Butzner, John D., Jr.

English

Yale Law School Legal Scholarship Repository

REVIEWS
JusTicE DA mL DISSENTIG. By John P. Frank. Cambridge: Harvard
University Press, 1964. Pp. xii, 386. $7.95.
John P. Frank has written a delightful and informative study of
Peter Vivian Daniel, who was a Justice of the Supreme Court of the
United States from 1841 to 1860. The biographer of a public official
must bring to his task perception of the opinions and prejudices, the
times and issues through which the subject of his writing lived. This
duty Mr. Frank has ably discharged. He is well fitted to undertake this
work for he has written a number of books and articles about the Court
and the Constitution. Formerly an associate professor at Yale Law
School, he now practices law in Arizona and serves on the Advisory
Committee on Civil Rules of the Judicial Council of the United States.
Frank's theme is the counterpoint of a changeless man in a changing
world. Daniel started as an agrarian and an agrarian he remained-"so
true a Jeffersonian that his adherence to the early ideals of Jefferson
and the Jefferson party outlasted even the adherence of Jefferson him-
self." He counted as worst a centralized government, and he also con-
sistently opposed a centralized economy of corporations and banks.
In 1809, at the age of tventy-five, Daniel was elected to the General
Assembly of Virginia. For the next fifty years he was occupied with
public affairs. From 1812 until 1835 he served on the Virginia Council
of State. During his tventy-two years on the Council, Daniel considered
nearly every facet of government. Frank's study of the minutes of the
Council and his description of the part played by Daniel in governing
Virginia provide a valuable commentary on state government in the
first half of the nineteenth century.
From the vast number of decisions of the Council in which Daniel
participated, Frank has chosen interesting samples. His selections
reveal traits that were to characterize Daniel's years on the Supreme
Court. From the start of his service on the Council he required almost
literal compliance with the written word as a canon of statutory con-
struction. Disagreement with other members of the Council led not to
compromise but to dissent. Daniel's work on the Council is primarily
of historical interest. A significant exception, however, was his use of
acquittal as an appropriate deterrent of coerced confessions. Students
of criminal law will welcome Frank's account.
In 1836 President Andrew Jackson appointed Daniel a United
States District Judge for the Eastern District of Virginia. Judge
Armistead M. Dobie, who wrote a biographical sketch of Daniel, des-
THE YALE LAW JOURNAL
cribed him as a competent and capable trial judge.' In this assessment
Frank agrees. It was Dobie, formerly Dean of the University of Virginia
Law School and a United States Circuit Judge, who saluted Daniel as
the last Virginian to sit on the United States Supreme Court, and
wistfully added: "Virginia, the acknowledged Mother of Presidents,
has, as the Mother of Supreme Court Justices, been sterile for nearly
a century. To the best of my knowledge, in that role, she is not now
pregnant."
2
Frank's account of Daniel's appointment and confirmation as a
Justice of the Supreme Court is dramatic. Martin Van Buren appointed
Daniel in the last days of his administration. Henry Clay marshalled
his Whig forces and employed his knowledge of parliamentary tactics
to delay a vote on confirmation until after March 4th when General
William Henry Harrison would take office. On March 2nd the Whigs
departed from the chamber leaving a senator behind to suggest the
absence of a quorum. By eleven o'clock at night enough Democrats had
been summoned to the chamber, who, when counted with the sole
Whig, constituted a quorum. This left the Whig in one of history's
minor dilemmas. If he stayed he made a quorum. If he left, no one
remained on the floor to suggest the absence of a quorum. Thus, as
Frank observes, by the superb irony of the rules of parliamentary pro-
cedure, the Senate gave its advice and consent to Daniel's appointment
a little before midnight March 2, 1841.
To a court that had to grope with issues arising out of a growing
nation undergoing profound change, Daniel brought an articulate
faith in the status quo, and his was the status quo of the preceding
three decades. It is little wonder that he often found himself in the
minority or compelled to concur specially. Frank includes a table of
dissents between 1836 and 1864 prepared by Charles Alan Wright, Pro-
fessor of law at the University of Texas, which shows that Daniel dis-
sented alone forty-six times. This was more than twice as often as any
other justice. On the other hand, he wrote more than his fair share of
majority opinions.
Frank's study of Daniel's career on the Supreme Court is detailed
and fair. He treats comprehensively all of the important cases in which
Daniel participated, and summarizes the workaday cases that in every
age have constituted the bulk of the Court's docket. At this point the
1. Dobie, Federal District Judges in Virginia Before the Civil War, 12 F.R.D. 451
(1952).
2. Id. at 471.
[Vol. 75:351
REVIEWS
biography becomes of necessity a history of the Court during the crit-
ical period that preceded the Civil War.
Daniel was a persistent man, and the theme that guided his approach
to constitutional cases was an unflagging effort to limit the power of the
federal government and the jurisdiction of the federal courts. He held
that the federal government lacked power to construct roads or other
internal improvements. So intense was his opposition to federal admi-
ralty jurisdiction that he never wrote a majority opinion upon this
subject. Repeatedly he protested against permitting corporations to
sue or be sued in cases where jurisdiction was based on diversity of
citizenship.
Frank reminds us, however, that all of Daniel's career was not in the
role of a dissenter. In two of the most famous cases heard by the court,
Swift v. Tyson 3 and the Dred Scott decision, Scott v. Sandford,4 Daniel
joined the majority. Ironically the authority of neither case survives.
Of more lasting significance has been Daniel's conclusion that the con-
tract clause of the Constitution is subject to the police power of the
states.
Historians of the Court have not been charitable to Daniel. Carson,
writing in 1902, observed: "His views were marked by a certain degree
of eccentricity .... "5 Dobie, in his sketch of Daniel generally followed
Carson. After paying tribute to Daniel's high character, he describes
him as "always conservative, frequently reactionary, sometimes quix-
otic ... ." Charles Warren7 contents himself with quoting from
Daniel's contemporaries. Daniel's unceasing vehemence provoked
loyalty in his friends and enmity in his opponents, so Warren could
draw on ready sources of either praise or damnation.
Frank's biography is the first full study of Daniel. It includes an
account of his personal as well as his official life. His treatment of
Daniel is much more sympathetic than others who have commented on
his years on the court. Part of this is because of Frank's careful and
intensive study of Daniel's personal correspondence and other primary
sources of information. Part of it may be attributable to Frank's recog-
nition that Daniel's views were derived from notable predecessors and
and were shared by many of his contemporaries. Daniel was not alone
in fighting unsuccessfully to fashion an agricultural nation that would
3. 41 U.S. (16 Pet.) 1 (1842).
4. 60 U.S. (19 How.) 393 (1857).
5. 1 CARSON, THE SuPFmm COURT OF THM UNrrED STATES 02 (1902).
6. Dobie, supra note 1, at 471.
7. 2 WARREN, ThE SuPRFwE COURT OF THE UNrrED STAT.S 202, 318 (1935).
372 THE YALE LAW JOURNAL
never know domination by government and business. Daniel, wrote
Frank, "is a kind of bench mark in American history, for by measuring
what we have become as against what he was, we discover how far our
country has travelled."8 The measure may vary according to the
reader's social and political views, but every student of history will
find Frank's suggestion stimulating.
JOHN D. BUTZNER, JR.'t
8. P. viii.
t United States District Judge, Eastern District of Virginia.


Frank: Justice Daniel Dissenting

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Frank: Justice Daniel Dissenting

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