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THE GRADUATE PUBLICATION OF THE KANSAS STATE TEACHERS COLLEGE, EMPORIA

David J. Brewer, 1837-1910
A Kansan on the
United States Supreme Court

By
D. Stanley Eitzen

550

The Ctm/icHa State ^eMatck Stu4ie^
KANSAS STATE TEACHERS COLLEGE
EMPORIA, KANSAS

David J. Brewer, 1837-1910
A Kansau on the United States Supreme Court

By
D. Stanley Eitzen

VOLUME XII MARCH, 1964 NUMBER 3
THE EMPORIA STATE RESEARCH STUDIES is published in September,
December, March and June of each year by the Graduate Division of the
Kansas State Teachers College, 1200 Commercial St., Emporia, Kansas. En
tered as second-class matter September 16, 1952, at the post office at Em
poria, Kansas, under the act of August 24, 1912. Postage paid at Emporia,
Kansas.

A complete list of all publications in The Emporia State Research
Studies is pubUshed in the fourth number of each volume.

KANSAS STATE TEACHERS COLLEGE
EMPORIA, KANSAS

JOHN E. KING
President of the College

THE GRADUATE DIVISION
LAimENCE C. BoYLAN, Dcon

EDITORIAL BOARD
Ted F. Andrews, Professor of Biology and Head of Department
William H. Seiler, Pro/essor of Social Sciences and Chairman of Division
Charles E. Walton, Professor of English
Green D. Wyrick, Professor of English
Editor of this issue: William H. Seiler

This publication is a continuation of Studies in Education
published by the Graduate Division from 1930 to 1945.

Papers published in this periodical are written by faculty members of the
Kansas State Teachers College of Emporia and by either undergraduate or
graduate students whose studies are conducted in residence under the super
vision of a faculty member of the college.

Editor's Note: In addition to Mr. Eitzen's study of Justice Brewer, the
reader may be interested in the following studies concerning Kansas
history and government which have been published in The Emporia
State Research Studies. Those marked with an asterisk (') are out of
print. Requests for single copies of any of the other issues will be filled
as long as the supply exists. W.H.S.

" C. Stewart Boertman, Apportionment in the Kansas House of Repre
sentatives ( 1 952 ) .
George S. Blair, The Office of Ccninty Coroner in Kansas (1953).
Jerry P. Leibman, Press Freedom and Libel as Defined by Kansas Case
Law (1954).
Harold Crimmins, A History of The Kansas Central Railway, 1871-1935
(1954).
Garrett R. Carpenter, Silkville: A Kansas Attempt in the History of
Fourierist Utopias, 1869-1892 (1954).
* Walt Butcher, Presidential Election Returns for Kansas, 1864-1952
(1956).
Eugene Donald Decker, A Selected Annotated Bibliography of Sources
in the Kansas State Historical Society Pertaining to Kansas in the
Civil War (1961).
Marvin Ewy, Charles Curtis of Kansas: Vice President of the United
States, 1929-1933 (1961).

DAVID J. BREWER, 1837-1910
A KANSAN ON THE UNITED STATES
SUPREME COURT
by
D. Stanley Eitzen*
INTRODUCTION
David J. Brewer is the only justice in the history of the United
States Supreme Court to call Kansas his home. This is a study of Justice
Brewer: his life and public career, the courts he served on, his beliefs,
his influence and role in Kansas and American history. Here, too, it is
hoped that the reader may learn something about Brewer as humani
tarian, orator, educator, advocate of religious faith, and worker for inter
national peace.
As far as the writer is able to determine, no comprehensive study
of Justice Brewer exists. Available information conceming Brewer is
found in encyclopedias, obituaries, memorials, articles appearing in the
periodicals of his day, and in those books and articles about the Supreme
Court of the United States and its members in the years 1890 to 1910.'
Of course, multiple volumes record court decisions of the Kansas Supreme
Court, United States Circuit Court, and the United States Supreme Court,
with which Brewer was associated. Primarily, source materials for this
study were found in the Kansas State Historical Society Library, Topeka;
the Kansas Library, Law Division, Capitol Building, Topeka; the Univer
sity of Kansas Law Library, Lawrence; the University of Kansas City Law
Library, Kansas City, Missouri; and the William Allen White Library,
Kansas State Teachers College, Emporia. Acknowledgment and thanks
are extended to the helpful librarians in each of these places. To my wife,
Florine, I owe a special debt of gratitude for her patience and under
standing during the preparation of the thesis.
I. BIOGRAPHICAL SKETCH
David Josiah Brewer was a distinguished man from a distinguished
family. His mother, Emilia Field Brewer, was the daughter of a Congre
gational minister, the Reverend David Field of Stockbridge, Massa
chusetts. Three of her brothers were famous in American history. David
Dudley Field, an eminent New York lawyer, was known as the father
of the reformed code of judicial procedure and an expert on constitutional
* Mr. Eitzen teaches in the Department of Social Studies at Turner High School,
Kansas City, Kansas. This study originated as a Master's thesis at Kansas State Teachers
College of Emporia under the supervision of Dr. William H. Seiler.
1. The writer does not claim that this is a con^prehensive study of David J. Brewer.
It is an attempt to bring together the available published information about Brewer
into a more complete account, to investigate in some detail many of the cases with which
he was associated in his years on the Bench, and to make some evaluation of his work.
(5)

6 Empoeia State Research Stxjdies
law. He argued many cases before the United States Supreme Court.
Cyrus W. Field accumulated a fortune in the mercantile business and
spent it largely in laying the Atlantic cable. Stephen J. Field served as
Chief Justice of the Supreme Court of California and later was appointed
Associate Justice of the Supreme Court of the United States by President
Lincoln. For the first time in the history of that Court when Justice
Brewer became a member, it contained an uncle and his nephew.'
Paternally, Justice Brewer was descended from English ancestry. As
early as 1600 there was a John Brewer living in Cambridge, England.
His son, John, was born in 1642 and came to the American Colonies in
1690. His son, Lieutenant John Brewer, was born in 1669 and died in
1709. His son. Captain John Brewer, was born in 1698 and died in 1758,
leaving a son. Colonel Josiah Brewer. The latter was born in 1744 and
died in 1830. One of his sons, Eliah, was a prominent lawyer of Lenox,
Massachusetts. Eliah was Justice Brewer's grandfather. He was bom in
1770, was graduated from Yale, and died in 1804. Eliah's second son.
Justice Brewer's father, the Reverend Josiah Brewer, was bom in 1796
in South Tymingham, later Monterey, Massachusetts.^
Brewer's father was a graduate of Yale in 1821. In 1830 he was
sent to Smyrna, Asia Minor, by the Congregational Church, becoming by
this assignment the pioneer missionary to Asiatic Turkey. Rev. Brewer
was accompanied by his wife and by his brother-in-law, Stephen J. Field,
who was thirteen years old at that time. His main job was to establish
schools for Greek women and girls, with the educational program
modeled on American and European standards. During his stay, he also
found time to establish a Greek newspaper. It was while the Brewers
were in Asia Minor that David J. Brewer was born in Smyrna, June 20,
1837. The family's strong associations with law and religion doubtlessly
influenced Brewer's choice of vocation and his lifelong interest in the
church, particularly in foreign missions. Shortly after his birth, his parents
returned to the United States, locating in Connecticut. Later, Brewer
received his higher education from Wesleyan University at Middletown,
Connecticut, and Yale University, graduating from Yale in 1856 with
highest honors. Following his graduation he began the study of law in
the office of his uncle, David Dudley Field, and completed his law
studies at the Albany Law School in 1858.
Relatives urged Brewer to remain in the law office of his uncle in
New York after his admission to the bar, but he wished to prove his own
1. Biographical material concerning Brewer and his family may be found in Robert
E. Cushman, "David Josiah Brewer," Dictionary of American Biography (20 vols.. New
York, 1928-1936), III, 22-24; John D. Bright (ed.), Kansas, The First Century (4 vols..
New York, 1956), III, 99-101; Frank W. Blackmar (ed.), Kansas (3 vols., Chicago, 1912)
III, 48-50; "David J. Brewer," in Eminent and Representative Men of "Virginia and the
District of Columbia of the Nineteenth Century (Madison, 1893), pp. 58-59; "David J.
Brewer," in Portrait and Biographical Record of Leavenworth, Douglas, and Franklin
Counties ... Kansas (Chicago, 1899), p. 592; Hill P. Wilson (comp.). Eminent Men of
Kansas (Topeka, 1901), pp. 595-597; also see Edwin S. Corwin, "Stephen Johnson Field,"
DAB, VI, 372-376; Robert E. Cushman, "John Marshall Harlan," DAB, VIII, 269-272;
"Memorial," The Outlook, XCIV (AprU 9, 1910), 785-786; "The Death of Justice Brewer,"
The Independent, LXVIII (April 7, 1910), 773-774.
2. Eminent and Representative Men of Virginia and ihe District of Columbia . . .,
pp. 58-59.

David J. Brewer; A Kansan on the Supreme Court 7
worth, not to, be known merely as his uncle's nephew. He went west,
stopping first at St. Louis. From there he went to Kansas City, felt the
effects of gold fever, and went to Pike's Peak in Colorado. Failing to find
gold, he returned to Kansas City where he was unable to obtain employ
ment. He fiaally located at Leavenworth, Kansas, on September 13, 1859.
In Leavenworth he entered the law office of Johnstone, Stinson, and
Havens, where he remained for several months. He then formed a
partnership with P. B. Hathaway, and they opened a law office as Brewer
and Hathaway. His exceptional ability was soon recognized, and in his case the
probationary period of young lawyers was comparatively short.
Step by step he began to climb the ladder of success, and never
halted until he attained the highest judicial honors the nation can
bestow." In 1861, when Brewer was twenty-four, he was appointed Com
missioner of the Federal Circuit Court for the district of Kansas. In 1862
he was elected judge of the probate and criminal courts of Leavenworth
County. From 1865 to 1869 he was judge of the First Judicial District of
Kansas. From 1869 to 1870 he was Leavenworth County Attorney and
city attorney for Leavenworth. In 1870, at the age of thirty-three, he was
elected to the Supreme Court of Kansas where he served for fourteen
years. In 1884 President Chester A. Arthur appointed him to the federal
circuit court for the Eighth Circuit. He was appointed by President
Harrison in 1889 as Associate Justice of the United States Supreme Court
to succeed Justice Stanley Matthews. He was confirmed by the Senate,
December 18, 1889, by a vote of fifty-three to eleven. He remained on
that court until his death, March 28, 1910.
Brewer married Louise R. Landon of Burlington, Vermont, in 1861.
She is described as "a channing girl with a fine character."' Judge
Brewer credits his wife with changing him from a restless youth to a
more mature gentleman, ready to pursue his chosen profession. From
this marriage four daughters were born, Harriet E., Etta L., Fannie A.,
and Jeanie E. Mrs. Brewer died in April, 1898. In June, 1901, he married
Emma Minor Mott of Washington, D.C, who survived him at his death.
While a resident of Leavenworth, Brewer was very active in civic
duties. He was a member of the Leavenworth Board of Education from
1863-1865, and in 1865 became superintendent of the Leavenworth
schools, which position he occupied until 1868. He was secretary of the
Mercantile Library Association from 1862-1863, and president of that
organization in 1864. He was one of the founders of the First Congrega
tional Church of Leavenworth where he served as superintendent of its
Sunday School and for many years was teacher of its largest Bible class.
An ardent believer in public education, he was so well known
throughout Kansas that he was chosen president of the Kansas State
Teachers Association in 1869. In 1866-1867 he had been chairman of
the executive committee, of a legislative committee, and contributed
3. Wm. E. Connelly (ed. ), Collections of the Kansas State Historical Society
(Topeka, 1915), XIII, 119.
4. Blackmar (ed. ), Kansas, III, 48.

8 Emporia State Research Studies
actively to the establishment of the Kansas school system. Later, while
Supreme Court Justice, he was for several years a professor of corporation
law at Columbian University (now George Washington University).
He was a brilliant orator and gave many public addresses. Two are
of especial interest to Kansas State Teachers College: the first commence
ment address in 1867 and the dedicatory address for the Administration
Building at the Normal in 1880.
Brewer was president of the Associated Charities in Washington for
five years. Always interested in Christian missions, he served for years
as vice-president of the American Missionary Association. He was also a
loyal member of the Congregational Church of Washington, D.C. "We
may put it in the foreground of anything to be said of him that he was
always faithful to his religious principles.""
Brewer's working day began at four o'clock each moming. He felt
that some of his best work was produced in the hours before breakfast.
"He was physically large and vigorous, genial in disposition, and demo
cratic in his social relations, and a famous story teller."" Although Brewer
had a strong sense of duty, it was coupled with a kindly humor which
put all whom he met at their ease.
His character throughout was consistent, dignified, calm, gentle,
and forcible; he approached all questions without fear or partiality
and was able promptly and rightly to decide not only the greatest
but the very least which came to him in the smaller affairs of ordin
ary life, and from which, as a good citizen, he did not seek to be
relieved.' During his lifetime the following degrees were conferred upon
Brewer by various institutions of higher leaming: Bachelor of Arts,
Yale University, 1856; Bachelor of Laws, Albany Law School, 1858;
Master of Arts, Yale University, 1859; and Doctor of Laws from the State
University of Iowa, 1884, Washburn College, 1888, Yale University,
1891, University of Wisconsin, 1900, Wesleyan University, 1901, Univer
sity of Vermont, 1904, and Bowdoin College, 1905.
Justice Brewer had an unusually great intellectual and ethical
inheritance— so great, indeed, tliat it seems to have dominated his
energies and to have predetermined his career in life. With such an
inheritance, and the best of educational advantages from childhood
to manhood, it was but natural that he found his highest happiness
and success in the consideration and application of questions of
government, law, religion, and ethics— the greatest questions tliat
concern mankind.'
Brewer died from apoplexy in 1910 at his home in Washington. He
was buried in Mt. Hope Cemetery, Leavenworth, Kansas. After his death,
Brewer's vacancy on the United States Supreme Court was filled by
Charles Evans Hughes, former governor of New York.
5. Editorial in The Independent, April 7, 1910.
6. Cushmsm, DAB, III, 23.
7. William H. Baldwin, "Justice Brewer and Organized Charity," The Survey, XXIV
(April 16, 1910), 119.
8. Connelly (ed.), CoUections, XIII, 119.

David J. Brewer: A Kansan on the Supreme Court 9
II. JUDICIAL CAREER IN KANSAS
I. Lawyer and Judge in Leavenworth
Brewer was elected judge of the probate and criminal courts of
Leavenworth County when he was twenty-four years old. A number of
the older lawyers experienced dismay to learn that such a responsible
position should go to the youthful aspii-ant. They appealed to the state
legislature to take the appointment away from him. Before the legislature
had taken any action, however, young Brewer had conquered his critics
by the way in which he discharged his duties. At the end of three years
Brewer was made district judge upon the unanimous request of the bar.'
Very little information can be found to describe Brewer's early career.
His judicial advancement suggests that he must have gained knowledge
and respect very quickly.
Brewer served four years as judge of the First Judicial District of
Kansas (1865-1869). From 1869 until 1870 he served as Leavenworth
county attorney and also as city attorney of Leavenworth. In 1870, at the
age of thirty-three, he was elected to the Supreme Court of Kansas.'
II. Member of the Kansas Supreme Court
Brewer served on the Kansas Supreme Court for fourteen years from
1870 until 1884. As a member of that court he rendered numerous
opinions, some of which were very important in the history of Kansas.
They also fumish considerable information about his personal and legal
views. Some of his most important work was done in the interests of Kansas
women. One of his opinions, Wright v. Noell, 16 Kansas 601 (1876),
resulted in the establishment of the eligibility of women for the office
of county superintendent of public instruction of Coffey County. Julius
Noell received the second highest number of votes. Noel argued that
Miss Wright was ineligible for the job since she was a woman, and
women did not have suffrage. Miss Wright argued that the State Consti-
tutibn did not disqualify her because it placed no limitations of sex on
this particular office. The Coffey County Court ruled that Miss Wright
was ineligible for the position. Judge Brewer in his opinion for the
Supreme Court reversed the decision of the County Court.
Another of Brewer's opinions recognized and sustained the right
of married women to property belonging to them before marriage, and
to wages earned by them after marriage, Holthaus v. Farris, 24 Kansas
785. Judge Brewer wrote the opinion of the Court in the famous child
custody case, Chapsky v. Wood, 26 Kansas 650 ( 1881 ) . In this case the
Court awarded a child to its aunt rather than its parents, even though
a strong case had been made for the parents.
1. Portrait and Biographical Record of Leavenworth  p. 592.
2. The writer has not found any pertinent information conceming the reason Brewer
gave up the judgeship to assume the county attorney's office, nor the details conceming
his election to the Supreme Court of Kansas. It would be most helpful to know this.
Speculation would suggest that local and state political party factors contributed to these
changes in office.

f

10 Emporia State Research Studies
From the time of the child's birth she was sent to Mrs. Chapsky's
sister, Mrs. Wood, because of Mrs. Chapsky's ill health. Mr. Chapsky had
little remorse in sending the child away. During the early infancy of the
child, the question arose as to her legal custody— Mrs. Wood insisting
that either tJie mother should take the child, or she should be given to
her. Although no written agreement was reached, the Court felt that in
fact a gift was made of the child by both mother and father to Mrs.
Wood. After five and one-half years the parents wanted the child back,
and the case went through the Kansas courts. The parents argued that
they were the child's natural parents, that they enjoyed greater wealth
and pecuniary advantages than Mrs. Wood, and that the child had not
legally been given to Mrs. Wood.
Judge Brewer "in his opinion, in which the other judges concurred,
said: . . . We cannot believe it wise or prudent to take this child away
from its present home, where it has been looked upon as an own
child; and if we should see a child of ours in the same circumstances,
we cannot believe that we should deem it wise or prudent to advise
a change, notwitstanding the pecuniary advantages that might seem
to be offered to it.'
This is one of the landmark cases in Kansas legal history. It set a
precedent often cited in similar cases. According to Justice Clark A. Smith
in his memorial to Brewer, written in 1910:
Probably every judge in the state who in the last twenty-five years
has had to determine the custody of minor children, especially of
little girls, as between contesting parents or others asserting claims
thereto, has reread Chapsky v. "Wood and been inspired thereby to
consider those influences which nurture the very well-springs of life
and to minimize the advantages of mere social station and prospective
wealth." In Kansas v. Commissioners of Nemaha County, 7 Kansas 492, the
question before the Court was whether the acts of the legislature author
izing counties and cities to subscribe for stock in railroad corporations,
and to issue bonds in payment of these stocks were constitutional.
Justice Valentine's opinion for the Court maintained the affirmative, and
Justice Brewer wrote the dissenting opinion.
Justice Smith in his memorial of Brewer says of this decision:
It has been asserted that the last word that can be said on eitlier
side of the question is to be found in these two opinions. Both
opinions have since been widely quoted in textbooks and wherever
the question has been raised.^
In this famous case. Brewer sums up his philosophy of govemment.
All power resides with the people. The ultimate sovereignty is
with them. The Constitution is the instrument by which some por-

3. Knnsas Reports (Vols. VII-XXI, LXXXIII, Topeka, 1870-1884, 1910),
XXVI, 657-658.
4. Kansas Reports, LXXXIII, x.
5. Kansas Reports, LXXXIII, xi.

David J. Brewer: A Kansan on the Supreme Court 11
tion of that power is granted to different departments of the govern
ment. Power is not inherent in the government, from which some
portion is withdrawn by the Constitution. The object of the Consti-
tvition of a free government is to grant, not to withdraw, power. This
is the primal distinction between the constitutions of the old mon
archical governments of Europe, and those of this country. The
former indicate the amount of power which the people have been
enabled to withdraw from the government; ours the amount of power
the people have granted to the government. The Constitution creates
legislature, courts, and executive. It defines their limits, grants their
powers. It should always be construed as a grant. The habit of re
garding the legislature as inherently omnipotent, and looking to see
what express restrictions the Constitution has placed upon its action,
is dangerous, and tends to error. Rather regarding firjt those essential
truths, those a.xioms of civil and political liberty upon which all free
governments are founded, and secondly those statements of principles
in the Bill of Rights upon which this governmental structure is reared,
we may properly then inquire what powers the words of the Consti
tution, the terms of the grant, convey."
In Board of Education v. Tinnon, 26 Kansas 1 (1881), Leslie
Tinnon, a Negro boy of school age, petitioned the principal of the Ottawa
public schools to attend a school that was not segregated. The Court
ruled in favor of Tinnon. Brewer dissented from the Court's opinion.
I dissent entirely from the suggestion that under the 14th Amend
ment of our federal Constitution, the State has no power to provide
for separate schools for white and colored children. I think, notwith
standing such amendment, each State has the power to classify the
school children by color, sex, or otherwise, as to its legislature shall
seem wisest and best.'
This belief in states' rights is consistent with Brewer's later views while
a member of the United States Supreme Court.
Many hundreds of cases involving minor infractions and interpreta
tions of the law were brought before the Court. Examples of the types of
routine cases included damage suits, election frauds, guardianship,
divjsion of estates, duties of county officials, payment for duties rendered,
negUgence of employees or companies, questions about insurance, quiet
title suits, liability for injuries, questioning whether legal notices had
sufficient publication, mechanic's liens, homestead claims, condemnation
of private property for public use, taxing of Indian lands, foreclosure of
mortgages, recovery of rent, duties of school districts, breach of contract,
county V. county, sale of securities, etc. Some of these cases in which
Brewer rendered the Court's opinions will be cited.
In Johnson v. Brown, 13 Kansas 531, Brewer held that a contract
made on Sunday to perform labor on any other day is valid.
In Shearer v. Commissioners of Douglas County, 13 Kansas 148,
Shearer appealed to the Court for compensation for the loss of his land
for a pubhc highway. He had been ready to present his claim at the
proper time and place when his mother became suddenly and seriously
6. Kansas Reports, VII, 554.
7. Kansas Reports, XXVI, 23-24.

12 Emporia State Research Studies
ill. This delay caused Shearer to present his claim after the legal deadline.
The Commissioners refused payment on this technicality. Brewer very
reluctantly held for the Commissioners. While his sympathy was with
Shearer, the law was with the Commissioners.
In Kansas Pacific Railway Company v. Kessler, 18 Kansas 523,
Brewer held that the Railway Company must pay $20 to recover damages
for a wrongful expulsion from a train and $800 exemplary damages be
cause of gross and wanton negligence.
A large number of cases came before the Court conceming raihoad
neghgence. In these cases either animals were killed, fields burned, or
property damaged through the negHgence of the railroads. The Court
ruled against the railroads in these cases. Brewer wrote opinions of this
kind in 20 Kansas 531, 20 Kansas 527, 20 Kansas 66, 11 Kansas 302,
12 Kansas 328, and others.
In Kansas Pacific Railway Company v. Culp, 9 Kansas 38, the
question before the Court was whether or not the State has the right to
tax land granted to the railroad by Congress to aid in the construction of
their road. Brewer held that the lands were subject to taxation. This case
was taken before the United States Supreme Court, where the decision
of the Kansas Supreme Court was reversed.
In Missouri, Kansas, and Texas Railway Company v. City of Fort
Scott, 15 Kansas 435, the city sought to recover $100,000 from the rail
road for alleged breach of contract. The lower court ruled in favor of the
city, but the Supreme Court reversed that decision. Brewer speaking for
the Court. In Kansas Pacific Railway Company v. Cutter, 19 Kansas 83, Brewer
ruled against the railroads, giving Mrs. Cutter $1,320 damages for the
death of her husband while a passenger on that raihoad.
In John Francis v. Atchison, Topeka, and Santa Fe Railroad Com
pany, 19 Kansas 303, the decision of the lower court was reversed.
Brewer writing in his opinion that the railroads were subject to tax even
in the unorganized counties of the State.
In Kansas Pacific Railway Company v. McCoy, 8 Kansas 538, the
question arose of railroads using their influence for selfish gain. Brewer
in his opinion gave a discourse on the subject of influencing legislation.
The use of money to influence legislation is not always wrong.
It depends altogether on the manner of its use. If it be used to pay
for the publication of circulars or pamphlets, or otherwise, for the
collection or distribution of information openly and publicly among
the members of the legislature, there is nothing objectionable or
improper. But if it be used directly in bribing or indirectly in work
ing up a personal influence upon individual members, conciliating
them by suppers, presents, or any of that machinery so well known
to lobbyists, which aims to secure a member's vote without reference
to his judgment, then it is not only illegal, but one of the grossest
infractions of social duty of which an individual can under the
circumstances of the present day be guilty. For it is the way of
death to republican institutions."

8. Kansas Reports, VIII, 543-544.

David J. Brewer: A Kansan on the Supreme Court 13
An interesting case in Kansas history was Russell et al. v. The State,
11 Kansas 308. An election was held in Wilson County for the relocation
of the county seat. It appeared that Fredonia received 1168 votes and
Neodesha, 938 votes. The board proclaimed Fredonia the new county
seat. Fraud was charged, and it was found that Fredonia had prepared
the poll books with fictitious names and refused admittance to the polls
to known friends of Neodesha. Brewer, deploring the dishonesty shown
by election officials, declared Neodesha the county seat.
Judge Brewer affirmed a lower court ruling on the charges that
Pryor, an attorney, was guilty of contempt in the case of In re Pryor, 18
Kansas 72.
The independence of the profession [law] carries with it the right
freely to challenge, criticize, and condemn all matters and things
under review and in evidence. But with this privilege goes the cor
responding obligation of constant courtesy and respect toward the
tribunal in which the proceedings are pending."
In 1877 Brewer ruled in favor of his friend, Preston B. Plumb, in a
minor suit involving a mortgage, Plumb v. Bay, 18 Kansas 415. It will be
noted later that Plumb was instrumental in Brewer's appointment to the
United States Supreme Court.
In Fretwell v. City of Troy, 18 Kansas 271, Brewer upheld the right
of a third-class city to impose a license-tax on auctions. It was argued
that this tax was in restraint of trade. The Court did hold, however, that
if auctions were to be taxed the auctioneers could not also be taxed.
Branner v. Stormont, 9 Kansas 51, was an action for malpractice.
The plaintiff alleged that the doctor used unskillful and negligent treat
ment on his fractured leg. Brewer ruled for the physician affirming a
lower court decision.
In Wicks V. Mitchell, 9 Kansas 80, Frances Wicks had signed a
promissory note with her husband on his debt of $677.81. After his
death, when the note was due, she refused to pay, arguing that the note
had been against the husband's business, not her separate property.
Brewer ruled in favor of Mitchell.
In Johnson v. Leggett, 28 Kansas 590, Mr. Johnson, age forty-five,
promised to marry Miss Leggett, age eighteen. He courted her for a
number of months, even setting the wedding date. He then abrupdy
married a Miss Cary. Miss Leggett sued Mr. Johnson to receive damage
for breach of promise. Brewer upheld a lower court ruling which
awarded Miss Leggett $1,250 damages.
In Baughman v. Baughman, 29 Kansas 283, P. C. and Barbara
Baughman were the parents of D. P. Baughman, deceased. As parents
they claimed to be his sole heirs. The defendant, Mary Baughman,
claimed to have been the legal wife of D. P. Baughman and, there being
no children, his sole heir. To support her claim she offered her own
testimony and the testimony of two other witnesses who claimed to have
been present at the wedding ceremony. The lower court held that since
there were no written records establishing the marriage, there had been
no legal marriage. Brewer reversed that decision, arguing that anyone
9. Kansas Reports, XVIII, 75.

14 Emporia State Research Studies
present at the marriage may be witnesses to prove that fact.
In the case of Henicke v. Griffith, 29 Kansas 516, Brewer gave his
opinion on slander.
If they mean to claim that the language on its face must be so
specific and definite as necessarily to impute the crime, it is a mis
take. ' Such a rule would permit a person to be guilty of that worst
form of slander— the insinuating and indirect accusation of crime-
without any responsibility for the wrong occasioned thereby."
In Brown et. al. v. Steele et. al, 23 Kansas 672, a Nancy Bluejacket
was a reservee and patentee under the treaty with the Shawnee Indians
of 1854. She occupied her land in Wyandotte County until her death in
1876. She never married, and her nearest blood relatives were the
plaintiffs, children of a deceased sister, and Mary Rogers, who under the
defendants' claim was the daughter of a deceased brother. By the Kansas
law of descents, plaintiffs and defendants would share the land equally;
but by the Shawnee law, as the father of the plaintiffs was a Wyandotte,
and both parents of Mary Rogers were Shawnees, the latter should in
herit all the land. Brewer held that since the United States Govemment
recognized tribal organization, the descent is cast, not under the Kansas
law, but under the Shawnee law.
In a damage suit for assault and battery. Brewer said, "That
which makes good the loss compensates, and is therefore the measure of
damages. But punitive damages mean more than compensation, and are
to deter the wrong-doer, as well as compensate the injured.""
In 1879 in the case of The State v. Bancroft, 22 Kansas 170, Mr.
E. p. Bancroft was found guilty in a lower court of embezzling $9,000
from the State Normal School of Emporia. Brewer upheld that decision.
In City of Emporia v. Partch et. al., 21 Kansas 202, the State Legis
lature had passed an act and the city of Emporia then passed an
ordinance authorizing it to issue bonds to the amount of $6,000 for the
purpose of erecting and completing boarding houses for the use of stu
dents at the State Normal School. Rent from the buildings sufficient to
meet the interest of the bonds was to be paid annually to the city
treasury. The boarding houses were built on lots belonging to the
city and afterward taken possession of and occupied by the Normal
School. The school paid a total of $138.25 rent for the buildings. The
city felt that the school had not met the conditions of the ordinance;
hence, they could recover possession of the buildings. The school argued
that it had not been possible to rent the buildings for sufficient return to
pay the interest on the bonds issued to build. The District Court ruled
in favor of the defendants, Miss Partch, et. al., on the grounds that the
ordinance specified the buildings were for the use of students at the
State Normal School. Brewer in his court opinion reversed the order
of the lower court.
Three interesting cases to come before the Court during Brewer's
tenure on that court involved Brewer himself.

10. Kansas Reports, XXIX, 518-519.
11. Kansas Reports, XXI, 723.

David J. Brewer: A Kansan on the Supreme Court 15
In McCahon v. The Commissioners of Leavenworth County, 8
Kansas 437, the case was brought before the Court before Brewer had
become a member, but was not heard until Brewer was on the Court.
The only brief on file on behalf of the Commissioners was filed by
Brewer when he was Leavenworth County Attorney. Brewer did not
sit on this case and the decision was for the County Commissioners.
In Haas and Company v. Fenlon, 8 Kansas 601, the case was
appealed from the District Court of Leavenworth where Brewer was
the judge in 1868. The Supreme Court, with Brewer not sitting on the
case, sustained Brewer's previous decision.
In Commissioners of Leavenworth County v. Brewer, 9 Kansas
307, David Brewer, then Leavenworth County Attorney, made a claim
against the County for $1,167.50 for services rendered by him in 1869
and 1870 for Leavenworth County at the request of the county board of
commissioners. The case was appealed from the District Court to the
Supreme Court, where Brewer pleaded his own case before the Court.
The Court mled for Brewer, affirming the ruling of the lower court.
Brewer did not sit on this case."
The several cases cited in this section are included to provide some
insight into Brewer's particular interpretation of the law and as a back
ground for a later section on Brewer's philosophy of law, government,
and politics. III. Judge of The United States Circuit Court
When the vacancy occurred in the federal Eighth Circuit Court in
1884, the common practice was followed of choosing a member from
the political party in power. In this case the judge should be a
Republican. The leading Democratic senators from the Midwest,
Senators Cockrell and Vest, while forced to choose from the opposition
party, wanted to be sure that their choice would be acceptable to the
people of the Eighth Judicial District.'" Senator Vest wrote the secretary
of the Democratic State Central Committee of Kansas, H. Niles Moore,
asking whether the appointment of Judge Brewer would be suitable to
the Democratic Party and the people of Kansas. Moore sent back strong
assurance that the choice of Brewer was entirely satisfactory and urged
Senators Vest and Cockrell to work for the nomination. He felt "diat
Judge Brewer was eminently qualified for the position not only as
having no superior in the state as a lawyer and jurist, but as a gentleman
of unimpeachable honor and integrity of character and well worthy in
every respect of the high and honorable position."" Brewer's nomina
tion was unanimously confirmed by the Senate.
A large number of the cases brought before the Circuit Court at
this time involved the clarification of land titles. These titles were
vague and uncertain because of government land grants to individuals
and raikoads. These grants were often overlapping. The situation
12. The writer has found no commentary on this unusual Instance of a judge stepping
down into the lawyer's position to argue his own case before his colleagues on the bench.
13. The Eighth Judicial District during the 1880's included the following states:
Arkansas, Colorado, Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South
Dakota, and Wyoming.
14. H. Miles Moore, Early History of Leavenworth City and County (Leavenworth,
1906), p. 313.

16 Emporia State Research Studies
was further complicated by certain individuals and companies who
gained land through fraudulent schemes. Although the title to the
land was uncertain, it was sold to homesteaders. Judge Brewer, as a
Circuit Court Judge and later as a member of the United States Supreme
Court, ruled that whoever has title to the land owns the land, whether
the title was gained legally or illegally. Brewer received much criticism
for this, but the individual setders now were given assurance that the
land was legally theirs and could not be taken away.
In the case of United States v. Edwards, 33 Federal 104, the United
States attempted to reclaim land from an individual who they charged
had defrauded the government in the sale of former Indian land.
Brewer held that Edwards had not defrauded the government, and was
within his legal bounds to secure the land as he did.
The famous Maxwell Land Grant cases, 21 Federal 19, 26 Federal
118, and 41 Federal 275, involved 1,700,000 acres of disputed land
on the eastern slope of the Morena Valley in present-day New Mexico."
After the treaty of Guadalupe Hidalgo, by which the United States
acquired the territory in question, the Surveyor General of the New
Mexico Territory was asked to ascertain the origin, nature, character, and
extent of the private land claims in that territory. Conceming the
grant in question, the Surveyor General found it to be valid according
to the laws and customs of the Republic of Mexico. Poor wording in
the grant intensified the problem, because it left an uncertain status for
certain lands claimed to be outside the grant. Agitation over the grant
came particularly from the people living in the 265,000 acres in Colo
rado. These people charged that the survey included thousands of
acres not included in the original grant. The United States Attorney
General, Benjamin Harris Brewster, filed a bill of equity for a decree
setting aside the patent in die United States District Court of Colorado
August 25, 1882, alleging that the surveyors had conspired to cheat
and defraud the government out of the land by running an incorrect
line. United States Circuit Judge Brewer rendered the Court's decision
in January, 1886, holding the patent to be good and valid and, therefore,
legally belonging to the defendant. This decision was appealed to the
United States Supreme Court in 1887. The Court upheld the decision
of the lower court."
In Richardville v. Thorpe, 28 Federal 52, Brewer upheld the rights
of Indians to pass on property without a "certificate of identity" required
by the Department of Interior, nor must the deed be formally approved
by the secretary of the Department of the Interior.
15. This land was granted to Charles Beaubien and Guadalupe Miranda by the
Republic of Mexico. It came to Lucian B. Maxwell of Illinois when he married Luz
Beaubien. When Maxwell failed, British capitalists and later Dutch investors owned that
vast empire. Part of this land finally came to an Oklahoma oil magnate, Waite Phillips,
who gave 36,000 acres to the Boy Scouts of America in 1937 and 91,000 acres more to
that same organization in 1941. See references in f.n. 16.
16. Among the works conceming the Maxwell Land Grant are Jim Berry Pearson,
The Maxwell Land Grant (Norman, 1961); William A. Keleher, Maxwell Land Grant
(Santa Fe, 1942); Ema Fergusson, New Mexico (New York, 1955); and History of
Arizona and New Mexico, 1530-1888, Volume XVII of The 'Works of Hubert Howe Ban
croft (San Francisco, 1899).

David J. Brewer: A Kansan on the Supreme Court 17
This period in Kansas and American history was marked by un
precedented railroad growth. By the 1880's the railroads controlled
more than 10,000,000 acres of land in Kansas alone. There were
strong demands for some form of regulation to check the raikoads'
growing power. Complaints against the railroads included:
1. The railroads were slow in opening their lands for sale or patent.
These lands could not be taxed until they had been patented,
so state and local governments were deprived of needed revenue.
2. Railroads did not carry a proportionate tax burden.
3. Railroads sold land in large blocks to land speculators.
4. Many railroad lines were poorly built in their haste to secure a
fortune from gifts and bonuses.
5. Railroads abused their wealth and power through bribery and
governmental lobbying.
6. High freight rates.
7. The watering of railroad stocks.
The railroads fought many expensive court cases to insure their land
titles and their favored position. Perhaps as a result of the many rail
road cases to come before the courts on which Brewer served, he con
sidered that the possible solution might be to have public transportation
conducted by the government on the same system as the post office.''
In Ames v. Union Pacific Railway Company, 64 Federal 165, the
question before Brewer was whether a state (Nebraska) could prescribe
the maximum rates for transportation of freight by railroads within that
state. Brewer held that Nebraska was entitled to put maximum rates
on wholly intrastate commerce.
The question of raikoad receiverships was brought up in Mercantile
Trust Company of New York v. Missouri, Kansas and Texas Railway
Company, 36 Federal 221. Judge Brewer's opinion was: When a
railroad cannot meet its payments on its debts (in this case $28,000 per
mile of track), and it is in danger of foreclosure, the mortgagee may
have the Court appoint a receiver whose job it is to make sure the
interest is paid radier than having the money spent elsewhere.
In United States v. Kane et. al., 23 Federal 748, employees of a
railroad company that was in the hands of a receiver appointed by the
Court were dissatisfied with the wages paid by the receiver. They
abandoned thek work and forced oliier employees to do the same.
Because of this strike, the receiver could not operate the railroad.
Brewer ruled they were guilty of contempt of court and were to be
punished. Brewer said these employees, who felt they had been wrong
ed by the receiver, should have reported it to the Court and the judge
would have tried to do justice to the employee as well as the receiver.
In Central Trust Company v. Wabash, St. Louis and Pacific Railway
Company, 26 Federal 11, Brewer held that a corporation in the hands
of a receiver of a court is not exempt from seizure and sale by the
collector of taxes if the taxes are not paid.
In Pullman's Palace Car Company v. Twombly, 29 Federal 658,
Brewer held that Iowa could tax the Pullman Company even if its cars
traveling through that state were engaged in interstate commerce.
17. Topeka State Journal, September 6, 1897.

18 Emporia State Research Studies
Another case involving the issue of interstate commerce concemed
a requirement by the city of Topeka that all animals must be inspected
before slaughtering and must be slaughtered within one mile of the city
limits if they were to be sold in Topeka. The effect of this city ordinance
was to exclude all dressed meat brought from a distance. In Ex parte
Kieffer, 40 Federal 399, Brewer ruled that such a law was unconstitu
tional because it interfered with the free commerce between the states.
One of the Judge Brewer's decisions brought down on his head the
wrath of the Prohibitionists, In the case of State of Kansas v. Walruff,
26 Federal 178, the defendant, Walruff, had constructed a brewery in
Lawrence, Kansas. As a brewery it was worth $50,000, but for any
other purpose was worth only $5,000. At the time it was erected, and
for six years after, the making of beer was legal in Kansas. In 1880 a
consitutional amendment prohibiting the sale of beer was adopted. The
defendant argued that the new amendment deprived him of his property
without due process of law or compensation. Brewer ruled that Walruff
must be compensated for his loss. This case was not appealed, but a
similar case, Mugler v. Kansas, 123 U.S. 623, went to the United States
Supreme Court where the opinion of Judge Brewer was reversed. An
interesting fact was that, of the nine justices on the Supreme Court, only
one dissented from this opinion. He was Mr. Justice Field, uncle of
Judge Brewer. "Blood is thicker than water, or even beer," was one
comment." Brewer's six years of service as a Circuit Court Judge gained na
tional attention. In 1889 he was appointed to the United States Supreme
Court. IV. Public Life While a Resident of Kansas
Although Brewer's duties as a judge requked long hours of work
and study, he was deeply interested in the activities of church and
school. He was frequently called upon to write articles or give speeches
for civic functions. He met these demands, delivering finished, thought
ful addresses, \yhether giving lectures to law students or speaking to
public gatherings.
As mentioned in the biographical sketch. Brewer assumed an active
role as an educational leader in Kansas. In a dedicatoiy address at the
Kansas State Normal School in Emporia, June 16, 1880, Brewer
eloquently proclaimed Kansas the "School State." In speaking of the
faith of Kansas in her schools he said, "With such a faith, so general,
so potent, so significant, Kansas well deserves the name, with which
in the presence of this audience, of the educators and thinkers of the
state, I now baptize her, by the name of the School State."" In this
same address Brewer commended the Normal School and its lofty
purpose of training teachers.
In another speech he showed deep admkation for the intelhgence
and determined fortitude of the "Yankee School Marm."'°
18. Tom W. Campbell, Four Score Forgotten Men (Little Rock, 1950), p. 288.
19. Catalogue of the Officers and Students of the Kansas State Normal School (Em
poria, 1880), p. 27.
20. Review ot an address in the Topeka Commonwealth, May 15, 1880.

David J. Brewer: A Kansan on the Supreme Court 19
Judge Brewer believed that politics should be taught in the school
room. In an article written in 1867, before woman suffrage, Brewer
advocated teaching govemment to gkls as well as boys. His reasons
for teaching government to future voters are the same as his reasons for
all education. We are all agreed that the objective of education is not simply
to give information, but also efficiency. It takes the raw material of
brain and character which the Almighty has given as his endovvanent
and weaves it into the finer fabric of the educated man, and this
not for show but for use. That which justifies the time and expense
of education is the increased power of accomplishment as well as
the clearer vision of judgment."
Brewer outlined the way he believed a course in government should
be organized. We use the term [politics] in its higher and truer sense, including
the science of government, our form of government, the Constitution,
the relations of the state to the Federal Government, the reciprocal
rights and duties of each, the different modes of governmental action,
several parts in the administration of the laws the citizen may be
called to take under what circumstances.^^
In a related article Brewer discussed the question, "Should teachers
engage in politics?" He said first, that, teachers are citizens and with
the rights of citizenship go duties. He advances three conditions which
could release the teacher from these duties: (1) The teacher's pro
fession unfits him for fulfilling these duties; (2) The teacher's participa
tion is not needed; and (3) Discharging these duties would weaken the
teacher's efficiency. Brewer refutes each of these conditions as being
untrue. Therefore, "Teachers of Kansas, fear not to speak your mind
and bear your part in the political contests of the day. Engaging in
politics is a high and holy mission."'"
In 1880 Brewer made several practical suggestions for improving
Kansas government with reference to its judicial system: (1) The
Su^eme Court should be increased by at least two members;''' (2) The
judicial districts should be reorganized; and (3) To guard against
accumulation of court business in any district, authority should be given
to other district judges to help the judge who is behind in his docket.^"
Although born on foreign soil, raised in New England, and taken
from Kansas by judicial duties for his last twenty years of life. Brewer
acknowledged no other home but Kansas. In various speeches and
articles he gives the reasons for his deep pride in Kansas and her
people. He singles out her treatment of women, quoting the Wyandotte
Constitution of 1859, asserting that no other constitution prior to that
21. David J. Brewer, "Politics in the School Room," Kansas Educational Joumal, TV
(December-January, 1867-1868), 173.
22. Ibid., IV, 174.
23. David J. Brewer, "Should Teachers Engage in Politics; and Should They Teach
It?" Kansas Educational Journal, V (August, 1868), 88.
24. At that time the Supreme Court was composed of three judges. In 1900 it was
increased from three to seven judges.
25. David J. Brewer, "Constitutional Convention," The 'Western Homestead, III
(November, 1880), 70-71.

20 Emporia State Research Studies
time had ever declared for the mother's equal rights in the possession of
her children. He praises her educational system, the high moral purpose
of her early inhabitants, her churches, her adoption of prohibition, and
the fact that Kansas was a leader in the war to -preserve the Union.
Some of Brewer's most descriptive prose was contained in speeches
about Kansas. At the Kansas Day Dinner held in New York, January 30,
1910, two months prior to his death, Brewer as the featured speaker
sentimentally described his adopted home:
In the many and varied experiences which came to the state,
especially in its early days, is found an answer to the question why
Kansans love Kansas. We know the bushwacker and the jayhawker,
the red-leg and the Indian. We have seen the hot winds sweep
through her growing corn and in a dozen hours destroy the expected
crop, the grasshoppers covering the state and eating everything green
and growing. We have felt the touch of poverty and even of famine.
We have seen the state plastered over with mortgages, while the tax
gatherer hunted almost in vain for property from which to collect
taxes. We have repeated the story of Egypt and have had the lean years
and the fat years like those which came to that land in the time of
the Pharaohs, with this difference, that in Kansas the fat years have
eaten up the lean years. Do we wonder that those who had a share
in those changing experiences have a marvelous love for the state
in which they passed through them?
It is no wonder that in the past history of the state every Kansan
glories, and in her future believes . . It is honor enough to
have lived in Kansas and have been a part of her history.^"
m. THE UNITED STATES SUPREME COURT
DURING BREWER'S TENURE, 1889-1910
I. Personnel of the Court
Justice David J. Brewer served on the United States Supreme
Court with fifteen otiher justices, eleven Republican and four Democrats
at the time of their appointments. These men had an average of nine
teen years on the Bench. Most commentators on the Court's history
consider all but Justices Holmes, Moody, and perhaps Bradley as con
servatives because of their strict construction of the Constitution.
The most notable of Brewer's associates included Melville W. Fuller,
John Marshall Harlan, Stephen J. Field, Joseph McKenna, William Henry
Moody, and Oliver Wendell Holmes, Jr.
Chief Justice Fuller served on the Court for twenty-two years, from
1888 to 1910. Prior to his appointment, Fuller had been one of the
busiest and best-paid corporation lawyers in Chicago. He was a strong
Democrat, which helps explain his appointment at that time, and a
firm believer in states' rights. He fully symbolized the strict constiuc-
tionist dominance of the Court during his time as Chief Justice. Al
though not prominent for the quality of his opinions, according to
scholars, his colleagues held him in high esteem. "As presiding officer
26. Review of an address in the Kansas City Star, Januaiy 30, 1910.

David J. Brewer: A Kansan on the Supreme Court 21
he was notable for dignity, and equally for tact, invariable good temper,
simplicity, modesty, courtesy, and consideration for counsel."'
Justice Harlan, a conservative Republican, was a former slave holder
from Kentucky, who had supported the Union in the Civil War. In his
thirty-three years on the Court he showed "an almost religious reverence
for the Constitution." He "was a stern defender of civil liberty and
believed that the constitutional guarantees in its behalf should be strictly
construed." Supporting a balance between strong nationalism and
states' rights, he was a firm advocate of the states' police powers. Com
promise was difficult for him, as evidenced by his vigorous dissents in
316 cases. Harlan and Brewer were great personal friends."
Justice Field, Brewer's uncle, was the last of Lincoln's appointees
to the Court, a fact which Field pronounced at frequent intervals. He
was appointed with the help of Leland Stanford, one of the four
magnates who controlled the Central and Southem Pacific railroads.
Some critics doubt that Field was completely unprejudiced in the many
raikoad cases coming before the Court. A strict constructionist, he was
a consistent spokesman for free enterprise.
He was a man of consistency and power, completely unswayed
by the varying winds of public opinion. Especially in his later years,
he became somewhat arrogant in his views— as evidenced by his
constant assertion in his opinions that God was on his side. Like a
baseball umpire he could not tolerate the thought that he may be
wrong.' Field served on the Court for thirty-four years, two months longer
than Chief Justice John Marshall. The view has been expressed that
Justice Field served on the Court too long. In 1895 he wrote only four
brief opinions and in 1896 he wrote none. Justice Harlan was asked by
the other justices to suggest to Field that he should resign. Field re
tired in 1897 at the age of eighty-one.''
Justice McKenna is included because, while a member of the
House of Representatives, he voted against the creation of the Inter
state Commerce Commission in 1887. This gives a hint of his opinions
in the various cases concerning the regulation of interstate commerce,
one of the major issues before the Court during this period."
Justice Moody was a close friend of Theodore Roosevelt. He served
as Attorney General for Roosevelt and helped the United States pro
secute in the famous anti-trust cases. Moody's "rather unusual practical
experience in public life and his fundamental soundness as a lawyer
promised to make Moody's service on the court one of much usefuUness."
His tenure on the court was limited to slightly less than four years, how
ever, because of ill health which caused his resignation."
Justice Holmes, son of the famous essayist and poet, was known as
"The Great Dissenter." He was appointed to the Court by Theodore
1. Francis S. Philbrick, "Melville Weston Fuller, DAB, VII, 61.
2. Robert E. Cushman, "John Marshall Harlan," DAB, VIII, 269-272.
3. Jerre S. Williams, The Supreme Court Speaks (Austin, 1956), p. 106.
4. Edwin S. Corwin, "Stephen Johnson Field," DAB, VI, 372-376.
5. Francis S. Philbrick, "Joseph McKenna," DAB, XII, 87-88.
6. Charles P. Sisson, "William Henry Moody," DAB, XIII, 107-108.

22 Emporia State Research Studies
Roosevelt and incurred the displeasure of the President when he dis
sented in the famous Northern Securities case. Roosevelt then said of
Holmes, "I could carve out of a banana a judge with more backbone than
that.'" Holmes was liberal in his views and interpreted the spkit of
the Constitution rather than following strict judicial precedent. He felt
that the Constitution was flexible, and changed with varying social con
ditions. His beliefs were poles apart from the views of the other Justices
on the Supreme Court.*
II. Significant Decisions of the Court
Brewer served on the Court during a time of tremendous national
grovsrth, especially in transportation and business. Most of the cases to
come before the Court during this period were concemed with the
Commerce Clause, the Fourteenth Amendment, individual rights and
liberties, the relationship of the states to the Federal Govemment, what
constitutes pohce power, and the states in their relations with each
other. During Brewer's service on the Court, with Fuller as Chief Justice,
there was a significant development of national authority, but the cen
tralization of power tended to concentrate in the Court as the arbiter and
interpreter of the cases brought before it. For example, the Commerce
Clause in particular was expanded through acts of Congress, but the
Court assumed the major role because of its decisions and opinions con
cerning this legislation.
A summary of some of the important Supreme Court decisions
during Brewer's tenure on the Court follows. These cases are included
to give an idea of the Court's philosophy in a wide range of matters
brought before it.
One of the first cases sustaining the national power was Fong Yue
Ting V. United States, 149 United States 698 (1893), in which the
power of a sovereign nation to forbid the entry of foreigners or to expel
or deport them was upheld as absolute and unqualified. Justice Fuller,
Field, and Brewer dissented. Brewer in his dissent held that this was
giving the Federal Government an unlimited and arbitrary power which
was inconsistent with the Constitution.
In Leisy v. Hardin, 135 United States 100, the Court reaffirmed the
Original Package Doctrine and its application to articles in interstate
commerce (6-3 Brewer dissenting). This decision was criticized in the
American Law Review as the "most crushing blow against the rights of
the states which has ever been dealt by that tribimal.""
The Court increased the power of the Federal Govemment over its
territories in Corporation of Latter Day Saints v. United States, 136
7. WUliam Hemy Harbaugh, Power and Responsibility: The Life and Times of
Theodore Roosevelt (New York, 1961), p. 162.
8. There is a vast volume of literature concerning Justice Holmes. Among basic
works are Mark De Wolfe Howe, Justice Oliver Wendell Holmes (Cambridge, Mass., 1957);
Felix Frankfurter, Mr. Justice Holmes and the Supreme Court (Cambridge, Mass., 1938);
Mark De Wolfe Howe (ed. ), Holmes-Laski Letters (2 vols., Cambridge, Mass., 1953);
Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes (Baltimore,
1924). Catherine Drinker Bowen's Yankee from Olympus, Justice Holmes and His Family
(Boston, 1944) has had wide popular appeal.
9. American Law Review, XXIV (1890), 474.

David J. Brewer: A Kansan on the Supreme Court 23
United States 1. The Com-t annulled the charter of the Mormon Church
for some of its practices. The Court claimed jurisdiction, reasoning that
people of the United States are owners of tlie national territories and
have supreme power over them and their inhabitants (6-3 Brewer with
majority). In Chicago, Milwaukee, and St. Paul Railroad Company v. Min
nesota, 134 United States 418, the Justices decided by a vote of five to
four, Brewer with the majority, that the question of the reasonableness
of railroad rates could not be left by the legislature to a state commis
sion, but must be subject to judicial review. By this decision the Court
became a censor over the states' power to regulate rates.
In a similar case, Reagen v. Farmer's Loan and Trust Company,
154 United States 362, the Court held unanimously that federal courts
of equity may restrain the enforcement of rates made by state commis
sions, if they deem the rates unreasonable or unjust.
In Interstate Commerce Commission v. Cinn., N. O. and T. P. R.,
167 United States 479, the Court held that the Interstate Commerce
Commission lacked the power to prescribe fair railroad rates, and could
only veto unfak rates (8-1 Brewer with majority) .
An important statement of the relation between the pohce power
of a state and the power of Congress to regulate interstate commerce
is foimd in Lo-uisville and N. R. Company v. Kentucky, 161 United
States 677. The Court ruled unanimously that states may prohibit the
consoUdation of parallel and competing hues of raikoads since it does
not interfere with the power of Congress over interstate commerce.
In Re Rapier, 143 United States 110, it was held in a unanimous
decision that Congress can judge whether the matter contained in a
newspaper passing through the mails is moral or immoral, legal or illegal.
Specifically, it gave Congress the right to exclude lotteries from the
mail. The year 1895 was notable for decisions in tliree famous cases, all
of which had important influences on United States history and con
tributed to the emphasis on judicial supremacy. In United States v.
E. C. Knight Company, 156 United States 1, the Sugar Trust case, the
Court decided by a vote of eight to one. Brewer with the majority, that
the corporations involved were not engaged in interstate commerce.
This was the first time that the Court had passed on the Sherman Anti-
Trust Act in its application to commercial corporations. Fred Rodell in
Nine Men criticizes this decision by saying that "the high riding Justices,
instead of calling the new Sherman Anti-Trust Act invalid under the
Constitution, so emasculated it, in the course of 'interpreting' its meaning
that it has never since recovered its virility."'" The Fuller Court re
deemed itself with its critics on anti-trust cases to some extent in sub
sequent decisions, as discussed later.
The second important case of 1895 was Pollock v. Farmers' Loan
and Trust Company, 158 United States 601, which declared the income
tax unconstitutional by a vote of five to four. Brewer with the majority.
The Court held that a tax on income from property of any kind was a
10. Fred Rodell, Nine Men (New York, 1955), p. 144.

24 Emporia State Research Studies
direct tax and must be collected only by apportionment among the
states according to population. This decision brought so much protest
that it resulted eventually in the adoption of the Sixteenth Amendment.
In the other important case of 1895, In re Debs, 158 United States
564, the Court unanimously upheld the right of the government to use
injunctions to stop a strike that was deemed detrimental to the public
interest. All three of these decisions were criticized as favoring Big Business
and the propertied class. These decisions made the Court so unpopular
that it led to condemnation of it by the Democratic Party in its platform
of 1896. We denounce arbitrary interference by Federal authorities in local
affairs as a violation of the Constitution of the United States and as
a crime against free institutions, and we especially object to govern
ment by injunction as a new and highly dangerous form of oppression
by which Federal Judges, in contempt of the law of the states and
rights of citizens, become at once legislators, judges, and execu
tioners . . . . "
According to Charles Warren," the Court announced the broadest
definition of die right of Congress tO' legislate for the general welfare
when it sustained in a unanimous decision the taking by eminent do
main of the Gettysburg battlefield for a national cemetery, in United
States v. Gettysburg Electric Railway Company, 160 United States 668.
In 1896, in Plessy v. Ferguson, 163 United States 537, the Supreme
Court over the sole dissent of Justice Harlan adopted the theory that
racial segregation was not a denial of the Constitutional demand of
equal protection as long as the facilities afforded both races were the
same. Justice Brown in his opinion stated inter alia that separation of
the two races is not unreasonable or more obnoxious to the Fourteenth
Amendment than the acts of Congress requking separate but equal
schools for colored children in the District of Columbia, the constitu
tionality of which had not been questioned.
Brewer did not hear the arguments nor participate in the decision
in Plessy v. Ferguson. As noted earlier in this study, in a similar case
in Kansas of Board of Education v. Tinnon, Brewer's thinking at that
time was in agreement with the later decision of the Supreme Court.
The Fuller Court refused to define what the rights of the Negroes
were. The right of suffrage was neither granted nor protected. In
Williams v. Mississippi, 170 United States 213, the Court unanimously
sustained a Mississippi voting qualification against a charge that it
discriminated against Negroes. Under this law Mississippi citizens, in
order to qualify as voters, were required to read a portion of the state
constitution and understand what they read.
The Fuller Court in its latter years pleased some of its critics by
putting some strength into the Sherman Anti-Trust Act. In 1897, the
Court for the first time announced, in United States v. Trans-Missouri
Freight Association, 166 United States 290, that railroad pools were
,11. American Law Review, XXX (1896), 579.
12. Charles Warren, The Supreme Court in United States History (3 vols., Boston,
1923), in. 428.

David J. Brewer: A Kansan on the Supreme Court 25
illegal jinder the Sherman Act (5-4 Brewer with majority). In 1904,
the decision of the Northern Securities Company v. United States, 193
United States 197, was that the Sherman Act was applicable to a holding
company (5-4| Brewer with majority). This was the landmark Theodore
Roosevelt anti-trust case.
The case' Addyston Pipe and Steel Company v. United States, 175
United States [211, was also instrumental in strengthening the Sherman
Act. Six conlpanies engaged in the manufacture and sale of iron pipe
operated undfer an agreement whereby each company was given the
exclusive right to sell pipe in an area allotted to it. The Supreme
Court ruled uhanimously that competition between the companies in an
area comprising thkty-six states and territories was eliminated, and that
it was in restraint of trade and commerce between the states.
In Swift and Company v. United States, 196 United States 375, the
Court's unanimous opinion held that the sending of cattle from other
states to ChiGa,gb for sale in its stockyards was interstate commerce.
Consequently, a combination among the leading dealers in meat in the
United States, agreeing not to bid against each other in order to regulate
prices and to get less than lawful rates from railroads to the exclusion
of competitors, was a violation of the Sherman Anti-Trust Act.
In Smyth v. Ames, 169 United States 466, the Court upheld one
aspect of a former Court ruling {Munn v. Illinois, 94 United States 113)
by a unanimous decision. The ruling was that the Federal Govemment
had the right to fix rates to be charged in business affected with a
public interest, although it is true that in the earlier case the regulation
had been in the states. This particular case involved a railway com
pany. In 1908 the Court applied the Sherman Anti-Trust Act in reference
to labor. It held unanimously in Loewe v. Lawler, 208 United States
274, that the use of primary and secondary boycotts by labor attempted
to restrain interstate trade; hence, this was a violation of the Sherman act
and could be enjoined.
In the case of United States v. Wong Kim Ark, 169 United States
649, the defendant had been denied admission to the United States
under the Chinese Exclusion Acts of 1882-1888. Wong Kim Ark argued
that this did hot apply to him because he was bom in San Francisco and
because he was a citizen of the United States, despite the fact that his
parents were aliens and incapable of naturalization. Justice Gray
speaking for the Court affirmed the ancient and fundamental rule of
.citizenship by birth within a nation even though the children are born
of aliens. The vote was seven to two. Brewer with the majority.
In 1899, there began a long series of cases growing out of the
Spanish-American War. The problems were to determine the status
and constitutional rights concerning Puerto Rico and the Philippines, as
well as other recently annexed overseas territories. There were two
opinions on the Court: (1) These territories were a part of the United
States, and could be dealt with only in the manner provided by the
Constitution; This belief that the Constitution follows the flag was
generally held by the Democratic Party at that time; (2) The United
States has the power to acquire and hold territory without incorporating

26 Emporia State Research Studies
it into the United States, and Congress can determine when the acquired
territory should enter into and become a part of the United States; this
was the general Republican view. In these cases, known as the insular
cases, De Dima v. Bidwell, 182 United States 1, Downes v. Bidwell, 182
United States 244, Dooley v. United States, 182 United States 222, et. al,
first one view .was held by the Court and then the other." Finally, the
Republican view became the final word of the Fuller Court, leading, of
course, to the often-quoted remark of Finley Peter Dunne's Mr. Dooley
about the Supreme Court following the election returns.
In the case of McCray v. United States, 195 United States 27, the
Court upheld by a vote of six to three. Brewer with the majority, an
act of Congress placing upon artificially colored oleomargarine an excise
tax so heavy as to be prohibitive.
In Lochner v. New York, 198 United States 45, the Court held that
the New York bakers' ten-hour law was unconstitutional (6-3 Brewer
with majority). The Supreme Court stated that the right of a person
to make contracts in relation to his business was part of the liberty of
the individual protected by the Fourteenth Amendment. The Court in
later decisions finally gave way in matters of regulation of hours of labor.
In 1907 the Court for the first time made a decision with respect
to claims of rival states for use of interstate waters. Brewer's opinion
for the unanimous Court in the historic case Kansas v. Colorado, 185
United States 125, restated the basic relations between the two forms
of sovereignty in our federal system.
In Adair v. United States, 208 United States 161, the Court decided
by a vote of seven to one. Brewer with die majority, that regulation of
employment with reference to union conditions had no reasonable rela
tion to interstate commerce. This case involved railroad discrimination
against union labor and the Coint's decision allowed railroads to black
list union laborers. This decision was widely criticized.
An act of Congress made all interstate carriers liable to their em
ployees for injuries resulting from negligence of the carriers' agents and
officers, or from inadequate equipment. In Howard v. Illinois Central
Railroad, 207 United States 463, the Court held this act unconstitutional
(5-4 Brewer with majority) because, although within the power of
Congress in respect to employees of interstate carriers actually engaged
in interstate commerce, it, by its terms, also applied to employees not so
engaged, and pertaining to them was a police regulation not warranted
by the Constitution.
In 1908, in the case of Ex parte Young, 209 United States 123, the
Court decided by a vote of eight to one. Brewer with the majority, that
the Attorney General of Minnesota could be enjoined from bringing any
proceedings to enforce the State Railroad Rate Law in the state courts
against the Northern Pacific Railroad, and could be fined for contempt
if he disobeyed the injunction. This decision again brought the wrath
of critics upon the Supreme Court because it appeared that the Court
was favoring the railroads.
13. The votes on these cases were as follows: De Dima v. Bidwell, 6-3; Downes v.
Bidwell, 6-3; Dooley v. United States, 5-4. Brewer voted with the majority in each case.

David J. Brewer: A Kansan on the Supreme Court 27
III. Evaluation of the Court
Gustavus Myers consistently denounced the Fuller Court in his
History of the Supreme Court of the United States published in 1918.
For more than one hundred pages Myers systematically condemns the
Court, decision by decision. His acrid critique reflects his reforming
zeal, which also was expressed in his muckraking account of the Plistory
of the Great American Fortunes. A former Populist, he was a member
of the Socialist Party when he wrote his book on the Court. Although
infected with partisan zeal, his criticisms of the Fuller Court nevertheless
express in extreme terms the basic objections of many Americans who
had supported the reform movements of the Granger-Populist-Muckraker-
Progressive era.
In summary these are Myers' criticisms of the Fuller Court:
1. The Court consistently favored railroads and other large corpora
tions.
2. The Court was pro-Trust and could be depended upon to vali
date any Trust in maintaining its monopoly.
3. The Court fostered tlfe growth of capitalism by its decisions, and
undermined the working class.
4. The decisions rendered were inconsistent, thus making the Court
an arbitrary, contradictory body.
5. He implied that various Justices (particularly Fuller, Field, and
Brewer) were not entirely unobligated in dieir decisions because
of their appointments, previous employment, property holdings,
etc.
6. The Court was primarily composed of former corporation lawyers
who had gained recognition by defending these companies. Now,
as Justices, they generally continued to hand down decisions in
line with what they, as attorneys, had argued.
7. The Court blocked much needed social legislation."
Myers made an evaluation of Justice Field which seems to exemplify
his opinion of many of the other Justices on the Fuller Court:
Here again was another example of a judge who by his decisions
and given vast properties and privileges to individuals and corpora
tions but who was incorruptible as far as bribes or jobbing were con
cemed. Probably no judge was ever a more open, undisguised tool
of great capitalistic interests than Field; no judge served their pur
poses more unblushingly and with less disingenuousness. But it is
evident that he personally profited nothing; his corruption was that
of a purely mental subservience induced by his class views, attach
ments and obligations."
Against the impressive list of criticisms Myers has one compliment
for the Court:
They [the Court] declined to interfere with the orderly transition
of society from an older, outworn, crumbling stage to a newer, more
modern era. At a time when legislatures and Congress were

14. Gustavus Myers, History of the Supreme Court of the United States (Cliicago,
1918), pp. 578-695.
15. Ibid., p. 640.

28 Emporia State Research Studies
fatuously bent upon seeking to revivify historic anachronisms, the
Supreme Court of the United States was the one body that thrust
aside those reactionary laws and facilitated industrial progress.'"
President Taft in 1910 was also critical of several of the Justices.
He described Fuller as almost senile, Harlan as unproductive, Brewer as
too deaf to hear the arguments and inaccurate in his opinions, and said
that "Brewer and Harlan sleep almost through all the arguments.""
President Theodore Roosevelt criticized the Court in a more con
structive manner. He felt that if the nation was to have a more healthy
growth, the Constitution must be interpreted more liberally. He said
that because judges are long-term appointees rather than elected officials,
they are prone to slower, more conservative action, not being as close
to public demands." A staunchly-held interpretation describes the in
tention of the Founding Fathers as one which sought a slow judicial pro
cess, even though this might open the courts to criticism.
While it must be said that the Fuller Court was criticized by many,
there are several points which should be made in the Court's defense.
1. It facilitated industrial progress. *
2. It was the first Court tp enforce the Sherman Anti-Trust Act.
3. It speeded National growth through its interpretation of the
Commerce Clause.
3. It enumerated the conditions of citizenship.
5. It held to a belief in strict construction of the Constitution.
6. The Court was independent of politics. There was only one
case involving a constitutional question on which all the Re
publican judges had lined up on one side and all the Demo
cratic judges on the other.
7. Labor attacked the Court because of its decisions in Loewe v.
Lawlor, and Lochner v. New York. They felt the Court favored
the owners and managers. However, these cases were decided
by a Court composed of practically the same judges who had
decided the Northern Securities Case and the United States v.
Trans-Missouri Freight Association case where a capitalist hold
ing company and a capitalist railroad pool were held illegal under
the Sherman Act.
8. The Fuller Court protected the individual's rights despite acts of
Congress. a. Congress tried to authorize criminal prosecution of a man
after compelling him to testify before a grand jury— prevent
ed by the Court in Counselman v. Hitchcock, 142 United
States 547.
b. Congress attempted to take private property for public use
without full compensation — prevented by tlie Court in
Monongahela Navigation Company v. United States, 148
United States 312.
c. Congress attempted to authorize imprisonment of persons at
hard labor without an indictment by a grand jury — prevent
ed by the Court in Wong Wing v. United States, 163 United
States 228.

16. Ibid., pp. 661-662.
17. John P. Frank, Marble Palace (New York, 1958), p. 255, who cites Henry F.
Pringle, Life and Times of WilUam Howard Taft (New York, 1939), I, 529-530.
18. Henry F. Pringle, Theodore Roosevelt (New York, 1931), p. 477.

David J. Brewer: A Kansan on the Supreme Court 29
d. Congress attempted to violate the provision of the Constitu
tion requiring a defendant in criminal prosecution to be
confronted with the witnesses against him— prevented by the
Court in Kirby v. United States, 174 United States 47.
e. Congress attempted to allow an appeal by the Government
in a criminal trial after the accused has been found guilty by
a jury-prevented by the Court in United States v. Evans,
213 United States 297.'°
By way of summary, we might characterize the Fuller Court as
follows: 1. The Court held to estabhshed doctrines.
2. The majority of the Court believed in strict construction.
3. The Supreme Court became censors of the state legislatures,
especially over state regulatory functions such as rate fixing.
4. The Court expanded Federal power, even though most of the
Justices agreed with Brewer that "the paternal theory of govem
ment is to me odious."''"
5. The Court was conservative. It was very slow to warm up to
new social trends. However, in the last years of this period,
especially from 1900, touches of liberahsm were becoming more
evident.
6. There was an expansion of federal power into areas heretofore
well within the reserved powers of the states, such as federal
regulation of crime, immorality, and business.
7. The members of the Court believed essentially in economic
laissez-fake.
IV. ASSOCIATE JUSTICE DAVID J. BREWER
OF THE UNITED STATES SUPREME COURT
I. Brevster's Court Opinions
Judge Brewer was appointed to the Supreme Court to succeed
Justice Stanley Matthews, deceased, in December, 1899, and was
formally commissioned, December 18, 1899.
There are slight discrepancies about the circumstances of Brewer's
appointment to the Court, but most sources agree with the following
account recorded by William Allen White in his autobiography. In
fluential Kansas Senator Preston B. Plumb had proposed Brewer's name
to President Harrison for the appointment. Harrison "was going slowly,
thoroughly investigating the qualifications of each candidate," and
then reached his decision in favor of Brewer. He ordered Brewer's com
mission prepared for his signature and it lay on his desk when "Plumb
burst into the President's office. He seemed to have heard some gossip
about another candidate, and was raging like a bull." A situation had
occurred in the Senate where Harrison needed Plumb's support. The
19. The specific items a. through e. of the eighth point in the list are in Charles
Warren, Congress, The Constitution and the Supreme Court (Boston, 1925), pp. 150-151,
where the names of the cases are supplied as a group in a footnote. The writer made the
specific association of the pertinent case to the appropriate item.
20. UnUed States Reports, CXLIII, 551.

30 Emporia State Research Studies
Senator threatened to withdraw his favor unless Brewer was immediately
appointed. It is to Harrison's credit that he calmly let Plumb rage at
him and was man enough to resist the temptation to tear up Brewer's
commission because of Plumb's insolent and arrogant attitude.'
Justice Brewer was especially well versed in corporation law, inter
national law, relations between the United States and the Indian tribes,
and laws relating to public lands. Rodell, certainly not partial to
Brewer in his appraisal, notes that he was "far more influential on the
Fuller Court than its Chief."^ More enthusiastic in praise were the
comments of a contemporary publication in 1899, "Mr. Justice Brewer's
place is among the two or three ablest members of the Supreme Court,
according to the estimates of his colleagues and of the leading members
of the bar, many of whom regard him as the greatest lawyer on the
Bench."= In an effort to show Brewer's role and influence on the Court, a
number of representative cases have been chosen in which Brewer wrote
either the majority or dissenting opinion. Through these illustrations an
attempt is made to provide some insight into Justice Brewer's reasoning
and philosophy. One of Justice Brewer's most notable opinions was in Kansas v.
Colorado, 206 United States 46. The Court had to decide the question
of how far a state by instituting extensive irrigation works within its
boundaries could deprive another state of the water of a non-navigable
river (Arkansas River) flowing from one state into the other, thereby
reducing the arable land of that state to a desert condition. Brewer
in his opinion for the Court sustained the right to prevent a state from
diverting the water of an interstate stream. Kansas, however, in the
judgment of the Court had not demonstrated that it had been sufficient
ly deprived of the waters of the river to justify the interposition of the
Court, but that the time might come when it would have to intervene
to protect the interests of Kansas.
Another important aspect of this case {Kansas v. Colorado) was
introduced by President Theodore Roosevelt's Attorney General in the
interests of the "New Nationalism" program of the rough-riding Repub
hcan president. "In this suit the United States government sought to
intervene as an interested party on the ground that it had the right to
control the waters in question for the purpose of reclamation of arid
lands, inasmuch as the projects of reclamation involved were geographic
ally beyond the jurisdiction of any one state."*
In that part of his opinion concerning the Federal Government's
attempt to intervene, Justice Brewer upheld strongly his states' rights
viewpoint. Speaking for the Court, he defined the freedom of the
states from the control of the Federal Government, relying heavily on
Article X of the Constitution, and emphasizing a state's sovereignty over
1. The Autobiography of William Allen White (New York, 1946), pp. 358-359.
White reports in interesting detail his conversation with President Harrison about the
Brewer appointment. Also cf. Ibid., pp. 439-440.
2. Rodell, Nine Men, p. 169.
3. Portrait and Biographical Record of Leavenworth  p. 591.
4. Robert E. Cushman and Robert F. Cushman, Cases in Constitutional Law (New
York, 1958), p. 172, and cf. pp. 171-174.

David J. Brewer; A Kansan on the Supreme Court 31
its own affairs. The petition of the United States as intervener was dis
missed. The opinion "may be regarded as the epitaph to the doctrine of
the New Nationalism."' The North American Review said that Brewer's
.opinion in Kansas v. Colorado was worthy of Chief Justice John Mar
shall.' In Northern Securities Company v. United States, 193 United
States 197, two competing railway companies agreed to create a holding
company for the expressed purpose of doing away with competition.
The Court held that this was a combination in the restraint of interstate
commerce and was illegal under the Sherman Anti-Trust Act of 1890.
Justice Brewer concurred with Justice Harlan's opinion that the merger
must be dissolved, but he disagreed with Justice Harlan on the scope
of the Sherman Act. He contended that Congress did not intend to
reach all contracts in partial restraint of trade. He felt that the purpose
of the anti-trust law was to place statutory prohibition with prescribed
penalties and remedies upon those contracts which were in dkect
restraint of trade, unreasonable, and against public pohcy. Brewer
said that to restrain all combinations would unsettle business enterprises,
stifle business, and invite harmful court actions.
In Keller v. United States, 213 United States 213, the Court had
to rule on the constitutionality of the White Slave Law which made it a
felony for any person to keep an alien woman for an immoral purpose
within three years after she had entered the United States. It was agreed
by the Court that the Federal Government had no jurisdiction in matters
like this and it should be left to the jurisdiction of the states under their
police powers. Brewer said, "But can it be within the power of Congress
to control all the dealings of her citizens with resident aliens? If that
be possible, the door is open to the assumption by the National Govern
ment of almost unlimited body of legislation."'
The case of In re Debs, 158 United States 564, aroused the anger of
labor against the Supreme Court. The Railroad Brotherhoods unionized
only the four operating crafts. They made no effort to unionize the
other railroad workers. In 1891 Eugene V. Debs left his post as secretary
of the Brotherhood of Locomotive Fireman and helped organize the
American Railway Union, which included all branches of railroading
other than the Brotherhoods. The American Railway Union, against
Debs' counsel, participated in the Pullman Strike of 1894. The railway-
men, specifically, refused to handle Pullman cars; hence, train service was
halted. The federal courts issued an injunction against the strikers in
order to insure delivery of the mails and avert obstruction of interstate
commerce. Debs violated the writ of injunction and was declared guilty
of contempt of court and sentenced to jail. Brewer in his Supreme
Court opinion upheld the right of the lower court to act as it did. "As,
under tlie Constitution, power over interstate commerce and the trans
portation of the mails is vested in the National Govemment, and
Congress by virtue of such grant has assumed actual and direct control,
5. Ibid., p. 172.
6. "Great Minds of Great Men,'' North American Review, CLXXXVII (January,
1908), 6.
7. Un'ted States Reports, CCXIII, 148.

32 Emporia State Research Studies
it follows that the National Govemment may prevent any unlawful and
forcible interference therewith . . . ."'
The interesting results of the Debs decision were: (1) It gave the
government a real weapon in halting strikes through the use of the in
junction; (2) Organized labor turned its political wrath against judges
in general and the Supreme Court in particular; and (3) Eugene V;
Debs became a militant Socialist.
Justice Brewer wrote a dissenting opinion in Magoun v. Illinois Trust
and Savings Bank, 170 United States 283, which concemed an Illinois in
heritance tax law.
I am unable to concur in the foregoing opinion, so far as it sustains
the constitutionality of that part of the law which grades the rates
of the tax upon legacies to strangers by the amount of such legacies.
If this were a question of political economy I would not dissent, but
it is one of constitutional limitations. Equality in right, in protection
and in burden is the thought which has run through the life of this
Nation and its constitutional enactments from the Declaration of
Independence to the present hour. Of course, absolute equality is
not attainable, and the fact that a law, whether tax law or other,
works inequality in its actual operation does not prove its unconstitu
tionality .... But when a tax law directly, necessarily and in
tentionally creates an inequality of burden, it then becomes impera
tive to inquire whether this inequality thus intentionally created
can find any constitutional justification .... I think the Constitu
tion of the United States forbids such inequality.'
Brewer's strict regard for what he considered reasonable freedom of
contract led him to agree with the Court in invaHdating the ten-hour
law for bakers {Lochner v. New York, 198 United States 45), to dissent
in cases sustaining the eight-hour law for miners {Holden v. Hardy, 169
United States 366) and an eight-hour law on public work {Atkin v.
Kansas, 191 United States 207). Brewer, however, wrote the unanimous
Court's opinion in Mulier v. Oregon, 208 United States 412, because he
felt it was within the state's police powers to regulate hours conceming
women in industry. As seen by the other related cases, he did not think
it was within the state's police powers when it applied to men.
In Wilson v. Shaw, 204 United States 24, the plaintiff invoked the
assistance of the courts to prevent the Government of the United States
from constructing the Panama Canal because the United States did not
have legal title to the land for the Canal. Brewer held that the United
States had a valid lease for perpetual use of the canal strip.
An interesting case to come before the Court was Camou v. United
States, 171 United States 277. Camou filed with the United States his
petition to a tract of land in the Territory of Arizona. This land had
been granted to him by the State of Sonora, Mexico. Following this
transaction, the land was sold to the United States by Santa Anna."
Brewer, in his opinion for the Court, held that the land grant entitled
Camou legally to the tract of land.
8. United States Reports, CLVIII, 581.
9. United States Reports, CLXX, 301-303.
10. The area in question is knovm as the Gadsden Purchase.

David J. Brewer: A Kansan on the Supreme Court 33
Brewer wrote the Court opinion in Fairbank v. United States, 181
United States 283. Fairbank had been convicted by a lower court of
issuing an export bill of lading upon wheat shipped from Minneapolis to
Liverpool without affixing an intemal revenue stamp as required by
law. The Supreme Court ruled that this requirement was unconstitu
tional because it was in effect a tax on exports and, therefore, repugnant
to Article I, Section 9, of the Constitution.
In United States v. Des Moines Navigation and Railway Company,
142 United States 510, the company in question was granted land for
the purpose of aiding in the improvement of die navigation of the Des
Moines River. The United States argued that this company was inter
ested in the land for speculative reasons, not for the purpose of improv
ing navigation. Brewer ruled for the Court that the company was the
bona fide owner of the land regardless of intent.
In South Carolina v. United States, 199 United States 437, the state
of South Carolina established dispensaries for the sale of intoxicating
beverages and prohibited sale by others than the dispensers. The
United States demanded the license taxes prescribed by the internal
revenue act for dealers in liquors. The Court gave judgment in favor
of the United States, and Brewer in his opinion stated:
If all the states should concur in exercising their powers to the
full extent, it would be almost impossible for the Nation to collect
any revenues. In other words, in this indirect way it would be
within the competency of the states to practically destroy the ef
ficiency of the national government."
Brewer in this opinion also stated his philosophy on understanding the
meaning of the Constitution.
Brewer vigorously dissented in the Chinese Exclusion Cases, Fong
Yue Ting v. United States, 149 United States 698, and United States v.
Ju Toy, 198 United States 253. He expressed the belief that aliens are
entitled to protection under our Constitution and that in both cases these
Chinese were deprived of hberty without due process of law.
In the Church of the Holy Trinity v. United States, 143 United
States 437, Brewer, in his opinion for the Court, wrote that the act
prohibiting the importation of foreigners and aliens to perform labor in
the United States could not apply to ministers of the Gospel.
In Carnegie Steel v. Cambria Iron Company, 185 United States 409,
the Court ruled that Andrew Carnegie was entitled to a valuable patent
for manufacturing steel. Brewer and three other justices dissented,
saying that by thus being allowed to exact tribute from the steel and
kon-making industry, Carnegie was in a position to hinder the operations
of other steel makers in keeping pace with the natural evolution of
modem industrial development.
As Associates Justice of the United States Supreme Court, Brewer
wrote the opinion of the Court in 526 cases, 70 of which involved con
stitutional problems. He disssented in 215 cases, and in 53 of these he
wrote separate opinions, including 18 related to constitutional problems.
11. Robert Adam Maurer, Cases on Constitutional Law (Rochester, 1941), p. 955.

34 Emporia State Research Studies
He concurred in 38 cases, writing eight separate concurring opinions.'"
It is difficult to make any categorical statement about Justice
Brewer's opinions. It can be said that he was unfailing in his devotion
to law and justice and that he earnestly endeavored to fulfill the oath
which he took on his accession to the Bench. There is considerable
evidence to show his support for personal liberty in many situations and
that he was a defender of property rights. His classification on constitu
tional principles has been described as moderate conservative. He was
very much concerned about the drift toward federal centralization, yet
in some cases he actually condoned such centralization. He is con
sistently placed in the camp of the strict constructionists, yet some of
his opinions upheld powers not expressed or implied in the Constitution.
Brewer's opinions show him to be a firm believer in the doctrine of
economic laissez faire. In an obituary of Brewer, The Outlook said:
... in many cases, what is nominally a Constitutional decision
is really an interpretation of social facts. In the interpretation of
such facts Justice Brewer followed the standards of an individualistic
age from which this magazine believes the country is emerging."
In appraising the total service of Brewer on the Court, it can be said
that his views coincided with those of the majority of his colleagues.
His philosophy of the law was characteristic of leamed jurists at the
turn of the century. Whether he influenced his fellow-justices, or they
him, can be a matter of conjecture, but this writer agrees with those
who think that he was one of the most influential members of the
Fuller Court.
II. BREvyER's Philosophy Of Law, Government, And Politics
In the case, Cotting v. Kansas City Stock Yards, 183 United States
84, Brewer stated his ideas on popular sovereignty:
It has been wisely and aptly said that this is a government of
laws and not of men; that there is no arbitrary power located in any
individual or body of individuals; but that all in authority are guided
and limited by those provisions which the people have, through the
organic law, declared shall be the measure and scope of all control
exercised over them.'*
In South Carolina v. United States, 199 United States 437, Brewer
showed his reverence for the Constitution and its changeless principles.
The Constitution is a written instrument. As such its meaning
does not alter. That which it meant when adopted it means now ....
The powers granted do not change, they apply from generation to
generation to all things to which they are in their nature applicable.
This in no manner abridges the fact of its changeless nature and
meaning. Those things which are within its grants of power, as those
grants were understood when made, are still within them, and those
things not within them remain still excluded."

12. Cushman, DAB, III, 24.
13. "Obituary," The Outlook, XCIV (April 9. 1910), 786.
14. United States Reports, CLXXXIII, 84.
15. United States Reports, CXCIX, 448-449.

David J. Brewer: A Kansan on the Supreme Court 35
In Budd V. New York, 143 United States 551, Brewer in his dis
senting opinion gave the often-quoted statement of his conservative
philosophy. The paternal theory of government is to me odious. The utmost i
possible liberty to the individual, and the fullest possible protection to I
him and his property, is both the limitation and duty of government.
If it may regulate the price of one service which is not a public
service, or the compensation for the use of one kind of property
which is not devoted to a public use, why may it not with equal
reason regulate the price of all services and the compensation to be
paid for the use of all property?"
Justice Brewer believed in the federal system but condemned the
growing habit of appealing to the Federal Government for relief against
ills that should be borne or remedied by the community immediately
injured. He felt the nation should be supreme in national affairs and
in foreign relations, but should be powerless to control the purely local
interests. He warned against further encroachments upon the powers
and functions of the states by the Federal Government since this would
render the individual citizen more and more helpless.
Brewer was genuinely troubled by this thought of increased centrali
zation. He argued for less centralization and more states' rights, thereby
giving individual Americans more liberty and freedom and more voice
in the way they are to be govemed. The following are Brewer's argu
ments against centralization as given in an address to the eighteenth an
nual meeting of the Virginia State Bar Association held at Hot Springs,
Virginia, August, 1906:
1. "Did the candid, intelligent men who drafted this Constitution,
and the people who adopted it, having just finished a seven-years
war to free themselves from colonial subjection to Great Britain,
intend to vest in the government they were creating the power to
hold other territory in like colonial subjection?""
2. With Congress considering more and varied types of legislation it
is absolutely impossible for the representatives of the people to
fairly consider even a fraction of it. "It has to be distributed
among committees, and the reports of committees become the
basis of legislative action. So that it is essentially true that the
Congressional legislation today is not legislation by the repre
sentatives of the people but by committees of such representa
tives.""
3. If this centralization trend continues, "... it will not be long
before it will become impossible to say that this is a government
of enumerated powers, but on the other hand, it will be a govern
ment with all the powers vested in the legislative and executive
of the nation; and the Tenth Amendment, which reserves to the

16. United States Reports, CXLIII, 551.
17. David J. Brewer, "Two Periods in the History of the Supreme Court," The
Virginia Bar Association (Richmond, 1906), p. 15.
18. Ibid., p. 17.

36 Emporia State Research Studies
people what they have not in terms granted, will become a
voiceless and unmeaning part of the Constitution.""
4. "Is "there not a danger in this centralization, of building up the
party machine and the party boss, and giving them a power such
as has never been dreamed of in this country."^"
5. In a highly centralized nation the individuals will become in
attentive and careless when they feel that responsibility for the
affairs of the community is not vested in the community but is
located in Washington.
6. It is argued that centralization will make the nation much more
powerful and thereby we can become the world's most powerful
nation. "While I rejoice with all others in the magnificent position
of this nation in the sight of the world, I rejoice far more in
seeing the individual citizens of the separate communities so
interested in the public welfare that for their communities they
are striving to maintain justice and righteousness."^'
7. "The police power, never yet defined, is constandy broadening
in its exercise, until it threatens to become an omniverous govern
mental mouth, swallowing individual rights and immunities.""
However, Brewer was not pessimistic about this tendency toward
increased centralization. He believed that in the future there would
be a resurrection of a spirit of individuality and a sense of personal
responsibility which would give this nation a great and glorious future.^'
In an article entitled "The Supreme Court of the United States,"
Brewer predicted that the future problems facing the Supreme Court
and the United States would fall into five categories:
1. Labor-management disputes.
2. The tendency to increase and concentrate the power of the nation
and to lessen tlie powers of the states.
3. Problems concerning our new possessions, e.g., the Philippines
and Puerto Rico.
4. International relations, because our relations to all other nations
have grown to be so close and surely will increase in intimacy.
5. The continuing problems of interpreting the Constitution to the
present situations.^''
Conceming this last problem Brewer wrote:
In the judgment of not a few it [the Constitution] is without
amendment adjustable to any conditions, social and political, that may
arise. Indeed as one reads some of the propositions which are ad
vanced, he is inclined to believe that the instrument possesses an
elasticity which would make the manufacturers of india-rubber choke
with envy. Fortunately and wisely, its grants, prohibitions, and guar-

19.

Ibid., p. 18.

20.

Ibid., p. 20.

21.

Ibid., p. 21.

22.

Ibid., p. 23.

23.
Ibid., pp. 22-23.
24.
David J. Brewer,
"The Supreme Court and the United States.
„„, , , . - -  , Scribner's Magazine,
XXXIII (March, 1903), 273-284.
David J. Brewer: A Kansan on the Supreme Court 37
antees were expressed tersely and yet in general ternis, so that it has
proved to be no cast-iron instrument applicable only to conditions
then existing. But tlie question remains how far its general and
comprehensive terms may be adjusted to the varying situations which
die present and future days will present, and this matter of adjust
ability will bring before this Court some of the profoundest and most
important questions ever presented to any tribunal."'
Brewer firmly believed that judges should be barred from political
office following their tenure on the Bench. A judge who is concerned
with his political future might be influenced by this in his decisions.
Brewer thought there should be a constitutional amendment to the effect
that a Supreme Court Justice could not be elected to political office
following his term.^°
Justice Brewer was quite optimistic, however, about the moral
caliber of judges. Many people feared that the corporations through
their wealth might influence judges, but Brewer did not. He felt that,
in general, judges are incorruptible.
We pride ourselves, and rightly, in this country upon the personal
integrity of our judges. Singularly few are the instances in which
the direct use of money is charged or even suspected, but it must
be conceded that there are good citizens who are apprehensive that
the same insidious influence which corporations sometimes exercise
over legislators is also exerted over judges. We all know that electing
one to judicial office does not change his character or increase his
wisdom. . . . Somehow or other a community which may not think
very highly of one as a practicing lawyer comes to look upon him
with respect when elevated to the judicial office. It may not be wholly
conscious of the change in sentiment; yet it exists. It is perhaps more
a tribute to the office than to the man, though doubtless any high
minded man (and no other is fit for a judicial office) when elected to
one is impressed with a sense of his responsibility, becomes more
careful of demands of justice.^'
The following are some reasons why judges are not corruptible by
wealth, according to Brewer:
1. There is a general demand for judicial honesty.
2. Public sentiment exerts restraint.
3. Great publicity attends all official action.
4. Managers of corporations abhor a national disgrace.
5. Corporations hire great lawyers and a truly great lawyer is an
honest man."'
In speaking of his profession. Brewer said, "Were I called upon to
name the one element most important in the makeup of the ideal lawyer,
I should unhesitatingly say, character."^"
25. Ibid., xxxm, 280.
26. David J. Brewer, "Organized Wealth and the Judiciaiy," The Independent, LVII
(August 11, 1904), 302.
27. Ibid., LVII, 301.
28. Ibid, LVII, 301-304.
29. David J. Brewer, "The Ideal Law>er," The Atlantic Monthly, XCVIII (November,
1906), 591.

38 Emporia State Research Studies
Justice Brewer called public attention to the danger of numerous
court delays. He felt that the many appeals which courts permk on
technicalities that do not affect the justice of the verdict are wrong.
Brewer in an article entitled "The Right to Appeal" gave his arguments
favoring the limiting of the right of appeal.
1. It would help to check lynching.
2. The right to two trials is not guaranteed by the Constitution.
3. It is not a natural right but simply a statutory privilege that the
state may give or take away.
4. If a second trial is needed, then so might a third, fourth, fifth,
etc. What is the limit to be?
5. The lengthy delay is costly.
6, Justice delayed is often justice denied.
Brewer believed the appellate courts could review the judgments of
trial courts, but he objected to the right of the party defeated in one
court to compel such review in the other.""
Justice Brewer believed in the virtue and value of punishment.
It is wholesome for the individual and beneficial to society. The
tintinnabulation of your mother's slipper on that part of the body in
which the spinal column has, in the language of the railroad men, its
"terminal facilities," may not have been music for the present, but
was sweet song for the future. It was punishment for wrong done-
inducement to coming right; and so I believe in the value of a pro
vision which tends to make the executive of any law directed against
wrongdoing operative and forceful."
How can honesty in the people and corruption in the govemment
co-exist? Brewer raises this question in an article entitied "Preferential
Voting." He says the answer lies in the fact that the people only reach
the government through the machinery of party organization. The in
fluence of the individual on government is lost. Brewer's solution to
this problem is to bring the people as near to the govemment as pos
sible, to break up the intermediate agencies, and to make the relation
between people and government close and direct. He proposes to do
this through Hare's system of preferential voting, the aim of which is
to give to every voter a representation in the legislative body.'^
In an address before the New York Bar Association, Brewer voices
concern over two problems: (1) The improper use of labor organizations
to destroy the freedom of the laborer and control the uses of capital. He
deplores the use of coercion by labor unions to force employer and em
ployee; and (2) The governmental regulation of property subjected to
public use. In reference to this he said:

30. David J. Brewer, "The Right of Appeal," The Independent, LV (October 29,
1903), 2547-2550.
31. David J. Brewer, "Libel," Bar Association of Kansas (Topeka, 1886), p. 58.
32. David J. Brewer, "Preferential Voting," Kansas Educational Journal, IX (August,
1872), 105-107.

David J. Brewer: A Kansan on the Supreme Court 39
This acts in two directions: One by extending the list of those
things, charges for whose use the government may prescribe; until
now we hear it affirmed that whenever property is devoted to a use
in which the public has an interest, charges for that use may be fixed
by law. And if there be any property in the use of which the public
or some portion of the public of it has no interest, I hardly know what
it is or where to find it. And second, in property, which in fact is
subjected to the public use, that no compensation or income is re
ceived by those who have so invested their property. . . . "'
An important exception to this last concern was brought up by
Brewer in the matter of public transportation. In the flood of litigation
over railroad abuses. Brewer speculated that the transportation of in
dividuals and merchandise would be better conducted on the same
system as the post office instead of as a business.
He said Ibat, as far as the question of power is concerned, trans
porting persons and property is as much a legitimate function of govern
ment as the carrying of letters and papers. This is evidenced by the
fact that public property can lawfully be taken, against the will of the
owner, for the use of the transportation industry.
Because the government assumed responsibility for the postal
system, there was a uniform rate established, and equal facilities which
multiplied and followed the people as the population was extended. The
best interests of all the people were considered. The matter of trans
portation became a business, representing individuals and corporations
who invested large amounts of capital and were looking mainly for pri
vate gain.
The transition of the transportation system from a business to a
governmental fimction would create many problems, but Brewer spoke
of a growing conviction that the people would benefit.'*
Brewer and his associates on the Court were not subservient to
public opinion. Brewer expressed his idea on the relationship of judicial
decisions and public opinion.
The purpose of the judicial office is, not to reflect the passing
and changing thought of the populace, but to determine rights upon
immutable principles of justice— principles which have passed into
organic and permanent law.''''
Although, as noted before. Brewer's opinions could not be com
pletely categorized, it is clear that in his beliefs he would be classified
as a strict constructionist. He was strongly opposed to the idea of
amending the Constitution by interpretation. Still, as discussed, his
opinions did contribute to interpretation because of the circumstances
of certain cases. His stand on Federal-State relations was that of a
conservative. He was a spokesman for states' rights and was jealous
of the encroachment of the Federal Courts upon the states' police
33. David J. Brewer, "The Movement of Coercion," Ncw York State Bar Association
(Chicago, 1893), p. 7.
34. Article in the Topeka State Journal, September 6, 1897.
35. David J. Brewer, "Organized Wealth and the Judiciary," The Independent, LVII
(August 11, 1904), 302.

40 Emporia State Research Studies
powers, doing what he could to deter that encroachment. He was a
fkm siipporter of economic laissez faire, but interestingly enough was
long an advocate for a government-owned and operated railroad system
to replace private ownership. He considered himself, and was in many
situations, a staunch defender of the individual's rights, privileges, and
liberties. I glory in the fact that my father was an old-line abolitionist,
and one thing which he instilled into my youthful soul was the con
viction that liberty, personal and political, is the God-given right of
every individual, and I expect to live and die in that faith.'"
III. Evaluation of Brewer
Among the authors who are critical of Brewer is Wilham Allen
White, who, is his Autobiography, gives circumstantial evidence that
Brewer, while a circuit judge, was subject to influence through a relative.
White gives an account of a letter received by an Emporia friend, a
former associate of Senator Plumb. The letter, sent by Brewer, com
plained "that the two receivers of the Kathy Railroad, whom the vwiter
[Brewer] had appointed when he was a circuit judge, were not, since he
had come to the Supreme Court, making their promised and agreed
monthly payments to his sister. The justice complained that she was
a poor woman and needed the money."" This is the only account of
any alleged corruption by Brewer. In this connection a statement by
Brewer in his opinion in Mercantile Trust Company of New York v.
Missouri, Kansas and Texas Railway Company, 36 Federal 221, which
concerned the method employed by Brewer in appointing receivers
should be noted: "If parties agree upon a receiver, of course I shall ap
point whoever you agree upon. If not, I will hear any suggestions from
any of the parties in interest, and reasons for or against any person to
be named by one side or the other.'"'
In November, 1908, President Theodore Roosevelt wrote a letter
to W. A. White in which he said, "Of course there are few judges who
are actually corrupt . . . But there are many who are entkely unfit
to occupy the position they do. Brewer being a striking example of his
kind. There is altogether too much power in the Bench.'"" Roosevelt,
no doubt, was angry with Brewer and the Court because they were
slow and conservative, and opposed many of his social reforms. However,
as was mentioned previously, Brewer wrote the Court's opinion in Wilson
V. Shaw, 204 United States 24, which upheld the Federal Government's
right to build the Panama Canal, a pet project of Roosevelt's.
White, the great and good friend of T. R., made a concluding state
ment about Brewer:
I knew the justice. I had met him when he was a circuit judge.
In Kansas he was known as our scholar in politics. He had been

36. David J. Brewer, "The Spanish War; A Prophecy or an Exception," Kansas
Collected Speeches and Pamphlets, XVI (Topeka, n. d.), 16-17.
37. White, Autobiography, p. 439.
38. Federal- Reports, XXXVI, 227.
39. White, Autobiography, p. 440.

David J. Brewer: A Kansan on the Supreme Court 41
graduated from Yale. He was a man of wide reading and considerable
culture. He believed in the divine right of the plutocracy to rule. He
distrusted the people, and his decisions limited their power whenever
the question of their power came before the Court.""
Gustavus Myers, in his History of the United States Supreme Court,
agrees with this last statement of William Allen White. Myers felt that
Brewer, in his decisions, favored the large corporations and the wealthy.
He charged that Brewer's philosophy in the many cases concerning land
titles, regardless of the amount of fraud, was dependent purely on the
matter of legal title, and that it was immaterial how the owner acquired
his property.*' Myers' contention was correct, but Brewer believed that,
according to the law, this was die only just decision. In Ames v. Union
Pacific Railroad Company, 64 Federal 176, Brewer gave such a ruling.
He may have made his fortune by dealing in slaves, as a lobbyist,
or in any other way obnoxious to public condemnation; but, if he has
acquired the legal title to his property, he is protected in its posses
sion, and cannot be disturbed until the receipt of the actual cash
value. The same rule controls if railroad property is to be appropriated.
No inquiry is open as to whether the owner has received gifts from
state or individuals, or whether he has, as owner, managed the
property well or ill, or so as to acquire a large fortune therefrom. It
is enough that he owns the property— has the legal tide; and, if so
owning, he must be paid the actual cash value of the property.*^
The issue is whether Justice Brewer had a sincere interest in in
dividual rights, regardless of circumstances; did he place his entke
judgement on a Constitutional basis as he understood the Constitution,
or was he, while a Supreme Court Justice and before, subservient to the
raikoads, the rich, and the affluent corporate giants? It is the conten
tion of the writer that Justice Brewer did indeed give his decision many
times in favor of what the Progressives called the plutocracy or male
factors of great wealth. He was not consciously their tool, was not
corrupt, and his decisions conformed with his own personal philosophy,
a philosophy similar to that held by a majority of his colleagues.
It is a fact that Justice Brewer lived within his modest income as a
judge without any outward ostentation. He died a man of moderate
wealth. He spent more than forty years of life on the Bench, professing
to be a practicing Christian and doing many good works. Following
his death there were many glowing tributes to Justice Brewer conceming
his dedication to liberty and justice, to Christian principles, and to hu
manity. Brewer, himself, recognized the fact that criticism of the Court
and its Justices was wholesome and helpful.
It is a mistake to suppose that the Supreme Court is either
honored or helped by being spoken of as beyond criticism. On the
contrary, the life and character of its justices should be objects of

40. Ibid.
41. Myers, Suprefne Court, p. 603.
42. Federal Reports, LXIV, 176.

42 Emporia State Research Studies
; constant watchfulness by all, and its judgments subject to the freest
criticism. The time is past in the history of the world when any
living man or body of men can be set on a pedestal and decorated
with a halo. True, many criticisms may be, like their authors, devoid
of good taste, but better all sorts of criticism than no criticism at all.
The moving waters are full of life and health; only in the still waters
is stagnation and death."
V. PUBLIC LIFE IN WASHINGTON
I. Brewer's Interest and Participation in International Law
Justice Brewer was a lifelong advocate of seekiiig peaceful solutions
to problems between nations. One of the most interesting chapters in
his life was his participation in the settling of the Venezuela-British
Guinea boundary dispute.
For many years the unsettled area between Venezuela and British
Guinea was claimed by both sides. The discovery of gold in this area
of approximately 50,000 square miles heightened the dispute in the
latter part of the nineteenth century. The area in question was of con
siderable value also because it guarded the mouth of the Orinoco River.
In 1895 President Cleveland's Secretary of State, Richard Olney,
reminded Great Britain of the Monroe Doctrine, and said there was little
logic in England's having any colonies at all in Latin America. Great
Britain rejected the idea that the Monroe Doctrine applied to its quarrel
with Venezuela. President Cleveland called upon Congress to supply
funds for a commission to determine the actual boundary line of British
Guinea. He also declared that the United States was prepared to resist
any attempt by Great Britain to occupy territory rightfully belonging to
Venezuela. For a time a war spirit swept the country, and in some
quarters there was actually a hope that England would challenge Cleve
land's stand.'
Acting upon the Venezuela message of President Cleveland, Con
gress passed an act appointing a commission to investigate the boundary
line in question. This was done in order tiiat the United States might
not demand for Venezuela any more than its legitimate claim. ^
Justice Brewer was chosen president of the five-man commission by
President Cleveland, even though Brewer was a Republican. In a com
munication to both parties in the dispute Brewer said, "The purposes of
the pending investigation are certainly hostile to none, nor can it be of
advantage to any that the machinery devised by the government of the
United States to secure the desired information should fail of its
purpose."' Before the investigation was completed, Great Britain decided to
arbitrate the boundary question. It seems that Great Britain realized the
United States was in earnest in its intention to resist all encroachments

43. William R. Barnes and A. W. Littlefield (eds.), The Supreme Court Issue and
the Constitution (New York, 1937), p. 27.
1. Foster Rhea Dulles, The United States Since 1865 (Ann Arbor, 1959), p. 162.
2. Editorial in the American Journal of International Law, IV (1910), 912.
3. John B. Moore, A Digest of International Law (Washington, 1906), VI, 583.

David J. Brewer: A Kansan on the Supreme Court 43
and to make a vigorous stand on behalf of Venezuela and the Monroe
Doctrine. This, plus Great Britain's many other world involvements and
her desire to maintain peace with the United States, caused her to reach
this decision. The agreement to settle the dispute by arbitration
averted the danger of war.*
In February, 1897, a treaty of arbitration was entered into by Great
Britain and Venezuela. An international tribunal was created consisting
of five members: Justice Brewer and Chief Justice Fuller of the United
States Supreme Court, Lord Chief Justice Russell of Killowen and Sir
Richard Henn Collins chosen by the British High Court of Justice, and
the eminent Russian jurist Frederic de Martens was selected by the
King of Norway and Sweden. The Russian was named chairman.
The treaty provided for the submission of the dispute to the arbitral
board, but exempted from arbitration those areas that had been held by
either party over a fifty-year period.
The Arbitration Tribunal handed down a unanimous award October
3, 1899. The award granted Great Britain almost ninety percent of the
disputed territory, mostly in the interior. Venezuela received 5000
square miles, including the entire mouth of the Orinoco and a consider
able portion of the Caribbean shorehne eastward. The decision, while
not meeting the extreme demands of either side, appeared to be equally
satisfactory to each." One important result of this whole controversy was
the vast improvement in Anglo-American relations.
Justice Brewer said of die compromise decision:
Until the last moment I believed a decision would be quite im
possible, and it was only by the greatest conciliation and mutual
concession that a compromise was arrived at. If any of us had been
asked to give an award, each would have given one differing in
extent and character. The consequence of this was that we had to
adjust our differing views, and finally draw a line running between
what each tiiought was right."
Justice Brewer believed firmly in the use of arbitration to settle
international disputes. He felt that, while there was no power to compel
international arbitration like that which compels obedience to the
decision of national courts, there is a power that is growing stronger and
stronger— the power of public opinion. Within the nineteenth century
over two hundred cases were decided by arbitration, and no award was
repudiated by any nation because of public opinion.'
Brewer's interest in the cause of peace is seen by his many articles
and speeches on the subject. He attended and was one of the featured
speakers at the Mohonk Conferences on international arbitration, dis
armament and universal peace. He addressed the New Jersey State
Bar Association on "The Mission of the United States in the Cause of
Peace." With Charles Henry Butler he wrote a treatise on international
4. Dulles, United States Since 1865, p. 162.
5. Moore, International Law, VI, 583.
6. American Journal of International Law, XLIII (1949), 526.
7. Edward Everett Hale and David J. Brewer, Mohonk Addresses (Boston, 1910),
p. 104.

44 Emporia State Research Studies
law in the Cyclopedia of Law and Procedure in 1906. Brewer presided
over the Universal Congress of Lawyers and Jurists held at the Louisiana
Purchase Exposition in St. Louis in 1904. He also was the vice-president
and an ardent supporter of the American Society of International Law
from its beginning.
In Brewer's address before the New Jersey State Bar Association, he
gave an argument for disarmament.
There never yet was a nation which built up a maximum army
and navy that did not get into a war, and the pretense current in
certain circles that the best way to preserve pehce is to build lip an
enormous navy shows an ignorance of the lessons of history and the
conditions of genuine and enduring peace. . . The only peace that
can endure is that in which the equalities of the nations are recog
nized, and all disputes are settled by negotiations or submitted to an
impartial tribunal for determination. Then all nations will be inter
ested in maintaining peace, knowing that it is peace secured by
choice and established in justice.'
Brewer felt strongly that the United States should take the lead in
limiting armaments. He asserted we were well qualified to lead in the
cause of peace for the following reasons:
1. We are situated at a distance from the other powers.
2. Our resources in men and material are such as to almost guarantee
against attacks.
3. We are in better financial condition than the other major nations.
4. Throughout our history we have believed in justice and liberty
for all.
5. We are a nation that is composed of members from all nation
alities and races.
6. We are a Christian nation with a loyal devotion to Christ and
his principles."
Justice Brewer was totally opposed to colonial expansion by the
United States. He was an early advocate of giving the Philippines their
independence. He believed the colonial system was the opposite of the
principles upon which America was founded.'"
The Spanish-American War presented two real problems to the
United States, according to Brewer. First, because we undertook to
deliver the Cubans from Spanish oppression, were we then to assume
the duty of forcibly emancipating all oppressed peoples, or was this
an exception? Second, were we to extend our domination by force,
purchase, or otherwise, over remote territoiy, or were we to stay within
the continental boundaries of the United States, and be content to
develop the United States?" These contemporary sounding problems
were answered then, but not in a manner acceptable to Brewer.
8. David J. Brewer, "The Mission of the United States in the Cause ot Peace,"
World Peace Foundation (Boston, 1911), p. 3.
'9. Ibid., pp. 1-9, passim.
10. Brewer, "The Spanish War," Kansas Collected Speeches, XVI 6
11. Ibid., XVI, 4-5.

David J. Brewer: A Kansan on the Supreme Court 45
Brewer and Charles Henry Butler wrote a short (sixty- two pages)
treatise on international law. What Brewer said of international law is
true today. International law has never been codified, either as it exists be
tween states or as administered as a part of the municipal law by
courts of the different countries. It corresponds more to the unwritten
and customary law and tiie exact rule applicable to the case under
consideration has to be determined by previous decisions, and what
has been consented to and adopted by different nations; to ascertain
this the court may refer not only to the statutes, treaties, and legis
lative acts and judicial decisions, but also to the customs and usages
of civilized nations, to the work of jurists, and the opinions of
commentators . ' "
II. Brewer as a Public Speaker
In his preface to The World's Best Orations Brewer said this of
oratory: Oratory is the masterful art. Poetry, painting, music, sculpture,
architecture please, thrill, inspire; but oratory rules. The orator
dominates those who hear him, convinces their reason, controls their
judgment, compels their action. For the time being he is master.
Through the clearness of his logic, the keeness of his wit, the power
of his appeal, or that magnetic something which is felt and yet cannot
be defined, or through all together, he sways his audience as the
storm bends the branches of the forest. Hence it is that in all time
this wonderful power has been something longed for and striven for."
The North American Review^'' and The Outlook'^ magazines praised
Brewer as one of the most widely known and popular justices ever to
serve on the United States Supreme Court. He spoke before public
audiences more than any other justice and expressed his opinions freely on
popular questions. Primarily, he discussed the duties of his profession
and the duties of citizenship. But on various occasions he spoke on the
race problem, universal peace, preferential voting, national extravagance,
anarchy, woman suffrage, restriction of immigration. Communism, and
many other topics. It was said that while he spoke boldy on these
subjects, he was discreet, for he avoided being partisan.'"
He was an orator of distinction with a graceful yet forcible style
which was very effective." His speeches were filled with picturesque
and descriptive language, and often had religious overtones, for he
quoted frequently from The Bible. Chief Justice Fuller said of Brewer
after his death, "He was a truly eloquent man. The fountain of tears
and the fountain of laughter ran close together and carried the hearer
12. David J. Brewer and Charles Henry Butler, International Law (New York, 1906),
pp. 8-9.
13. David J. Brewer (ed.). The World's Best Orations (Chicago, 1899), I, ix.
14. George Harvey (ed. ), "Great Minds of Great Men," The North American Review,
CLXXXVII (January, 1908), 3.
15. "Memorial," The Outlook, XCIV (April 9, 1910), 785.
16. Ibid.
17. "The Death of Justice Brewer," The' Independent, LXVIII (April 7, 1910), 773.

46 Emporia State Research Studies
away upon the mingled current of their waters."" His passion for
oratory is evidenced by the labor he put into editing the ten volumes
of The World's Best Orations.
In May, 1900, Wilham E. Dodge of New York made provisions for
lectures before the students of Yale University to be known as the
"Yale Lectures on the Responsibilities of ' Citizenship." Justice Brewer
was selected to deliver the first series of those lectures. The book
American Citizenship is a compilation of these lectures by Brewer.
These lectures on the general theme of citizenship led Brewer to
discuss primarily the building of personal character. He was convinced
that an obvious by-product of good character would be good citizenship.
I want with all the solemnity of a life that has been earnestly
lived, with all that comes from years of experience in varied direc
tions, to appeal to you, young gentlemen, lovers of your country,
loyal to all its best interests, with unbounding faith in its future,
willing to live and to serve, and to die if need be for its honor and
glory, I want to press upon you this afternoon the thought that one
grand way in which all can do abundantly for its glory and life is in
building up within yourselves that pure and lofty personal character
which makes the individual loved, which gives him power, and causes
his life to become a blessing to his community, his nation, and the
world.'" Brewer believed in the initiative and referendum because this would
bring the public closer to controlling public offices. Through the initia
tive and referendum a truer government of the people is realized. This,
of course, would require active citizens who vote intelligently. In
speaking of voting Brewer said, "A man is about as guilty for not
voting, as for voting on the Devil's side."^°
In an address made in Chicago, March 30, 1904, Brewer spoke on
curbing grafts in municipal government. If all citizens would obey the
law, and the local government concerned itself only with maintaining
the peace and obedience of the law, then the disorderly elements would
yield and peace and order would prevail.'"
Justice Brewer spoke out against the use of polygamy as then
practiced by the Mormons. "Today beyond the mountains there is
growing and spreading a system which means lust for man, slavery for
woman, and dishonor for the Republic."^^
As early as 1883 Brewer voiced a concern about Communism.- He
was optimistic in the belief that Communism would never replace our
free enterprise system.
Even now the night is wild with the fierce cry of the Communist,
that property is crime and the accumulation of wealth robbery. We
sneer at these cries as the mere shrieks of madmen, and indeed of

18. United States Reports, CCXVIII, xvi.
19. David J. Brewer, American Citizenship (New York, 1902), p. 56.
20. Brewer, "Should Teachers Engage in Politics," Kaiisas Educational Joumal,
(August, 1868), 84.
21. Article in the Topeka Capital, March 30, 1904.
22. Article in the Topeka Commonwealth, May 15, 1880.

David J. Brewer: A Kansan on the Supreme Court 47
themselves they are nothing and are to be heeded only as suggestive
of what lies beyond the back of them. . . . The wild dream of the
Communist will of course never be realized. Property will always
remain sacred, and each man will be permitted to enjoy without let
or hindrance all that he has fairly earned.^'
In this same speech to Washburn College, Brewer showed concern
for the growing power of corporations. He felt there was an urgency
to so organize the forces of society to somehow make these mighty
organizations the helpful servants rather than the tyrannical masters of
the future.'''' Justice Brewer found time for many other outside activities. As
mentioned, he expressed himself often on all the important questions of
the day. In Section I, we noted his interest and participation in church
activities. He was also active in charity work. He was president of the
Associated Charities of Washington for five years. He was characterized
by one of his co-workers in Associated Charities as ". . . unfailing in
his devotion to the cause of the poor and helpless, which had its source
in that deep and wide regard for the people which pervaded all that
he said and did."""
VI. SUMMARY
David Josiah Brewer spent forty years in the highest courts of Kansas
and the United States. This period in American history was turbulent,
with national enlargement, advances in transportation and communica
tion, the growth in wealth and power of the corporations, the new force
of labor unions, and the clamor for social reform.
Although Justice Brewer is generally overlooked by historians, his
place in this period of our history is highly significant. He was an in
fluential leader of the Fuller Court. His interpretation of tiie Constitu
tion was in tune with the majority of other learned jurists of his day,
although somewhat behind public opinion and the voices of certain leg
islators and presidents.
The writer of this study has striven for objectivity. Representa
tion has been given to all available material, whether highly critical or
comphmentary. The writer has become convinced through this study
that Brewer was a sincere, dedicated man whose aim in life was the
betterment of the country, the people, and the government. He un
failingly served his fellow men by interpreting the law and Constitution,
not according to the whims of public opinion, but according to the
changeless principles upon which he felt the law was based.
Justice Brewer was quite prophetic in some of his public pronounce
ments. He called attention to such problems as Communism, colonial
ism, disarmament, labor-management relations, and the tendency of in
creased centralization of governmental power. All of these issues con
front contemporary America.
23. Article in the Topeka Capital, June 13, 1883.
24. Ibid.
25. Baldwin, "Justice Brewer and Organized Charity," The Survey, XXIV (April 16,
1910), 120.

48 Emporia State Research Studies
i'
At Brewer's death many glowing tributes were made to him not
only as a judge who had served his country well, but as a humanitarian,
a Christian, and a force for international peace. Mr. Charles Curtis,
Senior Senator from Kansas, in the memorial to Justice Brewer before
the Supreme Court said of him:
His remarkable grasp of the underlying principles upon which
our whole structure of government rests, his unswerving fidelity to
the fixed rules of order and stability so essential and so often sorely
tested, his strong, positive, upright, fearless character, his power of
sustained intellectual effort, place him easily among the great judges
of his day and time. No one ever doubted his purity of life, his in
tegrity of purpose, and all who read and consider his legal opinions
pay homage to his profound intellect.'
A poem entitled "What I Live For" by George Linnaeus Banks,
which Brewer quoted many times, seems to express his guiding
principles: I live for those who love me.
For those who know me true.
For the heaven that smiles above me
And awaits my spirit too.
For the cause that lacks assistance.
For the wrong that needs resistance.
For the future in the distance
And the good that I may do.

I. Charles Curtis, "Memorial," Proceedings of the Bar and Officers of the Supreme
Court of the United States (Washington, 1910), p. S.

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