1887 Leonard Swett Speech ISBA Proceedings

MEMORIAL ADDRESS he was appointed by Mr. Lincoln, then THE LIFE AND SERVICES OF President, one of the Justices of the DAVID DAVIS. Supreme Court of the United States1. I had myself, a little before, returned By Leonard Swett from a small service in the Mexican war, and was very much impaired in health, so, knowing the outside of a horse very good for the inside of a man, I commenced, about a year after this time, to ride on horseback over a large portion of this Eighth Circuit. I continued this mode of life until about the year 1862, or a period of thirteen years. Read before the Illinois State Bar Association, at its tenth annual The circuit began at Sangamon, or meeting, held at Springfield, January Springfield, on the west, and extended 11th and 12th, 1887 to Tazewell, Woodford, and Livingston on the north, to Vermilion and Edgar In the autumn of 1848, I was sitting in on the east, and to Shelby, Moultrie, Bloomington, where Baker's store then Piatt and Cumberland on the south. It was, at the corner of Main and Front embraced originally fourteen counties, streets. The office of David Davis, but grew less as the country grew before he was Judge Davis, was then older, the Legislature making new across the street to the east, and a half circuits as the population and block beyond the opposite corner. As I business increased, until about 1854 it was sitting there, I can yet see in was reduced to six counties, memory an immense man with coat commencing with Sangamon on the open at the breast and with his coat- west, and embracing Logan, DeWitt, tails flapping in the wind as he McLean, Champaign and Vermilion. I crossed the street and came to the used to join the cavalcade of the circuit corner where I was. That was my first at Logan, and one can hardly realize sight of him. I thought then and still that within a period of a single life think that immense tread was the such changes could take place as have tread of Hercules. He was then occurred in the State of Illinois midway in his journey of life, or thirty- between that time and now. Chicago five years old, and when the sun of life then contained a trifle over 25,000 seems to stop and stand still awhile in inhabitants, against 700,000 now. its course. Peoria, Quincy, Bloomington and Springfield, now cities from 25,000 to About this time he was elected Judge 50,000 were then little villages of from of the Eighth Judicial Circuit, itself an empire in extent, and remained as the 1 For a list of all the members of the Supreme Court, Judge of that circuit until 1862, when and who appointed them, visit http://www.supremcourtus.gov/about/members.pdf

1 1,500 to 3,000. The settlements of the in memory at least were not rivaled in State skirted along the timber, the harmony and melody by the strains of streams were without bridges, and Ole Bull, and Wednesday afternoon, if dim trails led from one county seat to it was a court commencing Monday, another. There was not a foot of we were off again to the next county railroad in operation in the State, seat to repeat there the same work in against about 10,000 miles now, and court, and to enjoy the same levee in our immense coal fields were then the evening. Nor can I fail to recall wholly undiscovered or undeveloped, the splendid galaxy of talent which and there were no manufactories in met on this circuit. At Springfield and the State. In this condition of things, Lincoln, who has passed beyond at the age of twenty-four years, I first eulogy; Edward D. Baker, afterwards met Mr. Lincoln, at Mt. Pulaski, in of the Galena Congressional District, 1849, driving his horse, "Old Tom," also of California, and Senator from which afterwards became a fixture Oregon, and who died gallantly upon the circuit, and he and Davis, pointing a cannon with his own hand with two horses and a buggy, David B. at Ball's Bluff; John T. Stuart, a great Campbell, the State's attorney, in a lawyer and most just gentleman; and buggy, and I sometimes in a buggy David B. Campbell, than whom a more and sometimes on horseback, companionable and able gentleman commenced the traveling of this never lived. He sickened early and circuit together. The court at first, in "By the roadside fell and perished. the counties of ordinary size, sat but Weary in the march of life." three days. In counties the size of Sangamon, it lasted a week. Arriving There were also Gridley, of at the county seat in the morning Bloomington; Weldon and Moore, of about eight o-clock, the litigants would Clinton; Emerson and Post, of come in, generally on horseback, bring Decatur; Kirby Benedict and U.F. their witnesses in the same manner, Linder, on the eastern part of the and by nine o'clock the great old Judge circuit, and Edward Hannigan, Caleb would occupy the bench of the log B. Smith and Daniel W. Voorhees, court house, and would be defending who came over with a torrent of some criminal, brought into court from eloquence from Indiana, to the eastern the log jail, or trying a civil case in counties. I believe Daniel W. which we had never seen the parties Voorhees, Mr. Weldon, and Messrs. or witnesses, and probably never Moore and Post, of Decatur, are the heard of the case until that morning. only survivors of this brilliant and gallant array. In the evening the Judge held a levee at the village tavern. The principal TRULY A LEADER AMONG MEN farmers called. Lincoln told his queerest stories. Dave Campbell drew Every man in life occupies a place from a superb violin, which he never among his fellows which, by quiet and left behind, tones of sweetness which common assent, is allotted him. It is

2 said that Napoleon, when first elected how to amend the plea. The young one of the three Consuls of France, gentleman amended it and got it was not elected First Consul. Neither wrong again. Linder demurred again, were the others First Consuls, but and the Judge again sustained the chairs were so arranged that, in the demurrer, making plainer his middle, there was one for the First suggestion. The plea was again Consul, and beside it, and on opposite amended and was again wrong when sides, two for the other Consuls. At the Judge said, "Give me that plea." the first meeting Napoleon, in the He took it, read it over to himself and presence of the Chamber of Deputies, amended it to suit himself and handed as a matter of course, walked up to it back. Linder could demur no more, and took, without comment, the place but was very angry. That night he of First Consul, and waved the others called round to the Judge's room and into the other seats, and thus in his found him alone and writing. "Come own greatness and by acquiescence in, Linder," said the Judge. "Come in." became First Counsel. In just this "O, no," said Linder. "I see you are way Judge Davis became the leader of writing pleas in some of your the bar and of the community of the numerous cases. I will not disturb Eighth Judicial Circuit. He was you." emphatically a hospitable Judge, and when his court was visited by a He was a preoccupied, absent-minded stranger, he was immediately noticed man. On one occasion, at a the and provided for by the Judge. "Get a Champaign count, an old man and his seat for Squire Jones, Mr. Sheriff? wife, emigrants, were passing through This way Squire Jones." In this the country and were robbed by a manner he provided for every one, young man who overtook them and according to his rank and standing in who begged a ride. The occurrence life. took place just before his court, and the young man was arrested and tried He was especially kind to young men, and convicted at that term. The Judge always knew when one came and in passing sentence gave the young settled in a county seat, and always man a lecture upon the baseness of his helped them out of their troubles, conduct in accepting a ride with the often to the confusion and dismay of old man and then knocking him on the the older members of the bar, who head and robbing him. After pointing were, many of them, inclined to sit out in glowing language his conduct, down on them. I remember well an the Judge proceeded: "And it is the incident between Linder and the judgment of this court that you be Judge on this subject. A young man confined in the Legislature of the had settled in Danville, and in his State of Illinois for a period of seven pleadings at court he had written a years." It was not until Ward H. plea wrong. Linder demurred to it, Lamon, the Prosecuting Attorney, had and the Judge, in sustaining the gone to the judge and whispered in his demurrer, intimated to the young man hear that he discovered his mistake,

3 and substituted the penitentiary for was collected it should be paid to the legislature of the State. Thompson R. Webber, who is still remembered for his honesty and Judge Davis was, by nature, faithful fidelity, and as being the clerk of that to a trust. Besides this natural make- court. In the course of a year up, his duty had been burned into him afterwards, Webber reported that he while young by the conduct of his own had a good pile of money. The Judge guardians. The Judge's father and ordered him verbally to go to mother died while he was young. Cincinnati, invest all the money in Twelve thousand dollars was left in land warrants, which could then be his guardians' hands to be paid over to had for about $1 an acre, and to meet him when he should become 21 years him at the Danville court, which was of age, but his guardians in some held next day after that of manner invested this so as to lose the Champaign, and where the land office whole or spent it, and when he became for the entry of land was then open. 21 he had nothing. He litigated these Mr. Webber went to Cincinnati, guardians for many years, and finally bought the warrants, came to lost the case by an equal division of Danville, when the Judge adjourned the Supreme Court of Maryland. the court, went to the land office in person, and entered unimproved but At the time he was presiding, no land rich farm lands in Champaign, all in of a minor could be sold under the the name of the girl, and when she laws of the State except on petition to became of age she was worth $50,000. the Judge of the Circuit Court. Judge His conduct was paternal and Davis always declined to order such patriarchal to all. If any of the sales, but kept the land in kind for the lawyers got wild, the Judge often ward until he or she became of age, made him stop it and go to bed to and then not only was the estate sleep it off. preserved, but the ward got the benefit of the rise in the value of his These may be said to illustrate the estate, which then was rapid and outposts or exterior layers of the universal. Judge's character. Dig through these and you come to a mine of pure gold. On one occasion, about 1852, at the Champaign court, Mr. Murphy, a ONE OF OUR GREATEST JUDGES. lawyer from Danville, filed a petition for a step-father who was the guardian Judge Davis was one of the greatest of a young girl whose mother he had judges this country has ever produced. married, asking permission to sell an He knew just enough law to be a great improved farm which she owned. judge, and not enough to spoil him. Everybody looked to the Judge to see The poorest lawyers I have ever him refuse the application, when, known are men who know the most contrary to his habit, he ordered the law. Such over-crammed men are land sold, and that when the money sometimes called case lawyers. Wirt

4 Dexter described one of these book- used to further the wrong, he would go worms well when he said, calling him through them like cobwebs. An by name: "He is the best man in a anecdote of him illustrates this. Judge consultation I ever saw, if you will Davis and the eminent Judge Treat of hear him for a half hour and then turn the United States District Court were him out of the office and lock the old and fast friends. They were one door." It is said that certain German time holding the United States Circuit scholars have run mad with Greek Court together in this city. One of the learning. One of them has compiled a keenest land sharks this State ever treatise showing 15,000 Greek produced, had got some kink on a particles or roots. His is not the most large farmer's farm and had brought useful knowledge, but simply learning ejectment to take it substantially for run mad. A great judge must know nothing. The Judge at the trial heard not only law, but must know things him, looked at him, and finally, also. Judge Davis knew well the crossing his legs, swung around in his principles and rules of law, but he also rotary chair so as to turn almost his knew that these rules were simply back to him, looked over his shoulder guideboards to justice. He did not look at the lawyer who was trying his own at the guideboard and go mad after it. case, and said, "You can talk to Treat; He went straight for justice, using it you can talk to Treat; before this court so far as it would guide him, and when you cannot steal a man's farm in that it would not he threw it away. He was way." a natural judge. He took to justice by instinct as the hound takes the scent. I will give another illustration of this He was of the same order as Chief element of his character. The Judge, Justice Marshall, and an anecdote of after his promotion to the United this great jurist illustrates the States Supreme Court, was holding a character of both. It is said of Judge Circuit Court of the United States in a Marshall that one time as he sat in neighboring State with the United consultation with his brother judges of States District Judge, when a conflict the Supreme Court, some knotty and arose between two sets of heirs, each new question was under discussion. claiming for itself an entire estate. Judge Marshall stopped the The evidence tended to show that a discussion. He said, "The law is so and man had married a wife in Germany, so. Brother _____," and he, turning to abandoned her and his family, came to one of the judges, "you please hunt up Indiana, married another woman, the authorities to sustain my raised another family, accumulated an position." estate of a million dollars, and died. After his death the German heirs Judge Davis knew that all legal rules came for the estate, and the Indiana were the result of a wise experience, heirs resisted. There were some and that they were intended as simply informalities in the proof of the first guides to the right. If, in any present marriage in Germany, enough to complication, he found these rules create a doubt where one wants to

5 doubt. The two Judges were in THE GREAT DECISION OF HIS consultation upon this case after the LIFE trial. Judge Davis said: "It is a pity about this case. There is property The great decision of Mr. Justice enough for both. The situation is not Davis' judicial life, is what is generally the fault of either party, but of the known as the Milligan decision. By man who is dead. Let us make them that he puts his mark upon the divide it." The District Judge replied, constitutional history of this country, "That is right. You are good at that. which will never be obliterated. The Suppose you engineer the matter." substance of this decision is that peace And so they went into court and sent is the natural condition of this for the lawyers on opposite sides. country, and prevails except when Judge Davis then said in substance: actually interrupted by war, where the "This case is a hard one, and not question arises. That the rights of entirely free from grave doubts. No peace, including the rights of trial by one is to blame but the father, and it is jury, exist in all persons whenever the through his industry that each side courts are open and the channels of now claims a large fortune. There is justice uninterrupted, enough to divide and give each side as notwithstanding actual war may much as it ought to have, and they prevail in other parts of the country. ought, each party, to forgive the War and not peace is the natural father, who might have some unknown condition of mankind. War has left its motive for his conduct, and divide his fossil remains in the history of the estate." The counsels were situated ages back to the fire-rock, next to the like the parties. If the court was creation of man; the doctrine of "Peace forced to a decision, it must give all on earth, good will to men," in its either to the one side or the other, and application to governments is new. the side losing would have nothing War and force today is the rule of the with which to pay the numerous and world. If one would blot out from the able array of counsel on its side. The map of the world every nation founded true way was for each party to yield on force and governed by force, he something and settle the case. After would blot out the map of nearly all again brushing up his grave doubts, the world. at least as much as they could bear, the attorneys were left to consult and The doctrines of the Milligan decision negotiate, and finally came into court were born in the United States, and to with a decree, entered by consent, the honor of the memory of David declaring both families to be heirs, Davis be it said he was the father of and dividing the million equally them. Let us who give our lives to the between them all. Each side went law, see to it that this decision is away happy, and with a half million. preserved, and that it shall always live as a memento to the judicial greatness of our friend, and as one of

6 the great constitutional landmarks of be made. The work to be effected was our country. not political log-rolling, but simply to convince the party represented there, Judge Davis' political record resolves and which had the honesty of a party itself into his work at the Chicago representing a great principle and had convention, at which Mr. Lincoln was never yet been in power, that Mr. nominated, and a term of six years in Lincoln was the most available man. the United States Senate. He had a He seated himself behind a big table desire to go to the Chicago convention in the rooms of the headquarters and as a delegate. This came from his organized committees of visitation to friendship for Mr. Lincoln and his own the various delegations, and did the consciousness of strength. He wanted other work of the convention. For Abraham Lincoln nominated, and he, instance, he had Samuel C. Parks, of unconsciously to himself, realized if he Logan, who was born in Vermont, could go there as a delegate, he could organize a delegation of about four, do more to secure this result than any also from Vermont, to visit the living man; and so it was an open delegates from that State; and he had secret among his friends, before the me, from the State of Maine, organize Decatur convention of 1860, that the a delegation, and visit my old friends Judge then wanted to hold the first from the Pine Tree State, and every purely political office of his life. He man was to come back and report to was consequently elected a delegate- him. And so he labored with all, at-large for the State. issued his orders to all, and knew the situation of every delegation. He had He was first on the ground, having, as Governor Oglesby, then of very stout I remember, gone to Chicago, Friday, lungs, fill the body of the building a week before Mr. Lincoln was where the public were admitted, with nominated, the following Friday. He a strong-voiced brigade of shouters. He found when he got there that no organized at first two States--Illinois headquarters had been engaged for and Indiana--as presenting the name the Illinois delegation. He sent for of Lincoln, and then had sporadic John B. Drake, then proprietor of the strength in almost every delegation. Tremont House, and the result was an Pennsylvania had agreed, if on the arrangement by which the Judge paid second ballot we showed increasing a bonus for the evacuation of certain strength, she would come to us with rooms by private families, and these forty-eight votes. were soon properly marked as the "Illinois Headquarters." Here without I had the honor to be present with the anybody electing him to the position, Judge and two leading delegates from he at once became the leader of all the Pennsylvania in the wee small hours Illinois men. He told me when I of Friday morning, the day of the arrived there Monday to join his staff nomination, in which the question was and go to work, and if everybody whether Pennsylvania would not come would also work, the nomination could on the second ballot and would not

7 help to constitute the increase on that HIS GREAT LOVE FOR GEN. ballot. The result shows how well he LOGAN succeeded. It is my belief if all the other causes had existed as they did I here began from the first to notice exist, and Judge Davis had not lived, what is always curious to observe--a Mr. Lincoln would never have been new love in an old man. He began to nominated, and, consequently, never speak at first with great kindness of would have been elected President of Gen. Logan, which soon passed to the the United States. praise of his bold and fearless integrity. As soon as they knew each Judge Davis had been continuously other they became firmly attached, upon the bench in this State and upon and it is doubtful if finally there were the Supreme bench for thirty-two any truer or more faithful friends in years when he was elected United the whole Senate--any two men who States senator, and by that Senate appreciated each other more warmly before his term expired was elected than David Davis and John A. Logan. President of the Senate and ex officio Suffice it to say that Judge Davis and Vice President of the United States. his political career that he was the The time allotted will not permit me to only man in the United States who discuss his life there. I will, however, has ever been able to make a personal mention it was here that he first met party, consisting solely of himself, on terms of intimacy the late lamented respectable. By great capacity, by but able and honorable Senator, Gen. sterling qualities and character, he Logan. They had both been prominent was able to retain his personal men in the same State, but the lines of convictions on all subjects and vote their lives had fallen in different with either party best representing places and among different them, and at the same time to retain companions. They finally became the personal respect and confidence of rivals, and at the same moment Judge the Senate and of the Nation. He Davis obtained a seat in the United governed the Senate, when presiding States Senate, Gen. Logan lost the office, in the same paternal and same seat. But the General, being patriarchal way he governed the soon re-elected, the two became Circuit Court in an early day. companions. I used, as a rule, to visit Judge Davis, spending about a half- Some senator once moved about 3 day with him, every time in passing to o'clock in the afternoon to adjourn. and from Washington he came "O, pshaw," said the Judge. "It isn't through Chicago. time to adjourn yet," and actually went on with the business, only man in the whole country who could have done this, and he could not have done it if he had not been entirely unconscious of what he was doing.

8 If I were asked to state what was the Convention, when Lincoln's leading trait of Judge Davis' nomination became a fixed fact, when character, I should say latent, delegations were changing their votes, unconscious strength. Almost and everything was in the confusion of everything in nature contains latent coming to Lincoln, when everybody heat. This is a force which the object was shouting, and in the hurrah of possesses unconsciously to itself and Bedlam, Judge Davis threw his great to every other person. Judge Davis arms around a friend and cried like a was full of latent, unconscious child. strength. He simply walked up to and did anything almost impossible to be He fulfilled the Scriptural mandate in done as a matter of course. In this his charities of not letting his right way he acquired control over the most hand know what his left hand was uncontrollable men, and accomplished doing. He gave wisely, but not with the greatest ease what seemed to ostentatiously, and never talked about others impossible accomplishment. his giving. Many church and school- The Judge's forecast was just as good house in Central Illinois sits to-day on as other men's actual sight of things. a lot given by the Judge. I have, at Away back in an early day, when we different periods in my intercourse used to range together over the with him, occasionally stumbled upon prairies, he looked down the channels his charities. In this way I happen to of time and he was the State of Illinois know instances where he loaned or with its smiling farms, its cities, its gave away to poor lawyers sums railroads and manufactories as we see which, when added together amount them now, and he made a colossal to $3,500. He had an immense landed fortune in the simplest way possible. estate and an army of tenants. I have He never got the advantage of any known years of drought in which, as a man in a trade. He never loaned rule, he remitted to his tenants his money for interest, and never entire claims for rent. When visiting foreclosed anybody. Nobody ever left him in his last sickness, as I was Illinois to "go West" and try it again walking over his palatial grounds with on his account. Although I lived with his wife I said to her, noticing an old him the last half of his life on most gardener, "How many of these old intimate terms, I never saw his people have you?" She replied, "About promissory note or ever saw anyone twenty." These were permanent else who ever saw or heard of it. He fixtures of the place, and when he died simply entered land for $1.25 an acre, a great light went out to them all. had it put into fertile farms, and when he died he left this same land worth I visited him last the 10th of May and $100 an acre. spent a day at his home. He was then suffering intensely but heroically, and Judge Davis was one of the kindest I bade him adieu, then thinking I and most tender-hearted and most might never see him again. I never generous of men. At the Chicago did. In June I was called to

9 Bloomington to the most remarkable his conduct. Intimately as I have funeral I ever witnessed. Twenty known him, I cannot, as I write these thousand people gathered there on lines, recall one wrong act in all his that occasion, coming in mostly by life. He is the only man of whom I can wagons, and some coming twenty-five say, if I had the making of him for and thirty miles. This crowd, of time and eternity, I should alter course, could not get into the house, or nothing. Tender, considerate, and even to see the funeral, but they could kind, strong robust, and vigorous, he line in silence the streets where it was walked on, a model in character and a known the cortege would pass, and fill model of success. Judge Davis is the the sidewalks, the front yards, doors only man I have ever known of whom I and windows, every inch of the way could conscientiously and without from his house to the graveyard, a mental reservation say this, standing distance of more than two miles. In among people who knew him well, and the cortege after the corpse and after standing, as it were, over his grave. the family in carriages, and on that occasion the equals of the family they Shakespeare makes his Portia say, served, were the poor, the servants of speaking of the virtues and the family, the gardeners, and even temptations of life: "If to do were as those who lived upon the bounty of the easy as to know what were good to do, good judge. Thus on a bright June chapels had been churches and poor day, at that gathering of the great and men's cottages princes' palaces.... It the small, of the proud and humble, was easier to tell twenty what were the rich and the poor, and all his good to do than one of the twenty to friends, we consigned him to his final follow my own instructions." resting place, and all alike were real mourners. Judge Davis was no exception to this rule. He was a man of strong human Judge Davis presented the best passions. The Lord in creating the rounded character I have ever met in universe has used and given, for my life. instance, to our earth, two opposite gigantic forces--the centripetal, which BROAD AND CATHOLIC IN HIS IS would hurl it precipitately to the sun, BELIEF. and the centrifugal, which would send it on a straight line through space, an He was not a religious man in the element of destruction to whatever it sense of being a member of any should meet in its pathway. The church, yet he believed in all religions earth's orbit around the sun day and and in the good works of all churches, night, and the fruitful seasons are the and they all alike called upon him in result of a lawful equipoise of these their wants to lend them a helping giant forces; so the greatest character hand, and he gave to one just as in life is not the simplest character cheerfully as to another. He was that does not wrong because it knows broad and catholic in his beliefs and in no wrong, but the strong and robust,

10 full of passions and sinful proclivities, but also full of moral visions which see that these passions are given us to curb and to give robust strength to our characters when properly restrained. Judge Davis was a character full of humanity and full of moral sense. It is said of the Pilgrim Fathers, when they arrived upon the desolate wintry coast of New England and looked upon the snow-covered land, they thought no law was in existence there, and so they resolved they would be governed by the laws of God until they had time to make better. Judge Davis, as he came into this world and mingled among men, saw the large, splendid sense and great personal freedom in obeying all the laws of God, and he did obey them all his life.

As I recall the circumstances of my own early life in this State, I thank God and thank Him again, that in the mysteries of Providence He placed the lines of my life between two such great men as David Davis and Abraham Lincoln, and permitted me, in the hours of my own weakness, to "lean on their own great arms for support."