HISTORY OF THE SUPREME COURT OF THE UNITED STATESassets.cambridge.org/97805217/69181/frontmatter/...The Oliver Wendell Holmes Devise HISTORY OF THE SUPREME COURT OF THE UNITED STATES

HISTORY OF THE SUPREME COURT

OF THE UNITED STATES

With this seventh volume of the Oliver Wendell Holmes Devise History of theSupreme Court of the United States, Charles Fairman completes his study ofthe Supreme Court in the post–Civil War period of 1864–88. In the previousvolume, Fairman covered the Chief Justiceship of Salmon P. Chase; the presentvolume deals with the tenure of Morrison R. Waite, President Grants’s fifthchoice for the office. Fairman explores the significance of the Court’s tentativefirst steps on the unending road of decisions designed to clarify and resolvesome of the most persistent issues of American public law, and of a nationalcommon market. Fairman identifies the reconciliation between North and Southas the most pressing issue during the Reconstruction. Accordingly, the Courtwas forced to mediate between the new liberties proclaimed by the post–CivilWar amendments and enforcement measures and the structure of the federalsystem bequeathed to it by the Founders of the Republic.

Charles Fairman (1897–1988) was Professor of Law at Harvard Law Schooland the author of Volumes 6 and 7 of the Oliver Wendell Holmes Devise Historyof the United States Supreme Court: Reconstruction and Reunion: 1864–1888.He was also the author of numerous articles and books, including The Lawof Martial Rule (1930) and Mr. Justice Miller and the Supreme Court (1939).In 1948 he published his casebook, American Constitutional Decisions, and ayear later, he published his classic article, “Does the Fourteenth AmendmentIncorporate the Bill of Rights?”

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Cambridge University Press978-0-521-76918-1 - Reconstruction and Reunion 1864-1888, Volume VIICharles FairmanFrontmatterMore information

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The Oliver Wendell Holmes Devise

HISTORY OF THE SUPREME COURT


General Editor: Stanley N. Katz

Volume I, Antecedents and Beginnings to 1801, by Julius Goebel, Jr.

Volume II, Foundations of Power: John Marshall, 1801–1815, by George L.Haskins and Herbert A. Johnson

Volumes III–IV, The Marshall Court and Cultural Change, 1815–1835, byG. Edward White

Volume V, The Taney Period, 1836–1864, by Carl B. Swisher

Volume VI, Reconstruction and Reunion, 1864–1888, Part One A, by CharlesFairman

Volume VI, Reconstruction and Reunion, 1864–1888, Part One B, by CharlesFairman

Volume VII, Reconstruction and Reunion, 1864–1888, Part Two, by CharlesFairman

Supplement to Volume VII, Five Justices and the Electoral Commission of1877, by Charles Fairman

Volume VIII, Troubled Beginnings of the Modern State, 1888–1910, by OwenM. Fiss

Volume IX, The Judiciary and Responsible Government, 1910–1921, byAlexander M. Bickel and Benno C. Schmidt, Jr.

Volume X, Constitutional Rights and the Regulatory State, 1921–1930, byRobert C. Post

Volume XI, The Crucible of the Modern Constitution, 1930–1941, by MarkTushnet

Volume XII, The Birth of the Modern Constitution: The United States SupremeCourt, 1941–1953, by William W. Wiecek

Volume XIII, The Warren Court and American Democracy, 1953–1976, byMorton J. Horwitz




THE

Oliver Wendell HolmesDEVISE

HISTORY OF

THE SUPREME COURT


VOLUME VII




the oliver wendell holmes devise

History of theSUPREME COURTof the United States




VOLUME VII

Reconstructionand Reunion1864–1888

part two

By Charles Fairman




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Fairman, CharlesReconstruction and reunion, 1864–1888 / by Charles Fairman

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Includes bibliographical references and index.isbn 978-0-521-76918-1 (hardback)

1. United States. Supreme Court – History. 2. Judicial power – United States –History. 3. Judicial review – United States – History. 4. Constitutional history –

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Contents

Illustrations page ix

Foreword to the Cambridge Edition xiii

Foreword xv

Editor’s Foreword xvii

Preface xix

I � Grant Finds a Chief Justice 3

II � Waite, C.J., Joins the Court 84

III � Legislation to Enforce the Post-WarAmendments: 1866–72 132

IV � The Civil Rights Act of 1875 156

V � Judicial Response to the New Legislation I:Difficulties at the Threshold 185

VI � Judicial Response to the New Legislation II:Minor, Reese, and Cruikshank 221

VII � Public Aid to Railroads; Eminent Domain;and Rate Regulation: The Granger Cases 290

VIII � Extension of Federal Jurisdiction 372

IX � Decisions on the Enforcement Statutes (1880) 436

X � The Renewal of the Court 498

XI � The Civil Rights Cases (1883) 550

XII � The Pacific Railroad and the Public Domain 589

XIII � The Commerce Clause 647

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Contents

XIV � The Court and the Police Power 697

XV � Reviewing the Conduct of Government 710

XVI � The Court and the Law of Nations 742

XVII � The Close of an Epoch 764

Table of Cases 785

Index 799

viii




Illustrations

f o l l o w i n g p a g e 2 9 7

Senator Roscoe Conkling

Caleb Gushing

Attorney General George H. Williams

Mrs. George H. Williams

“One Man in His Time Plays Many Parts”

Supreme Court at Chief Justice Waite’s Advent, 1874

William A. Butler

William M. Evarts

Columbus Delano

Charles O’Conor

Hamilton Fish

Samuel J. Tilden

Attorney General Edwards Pierrepont

Edwin W. Stoughton

Chief Justice Morrison R. Waite

Justice Samuel F. Miller

Justice Joseph P. Bradley

Justice David Davis

Justice Nathan Clifford

Justice Stephen J. Field

Justice Noah H. Swayne

Justice William Strong

Alfonso Taft

ix




Illustrations

Charles Devens

Wayne MacVeagh

Benjamin H. Brewster

Solicitor General Samuel F. Phillips

Philip Phillips

John C. B. Davis

Chief Justice David K. Cartter

Senator Thomas W. Ferry of Michigan

Senator Orris S. Ferry of Connecticut

Senator William M. Stewart of Nevada

Senator John Pool of North Carolina

Senator George F. Edmunds of Vermont

Senator George F. Hoar of Massachusetts

Senator Frederick T. Frelinghuysen of New Jersey

Senator Henry B. Anthony of Rhode Island

James G. Blaine of Maine

Oliver P. Morton of Indiana

Zachariah Chandler of Michigan

Schuyler Colfax of Indiana


Luke P. Poland of Wisconsin

Henry L. Dawes of Massachusetts

Lot M. Morrill of Maine

James F. Wilson of Iowa

Senator Allen G. Thurman of Ohio

Vice President Thomas A. Hendricks of Indiana

Samuel S. Cox of Ohio, later of New York

Joseph E. McDonald of Indiana

Richard T. Merrick

Aaron A. Sargent of California

Reverdy Johnson

Jeremiah S. Black

Carl Schurz

John B. Henderson of Missouri

B. Gratz Brown of Missouri

x




Illustrations

John Young Brown of Kentucky

David D. Field

Ebenezer R. Hoar

John A. Campbell

Joseph H. Choate

Abram S. Hewitt of New York

Henry B. Payne of Ohio

Josiah G. Abbott of Massachusetts

Alexander H. Stephens of Georgia

Rutherford B. Hayes of Ohio

James A. Garfield of Ohio

Jacob D. Cox of Ohio

Benjamin H. Bristow of Kentucky

Senator Hiram R. Revels of Mississippi

Senator Blanche K. Bruce of Mississippi

Representative Robert B. Elliott of South Carolina

Representative John R. Lynch of Mississippi

Representative Joseph H. Rainey of South Carolina

Representative Richard H. Cain of South Carolina

Representative James T. Rapier of Alabama

Frederick Douglass

Charles Sumner of Massachusetts

Matthew H. Carpenter of Wisconsin

Susan B. Anthony

Justice Ward Hunt

“The New Treasury Maid of All Work”

Provisional Governor Lewis E. Parsons of Alabama

Governor James M. Wells of Louisiana

Governor Henry C. Warmoth of Louisiana

Governor William P. Kellogg of Louisiana


Chief Justice Edward G. Ryan of Wisconsin

Attorney General Andrew S. Sloan of Wisconsin

Representative Halbert E. Paine of Wisconsin

Assistant Attorney General Ithamar C. Sloan of Wisconsin

xi




Illustrations

Circuit Judge Hugh L. Bond

Circuit Judge William McKennan

Circuit Judge Howell Jackson

Circuit Judge George W. McCrary

Circuit Judge Walter Q. Gresham

Circuit Judge Henry C. Caldwell

District Judge John Cadwalader of Pennsylvania

District Judge Samuel Treat of Missouri

District Judge Matthew P. Deady of Oregon

District Judge John T. Nixon of New Jersey

District Judge Robert W. Hughes of Virginia

District Judge Thomas Settle of Florida

Representative Oakes Ames of Massachusetts

Senator Simon Cameron of Pennsylvania

Secretary of War William W. Belknap of Iowa

Charles A. Dana of the New York Sun

Senator William Mahone

Senator Harrison H. Riddleberger

Edward J. Phelps

Senator Thomas F. Bayard of Delaware

Justice John M. Harlan

Justice William B. Woods

Justice Stanley Matthews

Justice Horace Gray

Supreme Court in 1882

“Our Overworked Supreme Court”

Justice Samuel Blatchford

Justice Lucius Q. C. Lamar

Associate Justice David J. Brewer

Associate Justice Henry B. Brown

Alexander Graham Bell

Cyrus W. Field

Attorney General Augustus H. Garland

Representative Thomas A. Jenckes of Rhode Island

Supreme Court in 1888

xii




Foreword to the CambridgeEdition

When Justice Oliver Wendell Holmes died, he left his entire estateto the Congress of the United States, which, after a long lapse, estab-lished the Permanent Committee for the Oliver Wendell Holmes Devise. TheCommittee consists of five members, four appointed by the President of theUnited States and the fifth, the chair, by the Librarian of Congress. More thanhalf a century ago the Committee decided that its principal purpose would be tocommission a multi-volume history of the Supreme Court of the United States.The Holmes Devise History was originally envisioned as an eleven-volumeseries, concluding with a volume on the Hughes Court and ending in 1941.More recently, the Committee decided to extend the coverage of the series andcommissioned new volumes, one on the Stone and Vinson Courts, and anotheron the Warren Court. It is possible that further volumes will be commissionedfor subsequent Courts.

The Holmes Devise History has had a complicated history. A few of theinitially commissioned volumes appeared fairly promptly, but many were longdelayed. A few of the authors abandoned their volumes. Others passed awaybefore they could complete their volumes, and new authors were appointed.As of 2009, two of the original volumes, as well as the recently commissionedvolume on the Warren Court, have yet to appear, though we hope to see themwithin the next few years. The series was initially published by Macmillan, butafter that firm ceased to do business, the Committee was fortunate enough tobe able to contract with Cambridge Universtiy Press to publish the remainingvolumes—and, remarkably, to put the earlier volumes back into print. The Com-mittee is deeply grateful to Cambridge for undertaking this large and importantpublishing project.

The conception of the Holmes Devise History has also changed substan-tially over the years. Under its original Editor in Chief, Professor Paul Freundof Harvard Law School, the individual volumes were conceived of as nearlyencyclopedic. Authors were expected to cover all of the most significant cases

xiii




Foreword to the Cambridge Edition

decided by the Supreme Court of the United States, as well as to provide exhaus-tive biographical accounts of the Justices. After I became the Co-Editor withPaul Freund in 1978, however, authors were asked to take a more focused andanalytical approach. More recent volumes are somewhat shorter and signifi-cantly more thematic, though I hope it is fair to say that each volume remainsthe major account of the Supreme Court during the period it covers.

I have been the Editor in Chief since 1990, and it gives me special pleasureto know that the entire series is now back in print and available to readers. TheHolmes Devise project is one of the most ambitious in the history of Americanlaw, and I believe it is true to say of the Holmes Devise History that the whole ismuch more than the sum of its parts. While I cannot describe myself as a neutralparty (I was, after all, a member of the Permanent Committee from 1974 until1980), I also think it likely that Justice Holmes would have admired both theseriousness and comprehensiveness of the History of the United States SupremeCourt, for it is much more than a handsome set for one’s library shelves! I trustthat it will prove useful to scholars, lawyers, and general readers for many yearsto come.

Stanley N. Katz

xiv




Foreword

The History of the Supreme Court of the United States is being preparedunder the auspices of the Permanent Committee for the Oliver WendellHolmes Devise with the aid of the estate left by Mr. Justice Oliver WendellHolmes, Jr. Mr. Justice Holmes died in 1935 and the Permanent Committee forthe Devise was created by Act of Congress in 1955. Members of the Commit-tee are appointed by the President of the United States, with the Librarian ofCongress, an ex officio member, as Chairman. The present volume is the sixthin the series. The Committee hopes to complete the history expeditiously whilemaintaining the high quality of the scholarship. The volumes in the HolmesDevise History of the Supreme Court of the United States bring to this subjectsome of the best legal scholarship of the decades since Mr. Justice Holmes’death. They will also have such advantages (not anticipated at the time of theJustice’s death) as can be secured from a more than ample measure of judiciousdeliberation. We hope that, when completed, the series will widen and deepenour understanding of the Supreme Court and bring honor to the memory of oneof its great Justices.

Daniel J. Boorstinlibrarian of congress

xv




permanent committee forTHE OLIVER WENDELL HOLMES DEVISE

(terms of eight years except for initial appointments)

Charles T. McCormick 1956–1958 (two-year term)Edward S. Corwin 1956–1960 (four-year term)George L. Haskins 1956–1958 (six-year term,

resigned 10/7/1958)Virgil M. Hancher 1956–1964Frederick D. G. Ribble 1958–1966Ethan A. H. Shepley 1959–1967Nicholas Kelley 7/8/1960–7/22/1960Jefferson B. Fordham 1961–1969Harry H. Ransom 1964–1972Herbert Wechsler 1966–1974Robert G. McCloskey 1967–1969J. A. C. Grant 1970–1978Alfred H. Kelly 1970–1978Philip B. Kurland 1975–1983Charles A. Wright 1975–1983Stanley N. Katz 1976–1984Paul J. Mishkin 1979–1987Gerhard Casper 1985–1993Richard B. Morris 1985–1993Robert H. Bork 1990–1998Vincent L. McKusick 1993–2001Harold M. Hyman 1993–2001Laura Kalman 1994–2002Timothy M. Hagle 2001–2009Maeva Marcus 2001–2009Robert J. Cottrol 2002–2010Allison H. Eid 2002–2010

Lawrence Quincy Mumford, Librarian of Congress, 1954–1974Daniel J. Boorstin, Librarian of Congress, 1974–1987James H. Billington, Librarian of Congress, ex officio, 1987–James H. Hutson, Administrative Officer, Library of Congress, ex officio, 1976–

xvi




Editor’s Foreword

W ith this volume Charles Fairman completes his study of the SupremeCourt in the highly charged period 1864–88. Part One (Volume VI ofthe History) covered the Chief Justiceship of Salmon P. Chase; the presentvolume deals with the tenure of Morrison R. Waite, President Grant’s fifthchoice for the office. The search for an acceptable Chief Justice is traced in thefirst chapter with meticulous attention to the politics of the enterprise.

In retrospect, one can see in this short but closely packed span of theCourt’s history the tentative first steps on the unending road of decisionsdesigned to clarify and resolve some of the most persistent issues of Amer-ican public law: the regulation of rates (Munn v. Illinois); government and thepress (Ex parte Jackson); religious freedom and civic responsibility (Reynoldsv. United States); federal oversight of elections (Ex parte Siebold); the scopeand limits of Congressional investigations (Kilbourn v. Thompson). The Courtwas struggling, moreover, with the inherent dilemmas of the American system:how, in a federal union, to reconcile the demands of a national common marketwith the claims of the several States that interstate commerce must pay its way;how, in a government under law, to reconcile the historic doctrine of sovereignimmunity, affirmed by the Eleventh Amendment, with the principle of the ruleof law, embodied in the Bill of Rights and now in the Fourteenth Amendment.

But of course the great overshadowing issue of this period of Reconstruc-tion and after was another form of reconciliation, between North and South,between, on the one hand, the new liberties proclaimed by the post–Civil WarAmendments and enforcement measures and, on the other, the structure of thefederal system bequeathed by the Founders of the Republic. The Court wasforced to grapple with a double uncertainty—the meaning of such terms asequal protection of the laws and privileges and immunities of citizens of theUnited States, and the extent to which the guarantees were validly enforceablenot only against discriminatory state laws but against lawless local officers orprivate individuals. On both counts the nay-saying response in the Civil Rights

xvii




Editor’s Foreword

Cases on public accommodations can be matched by the spacious and hos-pitable view taken of service on juries and exercise of the suffrage, in Strauderv. West Virginia, Ex parte Virginia, and Ex parte Yarborough. Even on a doc-trinal level, to say nothing of the vital commitment of will and resources, ithas taken nearly a century to work out a tolerable resolution of the questionspresented to the Court under Chief Justice Waite.

In addressing these questions Professor Fairman does not seek to entera debate among historians, nor to advance a grand ideological thesis. His con-cern is to uncover, to explore and make accessible the complex interrelations ofhistorical data. This he has done in vivid detail and with scrupulous precision.His central focus, to be sure, is on the Supreme Court, but he is continuallywatchful of Congress, the Executive Departments, law enforcement offices, thebar, the press, and political currents. More concretely, the author proceeds onthe belief that an understanding of the Court’s performance, and a warrantedassessment of it, requires attention to legislative draftsmanship, Congressionaldebates, the tactics and quality of advocacy by counsel, professional and pop-ular assumptions of the time, as well as to the constitutional order envisionedby individual members of the Court and its intersection with their premisesregarding the political and social order.

To gain command of all these elements, hold them in just balance, andpresent them fully and fairly for the reader’s judgment, has been a demand-ing and extended labor of scholarship. Each chapter could stand as a weightymonograph on its topic. This richly documented portrayal of issues and episodesmarking the life of an institution has not been achieved at the cost of humanportraiture. We are given telling glimpses of leading counsel, of litigants cel-ebrated fleetingly or lastingly, of political activists in and out of public office.And of course we are shown at close range the qualities of mind and temper-ament that existed in uneasy conjunction on the Supreme Bench: the moralforce of a Miller, the intellectual prowess of a Bradley, the ardor of a Harlan,the ferocity of a Field, the prolix parochialism of a Clifford, the humility ofa Waite. For insights into the inner life of the Court, Professor Fairman hasdrawn extensively on manuscript sources, including the Docket Book of theChief Justice, the letters of Miller, and the diary and annotated set of Recordsand Briefs kept by Bradley.

Although five members of the Court served extra-judicially on the Elec-toral Commission of 1877, headed by Justice Bradley, Professor Fairman hasnot included an account of its performance in this volume of the History. Instead,he has made it the subject of a major study to be separately published as FiveJustices and the Electoral Commission, Supplement to this volume.

Paul A. Freund

xviii




Preface

The dictionary defines a preface as “something preliminary”; a prudentauthor, however, awaits the completion of his work before he recounts itsaccomplishments. In the long years when the material was being amassed andthe history of the Supreme Court from 1864 to 1888 was being written, in mymind I quoted—a thousand times—the lines of Austin Dobson (1840–1921) in“Finis” to his Vignettes in Rhyme:1

When Finis comes the Book we closeAnd somewhat sadly Fancy goes,

With backward step, from stage to stageOf that accomplished pilgrimage.

The thorn lies thicker than the rose!

There is so much that no one knows,So much un-dreamed that none suppose,

. . . .When Finis comes.

Among things that no one knows I am happy to tell of the fortuitousacquisition of the Congressional Globe and its successor, the CongressionalRecord, for the years 1863 to 1877.

Before retiring from the Harvard Law School faculty, looking ahead tothe task I had undertaken, I commented musingly that in bookish New Englandthere must be libraries holding disused volumes that would be helpful in mywork. Presently my wife and I were driving to Williamstown in the northwesterncorner of the state, and as usual made a break at Greenfield. As I drew up topark, there in front of us was the Greenfield Library. My wife recalled my

1 American edition (New York: HenryHolt and Co., 1880). This was dedicated to

Dr. Oliver Wendell Holmes, like Dobson pre-eminent for elegant and witty verse.

xix




Preface

remark: here, she said, was a library to be visited. My response, I must confess,was glum, but at her insistence we went in. I told the librarian of my interest,and asked, for instance, was there a retired set of the Annual Cyclopedia?2 Thelibrarian took us to an upper level where old books were stored. There was aset of the Cyclopedia. Then came a question so utterly improbable that it tooka moment for me to comprehend: would I be interested in the CongressionalGlobe? The volumes proved to be those recording Congressional action for thegreater part of my period. A bonus to the Globe was that it published the textof all the statutes enacted at a session. Of course I wanted it—probably therewas not another person in the world who at that moment had so great a need forthose books as I. Their presence in this library was attributable to William B.Washburn (1820–1887), a citizen of Greenfield and a donor to its library, whoserved Massachusetts as Representative, Governor, and Senator from 1863 to1875. The president of the library board was summoned, who proved to be agrandson of the Governor. He recognized my need, and set a moderate price(the amount I do not recall). Soon I was piling my purchases into the car. Backin Cambridge I did what seemed appropriate to preserve these old books.

The combination of circumstances seemed providential.Here in California, without leaving my study, I have been able to record

and verify the course of legislation. After many years of service some volumeshave become basket cases, tied up with string. The Annual Cyclopedia, thoughless useful, has yet returned prompt answers to questions about elections, partyplatforms, and innumerable pertinent facts.

Among preparatory measures at Cambridge was the selection from TheNation of articles that promised to be helpful: these were photocopied or typedto the extent of, say, 2,500 pages.

At the same time, looking forward to the chapter that would eventuallybe written about the Civil Rights decision of 1883, my wife and I at the Libraryof Congress called forth every newspaper of that time there available and,searching, copied every pronouncement to be found on that decision.

Microfilming was an important aid: I spent many hours at my reader,turning the reels and watching for items that might be useful. The papers ofJustice David Davis, gathered by his family at the urging of the late WillardL. King, were the basis for his excellent biography of the Justice.3 The paperswere deposited in the Illinois State Library at Springfield. I made copies frommicrofilm that came to a pile about an inch thick. I drew also upon reels offilm of the Harlan Papers at the University of Louisville, and from the Diaryof William Pitt Ballinger (Justice Miller’s brother-in-law) at the University ofTexas at Austin.

2 Published in New York by D. Apple-ton and Co., covering the years from 1861 to1893.

3 Lincoln’s Manager, David Davis (Cam-bridge, Mass.: Harvard University Press,1960).

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Preface

From the great collection in the Manuscript Division of the Library ofCongress, I derived many reels of microfilm. First in importance are five reelsof the Waite Papers: there one finds the Chief Justice’s Docket Book, followingevery case from submission to decision. More than that, one recognizes thekindly firmness of that fine self-effacing man.

“General Garfield’s habit was to save everything.” So his widow is quotedin the Library of Congress Index—422 pages thick, recorded on 177 reels offilm. I selected and searched for what I could use in ten reels.

Also in the Library of Congress, the Bristow Papers, the Hamilton FishPapers with diary, the Letterbook of Philip Phillips, the papers of Roscoe Con-kling, and those of Caleb Cushing, were useful in varying degrees of importance.

Some three hundred pages of correspondence selected at the RutherfordB. Hayes Memorial Library at Fremont, Ohio, were photocopied for me by thestaff of that institution.

At the Oregon Historical Society at Portland I copied the letters of JusticeField to District Judge Matthew P. Deady, and other bits of information besides.

After Mr. Justice Miller was in print my thought turned to Justice Bradley.Through the interest of his son Charles and his grandson, Charles B., the Jus-tice’s papers were made available so that with my wife’s assistance copies couldbe made in convenient surroundings. This included letters to family and oth-ers as well as legal papers. While four years in the army, followed by severalchanges in position, prevented the production of a biography, I have writtenarticles and lectures covering leading aspects of Bradley’s life.4

Presently Justice Bradley’s papers were deposited in the Library of theNew Jersey Historical Society at Newark. Questions I have raised have beenanswered by the Keeper of Manuscripts, Dr. Don C. Skemer.

On the transcripts of record and the briefs that came before the Court,Bradley would write his reaction to the case. These paper books were acquiredby the Law Library of the Michigan State Library at Lansing, where selectionsI made were put on microfilm by the library staff, and have been constantlyuseful.

Newspapers on microfilm for particular periods—some long, some verybrief—were purchased and examined for events and comments of significance.Among these were the New York City journals: the Tribune, the Times, theEvening Post, the Herald, the Sun, and the World. In New England, the Boston

4 “Mr. Justice Bradley’s Appointment tothe Supreme Court and the Legal TenderCases,” Harv. L. Rev., 54:977–1034, 1128–55 (Apr. and May 1941); “The Education of aJustice: Justice Bradley and Some of His Col-leagues,” Stan. L. Rev., 1:217–55, (Jan. 1949);“What Makes a Great Justice? Mr. JusticeBradley and the Supreme Court 1870–1892,”Caspar G. Bacon Lecture on the Constitu-

tion of the United States (1949) and BostonUniv. L. Rev., 30:49–102 (1950); “The So-Called Granger Cases, Lord Hale, and Jus-tice Bradley,” Stan. L. Rev., 5:587–679 (July1953); “Mr. Justice Bradley” in Mr. Justice,Allison Dunham and Philip B. Kurland, eds.(Chicago: University of Chicago Press, 1956),69–95; 2d ed., 1964, 65–89.

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Preface

Transcript, the Springfield Republican, and the Hartford Courant were usefuland respected. For Washington, D.C., the Evening Star was briefly used. In theMid-West, the Chicago Tribune, the Louisville Courier-Journal, the St. LouisMissouri Republican, the Des Moines Iowa State Register, at Columbus theOhio State Journal, at Cincinnati, the Enquirer and the Gazette, were highlyquotable. For the South, the New Orleans Republican, the Times, and thePicayune reported events in that troubled area. Add the Memphis Avalanche,and my collection of newspapers is complete.

Mr. James H. Hutson, Chief of the Manuscript Division of the Library ofCongress, has always been helpful, especially when the object of search waselusive.

For the excellent illustrations I express my gratitude to the Photo-duplication Service of the Library of Congress and to the Moorland-SpringarnResearch Center of Howard University.

At the National Archives the Legislative, Judicial and Fiscal Division hasproved most knowledgeable in responding to my requests.

For converting my crude typewriting into flawless copy, and for her readi-ness to say “no problem,” I am grateful to Mrs. Joann Finerty.

I come to my mountainous indebtedness to Professor Paul A. Freund, theGeneral Editor. Awareness that chapter after chapter passed under his discrimi-nating eye gave me confidence that slips and errors would be caught. I recall inparticular a spot in the difficult case of Murdoch v. Memphis where his superiorunderstanding cured my infirmity. For all this supervision I give thanks.

But there is much more. In mid-December 1984, as I was pressing hardto write the concluding part of the final chapter, I suffered an attack that put mein the hospital for a fortnight and left me to a slow recovery. At this juncturegalley proof arrived, followed by page proof. With this I was unable to cope,and Professor Freund promptly assumed that duty. Then came the puzzlingbusiness of supplying citations for the many infras and supras with which I hadstrewn the path as the chapters were written. Professor Freund labored to findthe answers, and I say, “There is a friend that sticketh closer than a brother.”5

Volume VII, Supplement, Five Justices and the Electoral Commission,examines closely the legal questions submitted to the Electoral Commissionafter the disputed election of 1876. My object is to tell the truth, thereby reliev-ing Justice Bradley from the misrepresentation that has been perpetuated inhistorical accounts. The bulk of the study was completed years ago; it remainsfor me to put the parts in better order. For this I am quite fit and ready.

Finally, my wife and I, classmates of 1918 at the University of Illinois,are thankful that the weight of my undertaking to the History has after a quartercentury been lifted.

Charles Fairman

5 Proverbs 18:24.

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HISTORY OF THE SUPREME COURT OF THE UNITED STATESassets.cambridge.org/97805217/69181/frontmatter/...The Oliver Wendell Holmes Devise HISTORY OF THE SUPREME COURT OF THE UNITED STATES