p347 Beyond question, the dominant personality now [Reconstruction period] upon the bench, [of the United States Supreme Court] whose mental force and individuality are felt by the court more than any other, is Justice Miller, who is, by nature, by intellectual constitution, a great jurist. — Chief Justice Salmon P. Chase.
Among early Iowa lawyers (1838‑1870) were men strikingly individual: Joseph Williams, Chief Justice of the Iowa Supreme Court, ventriloquist, violinist, raconteur; Serranus C. Hastings, Chief Justice of Iowa as later of California, viveur, plutocrat;247 Stephen Whicher, United States District Attorney for Iowa, 'resting in the noiseless conviction that he was a man and a gentleman'.
Then there was Charles Mason: Chief Justice of the Supreme Court of Iowa; graduate of West Point along with Robert E. Lee and Joseph E. Johnston; author of the decision (1839) that Ralph, a negro slave, became in Iowa, in virtue of the Missouri Compromise,248 a free man; and author of the decision (1840) declaring the 'claim association township' lawful p348in Iowa. William G. Hammond, too, there was: son (blue blooded) of Newport, Chancellor of the Law Department of the State University of Iowa (1868), master of languages and polished legal historian.249 And John F. Dillon, United States Circuit Judge for Iowa (1869), professor of law at Yale, and member de l'Institut de Droit International.250 Nor were these all. There was C. Ben Darwin, Iowa Code Commissioner (1860), fresh from South America and the Civil Law, resolved that Iowa, 'in everything else so eminent, and bounding on like a young giant refreshed with wine, to the goal of her great destiny', should no longer be 'crippled by this load of effete nonsense, not imposed by, but accepted, from the dead centuries' — the Common Law.251
But besides those named, Iowa had lawyers who, in addition to being lawyers, were also statesmen — James W. Grimes, Samuel F. Miller, George W. McCrary.
Because of Grimes the State of Iowa ranks in legal statesmanship with Maine as represented by William Pitt Fessenden and Illinois as represented by Jonathan Trumbull. In March, 1868, President Andrew Johnson was impeached by the House of Representatives p349for high crimes and misdemeanors — chiefly on account of the removal from office of Edwin M. Stanton, Secretary of War. The Senate, with Salmon P. Chase, Chief Justice of the United States Supreme Court, presiding, was the court of trial and a two-thirds majority was required to convict.
President Johnson, said Senator Trumbull, 'has violated no law; it has and been shown that he has violated the Constitution. I cannot vote to convict and depose the Chief Magistrate of a great nation when his guilt was not made palpable by the record. . . . Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, and no future President will be safe who happens to differ with a majority of the House and two-thirds of the senate on any measure deemed by them important, particularly if of a political character'. In short, if the President were removed America would be in but little better case than the so‑called Republics of South America whose executives were constantly set at naught by adverse combinations.
Excitement during the impeachment trial ran high. There were those who foretold another civil war. Humor helped save the day. William M. Evarts, one of the President's counsel, had, says the historian James F. Rhodes, worked all Sunday on the answers p350to the articles of impeachment, and at dinner with Charles Sumner, whose hatred of Johnson was cordial, proffered the excuse for his labor: 'Is it not written that if thine ass falleth into a pit it is lawful to pull him out on the Sabbath day?'
But with regard to Grimes. On the day of the vote by the Senate, Grimes was not present. He had a few days before been stricken with paralysis in the Senate Chamber. Senator Fessenden asked a half-hour's delay, but at that moment Grimes entered. 'Mr. Senator Grimes', asked the Chief Justice, taking up the first of the impeachment articles, 'how say you? Is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor, as charged'? Assisted to his feet by friends, Grimes answered, 'not guilty'.
On December 11, 1870, Senator Grimes, writing from Glion, Switzerland, to a friend in Burlington, said: 'It is about half-past four o'clock of a beautiful Sunday afternoon. I sit and muse, looking at the lake, the mountains, and the skies, thinking of my distant home and friends, and try to think as little of myself as possible. . . . And, strange as it may seem to you . . . sitting here calmly, and reviewing my whole course, I have no hesitation in saying that I regard that act for which I have been most condemned, my p351vote on the impeachment trial, as the most worthy, the proudest act of my life'.252
But there remained to the Nation, as consequent upon the Civil War, a further question of law under Constitution; and here the lawyer-statesman was Samuel F. Miller.
Marshall stood for Nationalism. So firmly did he thus stand that in the case of Marbury vs. Madison he laid down the principle the 'a law repugnant to the national Constitution is void' — a principle wholly and exclusively American, which but for Marshall (such were the political leanings of the country at the time and afterwards) would probably never have been adopted as the pivot of the American system of Constitutional Law. Once adopted, the principle, elaborated into the corollaries that the national courts might annul a State statute and review the judgment of a State court, put nationalism for America beyond peradventure save in one dire event — opposition by arms.
Such event came. The States of the South — acting upon the doctrine (historically more than plausible) that America was not a nation, not a sovereignty, but an agglomeration of sovereignties — seceded. p352At the end of four years these States were back in the Union. What had the war done to nationalism — the nationalism of John Marshall? Aside from freeing and enfranchising the negro it had done substantially nothing. But the Fourteenth Amendment — what of that?
Although the Civil War had left the American system of autonomous States intact, the victorious North did not generally so realize. Wroth at the separatism of the South — a separatism fostered by State autonomy — the North saw in the Fourteenth Amendment a revolution. All Americans now, averred Stephen J. Field of the United States Supreme Court in the Slaughter-House Cases, are primarily citizens, not of the several States but of the United States, and as such subject to direct national control. Such control, furthermore, the States are now expressly forbidden to abridge. But, answered Miller, for the Court, this citizenship of the United States which the States may not abridge is not primary; it does not displace the old State citizenship. It is, as it has ever been, distinct and apart from the latter. The Amendment itself recognizes, for under it one may be a citizen of the United States without at the same time being a citizen of any State. To be a citizen of a State one must reside there; to be a citizen of the United States one need only be 'born or naturalized' there, p353with residence anywhere, as in the District of Columbia — or the moon. The States, therefore, are now as heretofore to go on prescribing to and for their people in all fundamental concerns. The nationalism of John Marshall survives.253
'There is', said Horace Stern of the Pennsylvania Bar, 'no single decision of Chief Justice Marshall which approaches it [the decision in the Slaughter-House Cases] in importance. It defined what the Civil War had accomplished'.
Samuel F. Miller was six feet tall, weighed over two hundred pounds, and had a straight nose and mastiff jaw. He was born in Kentucky, and while there apparently owned one or more unmarried male negroes. He became a country doctor, then studied law, and in 1850, seeking a field for the practice of his profession, removed to Keokuk, Iowa.
On the question of his slaveholding he in 1856 made declaration thus: 'I never did own human chattel in the shape of women and children anywhere; I never did sell such chattel, nor did I ever sell any slave to the highest bidder; I am not now enjoying the proceeds of the sale of women and children. I also wish to say that slaveholders are not the object of my patriotic rage . . . nor have I ever said anything of the kind. Nearly all the blood relations I have living, p354and the warmest personal friends and the purest men I know on earth are slaveholders; and it is impossible I could have the feeling imputed to me. Besides I feel too much compassion for the slaveholder to indulge in any rage against him'.
Miller in Iowa eschewed politics no more than in Kentucky. He was a rousing debater — so much so that Senator Grimes in 1859 urged that he be put forward for presidential elector. 'I suggest for electors', he wrote, 'Samuel Miller of Keokuk and James Wilson of Fairfield. They are both efficient canvassers'. How efficient upon the stump Miller would have been is indicated by a fellow lawyer, John W. Noble. 'He was', says Noble, 'superbly aggressive in argument, gesture, and voice; he was as daring a leader in debate as he would have been in a cavalry charge'.
Discussing in Keokuk with Judge James M. Love (a Democrat) the dark issues precipitated by the nomination of Abraham Lincoln, Miller said with dramatic fervor: 'If these [Union] principles . . . because distasteful to a minority, whether North or South . . . lead to a conflict of arms, I for one will abide the issue. I for one would see, if see I must, bayonets crossed over the ballot box [rather] than not to have the ballots' decree carried into effect even by the whole force of my country's power'.
p355 Samuel F. Miller was named by President Lincoln Associate Justice of the United States Supreme Court in 1862, the first American citizen to be so named from beyond the Mississippi; just as to‑day Herbert Hoover of Iowa and California (Iowa and the Western Sea) is the first American citizen from beyond the Mississippi to be chosen President of the United States.
'Rugged and frosty', Justice Miller was not intentionally unkind. 'His step was massy and elephantine, his face square as the lion's, his gait peremptory', be 'when not exercising his magistracy, the severity of the judicial mien gave way to kindly and gentle impulses'. 'Well, what are you going to do?' asked a young lawyer of a brother at the bar about to brave the grim Justice on circuit. 'Oh', was the answer, 'I'm going up to be stamped all over by that damned old Hippopotamus'. Once in Washington the writer was asked by the Justice: 'Have you any brothers or sisters?' The reply was 'No'. 'I am reminded by your answer', he said, 'of an observation by John Quincy Adams: "Thank God, I'm not an only son"!'254
In establishing the Nation which Samuel F. Miller restored, John Marshall found it needful to bring to his way of thinking his associates on the bench, and this he did by persuasion. In restoring the Nation which John Marshall had established, Samuel F. p356Miller was, one may surmise, less persuasive than peremptory. He brought over a majority — a majority of one. It was enough.
Through James W. Grimes and Samuel F. Miller Iowa took wise steps at the close of the Civil War. Again at the close of the war Iowa took a wise step through another lawyer-statesman, George W. McCrary, later Secretary of War and later still a Justice of the United States Circuit Court.
In 1857 McCrary, at the age of twenty-two, had entered the Iowa legislature; at the age of thirty he had entered the national House of Representatives. Early in his Congressional life he had been made chairman of the committee on elections and had introduced the novelty of considering contested election cases on their merits.
Then, in 1876, there occurred in America the historic deadlock over the presidency — Tilden and Hayes. George W. McCrary bent himself to a solution. 'Mr. McCrary', writes Milton H. Northrup, secretary of the special committee of the House of Representatives charged with the burning issue, 'brought with him to the Committee on January 10, 1877, a bill to create a tribunal outside of Congress for the settlement of all disputes growing out of the p357electoral count. This tribunal was to be carved out of the Supreme Court'.
Up to the time of the submission of the McCrary plan the country had rung with challenge. In Iowa even the pulpit spake. The old guard of Iowa Stalwartism — the Iowa Band — took part. ' "Then", said one of the Band (quoting Acts 9:25), "the disciples took him [Paul] by night and let him down by the wall in a basket".' What the land now needs, exclaimed the preacher, is 'a basket deliverance'. 'And may we not hope that some basket deliverance there may be. God will provide the basket and the strong arms. If the everglades of Florida and the swamps of Louisiana furnish no wickers for that basket [it was to Florida and Louisiana that the Republican managers looked longingly for help], the resources of God are not even then exhausted'.
The McCrary resolution of the deadlock — fair in the extreme — provided no 'wickers' from Florida and Louisiana. It provided instead a tribunal, 'carved from the Supreme Court', to hear the issue which, had not Justice David Davis of Illinois just then been transferred to the United States Senate, would in all probability have given Samuel J. Tilden to the presidency.255
(p447) 247 'I am now getting into good practice, I believe. I have opened a Deposit office and have received within three days $20,000 in deposits. . . . I have just loaned $1000 for ten per cent for one month'. — S. C. Hastings from Sacramento City, September 21, 1849, in the Annals of Iowa (Third Series), Vol. XII, p193.
248 Bradford's Reports of the Decisions of the Supreme Court of Iowa, 1840, p3; Morris' Reports, p1; Emlin McClain's Charles Mason — Iowa's First Jurist in the Annals of Iowa (Third Series), Vol. IV, pp594 et seq.; John C. Parish's An Early Fugitive Slave Case West of the Mississippi River in The Iowa Journal of History and Politics, Vol. VI, pp88 et seq.
Several years after the decision in the case of Ralph, writes Judge Thomas Wilson of the Court which freed him, 'I found Ralph working in my garden, and asked him why he was there; he replied: "I ain't paying you what you done for me, but I want to work for you one day every spring to show you that I never forgets you." ' — Iowa Historical Record, Vol. III, p461.
249 Emlin McClain's William G. Hammond in Great American Lawyers, Vol. VIII, pp191 et seq.
250 Edward H. Stiles's Recollections and Sketches of Notable Lawyers and Public Men of Early Iowa, pp183 et seq.; see also The Palimpsest, Vol. X, pp317‑327.
(p448) 251 Edward H. Stiles's Recollections and Sketches of Notable Lawyers and Public Men of Early Iowa, p299.
For Iowa and the Common Law see Clifford Powell's History of the Codes of Iowa Law in The Iowa Journal of History and Politics, Vol. IX, pp493 et seq.; opinion of Justice W. G. Woodward in the case of O'Ferrall v. Simplot, 4 Iowa 381; Benj. F. Shambaugh's Statutory Adoption of the Common Law in the West, and Herein of its Introduction into Iowa in the Annals of Iowa (Third Series), Vol. II, pp372 et seq.
The Civil Law in Iowa. — That, under France and Spain, not only did the Civil Law prevail in the settlement at the mouth of the Mississippi but 'extended over the whole region as far as any system can be said to prevail in a territory largely unoccupied and ungoverned, is shown by an incident of great historical interest in this connection. . . . After the cession of the region covered by the Louisiana Purchase was made by France to Spain, and before its recession to France and purchase by the United States, a grant was made  by the Spanish government to one Louis Honoré Tesson of a tract of land situated at the head of the rapids of the Mississippi above where Keokuk now is, and forming a part of the present town of Montrose, in Lee county, Iowa. At this time the region was a part of the province of upper Louisiana, with capital at St. Louis. A creditor of Tesson at St. Louis sued him at the court there, and getting judgment, proceeded to cause levy to be made on this tract of land. The officer of the court went to the premises, took therefrom a spadeful of earth to represent the soil, a twig from an apple tree [of the old Tesson Orchard] to represent the improvements and, an old kettle to represent the goods of the owner, and conveying these to St. Louis in a pirogue proceeded to sell the property by means of these emblems thereof, according to the formalities of the Civil Law. Proclamation of the sale having been made in front of the cathedral after high mass on three successive Sundays, on the fourth Sunday the property was struck off to Pierre Choteauº the creditor, one of the early pioneers of St. Louis. A copy of the deed transferring the title under this judicial sale was introduced in the Federal Court in this State to establish the title thus acquired. Here we have, then a judicial record of the fact that the Civil Law was (p449)once in force in what is now called Iowa.' — The Introduction of the Common Law Into Iowa, a lecture by Judge Emlin McClain, printed in the Iowa Historical Lectures, 1892.
For Iowa Spanish land titles see Spain in Ioway, a chapter in this volume.
252 William Salter's The Life of James W. Grimes, pp381, 382; Cyrus C. Carpenter's James W. Grimes, Governor and Senator in the Annals of Iowa (Third Series), Vol. I, pp505 et seq. See also the Annals of Iowa (Third Series), Vol. II, p524, Vol. VI, pp483, 484, 570, Vol. VII, p469.
253 Opinion of the Court in the Slaughter-House Cases, Mr. Justice Miller, 16 Wallace 36.
It may here be noted that while in 1873 the American Union as a federation of autonomous States was saved through the decision in the Slaughter-House Cases, it has since 1920 grown steadily less certain that this Union will not be undermined by the very Court which saved it in 1873. Since 1920, writes Professor Felix Frankfurter of Harvard, the United States Supreme Court has held against the autonomyº of the several States in respect to 'social and economic' matters in a greatly increased percentage of the cases carried before it from the States. — The Forum, Vol. LXXXIII, pp333, 334.
On May 26, 1930, Justice Oliver Wendell Holmes of the United States Supreme Court, speaking for himself and for Justices Stone and Brandies, said in Baldwin v. Missouri: 'I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable'.
254 Horace Stern's Samuel Freeman Miller in Great American Lawyers, Vol. VI, pp541 et seq.; Charles N. Gregory's Samuel Freeman Miller, Ch. V; Henry Strong's Justice Samuel Freeman Miller in the Annals of Iowa (Third Series), Vol. I, pp241 et seq.
255 At about this time that Congressman McCrary submitted his commission plan to a special Committee of the House of Representatives, (p450)Senator George F. Edmunds of Vermont submitted a somewhat similar plan to a corresponding Committee of the Senate. The McCrary plan was simpler and closer to the one which in the end was adopted. Indeed an interesting thing about the McCrary plan is its revelation of the judicially synthetic mind possessed by its author.
Stiles's Recollections and Sketches of Notable Lawyers and Public Men of Early Iowa, pp211 et seq.; Milton H. Northrup's A Grave Crisis in American History in the Century Magazine, Vol. 62, pp923 et seq.; Paul L. Haworth's The Hayes-Tilden Disputed Presidential election of 1876; H. J. Eckenrode's Rutherford B. Hayes, Statesman of Reunion, pp203, 210; James F. Rhodes's History of the United States, Vol. VII pp248, 250; Ellis P. Oberholtzer's A History of the United States Since the Civil War, Vol. III, pp294 et seq.
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