constitution in the Supreme Court: Civil War and Reconstruction, 1865-1873, 51 University of Chicago Law Review 131, 184 (1984) (hailing “Justice Miller’s concise and readable dissent,” which “said most of the right things”). Miller’s accusation that Chase wrongly pressured Grier to change his vote was well founded. See, e.g., Swisher on Field, at 175 (“The venerable Justice had grown quite feeble in recent years, and his mind was not as clear as it had been in former times.”); Currie, Civil War and Reconstruction, at 184 (referring to “the decrepit Grier”); Fairman, Reconstruction and Reunion, Part One, at 719 (discussing Chase’s manipulation of Grier in the course of deciding major constitutional question and concluding: “The chief responsibility for this surely must be placed upon Chase.”); Fairman on Miller, at 164-65 (describing Chase’s exploitation of Grier’s confusion); see also Swisher on Field, at 176 (quoting Justices as asking of Grier: “We only ask, of what value was his concurrence, and of what value is the judgment under such circumstances?”). Miller’s view that the Court was entitled to reexamine precedent in light of the change in Court membership is set forth in Fairman on Miller, at 165 (quoting Miller’s notes); see also “Legal Tender,” Harper’s Weekly, Apr. 16, 1870, at 243 (“As the case involved the right to exercise a power in war which Congress and the Administration had declared to be essential to success, it would seem that it ought to have been reserved until the Court was full.”). Miller wrote that Chase “resorted to all the strategems of the lowest political trickery” to avoid rehearing Hepburn.  Blue on Chase, at 305 (quoting Miller letter, Apr. 21, 1870). This position was all the less defensible in light of the fact that the Hepburn decision, by its terms, applied only to those debts contracted prior to the passage of the Legal Tender Acts; the Court had not spoken to the issue of whether debts contracted after the passage of the Acts could be paid in paper money. See Swisher on Field, at 180 (explaining limited scope of Hepburn).  For the twists and turns of Chase’s efforts to avoid any case that might result in a reargument of the legal tender question, see, e.g., Fairman, Reconstruction and Reunion, Part One, at 738-46; Swisher on Field, at 182-85; Fairman on Miller, at 169-71; Clifford on Clifford, at 283-84; King on Davis, at 273-74. Chase keenly felt the force of Miller’s persuasiveness. Fairman on Miller, at 3 (citing recollection of Chase that Miller was “beyond question . . . the dominant personality [then] upon the bench, whose mental force and individuality [were] felt by the Court more than any other”).

Although I have imagined, in speculating upon Chase’s memories, the tenor of the discussion of the Legal Tender Acts between Lincoln and his cabinet, it is consistent with the general tenor of Lincoln’s and Chase’s relationship. Goodwin only fleetingly mentions the Legal Tender Acts at Goodwin, Team of Rivals, at 461-62. Goodwin explains that “Chase would never cease to underestimate Lincoln, nor to resent the fact that he had lost the Presidency to a man he considered his inferior.” Id. at 365. For more on the “dire circumstances” leading to the passage of the Legal Tender Acts, see James Ledbetter, One Nation Under Gold: How One Precious Metal Has Dominated the American Imagination for Four Centuries 30 (Liveright Pub. Corp. 2017); see also id. at 31 (Chase “portrayed his personal position on the bill as reluctant acquiescence”). Chase was well aware of the apparent unseemliness of his reversal of position.  See Hepburn, 75 U.S. at 625-26 (noting that “[t]he time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority,” and that “[m]any who doubted yielded their doubts,” while others “felt themselves constrained to acquiesce,” but that now, “under the influence of the calmer time, reconsidered their conclusions”).  Field commended this “felicitous language.”  Swisher on Field, at 177 (quoting Field). Chase’s statement in the dialogue, from “My whole plan” through “necessity of resumption,” paraphrases a letter from Chase to S. De Witt Bloodgood, May 9, 1864, quoted in Swisher on Chase, at 171. Chase once wrote an epigram that concisely summarizes his views: “When public exigencies require / Coin must become paper. / When public exigencies allow / Paper must become coin.” Quoted in Stanley I. Kutler, Judicial Power and Reconstruction Politics 121 (U. Chicago 1968).

There is extensive debate over whether Grant wished to pack the Court to reverse the outcome of Hepburn, but the general weight of scholarship suggests that Grant already intended to nominate Strong, and Bradley was in the queue to be nominated, before the decision in Hepburn was known.  See Fairman, Mr. Justice Bradley’s Appointment, at 977-1034. Chernow’s brief description of the Strong and Bradley nominations suggests that loyalty to the Union and merit were the two primary considerations, and does not mention the legal tender issue. See Chernow on Grant, at 689. See also Swisher on Field, at 181 (explaining assumption that Bradley and Strong would vote to uphold the Legal Tender Acts); White, Republic For Which It Stands, at 187 (“Hepburn was an astonishing verdict and it threatened to wreak havoc, so Grant immediately appointed two new justices to the court. They were both railroad attorneys, and they both knew that [Hepburn] meant railroads would have to pay interest on antebellum bonds in gold, thus significantly raising their costs.”). Justice Strong’s decision upholding the Legal Tender Acts for the Pennsylvania Supreme Court is Shollenberger v. Brinton, 52 Pa. 9,56 (1866). Grant’s first nominee following the resignation of Justice Grier was Attorney General Edwin Stanton, but three days after his nomination Stanton died of a heart attack. See Goodwin, Team of Rivals, at 752; King on Davis, at 272.  Ironically, Grier attended the funeral of Stanton, his would-be successor.  See Swisher on Field, at 181.  Grant also nominated his Attorney General Rockwood Hoar, but the Senate did not take it up. See McFeely on Grant, at 387. In mid-June 1870, Hoar was forced to resign the Attorney Generalship because Grant came to believe that Hoar was insufficiently aggressive on asserting the rights of the newly freed African-Americans. See McFeely on Grant, at 364-67. Hence both Bradley and Strong were second choices.

This immortal quote “Let the end be legitimate . . ” of course comes from McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).  Although the name of the case is occasionally rendered as M’Culloch, none of the judges who mention it in the Legal Tender opinions spell it that way.  Similarly, the Oxford Companion to the United States Supreme Court spells it as “McCulloch.” The Strong, Bradley, and Chase opinions all rely upon Marshall’s great dictum from McCulloch v. Maryland.  See Legal Tender Cases, 79 U.S. at 539 (Strong, J., for the Court); id. at 568 (Bradley, J., concurring); id. at 570 (Chase, J., dissenting). As Currie notes: “The opinions on both sides of the legal tender controversy faithfully echoed Marshall’s tests for determining the validity of laws passed under the necessary and proper clause, and in so doing they reached diametrically opposite results.” Currie, Civil War and Reconstruction, at 185; see also Schwartz, History of the Supreme Court, at 155 (“[N]othing shows the inadequacy of ‘original intention’ as the be-all-and-end-all of constitutional interpretation as well as” the Legal Tender Cases).  Field in his opinion appears to recognize that Marshall’s great principle does not provide the specific guidance often ascribed to it: “The Chief Justice did not, it is true, in terms declare that legislation which is not thus appropriate, and plainly adapted to a lawful end, is unconstitutional, but such is the plain import of the argument advanced by him; and that conclusion must also follow from the principle that, when legislation of a particular character is specially authorized, the opposite of such legislation is inhibited.” Legal Tender Cases, 79 U.S. at 642. I have condensed and summarized this view into the pithy remark in the text.

 On the Biblical grounds for the Justices’ opinions, the Indiana Supreme Court decision referenced in the text is Thayer v. Hedges, 22 Ind. 282 (1864), quoted in Fairman on Miller, at 154. Justice Field closed his opinion with the Biblical quote I attribute to him in dialogue.  See Legal Tender Cases, 79 U.S. at 681 (quoting John 14:15); see also Swisher on Field, at 192.  Swisher’s view of Field’s opinion is that Field “found himself carried away” into discussing his “universal law of currency.”  Swisher on Field, at 191. On the possible use of Shakespeare in constitutional interpretation, see Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017, 1017, 1061, 1066 (2008).  The suggestion that the Justices actually drew upon Shakespeare in their discussions is intended to be fiction.

On the potential personal reasons for the Justices’ decisions: On the role of Field’s brother David Dudley Field in defending constitutionality of Legal Tender Acts in New York challenge in 1863, see Swisher on Field, at 170. On Miller’s increasingly dire personal financial situation in the early 1870s, see Ross on Miller, at 187; see also McFeely on Grant, at 321 (“The greenbacks, which no longer commanded confidence, were to be turned in (at a discount) and removed from circulation, in exchange for currency redeemable in gold and, hence, expected to appreciate in value. The problem, as the citizens of the West and the South recognized, was that fewer people would hold those fewer dollars.”). On the general positions taken by geographical sections of the public in the Legal Tender Cases, see generally Charles Warren, The Supreme Court in United States History, Volume Two: 1836-1918, at 499 (Little, Brown rev. ed. 1922, 1926). Bradley’s statements are generally drawn from his concurring opinion in the Legal Tender Cases, 79 U.S. 457, 564 (1871) (Bradley, J., concurring).

Briefly, “Black Friday” was September 24, 1869, when Jay Gould and Jim Fisk, relying on inside information obtained from Grant as to the government’s plans to buy gold, orchestrated a panic to drive up the price of gold and then sell when the market was at its height. See Brands, American Colossus, at 32-36; Chernow on Grant, at 672-79 (description of Black Friday); Ledbetter, One Nation Under Gold, at 37-48; McFeely on Grant, at 320, 328 (describing personal involvement of Ulysses and Julia Howe Grant in Black Friday); Edward J. Renehan, Jr., Dark Genius of Wall Street: The Misunderstood Life of Jay Gould, King of the Robber Barons 163-78 (Basic Books 2005) (describing Jay Gould’s involvement in Black Friday); see also Brands, Money Men, at 111 (describing Black Friday); Josephson, Politicos, at 179 (“To bankers and financiers, the very existence of this wartime fiat money in our circulation, and the precedents under which Congress might again extend the debasement of currency, were anathema, created endless uncertainty and menace for all values in the future.”). Curiously, Cyrus Field (Stephen Field’s brother) was present at a dinner with Grant in mid-June at which Gould and Fisk initially approached Grant to determine his views on gold. See Ledbetter, One Nation Under Gold, at 38.

Clifford’s remarks are based on his political record. On Clifford’s opposition to the Second Bank of the United States while in the Maine legislature, see Clifford on Clifford, at 27-28.  On Clifford’s personal encounters with President Andrew Jackson, see Clifford on Clifford, at 49.  Clifford’s letters do not say that he discussed the Bank with Jackson, merely that he shook hands with the man, but the two men shared similar views on the subject. Nelson’s passive participation in the conference is based on the fact that we was now advanced in age, and did not write an opinion in the Legal Tender Cases. See Currie, Civil War and Reconstruction, at 184 n.317 (“Nelson, as usual, was mercifully silent.”). The prospect of Davis’s nomination for President is reflected in King on Davis, at 277 (noting interest in January 1871 among Democrats to nominate Davis for President).

 

The Miller-Field Conversation

The conversation between Miller and Field is invented, but is based upon the historical record. To begin with, the Court’s opinions in the Legal Tender Cases were long in coming. See Fairman, Reconstruction and Reunion, Part One, at 759 (noting that result of Legal Tender Cases was announced on May 1, 1871, “amid the mass of decisions at the close of the term,” but opinions not delivered until January 15, 1872).

As to Field’s personality, here and elsewhere in the text, the historical record makes plain that Field had a somewhat abrasive personality.  Field was “tactless, querulous, and given to annoying fits of self-righteous moralizing.” But he was “one of the Court’s most colorful judges.”  Magrath, Triumph of Character, at 100. “He is an independent thinker and writer.  With him the unexpected often happens.”  Williams, Reminiscences, at 302; see also Fairman, Reconstruction and Reunion, Part One, at 1461 (“Justice Field had a somewhat prickly personality, an alert mind, and a designing foresight about the power of the Court to affect the course of affairs. He would exert a potent influence for years to come.”). Notwithstanding his dim view of nearly everyone else, Field admired Miller, explaining: “I love Miller; he has so much backbone!”  Fairman on Miller, at 424 (quoting unpublished manuscript by William A. Maury quoting Field).

The physical description of Washington draws from the historical record. Washington underwent significant public works construction in the early 1870s. See Constance McLaughlin Green, Washington, Volume One: Village and Capital, 1800-1878, at 345-46 (Princeton Univ. Press 1962); White, Republic For Which It Stands, at 24 (“Washington was a bedraggled city . . .”). The physical changes in DC started in the 1870s, including gas lamps and trees.  Although many byways were muddy and clogged with cows and pigs, the streets were finally paved, with wooden blocks or macadam, a form of paving using small broken stones of similar size. See Kenneth E. Davison, The Presidency of Rutherford B. Hayes 53-54 (Greenwood Press, Inc. 1972). For Twain’s famous remark about the as-yet uncompleted Washington Monument, see Mark Twain & Charles Dudley Warner, The Gilded Age: A Tale of Today 172 (1873; Penguin Classics 2001); see also id. at 170-75 (describing general dilapidation of Washington). The Washington Monument, it was generally felt, took a shamefully long amount of time to complete. See “Home and Foreign Gossip,” Harper’s Weekly, June 22, 1872, at 491. Although it has since dropped the hyphen, during this time period the paper was The New-York Times.  See, e.g., Kenneth D. Ackerman, Boss Tweed: The Rise and Fall of the Corrupt Pol Who Conceived the Soul of Modern New York 92 (Carroll & Graf Pubs. 2005).

Field’s jibe about the “ignorant Irish” was the majority view of the time, as expressed by E.L. Godkin of The Nation. See Ackerman on Tweed, at 197 (quoting Godkin’s claim that “the ignorant Irish voting element” was the cause of Tweed’s rise). Harper’s also took the position that while David Dudley Field was entitled (and obliged) to seek the best interests of his clients, for him to seek his client’s advantage before judges who were “confederates” of the defendant was another matter: “It is, indeed, a lawyer’s duty to defend the rights of every man, but the rights of every man and of society are unsafe with suspected judges.” “The Duty of Lawyers,” Harper’s Weekly, Feb. 18, 1871, at 138. There are also many, many cartoons from Harper’s critical of David Dudley Field.  See “Dead Men Tell No Tales,” Harper’s Weekly, Feb. 24, 1872 (Nast cartoon depicting Field hiding himself from Lady Justice at the grave of an Erie Ring conspirator); “Mr. David Dudley Field: Gone to a Higher Tribunal,” Harper’s, Jan. 6, 1872 (Nast cartoon depicting David Dudley Field standing before draped body, lying dead); see also “Morality and Law,” Harper’s Weekly, Apr. 8, 1871, at 307 (criticizing Field). Some weeks earlier in Harper’s, on January 6, 1872, on page 8, is the famous Nast cartoon “Can the Law Reach Him?” depicting a policeman reaching only as high as Tweed’s enormous belly.

In the summer and fall of 1871, the Committee of Seventy was indeed poised to indict Tweed, that David Dudley Field contacted the Committee to offer his services, but that lingering resentment against Field among the Committee’s members precluded his assistance, thus leaving Field in a position where there was no conflict in defending Tweed.  See Philip J. Bergan, “David Dudley Field: A Lawyer’s Life,” in Fields and the Law, at 42-43.  By way of background, the Committee of Seventy was formed on September 4, 1871, led by lawyer Joseph Choate.  The taxpayer injunction suit, on behalf of plaintiff John Foley, was filed on September 7, 1871, and the injunction was granted by New York State Supreme Court Judge George Barnard, who was alleged to have believed that this decision would indeed lead to the Governor’s Office.  Barnard had formerly been a Tweed crony.  See Denis Tilden Lynch, “Boss” Tweed: The Story of a Grim Generation 364-86 (Boni & Liveright 1927) (reprinted 2002 by Transaction Pubs.); Ackerman on Tweed, at 201-02, 204 at footnote. Field’s prediction proved correct. Tweed was criminally indicted in December and promptly retained David Dudley Field, who asked for an eternity of adjournments. See Lynch, Boss Tweed, at 386, 390-91.

 

Scene iv. January 1872

While there are no contemporaneous accounts of the Court’s reading of the opinions in the Legal Tender Cases, I have depicted the Justices as they ordinarily appeared, reading in the order in which they would have read the opinions, with the dialogue (rather, serial monologues) consisting of revised and edited quotations from the Justices’ opinions in the Legal Tender Cases.

Justice Strong’s opinion is set forth at Legal Tender Cases, 79 U.S. at 529, 544. There is material omitted from this quote; I have not used ellipses in the text to indicate that material has been omitted, so as to preserve the flow of the text. For a similar view, see “Legal Tender,” Harper’s Weekly, Mar. 13, 1871, at 426 (“The vast indebtedness of the people has been adjusted in [legal tender], so far as it has been adjusted, and it will be perilous to have the foundations of all  that has been done disturbed by a harsh decision.”).

Justice Bradley’s opinion is set forth at Legal Tender Cases, 79 U.S. at 554-70; see also Currie, Civil War and Reconstruction, at 184 n.317 (“Justice Bradley . . . showed off his historical knowledge without adding much of substance”).  The repeated use of former Chief Justice Marshall’s instruction (“Let the end be legitimate . . . ”) is in both opinions, in Strong’s opinion at 79 U.S. at 539, and in Bradley’s opinion at 79 U.S. at 568.

Chief Justice Chase’s opinion is set forth at Legal Tender Cases, 79 U.S. at 572, 575. Two paragraphs in particular are paraphrased from the opinion. The first (“It was his fortune . . . “) is from Legal Tender Cases, 79 U.S. at 575; the second (“The passage of the bill was delayed . . .”) is from id. at 576. At the time, Harper’s found it “singular and suggestive” that the greatest ally of opponents of the Legal Tender Acts “should have been furnished by the gentleman at whose instance, as Secretary of the Treasury during the war, the Legal Tender act was passed.” “The Supreme Court and Legal Tender,” Harper’s Weekly, May 20, 1871, at 450; see also “Domestic Intelligence,” Harper’s Weekly, May 20, 1871, at 451 (reporting on Knox decision and noting that Chase, Nelson, Clifford, and Field dissented). See also Legal Tender Cases, 79 U.S. at 576-79; the quote “these notes and bills . . .” is a paraphrase from the opinion, see id. at 584.

Justice Clifford believed that his dissent in Knox was one of the best ever delivered by him.  See Clifford on Clifford, at 284. For the ponderous Clifford quotation, see Legal Tender Cases, 79 U.S. at 587 (Clifford, J., dissenting). Currie includes this passage as an egregious example of Justice Clifford’s dull opinions, supporting his suggestion that Justice Clifford might well have been the most insignificant Justice of the Supreme Court, particularly measured by the sheer number of unimportant words he generated.  See David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 University of Chicago Law Review 466, 475 & n.23 (1983).  Currie had the same reaction attributed to Miller in the text:  namely, if it was not necessary to go into detail, why did Clifford do so?  See id.  And it is quite likely that Miller had this reaction; Fairman notes that Miller had “a certain impatience with all inconsequence, a touch of wolfishness toward those who proved tedious or prolix.”  Fairman on Miller, at 12. The other paragraphs from Clifford’s opinion come from Legal Tender Cases, 79 U.S. at 593, 625-26.

Justice Field’s statements in dissent are also drawn from his opinion. See Legal Tender Cases, 79 U.S. at 634 (Field, J., dissenting).  Currie suggests that Field was pointedly ignoring the dissent that Clifford had read over the previous two hours or so, see Currie, The Most Insignificant Justice, at 477 n.69. According to Chase’s diary, “the reading of the opinions took five hours and a half.” Fairman, Reconstruction and Reunion, Part One, at 760 (quoting Chase diary entry). Field’s struggle for power and influence will be a recurring theme in the text. Indeed, shortly after finding himself unsuccessful in the Legal Tender Cases, Field persuaded a majority of his colleagues to limit that ruling by holding that a contract between the parties that specified payment “in specie” could only be satisfied by payment in gold or silver, and not paper money.  Miller and Bradley dissented, incredulously. See Trebilcock v. Wilson et ux., 79 U.S. 687 (1871).

There is extensive scholarly commentary on The Legal Tender Cases.  For an early assessment supporting the Court’s approval of the Legal Tender Acts, see James B. Thayer, Legal Tender, 1 Harvard Law Review 73 (1887) — one of the first articles ever published by the Harvard Law Review.

 

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