Erik Visits an American Grave, Part 1,875

This is the grave of David Davis.

Born rich in Cecil County, Maryland in 1815, Davis went to local schools and then onto Kenyon for college. He graduated in 1832 (it was still early enough when these early graduations were common) and then read for the law and attended Yale, graduating with a law degree in 1835. He moved to Illinois after graduation to get a start in that new state, where one could rise quickly. He set up a practice in the town of Bloomington and got involved in politics, as a Whig and then later as a Republican. He was elected to the state legislature in 1845. He became close to another young Whig named Abraham Lincoln. He was more interested in the judiciary than electoral politics though. In 1848, he was the presiding judge of the 8th Circuit Court of Illinois and remained in that role until 1862. In 1860, he was Lincoln’s campaign manager for the Republican National Convention, helping him secure the nomination. In fact, they were close enough that after Lincoln’s assassination, Davis managed the president’s estate.

Well, Lincoln knew how to pay back a friend. We were entering the Gilded Age after all and there’s little reason to believe Lincoln would have been any different than any other elected Republican. So he named Davis to the Supreme Court in 1862. The seat was open because John Archibald Campbell had committed treason in defense of slavery. Wish Sam Alito would commit treason and resign today, amazingly, whoever Trump would name to replace him probably wouldn’t be as horrible!

Davis stayed on the Supreme Court until 1877. He’s probably most famous for writing the opinion in Ex parte Milligan, the 1866 decision that banned the use of military tribunals to try civilians, which actually was a rebuke of his friend Lincoln’s policies during the war, though of course Lincoln was gone by that time.

But Davis’ interests began to wander pretty early. He became of those Republicans who really, really, really wanted to abandon anything to do with the freedmen and turn the party to its love of free markets. He did not like what the Republican Party had become under Ulysses S. Grant. So he started pushing for reform within the party and then without. By 1872, he started flirting with finding a way to run for president. A very small party called the Labor Reform Party nominated him as its presidential candidate that year, but given that even I’ve never heard of this brief party before, it did not matter. He used that as a way to try and get the nomination of a more serious challenge to Grant–the Liberal Republicans. These mugwumps were made of men like Davis–rich guys who both wanted to embrace the white South on race and move forward after the Civil War with disgust at the corruption that was dominating the nation and, most importantly, the administration. Davis actively campaigned for this nomination in an era when that was pretty unusual. He did not get it–that notoriously went to the disastrous Horace Greeley–but he did come in second and one member of the Electoral College even cast his vote for Davis.

Davis of course stayed on the Court during all of this and what that did was make him the potential dealmaker in the contested 1876 election, in which both parties were massively cheating. Republicans were, well, cheating, particularly in the contested state of Oregon (which no one talks about in this whole mess) and Democrats were cheating by using violence to stop Black voting in the South. But Democrats couldn’t do that quite yet in all the states and so Republicans won some southern states still, which the Democrats contested. In any case, Davis by this time had become the extremely annoying “only I can save this nation by finding space between these two parties that are actually really similar on most issues” centrist. And the thing was, everyone in the country saw Davis as the True Independent Man by this time. Remember, the nation was deeply divided in 1876, at least among those who were allowed to vote. People were talking of this as a return to the Civil War, though the nation returning to fighting over the choice between Rutherford Hayes and Samuel Tilden is too ridiculous to contemplate. So the commission of 15 to decide the election was made up of 7 Republicans, 7 Democrats, and Davis as the presiding judge. And since everyone knew the other 14 were complete and total hacks, Davis was the man everyone trusted to solve the problem. He really could have chosen the president all by himself, though still from these two rather lackluster choices.

But then Ohio Democrats tried to play a card and Davis then called their bluff to his own advantage. They offered him their Senate seat. The idea here was to buy Davis off, basically. The Gilded Age was so great for naked corruption. Davis then accepted the Senate seat–but immediately resigned from the commission, which is very much not what Ohio Dems had in mind. He completely played them. And of course the election was decided for Hayes after his Supreme Court colleague Joseph Bradley was given the chief role instead and since he was much more a partisan hack, he did what everyone knew he would.

So Davis became senator in 1877. He did so as a resolute independent. He would join no political party. As such, he was pretty well irrelevant for most of his single term and of course neither party was going to give him another in 1883. But he held onto his independence so strongly that he did have one role to play. After James Garfield’s assassination, Chester Arthur took the presidency. This meant next in line was the President pro tempore of the Senate. Given the ability of 19th century men to die at any time, it’s kind of amazing that this person has never risen to the presidency. But with a divided Senate, everyone agreed that Davis should hold this job since no one would really object. And so he did, spending the last two years of his term as second in line to the presidency.

Also, in 1878, Davis notoriously slipped on a banana peel while in Washington and went head over heels like a bad comedy, which was reported in the press. Now that’s quality history!

Davis went back to Illinois in 1883 and died there in 1886. He was 71 years old.

David Davis is buried in Evergreen Memorial Cemetery, Bloomington, Illinois.

If you would like this series to visit other Supreme Court justices who served with Davis, you can donate to cover the required expenses here. James Wayne is in Savannah, Georgia and Samuel Nelson is in Cooperstown, New York. Some real titans of the Court here. Previous posts in this series are archived here and here.