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Davis, David

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Birth: March 9, 1815, Cecil County, Maryland.

Education: Graduated Kenyon College, 1832; Yale Law School, 1835.

Official Positions: Illinois state representative, 1845–1847; member, Illinois Constitutional Convention, 1847; Illinois state circuit judge, 1848–1862; U.S. senator, 1877–1883.

Supreme Court Service: Recess appointment as associate justice by President Abraham Lincoln, October 17, 1862, to replace John A. Campbell, who had resigned; nominated December 3, 1862, confirmed by the Senate, December 8, 1862, by a voice vote; took judicial oath December 10, 1862; resigned March 4, 1877; replaced by John Marshall Harlan, nominated by President Rutherford B. Hayes.

Death: June 26, 1886, Bloomington, Illinois.

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David Davis
Noteworthy Opinions

David Davis

The Supreme Court career of David Davis, Abraham Lincoln's friend, campaign manager, and appointee, is most closely identified with one case—Ex parte Milligan (1866)—in which the Court challenged the trial of civilians by military tribunals during the Civil War. Davis's fifteen-year career on the Court was, otherwise, relatively undistinguished. Indeed, not only did Davis seek the Liberal-Republican nomination for president while sitting on the Court, but also, when the Illinois legislature elected him to the U.S. Senate, Davis chose to take the Senate oath. Moreover, Davis's decision to leave the bench disturbed the delicate political balance envisioned for the commission created to resolve the dispute over the presidential election of 1876.

David Davis was born on his maternal grandfather's plantation on Maryland's eastern shore March 9, 1815, eight months after his father, a young physician, died. He began studies at Kenyon College at age thirteen and, after graduation, moved to Lenox, Massachusetts, to study law with attorney Henry W. Bishop. He attended the New Haven Law School for less than a year and returned to Lenox. At the age of twenty, Davis headed west to Illinois, ultimately settling in Bloomington. A successful law practice and an active political life, including service in the state legislature in the mid-1840s, led to his election in 1848 as a state judge in the Eighth Circuit. He held that position until his elevation to the Supreme Court in 1862, two years after orchestrating Lincoln's nomination as the Republican presidential candidate in 1860.

One would have to go beyond the opinions Justice Davis wrote during his first three years on the Supreme Court to realize that the Union was engulfed in a life-or-death struggle. Of the thirteen decisions he wrote during the December 1863 and December 1864 terms (Davis was confined to bed by illness the following term), nine concerned property disputes. But Davis's presence on the Court was significant because he voted with the slender five-member majority in the Prize Cases of 1863, upholding the Lincoln administration's blockade of southern ports, even absent a formal declaration of war.

While fulfilling his circuit court duties, Davis was closer to the exigencies of war. His biographer includes the following excerpt from Davis's charge to a grand jury sitting at the circuit court in Indianapolis:

It is charged that there are secret organizations …. with ‘grips, signs and passwords’ having for their objects—resistance to Law, and the overthrow of the Government.… If anywhere in this State bad men have combined together for such wicked purposes, I pray you, bring them to light and let them receive the punishment due to their crime.

In Ex parte Milligan, a case that first came before Davis when he was sitting on the circuit court for the district of Indiana, the issue concerned where such disloyal citizens would stand trial to “receive the[ir] punishment.”

In May 1865 Davis, along with district judge David McDonald, heard the petition of Lambdin P. Milligan, a Peace Demo-crat, to be “discharged from an allegedly unlawful imprisonment.” Milligan argued there and, after Davis and McDonald could not agree, before the Supreme Court that because he was a civilian, the military commission that tried, convicted, and sentenced him to death by hanging for disloyal activities had no jurisdiction. On December 17, 1866, nine months after extensive oral argument by a group of advocates that included Maj. Gen. Benjamin Butler for the government and David Dudley Field for the defense, Davis announced a ruling in Milligan's favor.

Davis, who to that point had been circumspect and conservative in his rhetoric as a justice, dramatically noted that the issue posed by Milligan's challenge “involves the very framework of the government and the fundamental principles of American liberty”; indeed, “no graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people.” Now that the “late wicked Rebellion” was over, constitutional questions regarding the conduct of the Civil War could “be discussed and decided without passion or the admixture of any element not required to form a legal judgment.” Davis's opinion in Milligan signaled the Court's reassertion of its antebellum role as ultimate arbiter and defender of the Constitution.

Davis concluded that the military commission had no jurisdiction to try or sentence Milligan. The dire conditions of war could not excuse the violation of essential constitutional rights. In the most memorable passage from his entire Supreme Court opus, Davis proclaimed:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

The price for uttering these noble phrases was, according to Supreme Court historian Charles Warren, “a storm of invective and opprobrium” from Radical Republican quarters. Stung by this reaction, Davis wrote, in private correspondence: “The people can change their Constitution, but until it is done all attempts to evade it, override it, or disregard it, end either in anarchy or despotism.” This principle would resurface in Supreme Court history not only in cases specifically concerning military trial of civilians in subsequent wars, but also in the opinions of the Court's conservatives who later struggled against the wave of liberal legislation designed to deliver the nation from the depths of the Great Depression.

Davis's remaining years on the Court would prove to be neither as stormy nor as stimulating, particularly for someone as politically active and interested as he. Much of the Court's work was taken up with problems posed by the outcome and conduct of the Civil War, the relationship between the states and the newly ascendant federal government, and the nation's increasingly complex industrial economy.

One puzzle Davis and his fellow justices faced was the question of when the Civil War had, in fact, ended. In Burke v. Miltenberger (1874), for example, the Supreme Court had to decide, in a real property dispute, whether the Provisional Court of Louisiana, established by President Lincoln during the war, maintained its authority as late as June 1865. Davis noted that no single event, such as the surrender of Confederate general Kirby Smith on May 26, 1865, marked the cessation of the war; rather, “the war did not begin or close at the same time in all the States, that its commencement and termination in any State is to be determined by some public act of the political departments of the government.”

In United States v. Anderson (1870), the dispute concerned the effect of a two-year statute of limitations on a claim brought by a loyal citizen in June 1868 under the Abandoned or Captured Property Act. As in Burke, Davis refused to identify one universal date for the end of the war. In the absence of clear guidance from Congress, Davis opted for a relatively late date, August 20, 1866, in the process making clear his pro-Union bias: “It is clear the point of time should be construed most favorably to the person who adhered to the National Union, and who has proved the government took his property.”

Although slavery was abolished by the Thirteenth Amendment, the Supreme Court still had to contend with the legacy of the “peculiar institution.” In Boyce v. Tabb (1873), the Court affirmed a federal circuit court holding that a creditor could enforce a promissory note given by a debtor for slaves purchased in 1861. Despite the fact that the Louisiana Supreme Court had declared such contracts void, Davis, citing the principles of Swift v. Tyson (1842), did not feel bound to follow the state's lead, noting that state court decisions “are not conclusive authority, although they are entitled to, and will receive from us, attention and respect.”

In an earlier case, Payne v. Hook (1869), Davis had also championed federal law, notwithstanding contrary state rulings. In a probate matter brought by a Virginian against a Missouri official, Davis concluded that the equity jurisdiction of federal courts “is subject to neither limitation or restraint by State legislation, and is uniform throughout the different States of the Union.”

He did, however, recognize a limit to judicial power, even of the federal courts. For example, in Wilmington and Raleigh Railroad Co. v. Reid (1871), the Supreme Court, in an opinion by Davis, thwarted North Carolina's attempt to tax railroad property, despite a provision in the railroad's charter exempting the company “from any public charge or tax whatsoever.” The tax exemption provision was deemed “plain and unambiguous”; despite his sympathy for the state's plight, especially since “the necessities of government cannot always be foreseen,” Davis concluded that the courts of the country “are not the proper tribunals to apply the corrective to improvident legislation of this character.” In this regard, see also Washington University v. Rouse (1869), a Davis opinion protecting the school's tax-exempt status.

Another railroad benefited from Davis's jurisprudence in Union Pacific Railroad Company v. Hall (1875). This time it was the federal government that was seeking payment from the carrier, but the Supreme Court refused to hold Union Pacific liable for interest on federal bonds before the maturity of the principal. Davis adhered closely to the terms of the 1862 act of Congress authorizing and financing railroad construction and to the realities then prevailing: “Vast as was the work, limited as were the private resources to build it, the growing wants as well as the existing and future military necessities of the country demanded that it be completed.” The Court's role was not to “sit in judgment upon [the statute's] wisdom or policy,” but to “interpret its provisions.” Although Davis privately expressed concern about “railroad mania” in Illinois localities anxious to lend support through bond issues, in the Union Pacific case he did not allow his personal bias to interfere with his judicial obligations.

Davis's years on the Supreme Court were frustrating, exacting, and ultimately unsatisfying. He enjoyed circuit court duties but confessed privately that he found appellate work “too much like hard labor.” In February 1872 Davis received the presidential nomination at the Labor Reform (or National Labor Union) convention in Columbus. His dreams of the White House evaporated two months later when, despite some active campaigning on his behalf, he lost the Liberal Republican nomination to Horace Greeley.

Davis had a chance to play a more prominent role in the next presidential election, as it was generally expected that, unaligned as he was with the leaders of either party, he would be named to the electoral commission charged with deciding the winner in the Hayes-Tilden contest. Instead, Davis accepted his election to the U.S. Senate from Illinois and resigned his seat on the Court. He served six years as a senator and, as an independent leader of that body, was named president pro tem in 1881. As the first in the line of succession following the death of President James A. Garfield and the accession of Chester A. Arthur, Davis had finally realized his national political aspirations.


The standard biographical treatment, Willard King, Lincoln's Manager: David Davis (1960), is especially strong on Davis's political life. The Davis family papers can be found at the Illinois State Historical Society in Springfield. In addition, an impressive collection of Davis papers and other materials was placed by King into the collection of the Chicago Historical Society. Davis's Court career is skillfully woven into Charles Fairman's broader account in Reconstruction and Reunion: 1864–88, Part One (1971), volume 6 of the Holmes Devise History. Stanley Kutler's Judicial Power and Reconstruction Politics (1968) contains quite a provocative account of the Milligan affair.

Noteworthy Opinions

Ex parte Milligan, 71 U.S. 2 (1866)

Wilmington and Raleigh Railroad Co. v. Reid, 80 U.S. 264 (1871)

Boyce v. Tabb, 85 U.S. 546 (1873)

Burke v. Miltenberger, 86 U.S. 519 (1874)

Union Pacific Railroad Co. v. Hall, 91 U.S. 343 (1875)


Document Citation
Davis, David, in Biographical Encyclopedia of the Supreme Court 160 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18166-979186
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