Davis, David (1815–1883)

• Author: Stanley I. Kutler
• Pages: 746-747

Page 746

David Davis's Supreme Court appointment in 1862 stemmed from his longtime legal and political association with ABRAHAM LINCOLN. Throughout the CIVIL WAR, Davis loyally supported the administration in the PRIZE CASES (1863) and EX PARTE VALLANDIGHAM (1864), but he opposed the President regarding emancipation and military trials of civilians. At one point, Davis urged Lincoln to withdraw the EMANCIPATION PROCLAMATION, believing that it would only increase southern resistance and border-state hostility toward the Union. The military trial issue, however, aroused Davis's unrelenting enmity and criticism. Appropriately, Davis delivered the Court's unanimous opinion in EX PARTE MILLIGAN in 1866, holding that civilian trials by presidentially created military commissions were unconstitutional. Davis, joined by the four Democrats on the bench, added that Congress could not authorize such commissions, provoking sharp dissent from Chief Justice SALMON P. CHASE and the other three Republicans.

Democrats and Southerners claimed that the subsequent Republican military reconstruction program was unconstitutional on the basis of Milligan. But Davis's opinion really offered little comfort on this point. While he found that the "laws and usages of war" could not apply where civil courts were open, he qualified this conclusion by specifying those "states which have upheld the authority of the government." In his private correspondence, Davis showed that he was disturbed by contemporary interpretations. He noted that there was "not a word said in the opinion about reconstruction, the power is conceded in insurrectionary states."

Disenchanted with the Republicans, and equally wary of the Democrats, Davis castigated the partisan wrangling that characterized the RECONSTRUCTION period. He opposed suffrage for blacks, stating that "the thrusting on them [of] political rights is to their injury." He advocated the preservation of traditional state powers, and he expressed alarm "at the tendency to consolidated Govt manifested by the Republican party." Yet he believed that the military reconstruction program would have been avoided if the Democrats and the South had accepted the FOURTEENTH AMENDMENT. Davis displayed little inclination to have the judiciary thwart the Republican program, however. He was with the majority in TEXAS V. WHITE (1869). He also resisted the attempts of some colleagues to force a decision in EX PARTE MCCARDLE (1868) before Congress...