The Lawyers: David Davis (1815-1886)

David Davis’s influence with Mr. Lincoln was a political fact of life in Illinois. “As early as 1850, a prominent Whig in Taylorville wrote the Judge about the necessity of removing their postmaster who pretended to be a Whig and had a brother in Springfield well known as a member of that party,” wrote Davis biographer Willard L. King ” But actually the postmaster paid over all of the profits of the office to the old postmaster, a rabid Loco, who still ran the post office. The Taylorville Whigs had appealed to Congressman Baker without avail. To approach Lincoln through ordinary channels would be fruitless because he knew the postmaster’s brother. ‘We have consulted about the matter,’ the letter ended, ‘and have concluded to…ask you to use your influence with Lincoln in procuring the removal.’ During Lincoln’s life, Davis would hear many such pleas.”¹ And he initiated many himself. The problem was that once Mr. Lincoln was elected President, Davis presumed on the friendship and his role in Mr. Lincoln’s nomination for President. His patronage demands grated on the President and Mr. Lincoln’s remoteness grated on Davis. Their relationship suffered.

In 1848, the Bloomington attorney had been elected presiding judge of Eighth Circuit, which was the center of Mr. Lincoln’s trial circuit. Once Mr. Lincoln returned from Congress in 1849, he became a central figure on the Eighth Circuit. Indeed, although Judge Davis was the head, Mr. Lincoln was the Circuit’s heart. Trevor Hill wrote in Lincoln the Lawyer that “the lawyers of the Eighth Circuit were practically a big family of which Davis was the official head, and over which he exerted a really parental influence. Not only did his Honor’s ample girth and other physical proportions suggest a paterfamilias, but his mental attitude toward the bar was at once domineering and fatherly, with the domineering element always prominent.”²

Since Mr. Lincoln was a fixture on the circuit until he stopped practicing law in the spring of 1860, the two had plenty of time to get to know each other in the courtroom and the hotel bedrooms they frequently had to share – and the lonely roads along which they had to travel between county seats on the circuit. Part of the relationship was based on Mr. Lincoln’s legal ability and political sagacity. But part of the relationship was based on Mr. Lincoln’s love of telling stories and Judge Davis’s love of hearing them. Judge Davis quickly grew unhappy if Mr. Lincoln told a story out of his hearing or Mr. Lincoln was out of the room when lawyers gathered after court. They had plenty of time to get to know each other since Mr. Lincoln held no public office and failed to be elected to any during this period. Davis had his favorites, maintained Trevor Hill, “but Lincoln was the prime favorite of the privileged clique which made the judge’s room its headquarters.”³

Judge Davis was fond of Mr. Lincoln – but scrupulously impartial in his legal rulings. “In the years of their association as judge and lawyer, no circuit lawyer ever charged Davis with favoring Lincoln in court,” wrote biographer Willard King. “Out of eighty-seven cases tried by Lincoln before the court without a jury, Davis decided forty-seven against him and only forty in his favor.”⁴ Their relationship was sufficiently close that Mr. Lincoln sometimes replaced Judge Davis on the bench when illness or personal business kept him away. According to Davis biographer King:

In March 1859, at Clinton, Lincoln’s precise penmanship appears on the Judge’s docket in twenty-one cases. During that month Sarah had become ill and the Judge had hurried home. In most cases Lincoln entered default judgments or agreed orders but, on a plea of guilty, he fined some young men $10 for gaming; heard the proof and ordered a decree in a default divorce case; and tried three small jury cases. During this term of Court the Clinton weekly newspaper contained an item: ‘ABRAHAM LINCOLN, During the last few days we have noticed this distinguished gentleman attending court in this place. No person, judging from his plain and unassuming demeanor, would imagine that he was the Lincoln who was endorsed by a majority of the people of Illinois for…United States Senator.⁵

King observed: “The Judge’s dependence upon Lincoln is revealed in a letter he wrote during the long winter term in Bloomington in 1859, asking Lincoln’s advice on whether he could adjourn court during Christmas week. ‘I think of adjourning over next week. Can it be done if the lawyers do not consent even? I want to take the holidays, more particularly as business in St. Louis imperatively calls me. Ask Judge Treat and write me – also Judge Logan. I presume the lawyers will agree, but I want their [Judge Treat’s and Judge Logan’s] opinion.'”⁶

Lincoln legal scholar John J. Duff was more critical of the nature of Davis’s relationship with Mr. Lincoln – comparing it to the strange pairing of Mr. Lincoln with partner William H. Herndon. “As in the case of the Lincoln & Herndon partnership, there were few affinities the two men. The soberly clad Lincoln, with his long, sweat-stained linen duster, or shawl and hat of doubtful age, didn’t put much stock by fancy clothes; most of the time he was just functionally dressed, Davis, on the other hand, was impeccably correct about his clothes and personal appearance. His beard, which extended around his throat and the lower part of his face, was always immaculately clipped. Lincoln was a man of limited finances.” Duff maintained: “The Judge was a person of quick and inflexible determination, while Lincoln, a man of pedestrian judgment, came to conclusions slowly and carefully and only after due deliberation and sober, second thoughts. In their views on the subtle quality that men call ‘justice,’ one has no doubt that they differed somewhat.”7

In Lawyer Lincoln Albert A. Woldman agreed that two possessed “few traits in common, but argued that “these two men had been attracted to each other by some inexplicable bonds of affection which continued through to Lincoln’s death.” No man with whom Mr. Lincoln was associated in law and politics was “more sincere, tireless, resourceful and faithful than his constant boon companion on the Eighth Circuit – Judge David Davis.”8

Their relationship was primarily legal through most of the 1850s, though Judge Davis began to get involved in the Republican Party after it was formed in Illinois in 1856. Unfortunately for Davis, his first experiences were primarily negative – attempting to block the nomination and perhaps the election of Owen Lovejoy as a candidate for Congress in his district. Davis and Mr. Lincoln much preferred the less radical Leonard as the candidate and Davis was tempted to try to derail Lovejoy. At the very least, he gained that reputation.

Mr. Lincoln had stood up for Davis when he came under attack from an anonymous writer to the Chicago Tribune in the spring of 1858 for supposedly opposing Owen Lovejoy’s congressional campaign in 1856: “Judge Davis is my friend. I have known him for many years and think I know his views. I am certain that no plot or movement against Lovejoy’s re-nomination was led on by him, or that he was cognizant to anything of the kind, though he has some friends who were opposed to him, but he is not responsibility for their opinions. That charge that he has no sympathy for the vitalizing principle of Republicanism is based on your own radical and progressive views, as advanced in the editorials of the TRIBUNE.”9

Davis’s political activity really matured in 1860 when he commanded the group of Mr. Lincoln’s friends who engineered his victory at the Republican National Convention in Chicago. “David Davis’s chief contribution to American history was the part he played in the nomination of Abraham Lincoln, the central figure in that history,” wrote biographer King. Illinois editor Thomas J. Pickett wrote: “David Davis performed the work of a score of ordinary men. At the Tremont, Sherman and other hotels, he outtalked the friends of William H. Seward, and convinced many that the convention would act wisely in choosing Lincoln for their standard bearers. While he was doing yeoman’s services for his friend, others who claimed to be leaders were damning Mr. Lincoln with faint praise.”10 Davis was clearly the leader of the Lincoln team of Illinois friends and supporters. Historian David Donald wrote:

From his rooms at the Tremont Hotel, David Davis took charge of the operation. His primary objective was to secure at least one hundred votes for Lincoln on the first ballot – more than any other candidate except Seward – with other votes in reserve so that Lincoln would appear to gain strength on a second ballot. For this purpose he sent out members of his team to talk with delegations where they might have influence; [Leonard] Swett, for instance, visited the delegation from Maine, the state of his birth, and S[amuel] C. Parks canvassed those from his native state of Vermont. [Orville H.] Browning proved invaluable in talking with delegations that teetered between supporting Bates and Lincoln….Logan kept an eye on the Kentucky delegates…¹¹

I will say that in my honest opinion,” wrote one Iowa Republican leader to President Lincoln, “that for the extraordinary effort of Judge Davis, you would not have received the nomination at the Chicago convention.”12 Leonard Swett told President Lincoln: “If Judge Davis, with his tact and force, had not lived, and all other things had been as they were, I believe you would not now be sitting where you are.” Swett recalled that the President “replied gravely, ‘Yes, that is so.'”13

Davis’ Bloomington colleague Jesse Fell wrote in early January 1861: “I think I can safely say that of all living men you have no truer more devoted friend and admirer than in the person of Judge Davis. – And if I were going to select that man of all others to whom we are under the greatest obligations for your nomination at Chicago I unhesitatingly say it was him; and such I feel quite sure would be the general sentiment among those who made the nomination.” Still, noted Fell, he didn’t think Davis should get a top position: “Lincoln, permit me to say (and I don’t know that Judge Davis will thank me for the suggestion) if you desire his society and occasional counsel, at Washington – as it seems but natural you should – and can with propriety – give him a first﷓rate 2nd class appointment, I should – in common with a host of your early friends – be much pleased, indeed.”14

Davis’s organizational genius was critical at the convention and in the campaign that followed, argued Willard King. “Unlike Lincoln, Davis had neither brilliance nor genius and he knew it,” wrote King. ” But he did have extraordinary industry and perseverance and in one respect he surpassed Lincoln: he had remarkable capacity for organization. This quality resulted in Lincoln’s nomination for President. Without the Judge’s systematic plan of gathering votes at Chicago, some other candidate would probably have been chosen. Davis’s personal papers abound in tabulations and plans of organization. He thought Lincoln deficient in this respect – too often he met his problems ‘catch as catch can.'”15

Davis accompanied the President-elect to Washington in February 1861 with visions of power and influence – none of which were realized. In fact there is evidence that Davis presumed too much on this trip, annoying Mr. Lincoln. According to Henry C. Whitney, Mr. Lincoln spoke after the Inauguration about Davis with “extreme irritability. He complained “in the bitterest terms against Davis’s greed and importunity for office, and summarized his disgust in these words: ‘I know it is an awful thing for me to say, but I already wish I was back home…”16 Instead, Davis returned to Illinois and awaited Mr. Lincoln’s decision on a judicial appointment. It did not come quickly although the President did appoint Davis as chairman of a federal commission investigating claims against the military administration of General John C. Frémont in Missouri.

During 1861, Davis frustration grew. A letter to the President received a rebuff from presidential secretary John G. Nicolay, who acted as a buffer to those who wished to intrude on the President – either physically or in writing. This role did not necessarily make him popular with those who thought he had interfered with their access. Davis was clearly frustrated during the Administration’s first year about his failure to influence the President. In early January 1862, Nicolay responded to Davis:

Among a lot of letters which the President took from his table a few days ago, and gave to his Secretaries to dispose of, was a note from yourself to Mr. Dole, under date of Nov. 11^th, 1861, in which among other things you say,
“I am afraid letters addressed to Mr. Lincoln through his Secretaries don’t reach him. That opinion is, I find, quite prevalent.”
Literally considered, this is true. A moment’s reflection will convince you that the President has not the time to read all the letters he receives; and also, that say of a hundred miscellaneous letters, there will be a large proportion, which are obviously of no interest or importance. These the President would not read if he could.
Your implied charge, however, that his Secretaries suppress the important letters addressed to the President, is an erroneous as it is unjust. Of this class of communications they bring to him daily, many more than he can possibly get time to read. So far as I know your own letters have always received a special attention not only from the Secretaries, but from the President himself.
If, as you intimate, any other persons have similar just and definite grievances to lay at the door of the President’s Secretaries, it is due alike to me, to the President, and to the public service that you communicate them at once to me or to the President.
I write this because yours is the first complaint of this character which has come from any man of standing and prominence, and because I feel sure you do not desire to wrong any one by the utterance or repetition of mere unfounded suspicion. I have shown this letter to the President, and have his permission to send it.¹⁷

Fellow attorney Whitney knew both Judge Davis and President Lincoln and maintained “I don’t think Lincoln held Davis very close to his heart: he was too loquacious – too vain – too vacillating in his friendships…” Whitney maintained: “I think Lincoln never had any intention of appointing Davis to any office at all & was disgusted at Davis’ hoggishness after office for himself – for H. Winter Davis his cousin & for all his personal friends.”¹⁸ At one point before President Lincoln took office, Davis was pushing his cousin Winter Davis for the Cabinet and got Thurlow Weed to endorse the idea. Mr. Lincoln said: “Davis has been posting you upon on this question. He came from Maryland and has got Davis on the brain. Maryland must, I think, be a good State to move from.”¹⁹

Several weeks later, Mr. Lincoln’s irritation surfaced again when Whitney visited the White House shortly after the inauguration. “I called at the White House with a young friend of both of us to procure for him a small clerkship. It was about noon, and we were soon admitted, altho’ a large crowd was waiting for admission. The President was sitting before a fire in the fire place, very gloomy and dejected. He received us cordially, but abstractedly: and in reply to my request, said wearily: ‘Just let Jim wait a little: don’t press anything now: I am much annoyed about something that just happened: Davis with that way of making a man do a thing whether he wants to or not made me appoint [Archibald] Williams Judge in Kansas and John Jones in the State department: and I’ve got a hat full of dispatches already from Kansas cheifly; protesting against it, and asking if I was going to fill up all the offices from Illinois.”²⁰

Opinions of Davis among legal colleagues differed sharply. Leonard Swett wrote Ward Hill Lamon in April 1861 to inform that “the friends of Judge Davis think Lincoln ought to put him on Supreme Bench. Now I want you find out when this appointment will be made. Also tell Lincoln that Judge Davis will be an applicant so that he may not ignore the fact or act without that knowledge.” He concluded: “Now, Hill, I know you are bored to death, but our mutual regard for the Judge must make us doubly industrious and persistent in this care. Write immediately what the chances are, how Lincoln feels about it, and what we ought to do.”²¹ Lamon himself said of Davis and Mr. Lincoln: “During all my close acquaintance with the two men I never knew them to have a quarrel.”²²

Indeed, it may have been differing conceptions of friendship which created a wedge between Davis and Mr. Lincoln “Day by day, through his life, Davis made devoted friends,” wrote biographer Willard King. One said “the Judge was the ‘best & truest friend in the world’ and that there was ‘no limit of his kindness’ to those who needed it. Nearly everyone who came within his ken – from Abraham Lincoln to the servants in the Judge’s house and the tenants on his farms – loved him. His hunger for affection was insatiable; he collected friends with far more fervor than he acquired property,” wrote King. “This propensity sometimes led him into error. ‘If I was President of the United States, I would appoint all my old personal friends to office,’ he once told Sarah. Ingratitude he regarded as one of the greatest faults. His badgering of Lincoln with requests for minor appointments in the depths of the President’s misery over the war makes one cringe, but Davis had not the slightest consciousness of any wrongdoing.”

Whitney had an even less favorable view of the situation. He thought Mr. Lincoln was “disgusted at Davis’ hoggishness after office for himself.”²³ Whitney had several conversations with Davis. He recalled that in March 1861, before Davis left Washington, “he told me he had no doubt Lincoln would give him an office if he would ask him for it but he never would do that – no sir: he wasn’t that kind of a man. But he set others on the hunt.” U.S. Marshal Ward Hill Lamon and Commissioner of Indian Affairs William Dole were the major Washington representatives for Davis’ lobbying.²⁴ In fairness to Davis, it must be admitted not only did he feel the call of friendship strongly, but friends presumed that he had the influence they needed.

Regardless of his privileged relationship, Davis had difficulty, however, obtaining a job for himself from Mr. Lincoln. Davis’ base among Illinois politicians was strong, but he was not in Washington to personally lobby on his own behalf – as were Browning and Smith. “In May 1862, Smith tried to eliminate Davis for the Supreme Court by having him appointed to the Court of Claims, to which two judges had recently been added by an Act of Congress. Smith enlisted in this effort John P. Usher, an old circuit lawyer friend of Davis from Indiana and now Smith’s assistant in the Department of the Interior. ‘I should of course prefer to see you upon the Supreme Bench,’ Usher wrote Davis. ‘However, Browning is, I think pressing for it. I hear he is very much at the President’s and is supposed by many to be a favorite.’ In the light of Browning’s probable appointment, Usher suggested to Davis that he might want a place on the Court of Claims,” wrote biographer King.²⁵ Davis declined to engage this maneuver, writing that “the President should be left free from the suggestions of personal friendship, to select those who can most assist him in his great work.”²⁶

It took 16 months and the intervention of mutual friend Leonard Swett to get Davis the Supreme Court appointment he desired. And to add a bit of insult to the appointment, President Lincoln requested that as part of the deal, Davis retain William H. Bradley as court clerk in Chicago: “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.” Davis replied on September 1, 1862: “I cannot in word sufficiently express, my thankfulness and gratitude for this distinguished mark of your confidence & favor.” He readily assented to keep Bradley – ” as I know, with you, his fitness for the position he holds; but especially as you request it, I shall take great pleasure in retaining him…”²⁷

The President officially named Davis on October 19, 1862, after he had filled two other Supreme Court vacancies and after considerable maneuvering by Davis’ friends, by Illinois Senator Orville H. Browning, and by Secretary of the Interior Caleb Smith for the post. Historian King observed that although Davis coveted the assignment, he worried that his judicial experience was inadequate: “Davis’ misgivings were understandable; his experience had been confined to a trial court – he had never even argued a case in the Supreme Court of Illinois – and he doubted his ability to fill a place in a higher tribunal. It is fair to assume that Lincoln shared his doubts. He himself had handled more cases before the Illinois Supreme Court than almost any lawyer in the state and he knew that an excellent trial judge might not necessarily make the best Supreme Court Justice.”²⁸

Being on the Supreme Court didn’t stop Justice Davis from giving the President unsolicited advice about politics and policy. Orville Browning recorded in his diary on January 19, 1863: “In conversation with Judge Davis of the Supreme Court this morning he told me that he had a conversation with the President yesterday in which he represented to him the alarming condition of things, and urged upon him to reconstruct his cabinet, and change his [emancipation] policy, as the only means of saving the Country. The President told him that this proclamation in regard to slavery was a fixed thing — that he intended to adhere to it, and whether he changed his cabinet must be determined by future events.”²⁹

Historian David M. Silver wrote: “Justice Davis did not hesitate to write to Lincoln about political matters and on several occasions intervened to support certain candidates for office or to obtain political favors….At times Justice Davis brought friends to see the President, wrote him notes of congratulations, asked for political favors, and gave Lincoln advice – sometimes unsolicited and undesired. When Lincoln named former Governor [William Dennison] of Ohio to be Postmaster General, Justice Davis congratulated Lincoln, saying that Dennison is ‘honorable, high-minded, pure, & dignified.’ When the district judgeship in Indianapolis became vacant, Davis advised the appointment of David McDonald and concluded, ‘Excuse these suggestions.”³⁰ But Davis wasn’t “ever a partisan Republican,” observed Illinois editor Thomas Pickett. “His Southern birth, education and conservative habit of thought were rather in opposition to the sweeping ideas of many of the Republican leaders.”³¹

Davis was willing to stand up to the President when necessary. He particularly objected to the use of military courts when there were civilian alternatives and President Lincoln’s 1862 suspension of habeas corpus for civilians held by Union military authorities. “Mr. Lincoln was advised as Presdt that the various military trials in the Western states, even in the southern border states, where the Courts were open and untrammeled & free, were unconstitutional & wrong – and would not be sustained by the [Supreme] Court could not be & ought not to be – that such proceedings were dangerous to liberty,” Davis wrote Herndon in 1867. “I am satisfied that Lincoln was throughly opposed to these Military Commissions Especially in the free States where the Courts were open – & free.'”³²

“Mr. Lincoln “was a much more self possessed man than I thought – He thought for himself, which is a rare quality nowadays,” Davis wrote Herndon. “Mr Lincoln grew more steady & resolute & his ideas were never confused.”³³ About a month after Mr. Lincoln’s murder, Davis addressed a meeting of the Indianapolis Bar Association: Mr. Lincoln was loved by his brethren of the bar, and no body of men will grieve more at his death, or pay more sincere tribute to his memory. His presence on the circuit was watched for with interest, and never failed to produce joy and hilarity. When casually absent the spirts of both bar and people were depressed. He was not fond of controversy, and would compromise a law suit whenever practicable.” Davis added: He loved his profession, appreciating the high services always rendered by it to the cause of good government and civil liberty.”³⁴

A decade after the comment on the Emancipation Proclamation, Browning made another diary entry concerning a conversation with Davis: “At breakfast I took a seat by Judge Davis,” wrote Browning. “I referred to Mrs. Lincoln; spoke of her unhappy and ungovernable temper, but added that great injustice had been done her; that her faults had been exaggerated, and that I believed that all the charges against her of having pilfered from the White House were false. The Judge replied that the proofs were too many and too strong against her to admit of her guilt; that she was a natural born thief; that stealing was a sort of insanity with her, and that she was carried away, from the White House, many things that were of no value to her after she had taken them, and that she had carried them away only in obedience to her irresistable propensity to steal.”³⁵

Davis served as executor of President Lincoln’s estate. He told Browning that “after Mr. Lincoln’s death a bill was presented to him as adm[inistrator of the president’s estate] by a merchant of New York, for $2,000, for a dress for the last inauguration; a very large bill for furs, the amount of which I do not remember, and a bill by Mr Perry, a merchant of Washington for 300 pairs of kid gloves, purchased by her between the first of January and the death of Mr Lincoln, all of which he refused to pay; and that the only bill which had been proven against the estate, and which he had paid, was one for $10 for a country newspaper, somewhere in Illinois. He also told me that Simeon Draper had paid her 420,000 for his appointment as cotton agent in the city of New York.” Draper was a New York merchant and Republican politician connected with the Seward wing of the party. He had been appointed New York customs collector in September 1864.³⁶

“Davis’s traits as a jurist were inseparable from his personality,” wrote historian Michael Burlingame. “The judge reminded one friend of ‘a greyhound [who] takes the scent. He never relied on his knowledge of authorities, and never allowed his legal lore to smother his common-sense perception of equity and justice.’ He ignored technicalities in pursuit of equity. On the bench he usually set a genial tone that put attorneys at ease. Occasionally, however, he could erupt in anger.³⁷ Henry C. Whitney recalled Davis “had a prodigious ambition and an earnest desire for wealth and position. In consequence, he kept a close eye on every public man in Illinois who had started the race of life with, and had distanced him, either in the amassing of wealth, or of honors.”³⁸

Attorney Henry Clay Whitney wrote: “Judge Davis was a model in the way of putting lawyers whom he did not dislike, at their ease: although, it must also be narrated, that, when he got angry, as he sometimes did, the whole moral atmosphere was uncharged with sulphur and lurid sparks: making it uncomfortable for the members of the bar…”³⁹ According to Whitney, “The Judge was as ponderous in his excellent judgment and common-sense, as in his physique…and he endeavored to rid cases of their technicalities, and to get down to the actual merits, as expeditiously as possible. He was full of vim and energy on the bench, when there was a necessity for it: but when the evening was come, he would gather his courtiers about him, and make a night of it, similar to the knights of the Round Table, or the Pickwick Club.”⁴⁰ He wrote that Davis “had not great erudition and no brilliancy; he did not now or care for, the philosophy of the law, but he was the incarnation of common sense and sterling judgment.”⁴¹

Judge Davis was a man of strong opinions. For example, he did not like Mrs. Lincoln (nor she, him). Pratt wrote: “The Judge was earnest and solicitous to promote the welfare of his friends; but he was a good hater, and more than willing to let the object know and understand. From the young men in whom he took an interest, he expected appreciation for his kindness.”⁴² Robert H. Browne, who as an adolescent served in the law office of Davis and Asahel Gridley, later observed the different attitudes of the two men toward slavery: “Judge Davis regularly denounced the Abolitionists whenever the subject was talked of, and was displeased when it was considered in or about the office. Mr. Gridley would smile, and always take a part. He would cut off some of the sharpest sentences imaginable, and very often, when the cutting seemed to rile Davis until he would retire from the discussion. His sharp sentences seemed to cut through the subject from top to bottom like a flashing blade.”⁴³

---