McGinty Brian. Lincoln and the Court

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year of ﬁghting and relieved Richmond from the threat of imminent attack. It

also opened the way for Confederate advances toward the North.

Lee pressed his advantage by crossing the Potomac into Maryland. But on

September 17, near the town of Sharpsburg on Antietam Creek, Lee and

40,000 men of his Army of Northern Virginia were met by 75,000 men of the

Army of the Potomac under Major General George B. McClellan. In the ensu-

ing battle, 2,100 Union soldiers were killed, 9,550 wounded, and 750 reported

as missing or captured, while the Confederates suffered 1,550 killed, 7,750

wounded, and 1,020 captured or wounded. This, the bloodiest single day of the

entire war, was put down as a Union victory. “At last our Generals in the ﬁeld

seem to have risen to the grandeur of the National crisis,” the New York Times

proclaimed.

The victory was diminished by McClellan’s failure to follow Lee’s

army as it retreated back across the Potomac, but it was good enough for Lin-

coln to publicly announce his preliminary Emancipation Proclamation on Sep-

tember 22, making known to all the world that the termination of slavery had

now become the ofﬁcial policy of his government.

Burdened as he was by the military struggle, the president continued to

think about the Supreme Court vacancy. Chicago’s Judge Drummond had

some inﬂuential supporters. Lincoln himself was personally acquainted with

Drummond, for he had practiced in his Chicago court, and he thought highly

of him. But Browning had not been ruled out of consideration. As a United

States senator, Browning had frequent and easy access to the president, and the

two men still felt the ties of their old friendship. In February, after Lincoln’s

eleven-year-old son Willie died in the White House (probably of typhoid fe-

ver), Mr. and Mrs. Browning came to the White House to console the grieving

president and his wife. Browning helped Lincoln’s secretary, John G. Nicolay,

arrange the boy’s funeral, and the Brownings stayed with the Lincolns for about

a week. Lincoln was frank with Browning about his workload and the toll it

was taking on him. He said that he found his job exhausting and that he often

suffered from headaches. Browning was able to cheer the president up by

spending time with him, discussing books and reading poetry.

Browning also had admirers outside the White House. Attorney General

Bates pronounced him “a proper man” for the Court, and Chief Justice Taney

wrote Justice Clifford that “the appointment of Mr. Browning to the vacant

circuit, although probable was not certain.”

Lincoln himself was reported

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as saying: “I do not know what I may do when the time comes, but there

has never been a day when if I had to act I should not have appointed

Browning.”

But the president had not forgotten his once-loyal friend’s disap-

pointing behavior during the Frémont controversy. And he had also learned

that Browning had some vocal enemies in Illinois. One was Joseph Medill, a

prominent Republican and editor of the Chicago Tribune, who wrote Senator

Trumbull that Browning represented only the “secesh” (secessionists) of Illi-

nois and that the Republicans in that state “detest and despise him.” Medill

added that Browning’s “elevation to the Supreme Bench will be the most un-

popular act of Mr. Lincoln’s life and he ought to be informed of it, before he

does the deed.”

David Davis was another prospective Supreme Court judge. Born on

Maryland’s Eastern Shore in 1815, Davis was descended on his mother’s side

from a wealthy plantation family. But his father died before he was born, and

for most of the ﬁrst two decades of his life he was shunted from one house to

another, living for a time with his uncle, an Episcopal rector who served a brief

term as president of St. John’s College in Annapolis, and for a time with his

mother and stepfather. In 1828, Davis enrolled at Ohio’s ﬂedgling Kenyon Col-

lege, founded by Salmon P. Chase’s uncle, the Episcopal bishop Philander

Chase. After graduating in 1832, he went to Lenox, Massachusetts, where he

read law in an attorney’s ofﬁce, and then to Connecticut’s New Haven Law

School, where he took a few classes. He moved west in 1835, bringing with

him a mixture of Southern tradition and Yankee virtue that was to serve him

well in his legal career on the Illinois prairies. Settling in Bloomington, north-

east of Lincoln’s hometown of Springﬁeld, Davis became a successful—though

not a brilliant—lawyer, whose practice consisted mostly of collection cases.

In 1848, at the age of thirty-three, Davis was elected judge of the Eighth

Illinois Circuit Court. Twice a year, in the spring and the fall, it was his duty to

travel from county to county through his circuit, with a retinue of lawyers in

tow, holding court in county seats, sleeping and eating in frontier taverns, lis-

tening to the pleas of plaintiffs and defendants, presiding over juries, and de-

ciding the fates of criminal defendants. Though there were many skilled law-

yers in Davis’s group, Lincoln stood out from all the rest. He was the only man

besides the judge and the state’s attorney who regularly made the circuit of all

of the counties, a trek that kept him away from home for several months

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each year. More signiﬁcant, he was a lawyer’s lawyer who impressed all who

watched him with his intelligence, fairness, and inexhaustible store of good hu-

mor. After court hours, when the judge and the lawyers gathered in local tav-

erns, Lincoln regaled them with funny and often bawdy stories.

President Lincoln called on Judge Davis to help clean up the mess left in

Missouri after Frémont was relieved of duty there, appointing him to a three-

member commission to examine and settle several million dollars in unpaid

claims against the army and the government. But he did not consult him on

major appointments, or seek his advice on important issues. Davis hoped that

he might be considered for a judicial appointment, but he was not certain in

his own mind that he was qualiﬁed for the Supreme Court. He had years of ex-

perience as a judge, but only at the trial-court level. He had never argued an

appeal, even in the Illinois Supreme Court (Lincoln had argued many cases

there). “I often doubt,” Davis wrote a friend in January 1862, “whether I could

sustain myself on the Supreme Bench. It may be that I am not self conﬁdent

enough. I certainly could not without hard study. I have but little legal learn-

ing, and whether study would suit me now may be very doubtful.”

Thinking

that Judge Drummond might be nominated to the Supreme Court, Davis ex-

pressed some interest in taking Drummond’s place in Chicago. Lincoln knew

Davis as well as any of his legal and political friends and probably shared some

of the judge’s own doubts about his qualiﬁcations for the Supreme Court.

Whatever limits there were to Davis’s learning, however, the president knew

that he was an honorable man, attentive to his duties and dependably collegial.

Still Lincoln did not tip his hand. In May 1862, John P. Usher, an Indiana

lawyer who had become assistant to Secretary of the Interior Caleb Smith,

wrote Davis that Orville Browning had become very friendly with the Lin-

colns. Browning would probably be appointed to the Supreme Court, Usher

said, and Davis might want a seat on the U.S. Court of Claims. In reply, Davis

wrote Usher a letter that he believed (quite reasonably) would be shown to the

president:

I feel that the President should be left free from the suggestions of per-

sonal friendship, to select those who can most assist him in his great

work....Icannot by any act of my own add to the weight of his

embarrassment. The President and myself have been associated in

most intimate and pleasant relations for the greater part of our lives.

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Any representations made to him, however partial or however unjust,

could hardly change the judgment he may have formed of me. He

knows me well, and the character of service, if any, I could render my

country. If he should desire me to act in any capacity,...Ishould not

feel at liberty to decline, but I cannot, either directly or indirectly, or

through my friends, importune him for any position, whether humble

or exalted.

Davis had many friends, but he also had enemies. Among the most deter-

mined were the abolitionists, and former Democrats in the Republican Party,

who believed that Lincoln should take an aggressive stance against slavery.

Like Lincoln, Davis believed that it was no business of the federal government

to interfere with slavery in the states where it already existed, although it

should ﬁrmly oppose the extension of slavery into the territories. Congressman

Elihu B. Washburne of northern Illinois was one of Davis’s opponents. He told

Lincoln that Davis’s appointment would not only be bad on policy grounds but

would also pose a danger to the Chicago clerkship of William H. Bradley, who

was one of Lincoln’s Illinois friends.

Mrs. Lincoln, however, was well-disposed to Davis and urged that her hus-

band appoint him. Although the Brownings had been attentive to her after

Willie’s death, she was apparently turning against them. When Leonard Swett,

one of Lincoln’s old Illinois friends, came to Washington, she told him that

Browning had become “distressingly loving.” In June, another friend wrote Da-

vis from Washington: “Mrs. Lincoln is your warm friend and...presses your

claims upon the President seeking every opportunity to put in a good word and

...isunceasing in her endeavours for your appointment.”

At the end of July

Swett left Washington for New York, where he wrote his wife that Lincoln

had decided to appoint Davis to the Supreme Court. “A few nights before I

left I called upon Mrs. Lincoln,” Swett wrote. “She told me she had been ﬁght-

ing Davis’s battles, that Browning had gone home, & she was glad of it....

When I left, she told me again at the door to tell Judge Davis his matter was all

right.”

On August 27, Lincoln wrote Davis: “My mind is made up to appoint you

Supreme Judge; but I am so anxious that Mr. Bradley, present Clerk at Chicago

shall be retained, that I think it no dishonor for me to ask, and for you to tell

me, that you will not remove him. Please answer.”

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On September 1, Davis answered:

I cannot, in words, sufﬁciently express, my thankfulness and grati-

tude, for this distinguished mark of your conﬁdence & favor.

While I shall assume the responsibilities of this ofﬁce, with great

distrust in my abilities, yet, I hope by labor and application, to dis-

charge its duties, satisfactorily.

I should not in any event think of displacing Mr. Bradley, as I know,

with you, his ﬁtness for the position he holds; but especially as you re-

quest it, I shall take great pleasure in retaining him.

Lincoln did not immediately announce his decision to appoint Davis.

Congress had gone into recess on July 17 and was not due to reconvene until

December 1, so a Davis nomination could not be taken up before then. But the

fall congressional elections were approaching, and Lincoln was sensitive to the

political inﬁghting in Illinois. Leonard Swett was running for Congress in the

president’s old central Illinois district, against Lincoln’s ﬁrst law partner, John

T. Stuart. Swett was the Republican nominee and Stuart the Democrat, and

Davis was active in Swett’s campaign. According to Davis’s biographer, many

of Davis’s friends in central Illinois “resented Lincoln’s failure to give him an

important post” and believed that it “would help Swett to defeat Stuart if

this feeling could be removed.”

So the president asked Attorney General

Bates if he could give Davis a recess appointment, pursuant to Article II, Sec-

tion 2 of the Constitution, which provides (in relevant part): “The President

shall have power to ﬁll up all vacancies that may happen during the recess of

the Senate, by granting commissions which shall expire at the end of their

next session.”

Recess appointments of Supreme Court justices were not unusual. In fact,

there had been eight such appointments before Lincoln took ofﬁce: two by

George Washington and one each by John Adams, Thomas Jefferson, James

Monroe, Martin Van Buren, James K. Polk, and Millard Fillmore.

More inter-

esting, perhaps, was the question of whether the vacancy had to have been cre-

ated (or to have “happened”) during the last recess of the Senate, or whether,

as in the case of Davis, a recess appointment could be made for a vacancy that

predated the last recess. Attorney General Bates researched the question and

replied with a formal opinion on October 15. “If the question were new, and

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now, for the ﬁrst time, to be considered,” Bates told Lincoln, “I might have se-

rious doubts of your constitutional power to ﬁll up the vacancy....Butthe

question is not new. It is settled, in favor of the power, as far, at least, as a con-

stitutional question can be settled by the continued practice of your predeces-

sors, and the reiterated opinions of mine, and sanctioned, as far as I know or

believe by the unbroken acquiescence of the Senate.”

Accordingly, Lincoln made out a commission for Davis on October 17.

News of the appointment came out shortly before the election but did little to

help Swett in his contest with Stuart, for Swett was soundly defeated in the

election of November 4.

Democrats scored substantial gains not only in Illi-

nois but also in Wisconsin, Indiana, Ohio, and Pennsylvania.

On December 1, Lincoln sent the Senate a formal notice nominating Da-

vid Davis to be a justice of the Supreme Court. On December 8, Davis was

conﬁrmed by the full Senate in a voice vote.

Two of Lincoln’s new justices, Noah Swayne and Samuel Miller, were

on hand when the Supreme Court opened its term on December 1. Justices

Wayne, Grier, and Clifford also took their seats on the bench that day, but

Catron, Nelson, and Taney were indisposed and unable to appear.

His conﬁrmation complete, David Davis was on hand for the Court’s ses-

sion on December 10, taking his seat in the junior justice’s chair on the far left

side of the bench. Taney was well enough to take his place in the center of the

courtroom that day and administer the oath of ofﬁce to the new justice from Il-

linois.

For the ﬁrst time in more than two years, the bench of the Supreme Court

was full.

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5 The Prizes

arly in july 1861, a sailing ship struggled through heavy seas off the

coast of Virginia. It was the brig Amy Warwick, a merchant ship with tall masts

and billowing sails designed to catch the stiff winds necessary to carry it on

long voyages across the ocean. The ship had begun its voyage in Rio de Janeiro,

where longshoremen speaking in Portuguese and English and a half-dozen

other languages had ﬁlled its creaking hull with more than ﬁve thousand bags

of Brazilian coffee. The coffee was bound for Hampton Roads, Virginia, gate-

way to the James River and the city of Richmond, newly proclaimed capital of

the Confederate States of America. Although the cargo had no military impor-

tance, it was of considerable commercial value for, war or no, Virginians still

liked to drink coffee, and soldiers manning the picket lines that guarded Rich-

mond from the threat of Yankee attack liked to hoist tin cups of steaming black

java as they surveyed the horizon for signs of enemy patrols. The Amy Warwick

had left Rio on May 29, in time to know that the president of the United

States had proclaimed a blockade of the Southern coast and that, if it were to

reach its destination, it would have to run the blockade.

On April 19 Lincoln had publicly announced his intention “to set on

foot a blockade” of the ports of South Carolina, Georgia, Florida, Alabama,

Mississippi, Louisiana, and Texas, states then in secession from the United

States.

He had given as reasons for the blockade the existence of “an insurrec-

tion against the Government of the United States” in the secessionist states

and the fact that revenue laws in those states could not be enforced “con-

formably to that provision of the Constitution which requires duties to be uni-

form throughout the United States.”

He also noted that “a combination of

persons” engaged in the insurrection had “threatened to grant pretended letters

of marque to authorize the bearers thereof to commit assaults on the lives,

vessels, and property of good citizens of the country lawfully engaged in com-

merce on the high seas, and in waters of the United States.”

On April 27, after

North Carolina and Virginia joined the other states in breaking away from the

Union, the president extended the blockade to cover their ports as well.

With

this ﬁnal action, he proclaimed his government’s intention of blockading the

entire Southern coastline, from the entrance to Chesapeake Bay in Virginia;

past Wilmington, North Carolina; Charleston, South Carolina; and Savannah;

around the peninsula of Florida and its keys; past the Gulf Coast ports of Mo-

bile, Alabama; Biloxi, Mississippi; New Orleans; and Galveston, Texas; to

the mouth of the Rio Grande below Brownsville, Texas. It was an astound-

ing distance and an astounding coastline—more than 3,500 miles of capes,

headlands, bays, sounds, inlets, rivers, reefs, coves, and islands, all under the

claimed jurisdiction of the government headed up by Jefferson Davis. And the

task of patrolling this coastline seemed equally astounding, for the United

States Navy in 1861 had only ninety ships in its ﬂeet, and barely half were ﬁt

for blockade duty. Some were hopelessly antiquated, others were in disrepair,

and yet others were guarding American naval interests in distant parts of the

globe—the Mediterranean, the coast of Africa, and the Orient.

the u.s.s. quaker city was one of the ships Secretary of the Navy Gid-

eon Welles had ordered to blockade duty off the Virginia coast. Equipped with

sails and a powerful steam engine, the 1,600-ton side-wheeler carried a crew of

129 and was armed with four guns. Though commissioned as a navy vessel, it

was a private ship, owned by investors in New York, and had been chartered for

blockade duty as part of Welles’s hasty effort to strengthen his ﬂeet. While tak-

ing the ﬁrst steps to establish a long-term shipbuilding program, the secretary

had also searched for private vessels that could quickly be converted into navy

ships, acquiring some by purchase and others, like the Quaker City, by charter.

When vessels were chartered, it was the responsibility of the private owners to

equip them, provide their crews, and maintain them in good repair, while the

navy put ofﬁcers aboard to command their operations. The Quaker City was

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initially chartered for only thirty days, because Welles, like most other govern-

ment ofﬁcials, had thought the war would be short. The term was extended,

however, as it became clear that hostilities would continue for months, perhaps

even years. The Quaker City was sent south from New York with orders to

guard the shipping lanes at the mouth of Chesapeake Bay, the most important

waterway on the Atlantic coast of the Confederacy.

The Quaker City sailed under Commander Overton Carr of the U.S. Navy,

who reported to Flag Ofﬁcer Silas H. Stringham. Stringham gave his orders

from the U.S.S. Minnesota, ﬂagship of the Atlantic Blockading Squadron. The

“squadron” designation was impressive but somewhat misleading, for

Stringham’s command included only a handful of ships and support boats.

It is difﬁcult to determine precisely when and with whom the idea of the

blockade originated, though it is clear that Secretary of State Seward and Gen-

eral in Chief Scott were both early proponents. And it is equally clear that Jef-

ferson Davis’s decision to issue letters of marque to any ships that would attack

American vessels added to the logic of a blockade. Davis’s decision signiﬁed his

belief that naval warfare would play an important part in the coming conﬂict.

The Confederate president’s proclamation was issued on April 17, just two days

before Lincoln’s blockade proclamation. Since Lincoln refused to recognize the

legality of the Confederate States, he regarded Davis’s decision to issue letters

of marque as an invitation to piracy, which was a capital offense under United

States law.

Even before Davis’s proclamation, however, there was talk in the North of

blockading the Southern coast. As early as 1860, General Scott had suggested

that Southern secession—if it came—might be dealt with, at least in part, by a

blockade. He later developed a more comprehensive plan for dealing with

secession that included a complete blockade of the Southern coast and the es-

tablishment of a military cordon along the Mississippi River, supported by gun-

boats and tens of thousands of soldiers. Though loyal to the Union, the Vir-

ginia-born general in chief was loath to propose a military invasion of the

South, for, as he said, “the destruction of life and property, on the other side,

would be frightful.” Better, he thought, to envelope the seceding states, cut

them off from trade by land and water, and let them die by starvation. Half de-

risively, half admiringly, newspaper writers called Scott’s proposal the “Ana-

conda Plan,” or “Scott’s Anaconda,” for its resemblance to the great snake that

wraps itself around its prey and slowly squeezes the life out of it. Seward was as

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120

impressed by Scott’s proposals as he was by the general’s ﬂattering (but mis-

taken) suggestion that he was to be the “chief” of Lincoln’s cabinet.

Interdicting Southern trade was an idea that made both commercial and

military sense. The South, much more than the North, was dependent on

ocean commerce for its economic well-being, for the Southern states were

agricultural producers and required foreign markets to thrive. Their principal

crops—tobacco, rice, sugar, and, most important of all, raw cotton—were im-

mensely valuable. Since the South itself had only a rudimentary textile indus-

try, approximately 95 percent of its cotton production was exported (70 per-

cent to Europe and 25 percent to the Northern states).

Great Britain, which

had an enormous textile industry, depended heavily on shipments of cotton

from the South.

As important as agriculture was to the Southern economy, industrial pro-

duction was correspondingly unimportant. The South had few factories or

shipyards. Its most important cities were all seaports, which depended on the

coming and going of ships for their prosperity. Even railroads in the South were

primitive. Though a third of the nation’s total tracks were in the South in

1861, railroads traced a confusing web across the Southern countryside, with

differing rail widths and unconnected lines. When Jefferson Davis left his plan-

tation near Vicksburg, Mississippi, in February 1861, for his inauguration in

Montgomery, Alabama, two hundred miles away, he ﬁrst had to take a train to

Jackson, Mississippi, then make a 700-mile detour north into Tennessee and

east to Atlanta before turning south to reach Montgomery, for, as Civil War

historian William C. Davis points out, there was no rail connection that was

more direct.

Industrially weak, the South depended on the same ocean com-

merce that supported its agricultural production for the basic manufactured

goods of modern life—cloth, buttons, boots, shoes, wagons, carts, agricul-

tural implements, guns, and even ships and railroad supplies. The Confederate

States had virtually no shipbuilding industry in 1861 and next to no capacity

for manufacturing munitions. To mount a serious war effort, they would have

to import almost all of their manufactures from their European trading part-

ners, and those same partners would have to supply them with the ﬁnancial

wherewithal to pay for their imports. If the North could interdict the sea trafﬁc

into and out of the South, or even seriously curtail it, its natural military ad-

vantage would be enormous.

Like Seward and Scott, Gideon Welles realized the military importance of

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