In February 1861, two pro-secession state senators from western North Carolina, Marcus Erwin and W. W. Avery, issued an address to the people of their districts. The address lamented the election of the “black Republicans,” and with the secession of Southern states, the loss of seats (and power) in the halls of Congress for the Southern slave-owning states that remained. Then, the pair turned their attention to courts: “The Supreme Court is the only refuge left us. But that will not avail us. Because that court construed the Constitution so as to protect the rights and property of southern men, the Black Republicans have cursed it, and vowed to destroy its present organization. Mr. Seward, who has accepted the principal post in Mr. Lincoln’s cabinet, and who will be the governing and directing spirit of his administration, has declared that the Supreme Court must be reconstructed on account of its decision in favor of the South, in the Dred Scott case. That means that the first measure of Mr. Lincoln’s administration will be to pass a law organizing the court in such a way as to enable them to appoint Black Republican judges enough to control the court against the South, and to reverse all its previous decisions in favor of the South.”[1]
The important
person in the debate was William H. Seward. A former two-term New York Governor,
Seward was serving his second term as a United States Senator when the Dred
Scott v. Sandford case was decided upon in 1857. In March 1858, Seward, in
a speech in the Senate, decried the court’s decision. The court could reverse
its decision, or Congress could “reorganize the Court, and thus reform its
political sentiments and practices, and bring them into harmony with the
Constitution and the laws of nature.”[2]
President Buchanan was angry, and Chief Justice Roger Taney later told a friend
that had Seward won the presidency instead of Lincoln, Taney would have refused
to administer the oath to the new president.[3]
Others agreed with Seward. Zachariah Chandler of Michigan found the Dred Scott
ruling “monstrous.” The Republican party meant to “annul the Dred Scott
decision, the stump speech of Taney…” and reorganize the Supreme Court.[4]
Many in Washington,
D.C., were alarmed by Seward’s proclamation. D.Q.C. Lamar, serving the people
of Mississippi in the U.S. House, stated he heard Seward’s speech in person.
Lamar believed that once the Republicans assumed power, the Supreme Court would
be remodeled “in order that its decisions should no longer confirm to us what
we believe to be the constitutional rights of the South.” As Seward spoke, as
he “uttered this atrocious sentiment, his form seemed to dilate, his pale, thin
face, furrowed by the lines of thought and evil passions, kindled with
malignant triumph, and his eye slowed and glared upon southern Senators as
though the fires of hell were burning in his heart.”[5]
Others in Congress spoke out in favor of
the court, denouncing the Republicans. These included senators Jefferson Davis-Mississippi;
Judah P. Benjamin-Louisiana; Stephen Douglas-Illinois; James A. Stewart-Maryland;
George E. Pugh-Ohio; and, Joseph Lane-Oregon.[6]
The news of Seward’s proposal to remake the court made its rounds across the South in 1860. It was an election year, and many felt Seward would get the nod for the Republican presidential candidacy. One editor in Louisiana told his readership that Seward had “announced that his party would soon reorganize the Supreme Court in such a manner as to avoid disagreeable decisions…”[7] The Texas Republican considered Seward an “arch Tallyrand” declaring that the Supreme Court had to be reorganized.[8] The Times-Picayune noted in April 1860 that Roscoe Conkling was on the floor of the US House calling for the “reorganization of the Supreme Court,” as “one of the auspicious promises of the Republican victory” in the coming election. [9] In Nashville, Tennessee, the day before the election, one speaker told the crowd that “The North is bent on abolishing slavery by revising the Supreme Court and then reversing the Dred Scott Decision…”[10]
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| US Supreme Court, ca.1864 (Wikimedia Commons) |
Once the election was over, the Republicans gained the presidency, and a Republican-led coalition controlled the House, while the Democrat’s control of the Senate was five seats less. As states considered secession, the idea of a reorganized court haunted many an editor. “What, then, becomes of this much-vaunted bulwark of Sothern constitutional rights?” a Louisiana editor asked. “The Supreme Court will become an Abolition Court, and will give judicial sanction and authority to whatever oppressions and outrages may be perpetrated upon the South by an Abolition Congress and an Abolition president!”[11] The Republican Banner told its readership that the new administration planned to fill the Supreme Court with “his [Lincoln] creatures, as vacancies may occur from death or otherwise… If vacancies should occur too slowly in the Supreme Court, and he should have a majority in both Houses of Congress, he might even add to its number, so as to give his party a majority…”[12] The Richmond Enquirer noted the same. Citing a speech that Seward gave at the Cooper Institute in New York in November, Seward planned to set the wheels in motion to reconstruct the Supreme Court in short time.[13]
Associate Justice John McLean died in April
1861, giving Lincoln the opportunity for his first nomination. For those border
states still in the Union, there was cause for great alarm. “The vacancy in the
supreme court cannot be filled unto the next session of Congress. It is not
impossible an effort will be made then to reorganize judicial districts,” the Memphis
Daily Argus informed its readers.[14]
Eventually, Lincoln did appoint five new justices to vacancies, and Congress did, in the summer of 1862, redraw the boundaries of the districts, compressing the five Southern districts into two. In March 1863, Congress went further, creating a tenth district, thus adding a tenth justice to the bench (this seat was abolished in 1869). Two of Lincoln’s nominations, Salmon P. Chase and Samuel F. Miller, were confirmed the same day they were nominated. Noah H. Swayne’s confirmation took three days, Stephen J. Field’s took four days, and David Davis’s confirmation took seven days. In the end, William H. Seward and Abraham Lincoln were able to reorganize the Supreme Court in a way that benefited their political party.[15]
[1] Weekly
State Journal, February 20,
1861.
[2] The
Works of William H. Seward, 4:594-95.
[3] Stahr,
Seward: Lincoln’s Indispensable Man, 172.
[4] “Acquisition
of Cuba. Speech of Hon. Zachariah Chandler, of Michigan, in the Senate of the
United States, February 17, 1859,” 5.
[5] Congressional
Globe, quoted in Bancroff, The Life of William H. Seward, 1:504.
[6] Warren,
The Supreme Court in United States History, 2:329.
[7] Sugar Planter January 21, 1860.
[8] The
Texas Republican, February 11, 1860.
[9] The
Times-Picayune April 26, 1860.
[10] Nashville
Union and American, November 4, 1860.
[11] The
New Orleans Crescent, November 21, 1860.
[12] Republican
Banner, November 27, 1860.
[13] Richmond
Enquirer, November 13, 1860.
[14] Memphis
Daily Argus, April 4, 1861.
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