(i.)

The Chief Justice would not consent to die. He had felt the tremors first in his fingers, when the train had departed Niagara Falls, but dismissed the barely perceptible tingling as the motion of the locomotive over the rails. But now, the right side of his mouth began to droop, and he sought to speak but could not. He tried to lift his arm, to motion to the other gentlemen in the first-class compartment, the rocking of the train having lulled them to sleep, but it was too late. The sensation radiated into his shoulder and gripped his neck. He was trapped in his own body. When he was a young boy, he had passed by the corpse of a drunkard face down in a ditch, drowned in shallow water. That sight had frightened him more than anything he had ever seen. Now, with the tremors came panic, but stronger than fear was his contempt for that weakest of sentiments. He steeled his nerves and rallied his mind.

This was not the first time that Salmon Portland Chase had waited upon Death. He had heard the echo of Death’s footsteps that evil night when the assassins came for Lincoln and Seward. Hearing the cries in the street, the shouts of men with the terrible news, the tramp, tramp, tramp of soldiers sent to protect him as Chief Justice, he had bolted the door and pulled out an old revolver. Yet, after some hours of waiting, his relief curdled into disappointment that no assassins ever came for him. The traitors had evidently decided he was not worth the trouble. They would come to learn, Chase resolved, that they had underestimated him.

He fixed his eyes upon the slumbering woman across from him, a ladies’ novel open in her lap. She would wake at some time or another, surely recognize that something was amiss, and a physician would be summoned from among the other passengers. It was Chase’s misfortune that the paralysis had not struck while he was on the bench — his colleague Miller had been a doctor and would have immediately attended to him. For all of their differences, Miller was a decent sort who could be relied upon in matters of physical health. But now Miller and the others would be left to their own devices as long as he was absent from the Court. Chase would be obliged to return to Washington as soon as practicable to prevent any mischief that news of his condition might create. He tried to grit his teeth, but the paralysis had gripped his face in an indelicate seizure. For now, he must fight to survive until he reached New York City.

No sooner had the brakes of the locomotive exhausted their hissing than a hue and cry erupted from the platform. A low pummeling thunder grew louder from the passageway, and the door to their compartment was thrown open. A woman appeared in the doorway, and gasped.

Kate, his mouth formed the name of his daughter, but no sound emerged.

“Father!” Kate cried.

The gentlemen in the compartment, who had eventually perceived the distress of their traveling companion and insisted a telegraph be sent in advance of Chase’s arrival, now each placed one arm under his knees, and the other across his back, and together heaved his stricken body upward to remove him from the train, with more speed than grace. They carried Chase from the train to a rolling chair on the platform, where a physician examined him. Chase’s pallid face lolled to the side, and drool spilled from the corner of his mouth. Kate gasped.

“Now, now,” the doctor intoned. “You must not despair.”

Kate recovered her self-possession.

“Father forbade me from despair.”

Upon waking in the hospital, Chase remembered little more than the prickling feeling that came over him while on the train. He could not move his right side. Nor could he speak. He could not bear more than a few dreadful days in that infirmary and convinced his physicians that he could recuperate at Kate’s mansion in Narragansett. And he had every intention of doing so, for Chase’s ship of state relied less on the capricious winds of serendipity than the laborious strokes of heavy oars. He dutifully arose every morning to take his daily constitutionals, which he eventually extended to a stroll of two miles, a pleasant and cheerful excursion. By the end of September, he felt strong and well enough to ignore his diet and enjoy a feast of steak, green corn, and apple pie. But another seizure followed.  Again afflicted, he fought back harder and speedier, and within a week felt well enough to enjoy peaches and grapes sent down from Providence.  But yet another attack of paralysis followed in October.

These lesser blows merely hardened his resolve. He was the only one left now from the rivals of ‘sixty — the others were all retired, dead, or murdered. He would return as Chief Justice, and the amazement that his recovery would doubtless inspire in the hearts of the people might, if that fire were carefully kindled and nurtured, result in his triumphant nomination for the presidency.

The marshal banged his gavel at precisely noon on the first of November.

“Oyez! Oyez! Oyez!” he cried. “All persons having business before the Honorable, the Judges of the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now in session. God save the United States, and this Honorable Court!”

Eight of the nine members of the Court strode into the Old Senate Chamber, all white men in long flowing black silk gowns, and took their seats behind the bench. The center chair — Chase’s chair — remained empty.  The chamber was a solemn if not altogether fitting home for the Court, embodying the form and function of a chamber for a legislative body and not a judicial one.  The room was a semicircle with a half dome for the ceiling. Against the front wall, where the Vice President once presided over the Senate, was a long bench upon a raised platform, behind which the Justices sat in high-backed chairs. Pillars of gray and black stone supported a small gallery above the Justices’ seats, and in the center a stern and stone bald eagle lifted its wings above the barren seat of the Chief Justice. Behind the pillars was a heavy black curtain.  Lining the back wall in a half circle glowered the busts of Chase’s predecessors as Chief Justice — Jay, Rutledge, Ellsworth, Marshall, and Taney.  The members of the bar crowded upon tables before the massive bench, and a long rail separated the well of the courtroom from the public sofas, now full with Senators, Congressmen, various eminences, and ladies in bustling gowns.

The lawyers at the long tables before the bench anxiously adjusted their frock coats, and counsel for the petitioner rose to speak. Each side would have only two hours to argue, as the Justices no longer spent entire days spellbound by oratory as in the time of Webster.

 “Good afternoon, Your Honors, and may it please the Court,” the lawyer began, but no sooner had he tremulously uttered these words than two Justices, one upon the left side of the bench and one upon the right, nodded at one another, rose from their places, and disappeared behind the curtain.

“Roast chicken!” Justice Samuel Miller of Iowa exclaimed, arriving at the table laden with four such fowl that was hidden behind the curtain. He was of generous but not overwhelming girth, clean shaven and alert, with piercing eyes. He removed his robe and set it upon a hook in the wall.

“What are we missing, do you know?” asked Justice David Davis of Illinois, taking his place at the table across from Miller and setting in to his repast. Davis was an enormous fellow, with twinkling eyes and whiskers in the style of Lincoln. He delicately encroached upon a pile of boiled potatoes, so that the clink of silverware would not unduly interrupt the drone of argument sounding from the other side of the curtain.

“Some Mexican land-grant case,” Miller said. “Brother Field won’t allow us to get a word in edgewise.”

Davis tilted his head for a moment and listened, while Miller devoured his luncheon. Davis soon heard that colloquy unique to an argument of Fieldish interest. For Justice Stephen Field, having been a judge in California, would have already ascertained the essential details that escaped the attention, not to mention the interest, of the other Justices. Field had begun the argument, as usual, by leaning so far back in his chair that little but his nose and spectacles were visible, but, with a chamber full of appreciative listeners, his demeanor would soon change. The argument had already reached the point where Field could be heard berating counsel and hurling law books to the floor with a clap of thunder.

“Field seems to have matters well in hand,” Davis said, the clamor of Field’s furious queries and counsel’s meek replies forming the accompaniment to his meal.

“Have you heard from Chase?” Miller inquired, contemplating a boiled egg then tapping it softly. “He knows better than to write to me.”

“Pleasantries, only. Nothing about his intentions.”

“What do you think they may be?”

Davis considered a chicken leg.

“I do not think he is avoiding you but biding his time until he can return to Washington in full health.”

“But there is pressing business before this Court. The Chief Justiceship cannot remain vacant.”

“That is not his prime concern.”

“Then what is?”

Davis eyed his colleague closely. “Chase fought very hard against Lincoln and me in ‘sixty. He shall never relinquish his chance at the presidency.”

“The presidency?” Miller scoffed. “What party would want him now?”

“Any party would have been honored to have him.”

“He would be happy to have any party. He is a political vampire, if you ask me.” Miller scowled at his plate.

“Either way, he may be leaving the bench — as President or as one whose health no longer allows him to serve. We must consider what shall happen when he is gone.”

“We are in dire need of leadership on the Court,” Miller said, spreading his hands upon the tablecloth. He spoke in a low tone, for the argument beyond the curtain was still proceeding, but with deep intensity. “We have more cases than ever before, more questions of the application of the new amendments to the Negro, both before this Court and when we ride circuit. Not to mention the complaints of the illiterate Irish, the sullen Germans, the heathen Chinese — we cannot bear all these burdens without a Chief.”  

“You do not need to persuade me, Brother Miller,” Davis said. “I am already on your side.”

“What side? I do not presume myself a replacement for the Chief,” said Miller, but that was untrue. The moment that he learned of Chase’s illness the prospect of being elevated had attracted the full measure of his attention. To become Chief Justice would require a careful orchestration of heartfelt letters, strident editorials, delicate personal interventions by faithful friends of President Grant and his Cabinet, judicial craftsmanship that eschewed unpopular pronouncements yet fostered a reputation for brilliance, and, most important, a sincere denial of any interest whatsoever in the promotion.

“Of course not,” Davis said, good-naturedly. “But you have a better claim than anyone else on the Court. I have no interest,  Nelson is near senile, Clifford joined the majority in Dred Scott and is a Democrat besides. Strong and Bradley are too new. Field is a genius but a Democrat.”

As if he had overheard them, Field unleashed an interrogative volley from the other side of the curtain, eliciting a stammering reply from counsel.

“That leaves Swayne,” Miller said grimly. “Grant knows nothing of the law, but he knows to take care of Ohioans, however mediocre they may be.”

“The President could nominate as Chief Justice a man not already on the Court,” Davis pointed out, “as Lincoln did with Chase.”

“Are you familiar with Grant’s thinking upon that score?”

“To a degree.” Davis chewed for several moments. “Solicitor General Benjamin Bristow was wounded at Shiloh. That is the sort of qualification Grant understands.”

“Bristow has argued in this Court for only a few months.”

“He is not without experience. He was the United States Attorney in Kentucky and ran a law practice in Louisville with some fellow named Harlan.”

Miller grunted, then took a long draught of coffee, for it was nearly time to return to the bench.

“I am not suggesting that Bristow’s prospects are any better than yours,” Davis said.

Miller peered into the dregs of his cup, but he could read coffee grounds no better than he could tea leaves, which was to say, not at all.

“If only that mattered,” Miller said, at last.

“Brother Miller,” Davis said, “no one now holds it against you that you came so late to the law. You and I have both had a decade upon the Court, and your duties riding circuit are considerably greater than mine.”

Miller picked at his teeth with a bone. From a certain point of view, it was decidedly unfair that during the summer months, Davis traveled the courthouses of the Seventh Circuit of Illinois, Wisconsin, and Indiana, while Miller roamed the Great Plains, deciding Eighth Circuit cases from Des Moines to Denver to the Dakota Territories. But Miller had been careful never to breathe a word of complaint to anyone outside the Court.

“It does me no good to presume that I am the right choice,” Miller said, “because I cannot but assume that Grant shall make the wrong choice.”

Davis laughed aloud, much to the discomfiture of counsel who was still making his argument before the full bench.

“Well, we ought to provide our brethren with a chance at luncheon,” Miller said. He and Davis arose and returned to the bench, to find counsel sputtering some answer to Field. Field was lean, intense, bespectacled, bald upon the top of his head but with large tufts of hair above his ears, and a long wiry beard that stretched down to his chest and adorned him not unlike a prophet of the Old Testament. He scarcely acknowledged Miller, who resumed his place immediately to Field’s right, crowded by the law books that pages had ferried to the bench upon Field’s demands.

“Pardon me, Brother Field,” Miller whispered, sweeping the books from his side of the bench back to Field’s.

“Not at all, Brother Miller,” Field replied, ignoring counsel’s oration. “But I left those books there for you, on the hope that you might read them and learn something.”

Miller laughed into the sleeve of his robe. Meanwhile, two other Justices descended from the bench and, arriving at the table behind the curtain, called for a goblet of boiled eggs.

(ii.)

It was a sad fate for the bride to be an inconsequential attendee at her own wedding. The wedding of Jeannette Chase and William Hoyt achieved its apogee when the bride handed her bouquet to her bridesmaid, then removed her glove on her own, so as to permit her groom to place the ring upon her finger. Yet this remarkable show of independence was to be Nettie’s last hurrah, for her stepsister Kate was the cynosure of every gaze — tall, slender, well formed with a swanlike neck, hair of golden brown, large languid hazel eyes with her small nose ending in a flirtatious tip. Kate’s rich, green dress with a train of pink silk flattered her far more than whatever Nettie wore, as no one seemed able to remember when drawing the comparison afterwards. And Kate’s reception, arranged on her father’s behalf, would be the theme of Washington gossip for many months. President Grant ambled from the Chase house to the wedding pavilions on the lawn as the Marine Band played, and Chase’s many friends at the wedding assured each other over glasses of champagne that for a man who had suffered so recently, his degree of recovery was truly remarkable.  And the next presidential election was still one year away. Whether Chase could sustain the rigors of a presidential campaign was the question upon everyone’s mind; he struggled to sustain the rigors of the reception line, his reliance on Kate’s support evident.

“The French Legation, Father,” Kate whispered, as those eminences entered the wedding pavilion with outstretched hands.  She had given up on providing the names of the guests to her father, who could retain them no better than grasping water with his fingers.

“Thank you for coming,” Chase said to no one in particular. The Chief Justice appeared to have shrunk from his height of six feet and stooped as he stood. He had lost much of his weight and his hair had gone entirely white.

“I must wish to you the most superb congratulations of the day,” said the Frenchman, clasping Chase’s hand but staring at Kate all the while.

“Merci, Monsieur,” Kate said, with a faint smile.

“Ah, madame,” said the Frenchman, now forgetting Chase entirely, “if only I spoke your language well, what graceful compliments I might pay you!”

“Tell them in your language,” Kate replied.  “Je peux comprendre.”

The Frenchman, blushing at Kate’s assertion, bent down and kissed her hand, lingering longer than was prudent. At this, the English Envoy, not wishing to be upstaged, decided that he would not wait any longer to convey his deepest respects to the Chief Justice upon this joyous occasion.

“I am privileged to convey the best wishes of the Queen upon the marriage of your daughter,” he advised Chase, eyes fixed upon Kate.

“Who?” Chase asked.

“And it is an honor to meet you,” the Englishman continued.  Then, with a sidelong glance at the smitten Frenchman, he added, “I am not at all surprised that you speak the perfect language for every occasion.”

“I cannot conceive of an occasion where French would not be perfect,” Kate said, causing the knees of every man of the French Legation, now hanging upon her every word, to weaken.

“But Mrs. Sprague,” said the Englishman in a tone that struck Kate as unduly supercilious, “did not Frederick the Great say that ‘I speak Latin to my God, French to my chef, Italian to my mistress, and German to my horse’?”

“How barbaric!” Kate exclaimed, for she had always found the English Envoy too haughty.  “If I were given a horse that spoke only German, I would send it away immediately for one that spoke French.”

There was no small amount of tittering from the French Legation at this remark.

“Might we have the pleasure of meeting your husband, Senator Sprague?” the Englishman asked, reckoning that if Kate was seeking to put him in his place, he could return the indignity.

“That pleasure would be all mine.” Kate smiled. William Sprague would be lurking about the fringes of the reception if he knew what was best for him, with his dark eyes glossy with whiskey, his hair tousled just so. Besides the fact that it was Nettie’s day, Sprague’s enemies in Congress had bruited about fresh rumors that he had traded in cotton with the Confederacy, leaving him even less amenable to conversation than usual.

“I regret that we have not yet met,” the Englishman’s wife broke in. “I’ve heard Senator Sprague is quite handsome, but he must not be here. I haven’t seen a handsome man all day.”

“You have handsome men in England, I presume?”

“Why yes, of course — plenty of them.”

“Then why did the Queen not send one here?”

At this, the mirth of the French delegation could be contained no longer, and they commenced a series of bows and kissing of Kate’s hand that greatly inconvenienced those guests still in the reception line. The English Envoy withdrew with a tight smile, his wife casting a furtive wink in Kate’s direction. Chase, for his part, perceived that his daughter had won the point, but armed with what witticisms he could not be certain.

“I had no idea that he would return so soon,” remarked Miller. He was standing at the reception, champagne in hand, with his wife Eliza. Beside them stood Davis.

“The wedding is the announcement of his return,” said Davis. He gazed about the pavilion, gaily decorated with bunting and garlands of flowers, and beamed.

“A sad circumstance for his daughter. The happy occasion to-day is not her marriage,” said Miller.  “Rather, it is his reappearance in Washington.”

“You must concede that his astounding recovery is testimony to the greatness of the man,” Davis said, for the capaciousness of his spirit was equal to his three-hundred-pound bulk.

“But everything great about the man is warped, perverted, shriveled by the selfishness generated by ambition,” Miller said. “Every man he views through the lens of how he can be utilized for the pursuit of the presidency.”

“I suppose that is the reason Nettie is marrying during Lent,” Eliza scolded. “It’s scandalous!”

Miller shrugged.

“The date did ensure there would be no competition with any other social occasions.”

“That is hardly a reason to marry during the holy days of Lent.”

“You are too old-fashioned,” Davis said. “Queen Victoria’s daughter was just married — are we to deny ourselves the privileges that English royalty enjoys?”

Davis drank his champagne in one swallow.

“Did you observe whom Kate escorted to the wedding?” Eliza said. “Her own father!”

“She is a gracious and dutiful daughter.”

“Hardly!” Eliza smirked. “Her duties as a daughter have quite taken precedence over her duties as wife and mother.  Her husband and children traveled in a separate coach!”

“Kate Chase Sprague hardly looks like she has two children,” Davis said.

“Looks are not everything, Mr. Justice Davis,” Eliza intoned. This was an article of faith as far as Eliza was concerned and a principle much to her advantage.

“I must nevertheless commend you on your bonnet,” said Davis, ever the diplomat. Eliza blushed, but slightly.

“It cost me enough to secure it,” Miller said, eyeing the monstrosity atop Eliza’s head, which appeared to him a sort of cross between a locomotive smokestack and a custard pie, the crown to a confounding assembly of ribbons, gloves, and bustles.

“When the Sioux chief Red Cloud visited Washington,” said Davis, “he burst into uncontrollable fits of laughter at the sight of the fashions worn by our ladies.”

“That is not surprising,” Miller said. “I expect the ladies of ‘seventy-seven will burst into uncontrollable laughter at the sight of the fashions worn by our ladies of ‘seventy-one.”

Davis laughed. “Are you unhappy that our Brother Chase has recovered?”

“He has not recovered,” Miller said. “In my medical practice, I saw many men like him, whose determination overpowers their judgment, to the detriment of their health. It is simply that his daughters will never consent to his living a private life.”

“That is not a bad strategy,” reflected Davis. “By wishing your adversaries the best of health, you call attention to their decrepitude.”

“He is not my adversary, and I have no designs upon his position.”

“What nonsense!” Eliza said. “If you have no designs upon his position, then you are useless. This is more proof that you cannot cultivate society to promote your interests without me.”

“There is society in Keokuk, my dear.”

“It is a society of harvest festivals in dilapidated barns,” came Eliza’s rejoinder, prompting a deep rumbling laugh from Davis. “All of my best dresses are positively covered in straw!”

“I assure you, many of the dinners I must attend in Washington are as boring as anything in Iowa,” said Miller.

“Your husband is quite right on that score,” said Davis.

“It would be so good to be freed of the prison of Keokuk,” Eliza persisted.

“I cannot make bail, not with my salary,” Miller said. “You have Sprague to thank for that.”

The subject of compensation was, as ever, a discordant theme in the symphony of marital relations. The Senate Appropriations Committee had only just rejected by a single vote a bill to increase the salary of Justices to ten thousand dollars, and the Chief’s to ten thousand five hundred dollars. That vote was Sprague’s.

“That dreadful sot!” Eliza cried, but not before casting a precautionary glance about the lawn, for it is equally irresistible as it is impolite to malign a man, even a drunken one, upon the occasion of a family wedding. “Why does he torture his own father-in-law?”

“If Chase had the money, he would complete his estate at Edgewood,” Davis explained. “If he lacks the funds, then he and Kate must remain under Sprague’s roof.”

“It is past time that Chase enjoy retirement,” Eliza said.

“I do not think Chase possesses the capacity of enjoyment,” Davis said. “Chase visited me one day to discuss a point of law.  On my desk he spied a copy of English As She Is Spoke.  Do you know what it is?”

“Of course,” said Miller. “It is Mr. Twain’s publication of an English phrase book written by a Portuguese who has no command of the English language. It is very amusing.”

“Quite so. But Chase’s countenance darkened upon seeing it, so I asked what caused him to appear so pained. He told me that he had heard that one night during the war, when the fortunes of the army were at their lowest ebb and the very survival of the Union was in doubt, Lincoln and his secretary burst in upon Seward, who was relaxing in his library. Seward leapt to his feet in alarm, fearing that the news was so terrible that the President would call upon him personally.  The President reassured him, bade him sit down and light a cigar, and then informed Seward that he had just come across a most amusing book. The President then proceeded to regale Seward with his favorite lines.”

“I would assume that the book was English As She Is Spoke.  But I do not see why this strange incident could have caused such distress to Chase.”

“Because Lincoln would never have called upon Chase for amusement.”

The two men observed Chase emerge from under the tent, deep in conversation with Kate and gripping her arm for support.

Davis lowered his voice. “Life was so cruel to poor Chase! He buried three wives, and ought to have been the object of sincere sympathy, but he was the only human being that Lincoln actually hated.”

“He is a great man, all things considered,” Miller conceded. “Even a better man than one might expect, after forty years of service.”

“To our Brother Chase,” Davis raised another glass of champagne, “and years of bliss for his daughter!”

The French Legation was not alone in hanging upon every word from Kate’s pretty lips. Some distance away stood a very tall man with a broad chest, the arms of a boxer, a well-trimmed reddish beard, and a hyacinthine curl down his forehead, his emblem of youth and vigor. He wore a turndown collar with a bright red butterfly bow tie, a tinted blue waistcoat, and fawn-colored trousers.

He was Senator Roscoe Conkling of New York, and that night he could not keep his eyes from Kate. Washington society hardly existed until she arrived from Cincinnati with her father, having only just set down her dolls to manage his political fortunes. Her position was now more delicate, for Kate had married Sprague, a man who was wild and uncultured, in the hopes of taming him, only to find that a deeper savagery resided in his heart. Conkling was the very sort of man to offer sympathy to ladies in such predicaments.

 “Sir?” A servant approached Conkling with a glass of champagne.

Conkling, who had been staring at Kate’s neck to the point of immodesty, looked at the servant with indignation. He partook of neither alcohol nor tobacco, such substances being hostile to his health and clarity of mind.

“I would prefer a mineral water,” Conkling ordered. As the servant nodded, Conkling observed Sprague lurking alone in a corner, a slight sway in his stance a harbinger of inebriation.

“But,” said Conkling, “please send this glass of champagne to Senator Sprague, with my compliments.”

 (iii.)

The Justices gathered in their Saturday conference room, across the hallway from the Old Senate Chamber, in a room that had once served as an office for the Vice President. The main window, draped in dark red with yellow lining, looked out upon the entire city from the east. Above the Italian marble of the fireplace was set a giant clock constructed in Boston, and Chase regarded the movement of the hands with dread.

“We now have the matter of Knox versus Lee,” Chase began wearily. It was a few weeks after Nettie’s wedding. With Chase’s reappearance in society, his reappearance upon the bench could no longer be reasonably postponed.

“As I understand the matter,” Miller jibed, “it is a dispute over sheep.”

Chase was not amused. He had a terrible headache, and the case was not about sheep at all, but a subterfuge by Miller to reverse an earlier defeat, an ominous maneuver by a pretender to his throne. Chase warily eyed his eight colleagues — Nelson, Clifford, Swayne, Miller, Davis, Field, Strong, and Bradley — and advanced upon the subject.

 “A Mrs. Phebe Lee of Pennsylvania owned some sheep, regrettably left in the care of a shepherd in Texas,” Chase said. “The late rebellion separated her from her flock, the Army of the Confederacy seized the sheep, and a Mr. William Knox purchased the sheep.  After the suppression of the rebellion, Mrs. Lee brought suit for damages against Mr. Knox. She prevailed at trial. The question then arose, how could the damages be paid?”

“Mr. Knox was entitled to pay the damages owed in gold or silver, not greenbacks,” Field broke in, briskly. “The trial judge wrongly instructed the jury that, if the jury awarded damages in paper money, it should add an additional premium to equal the same amount in gold or silver. It appears the jury did so. In my view, this requires a reversal of the verdict. Greenbacks are not currency. They are not supported by gold or silver. They are utterly unreliable.”

Field theatrically produced a one-dollar bill from his trouser pocket and read from the greenback: “ ‘This note is a legal tender for all debts, public and private.’ That is merely government say-so, a meaningless promise!”

“So, tear it up, then,” Miller said.

“Or I could take it,” Davis offered.

“I had no idea your circumstances were so dire, Brother Davis,” Field replied. “And I would even be pleased to give it to you, Brother Miller, for a dollar in gold.”

“I hereby so promise,” Miller said. Field handed him the dollar, with a profane admonition rarely heard in judicial councils. Field had retained the crude vocabulary of the frontier, and the two newer Justices were still being acclimated to his intemperate utterances. With the reabsorption of the former Confederate states back into the Union, President Grant had appointed Justice William Strong of Pennsylvania, broad-jawed and white-haired, and Justice Joseph Bradley of New Jersey, who looked not unlike a beardless gnome with bright eyes. Strong silently implored the good Lord to spare him such language, while Bradley tsk-tsked his colleague quietly.

“We have already decided this issue!” Chase said, already exhausted. “In the Kentucky case last Term, we ruled that the laws allowing paper money as legal tender violated the Constitution.”

“There are two significant arguments against applying that case here,” Miller began, “as you are well aware.”

Chase glared at Miller, for this was but another round of a never-ending argument. During the war, when he was Secretary of the Treasury, he had warned Lincoln that while it may be necessary to issue paper money to keep an army in the field, he could not recommend issuing any notes or bills that were not backed by gold or silver.  Lincoln, as usual, would respond with some cracker-barrel anecdote. What is money? Lincoln had asked. Why, I had a client who tried to pay me by giving me a mule, saying it was as good as gold or silver — a man could make good use of a mule. But I said, what if it’s a stubborn mule? Lincoln had joked, as if that were any answer to Chase’s objection.

“To begin with,” Miller went on, interrupting Chase’s recollections, “our prior cases have addressed only whether paper money could be accepted for debts incurred prior to the passage of the Legal Tender Acts, signed by Lincoln at your suggestion, that allowed debts to be paid in paper money. The debt in this case arose after those laws were enacted. Moreover, that Kentucky case was not decided by a full Court. This Court was evenly divided four against four, until our former Brother Grier changed his vote.”

“A preposterous allegation,” Chase spat.

Miller observed his brethren closely and ascertained that none of them believed Chase. Following the arguments in the Kentucky case, Grier had originally voted to uphold the Legal Tender Acts, siding with Miller. But Chase had later persuaded the befuddled Grier that the old fool had voted precisely the opposite way, and Grier eventually agreed, giving Chase the majority.  Appalled and dismayed, Field, Miller, and Davis discharged their duty — they visited Grier at his home, delicately explained that he had lost his bearings, continually fell into slumber at argument, and could not be expected to continue. The trust of his brothers squandered, Grier had resigned.

Chase frowned, for even his diminished faculties perceived the disapproval of his colleagues. “There have been many decisions not decided by a full Court in our history,” he said, “but we do not re-examine every one of them.”

“A wise decision ought to withstand the scrutiny of a full Court,” Miller said. “Brother Strong, how would you vote?”

“My views are already well known,” said Strong. “I voted to sustain the constitutionality of the Legal Tender Acts while I sat upon the Pennsylvania Supreme Court and would do so again here.”

“Brother Bradley?” Miller asked.

“I too would vote to sustain the Acts,” Bradley confirmed.

“I suppose that neither Brother Davis nor Swayne have changed their positions from before?”

“I remain convinced of the constitutionality of the Acts,” said Davis, agreeing with Miller. “That makes five votes, and a majority.”

“I would start of course with that wise dictum of our great Chief Justice John Marshall,” said Swayne, needlessly. Miller bit his tongue with impatience, for it was not unlike Swayne to confuse the obvious with the profound. “ ‘Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution, are constitutional.’ ”

“That dictum cuts entirely in the opposite direction,” complained Chase. “The creation of paper money as legal tender for all debts is not appropriate, nor consistent with the letter and spirit of the Constitution.  As the man who sits in the very seat in which Marshall once sat, I do not believe that he would agree.”

“As the very man whose face graces these paper notes, you had a different opinion,” Miller said, brandishing the dollar Field had given him. Chase, overruled by the rest of Lincoln’s cabinet, had decided to make a silk purse out of a sow’s ear by printing his own portrait on the currency. Chase scowled at the likeness of his younger self.

“If you are ignorant of the circumstances in which greenbacks were originally issued,” Chase said, “then there is nothing I can say.” He leveled a trembling finger at Miller, then abruptly dropped his arm into his lap. “I side with the great Chief Justice Marshall.”

“I also side with the great Chief Justice Marshall,” Strong said. “Respectfully, Brother Chase, and after praying upon the matter at length, I believe his wisdom leads us to a different result.”

“Like many statements of profound brilliance, it is of limited use to us in actually deciding the matter,” mused Field.

“The highest courts of the fifteen states to have considered this issue all rejected challenges to the Legal Tender Acts,” Miller persisted.

“But their reasoning is incorrect,” Chase replied. “And many courts refused to hold the Acts invalid because they believed that solemn responsibility was the duty of this Court, not theirs.  The Supreme Court of Indiana, I believe, held that the Legal Tender Acts were unconstitutional, but that striking down the Acts was the task more properly before us.”

“That court also held that Abraham the patriarch used gold and silver.” Miller shuffled through his papers. “Here — Genesis chapter 23 verse 16. A most eminent authority.”

“Perhaps we should consider whether the betrayal of Christ for thirty pieces of silver is a condemnation of bimetallism,” said Davis.

“I do not endorse such a method of constitutional interpretation,” Chase responded hotly.

“The Biblical lesson here is quite different,” snarled Field.  “ ‘If ye love me, keep my commandments.’ Our commandment here is the Constitution, and we are bound to keep true to it.”

“If I might remind my Brothers,” Strong said, “that the word of the Lord is sacrosanct and ought not be bruited about like some citation to Blackstone.”

“But our Constitution speaks of ‘coining’ money,” Chase continued. “The words themselves have only one interpretation — the stamping of metal.”

“Not quite,” Bradley interjected. “ ‘This is the very coinage of your brain.’”

“Hamlet speaks!” Davis exclaimed, but Miller rolled his eyes, for while Davis was endlessly entertained by Bradley’s intellectual digressions, Miller found them tedious and indulgent.

“And not merely Hamlet,” said Bradley. “Also, Henry IV — ‘Poor? Look upon his face. What call you rich? Let them coin his nose, let them coin his cheeks.’  Shakespeare uses the word many times, and not in a manner suggesting the stamping of metal.  We may speak of ‘coining a phrase,’ which has no metallic import.”

“Our north star is the Constitution, not Shakespeare,” grumbled Chase.

“Brother Chase, you directed David Dudley Field to defend the constitutionality of these very acts before the courts in New York!” Miller exclaimed.

“My brother David’s clients are no concern of this Court,” Field interjected.

“Certainly, my plan was to use paper for a limited time,” said Chase, “but I never lost sight of the necessity to return to metal currency.”

“But there are severe consequences if we were to say, now, that greenbacks could not be accepted as payment of debts,” said Bradley. “There are many men, and many corporations, who hold greenbacks and expect to use them to pay their debts.  If you abruptly restrict the supply of money in this manner, these men and these corporations will have no option but to default.”

“Your former clients, for example,” Field said.

“The railroads carry a substantial amount of debt,” Bradley allowed. “But my former clients had every right to desire the flexibility to settle their debts in whatever form of exchange was most efficacious.”

“No one told them to incur debt,” Field objected.

“The problem is not limited to the railroads,” said Miller. “There are those with ready access to gold, in the financial centers, and there are the common men, who are debtors holding greenbacks. To strike down these laws would put these men in peril.”

Miller had not disclosed to his colleagues that he was one of those men. His latest effort to sell some of his land outside Keokuk had come to nothing; no one was buying. He would soon have to grant Eliza’s wish to live in Washington, if for no other reason than his holdings in Keokuk would have to be liquidated.

“It is not my responsibility to save Iowa farmers or railroad interests from the consequences of their own business failures,” said Field.

“Is it worse for the creditor to lose a little by depreciation than everything by the bankruptcy of his debtor?” Bradley asked.

“The wise man invests in gold,” said Chase. “It has long been held to have intrinsic value.”

“It is a mere commodity,” Bradley said. “Like the wampum of the Indian tribes, or the tulips of the Dutch, or the greenbacks that you issued.”

“Gold is eternal,” Chase intoned.

“Brother Chase,” Miller said, “on Black Friday, the price of gold stood at one hundred and forty-three dollars an ounce in the morning, then one hundred and sixty dollars immediately before noon, then one hundred and forty dollars only a quarter of an hour later.”

“That was due to governmental manipulation!” Chase cried.

“If gold had the inherent value you claim, it would be immune from manipulation,” Bradley pointed out.

 “However gold may derive its value,” Field said, “it has served as our standard, and men have relied upon it. For us to sustain the Legal Tender Acts is to ask the creditor class to pay for the mistakes of the debtor class.”

“Easy for a Californian to say!” Davis interjected. “You are sitting upon a great heap of gold. What would you think if I proposed grain as legal tender for the payment of debts?”

“The fluctuation in the value of gold is quite minor compared with that of greenbacks,” interrupted Chase. “In ’sixty-two, it took one hundred and thirty-four greenbacks to buy one hundred gold dollars; then in ’sixty-three, with the fortunes of our army worsening, it rose to one hundred and seventy-two; then in ’sixty-four, it rose to two hundred and eighty-five!”

“In any event,” Miller said, eager to close the discussion, “it would appear that there are sufficient votes to sustain the Legal Tender Acts for debts incurred, or damages awarded, after their enactment.”

“This Court has embarked upon a most dangerous course,” declared Justice Nathan Clifford loudly, for he was a veritable pachyderm whose every cantankerous pronouncement was a grand one. “I remain as fixed in my opinion as I have ever been. I voted against the Bank of the United States when I sat in the Maine legislature, and I personally advised President Jackson that the Bank be shut down.”

“Was that you who convinced him, then?” asked Davis. “I had long wondered about that.”

“What I intend to prove,” harrumphed Clifford, “is that the greenback is no different from the Bank, and Congress is equally lacking in authority. We shall never know whether our currency might be debased further.”

“Brother Nelson?” Miller asked.

Justice Nelson roused himself from what appeared to be a lengthy drowse into his enormous white side-whiskers.

“Good heavens, are three dissents not enough? What will there be left for me to say?”

“Very well,” said Miller. “The litigants should be advised that the judgments are affirmed and the Acts found constitutional. I am perfectly willing, Brother Chase, to provide you with the time you desire to write your opinion.”

Chase stared down at his hands.

The dissenting opinions of Chase, Clifford, and Field did not soon arrive. It could not have been reasonably anticipated that the opinions would be finished before the end of the Court’s Term in May, but Miller fully expected that the opinions would be completed by October, when the Justices returned from riding circuit. Yet they were not.

Field, to no one’s surprise, was finished first, and confided as much to Miller upon leaving the conference room one Saturday morning in November.

“Shall we walk together?” Miller inquired.

“If you mean to suggest that the pleasure of your company might abate my disappointment at the error of your ways,” said Field, “your claim shall be denied.”

The two men left the bustling Capitol and were soon navigating the streets of Washington with some difficulty, as endless paving, draining, and leveling had transformed nearly every avenue into a muddy construction site since the end of the war. In the distance, the half-completed obelisk in honor of Washington loomed, in Twain’s whimsical quip, like a chimney with its top broken off.

“What did you think of Brother Strong’s majority opinion?” Miller ventured, as he hastened to keep up with Field.

“Wrong in every respect,” said Field. “Brother Strong would do well to spend less time at church and more at his books. I was certainly not convinced, and I cannot imagine Chase or Clifford will change their votes either — Chase will never agree with Lincoln, even though the man is long dead, and there has never been any point trying to persuade Clifford of anything.”

“I thought it adequate to the purpose,” Miller offered.

Field snorted. “Mere adequacy shall always attract Swayne’s vote, but I expected more of you.”

“I don’t feel any need to write my own opinion in the matter. The result by itself is satisfactory.”

“No matter the insult you inflict along the way?”

“Field.” Miller paused and set his hand upon Field’s arm. Field emitted a gasp of exasperation and turned to Miller with his arms across his chest. Miller took some moments to collect himself, for he was quite out of breath.

“I have been meaning to say,” Miller confided, “that I ought not have introduced your brother’s name into our discussion of the Legal Tender Acts.”

Field peered at Miller through his spectacles, then nodded slightly.

“Very well,” he said. “All is forgiven.” He then returned to what, in Miller’s estimation, was an uncommonly speedy stride. Miller scrambled after him.

“How is your brother, then?”

“My brother David is maligned, abused, and slandered,” Field replied, “just as lesser men malign, abuse, and slander me.”

“Please convey my regrets to him. I did not mean to insult him.”

“He is richer than Croesus. He has no need for your apologies.”

“I don’t suppose there is anything I can do?”

“You could cancel your subscriptions to the newspapers.”

“Not while my son-in-law runs the Chronicle. It might go under without my subscription.”

“No one cares about the Chronicle,” spat Field. “But the New-York Times has my brother in its jaws, with an aim to blemish his reputation so thoroughly that he shall not be retained to prosecute the Tweed Ring.”

“Is there not already a civil suit?”

Field laughed. “The plaintiff is an Irishman, which is absurd — the ignorant Irish voting element gives Boss Tweed his power. I expect that Tweed will be indicted before the end of the year.  But now the Committee will not hire David Dudley Field, the greatest lawyer in New York City, likely the greatest lawyer in the country.”

“Well . . .”

“Everyone resents his success, and the Times plays upon such antipathies. So, Tweed shall be indicted, whether for embezzlement, theft, abuse or neglect of office, and there shall be only one lawyer left to represent him. And David will undoubtedly accept.”

“He could always decline,” said Miller.

“Out of fear?” Field snapped. “A lawyer has a duty to defend his client.”

(iv.)

James G. Blaine, the Representative from Maine, was not one to leave matters to chance, particularly not where his self-interest was concerned. There had not been the slightest question in his mind that General Grant, the hero of the late war, ought be nominated to serve another term. Accordingly, Blaine graciously offered to wage an extended political campaign in his home state in support of Grant, drawing supporters from near and far, for Maine’s early congressional elections in September might be a sort of bellwether for Grant’s prospects. Not incidentally, a sustained effort on Grant’s behalf would aid Blaine’s re-election.

Blaine welcomed the campaigners to his home in Portland for a fine dinner in honor of General Grant, the Party, and the Union. Blaine was a genial host and a bear of a man, with grey-flecked hair and beard. The following night would be a torchlit parade and endless speechifying; tonight, the tired travelers from across the country could break bread, share wine, and become indebted to Blaine for his hospitality.

“Pardon me, sir,” Blaine began, placing his hand upon the shoulder of a tall, black man with a prodigious head of graying hair. “I have placed you at table beside a gentleman from Kentucky. The Republican Party in that state is in dire need of encouragement.”

“I shall toil wherever I am needed,” the black man replied.

“Here he is.” Blaine raised his hand. “General Harlan!”

Blaine caught the attention of a tall, strapping, young white man, with broad shoulders, a ruddy complexion, and a balding cranium, with the bare remnants of reddish hair in tufts above his ears. He crossed Blaine’s parlor toward the seat Blaine held for him at the table.

“Good evening, Congressman!”

“General Harlan,” said Blaine, “permit me to introduce you to Frederick Douglass. Mr. Douglass, this is General John Marshall Harlan, of Kentucky.”

The black man offered Harlan his hand.

“Mr. Douglass needs no introduction,” said Harlan.

The two men shook hands. Douglass, who prided himself on instantly taking the measure of a man, was surprised that Harlan’s grip was not that of a burly Kentucky frontiersman but seemed rather the hold of a city man of New York or Boston — deliberate but lacking in strength or firmness. Douglass cast his glance at Harlan’s hand and saw instantly that both hands had been badly burned, mottled and withered.

“You saw battle, then?” Douglass asked.

“Yes,” said Harlan, after a slight pause.

“We owe you a deep debt,” Douglass said. “As Lincoln said, ‘I hope to have God on my side — ’”

“ ‘— but I must have Kentucky!’” Harlan and Douglass finished the sentence together and toasted one another with Blaine’s wine.

“General Harlan was the law partner of Solicitor General Bristow,” Blaine explained to Douglass. “And a great friend of his, besides.”

Here Blaine took his leave to attend to his duties as host, and the two men took their places at Blaine’s table.

“Benjamin Bristow is a fine fellow,” Douglass averred. “You and Bristow must be the only Republicans in the state.”

“No other party would have me,” Harlan grumbled.

“We are deeply impressed by Mr. Bristow’s prosecutions under the Klan Acts,” said Douglass. “No United States Attorney in the country enforced the law as ably as he did.”

“He is a very good fellow!” said Harlan, who expected that he would be supplying similar testimonials over the next few days. “It is my most solemn hope that a second Grant Administration will see a newly strengthened enforcement effort to drive out the Ku Klux Klan.”

“I would not hesitate,” Douglass said, “to support the name of your friend Bristow for the position of Attorney General.”

“Glad to hear it.”

“We need a man of aggression in that position.  I fear that Williams is not such a man.”

Harlan remained silent, for Bristow had said little to suggest that he held any great respect for Attorney General Williams.

“I hope that Grant will not abandon us.”

“Abandon you?” Harlan exclaimed. “You need not fear abandonment.”

“Shouldn’t I?” Douglass shook his head, and the well-worn gears of a practiced oration began to move. “The Negro has been abandoned at every juncture. Abandoned at the declaration of independence, abandoned at the crafting of the Constitution, abandoned until Lincoln. Slavery abandoned me. Do you know how, General Harlan?”

“I do not,” Harlan said, perhaps a trifle untruthfully, but with some relief that the conversation had moved beyond the subject of Bristow’s glorious merits.

“I was born in Maryland, in the state of slavery,” Douglass said. “I suppose you owned slaves, in Kentucky?”

“A long time ago,” Harlan winced.

“When I was a lad of six years old,” said Douglass, “the only relative I knew — my grandmother — took me on a journey to meet my kin. We arrived at a dusty cabin, and my grandmother told me to play in the backyard with a little boy and a little girl. I was surprised to be told that they were my brother and sister. I was nervous at first but soon began some innocent game while my grandmother refreshed herself with a glass of water. I quite lost track of time, until two other children came running into the backyard, crying, ‘Fed! Grandmammy’s gone!’ I ran out and down the dirt road, but she was gone! Grandmammy had decided that my master was too cruel, and that I would be better off with a kinder master, with my brother and sister.” Here Douglass paused. “I never saw her again.”

The several conversations at table had now ceased, so that Douglass could be heard clearly.

“Why was I abandoned in such a manner? Did my grandmother leave me to death? No! She had put me on the road to freedom. For that dirt road was my River Nile, and that dusty cabin my basket among the bulrushes, and from that day forward it was but a matter of time before I escaped north and led my people to the Promised Land of Emancipation. And on that road, guiding us in the journey, is General Grant.”

“Mr. Douglass!” exclaimed a man from the other side of the table. The entire room was now listening intently. “What say you to Senator Sumner’s attacks upon Grant?”

“I place no man before Senator Charles Sumner in his advocacy of abolition.” Douglass sighed. “But to his fierce and bitter denunciations of General Grant, I set forth Grant’s military and political course toward the colored people of the United States during the last ten years. Judged by this standard, Grant stands triumphantly vindicated as a wise, firm, and consistent friend of the just rights of man, without regard to race, color, or previous condition of servitude, and in every way worthy of the support of colored citizens and of the whole nation!”

At the head of the table Blaine leapt to his feet, applauding and whistling, while the other men cheered and drummed the table in joyous approval.

“If you say the same tomorrow, Master Douglass, victory is assured!” cried Blaine.

Harlan, taken off his guard, was the last to rise, but he soon stumbled to his feet and clapped as Douglass triumphantly bowed to the assembled guests.

“Good Lord,” Harlan muttered, “this man has no superior as a public speaker.”

(v.)

Inevitably, President Grant acceded to Conkling’s advice and installed Ward Hunt, a judicial friend of his from Utica, upon the bench to replace Nelson. Hunt was a refined man, with an abiding interest in culture, and to the Justices whose lives had exposed them to the rougher edges of civilization, particularly Field, Hunt seemed a very lady-like person, a sort of delicate bird. The bench was now reconfigured with Nelson’s departure: Clifford hulked upon Chase’s right-hand side, Swayne overflowed the seat upon his left, and Miller, Davis, and Field moved closer to the center chair where Chase slumped, resentful that in life, Lincoln had stolen his greatest ambition, and in death, his loyalists were slowly encroaching upon him.

At counsel table rose another spectre of the past. He was John Campbell, who had resigned his position as Justice to serve as an assistant secretary of war for the Confederate States of America.

“The right of free labor, of how and where to work,” Campbell began, “is an incontestable right, which no one can take away.”

Miller gasped and Davis frowned, for this was an odd sentiment to be shared by a man who pledged his life to the cause of slavery. Miller and Davis had never forgiven Campbell, who had only recently been amnestied for his support of the Confederacy.

“That great and noble principle,” Campbell continued, “is here threatened by the Act of the Louisiana legislature that created the Crescent City Live-Stock Landing and Slaughter-House Company. That Act held that Crescent City Slaughter-House, and only Crescent City, may slaughter any cattle or any other animals, making it the exclusive abattoir for the City of New Orleans. That Act is utterly repugnant to the Thirteenth Amendment of our Constitution, which prohibits involuntary servitude, and the Fourteenth Amendment, which protects the privileges and immunities of citizens, which includes the right to conduct one’s trade.”

The subject matter of the case was familiar to the Justices, for there were few slaughter-houses as infamous as those of New Orleans. That miasmatic city had a tradition of stagnant drainage, malodorous sewage, unpaved streets, and endless filth. Of no aid to this befoulment was the unregulated practice of butchery, common amongst the crude French inhabitants of New Orleans, which resulted in the ubiquitous display of barrels filled with decomposing animal flesh, poisoning the air with oppressive odors and poisoning the public when the entrails were dumped into the Mississippi river.

“It is true,” Miller said, “that the Act grants exclusive privileges for a period of twenty-five years. But it is not true that it deprives the butchers, your clients, of the right to exercise their trade. Crescent City is required to permit any butcher to slaughter in the Company’s houses.”

“But all of the butchers have been prohibited from working,” Campbell argued, “except upon the property and for the profit of Crescent City.”

“No,” pounced Davis, “a butcher is still permitted to slaughter, prepare, and sell his own meats but at a specified place and a reasonable compensation.”

“That permission is worth nothing,” replied Campbell. “What does this provision do? In the words of Sir Edward Coke, and I quote: ‘The monopolist that taketh away a man’s trade, taketh away his life.’”

“Well,” Miller said, opening up the volume he had brought with him to the bench, “Chancellor Kent has observed that, ‘Unwholesome trades, slaughter-houses, and the burial of the dead, may all be interdicted by law, on the general and rational principle, that every person ought not to use his property to injure his neighbors. This is called the police power.’”

“When it is exercised by the State,” Campbell replied. “This is not a State monopoly; it is a private monopoly. Sir John Culpeper, in a speech to the Long Parliament, thus spoke of these monopolies: ‘They are a nest of wasps, a swarm of vermin which have overcrept the land. Like the frogs of Egypt, they have gotten possession of our dwellings, and we have scarce a room free from them.’”

“Sir,” Miller bent forward on the bench, “all of your references are to monopolies established by the kings of England, not by a legislature elected by the people.”

“Were the people truly represented in the legislature here?” Campbell raised an accusatory finger. “In the State of Louisiana, the flower of the virile population perished in the war.  There has been a subversion of all relations in society and a change in social order.”

“Because there are now black men in the state legislature?” Davis said. “So, we must now regard state laws with suspicion?”

“I am merely suggesting, Justice Davis, that we must counsel caution when change happens so fast,” Campbell replied.

Davis glanced at Miller, who narrowed his eyes. Neither of them believed Campbell’s protestation. This Louisiana legislature was the first to include the black man — one-third of its House and one-fifth of its Senate were black. A leading newspaper of New Orleans had suggested that laws enacted by such a legislature would be of no more binding force than if passed by a Haytian Congress of human apes. This was the sort of the reasoning that men like Campbell, being of the worst branch of New Orleans society, would expound over brandy and cigars.

“This Court is being called upon for the first time to interpret the Thirteenth and Fourteenth Amendments,” Davis said sharply. “The Thirteenth Amendment abolishes slavery. I see no connection between slavery and a requirement that butchers in New Orleans confine their slaughtering to a particular location.”

“The Thirteenth Amendment prohibits ‘slavery and involuntary servitude,’” said Campbell. “That is much more than the abolition or prohibition of African slavery.”

“No one would disagree with that,” said Miller, “except perhaps the most unrepentant Confederate.” Campbell did not flinch at this remark. “If Mexican peonage or the Chinese coolie labor system leads to slavery, the Thirteenth Amendment would prohibit it.”

“But the amendment was framed to abolish slavery and involuntary servitude in all forms,” said Campbell. “If a legislature were to pass a law that emancipated slaves should appear before their former masters, sing some of their native songs, or dance their country dances, it would at once be regarded as a restoration of their ancient servitude.”

“How is this law a badge of servitude?” Miller interrupted. “Are you truly suggesting that regulating when and where a butcher may slaughter is the same thing as the buying and selling of human beings?”

“Is it necessary for us to rely on the Thirteenth Amendment?” Field piped up. “May we strike down the Act based entirely on the Fourteenth Amendment?”

“We believe very firmly in our position on the Thirteenth Amendment, Justice Field,” said Campbell. Being an experienced advocate, Campbell needed but one glance at the Justices to discern that none of them believed him. “But it is also true that we may prevail by relying solely upon the Fourteenth Amendment.”

 “Then perhaps you should move on,” Davis said.

“Yes, Mr. Justice Davis,” said Campbell.  “The Act flies even more plainly in the face of the Fourteenth Amendment.  The first clauses of that amendment provide as follows:

The Fourteenth Amendment defines citizenship for the first time in our Constitution. Under the Fourteenth Amendment, we are not citizens of our states, but citizens of our nation.”

“But that is exactly the point,” said Miller. “No one can fail to be impressed with the one pervading purpose found in these amendments — the freedom of the slave race, and the security and firm establishment of that freedom. That seems very different from your clients, the butchers.”

 “The purpose is manifest,” Campbell said. “To establish through the whole jurisdiction of the United States one people whose privileges and immunities cannot be restricted by State authority.”

“That seems far too broad,” said Miller. “What are these ‘privileges and immunities’ the Fourteenth Amendment speaks of?”

“They are undoubtedly the personal and civil rights which tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of the institutions of the country.”

“But that seems far too vague,” said Miller. “Let us focus on the words of the Fourteenth Amendment: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States’” — here Miller paused — “ ‘and of the State wherein they reside.’ There is a clear distinction between citizenship of the United States, on the one hand, and citizenship of a State, on the other. Have I read the words correctly?”

“Yes, but —”

“The next clause,” said Miller, “says, ‘No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,’ but says nothing about any law abridging the privileges and immunities of citizens of the State wherein they reside. The change in phrasing must have been adopted with a purpose. The Amendment only protects individual rights arising under federal law; it does not protect individual rights arising under state law.”

“There is no difference,” argued Campbell, “between the privileges and immunities that a man has as a citizen of the United States and the privileges and immunities that a man has as a citizen of a State.”

“Why, then the distinction in the language is without any meaning,” said Miller. “That cannot be correct.”

“This difference in wording,” interjected Strong, “suggests that the Fourteenth Amendment protects the rights of citizens of the United States but leaves protection of the rights of citizens of a State — like the rights your clients claim — to the states themselves.”

“Yet the State of Louisiana has failed to protect those fundamental rights,” Campbell objected.

“But you are asking us to rule,” said Strong, “that the Fourteenth Amendment, intended to protect the rights of freed slaves, now protects the rights of butchers to slaughter animals wherever they like.”

“Your Honors,” said Campbell. “If the Fourteenth Amendment does not protect the fundamental rights of citizens — ”

“Then it was a vain and idle enactment!” thundered Field. “I agree with you, counsel. The purpose of the Fourteenth Amendment was to make clear that a citizen of a State is now also a citizen of the United States, correct?”

“Yes, Justice Field,” said Campbell.

“So, all of the fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, whatever State he may live in, correct?”

“That is quite right, Justice Field.”

“And so, the Fourteenth Amendment protects these rights against interference by the State just as it protects these rights against interference by the federal Government, yes?”

“Yes, Justice Field.”

“That cannot be right,” interjected Miller. “The phrase ‘privileges and immunities of citizens of the United States’ must have some meaning of its own, correct? A meaning that is different from ‘privileges and immunities of citizens of the States,’ correct?”

“Not necessarily — ”

“It is not too difficult to ascertain what privileges and immunities arise under federal law, is it?” Miller went on. “These are the rights men have in relation to the federal government — the right to come to the center of government, to transact business with it, to have free access to its seaports to conduct foreign commerce, to use its navigable waters, the writ of habeas corpus, to seek relief in its courts. But the citizen of the State must turn to his State government to protect his fundamental rights.”

“For that the war was fought?” mumbled Chase. “The right of access to seaports?” No one paid him any mind.

 “There is still the matter of the final clause of the Amendment,” argued Campbell. “ ‘Nor shall any State deny to any person within its jurisdiction the equal protection of the law.’  That is plainly violated here — ”

“It is not difficult to interpret this clause,” said Miller, “in light of the history of these amendments. Newly emancipated Negroes faced gross injustice and hardship. That has nothing to do with the situation in which the butchers of New Orleans find themselves.”

In the silence that followed, Chase’s muttered words could be faintly heard. “We shall hear next from your colleague Senator Carpenter, on behalf of the Crescent City Slaughter-House Company and the State of Louisiana,” he said.

Senator Matthew Carpenter was not a handsome man; indeed, his short neck and high shoulders, coupled with his mop of grey hair and a drooping moustache, gave him the appearance of a saloonkeeper, but he was a very fine speaker. He had been listening patiently, and watching the Justices carefully, and counting the votes as best he could. He was near certain that Miller, Davis, Strong, and likely Clifford were in his favor, and it was equally clear that Field, Bradley, Swayne, and likely Chase were against. Yet Hunt had said nothing. In such circumstances, seasoned counsel would be wise to flatter the judges in his favor and hope that their goodwill might snare a wavering vote.

“I cannot but find myself in agreement with the views expressed by the bench,” Carpenter began, “that the Fourteenth Amendment was intended to create two classes of privileges and immunities, those of citizens of the United States on the one hand, and those of citizens of the State on the other, and it is only the first class of rights that are protected by the Fourteenth Amendment.”

“That is hardly a unanimous view,” snapped Field. “In the Dred Scott opinion, the Court held that citizenship of the United States was dependent upon citizenship in one of the States.”

“True.”

“The first clause of the Fourteenth Amendment changes everything,” Field continued. “It recognizes that we are citizens of the United States, so our rights are not dependent upon the laws of any State.”

“That is where we part company, Justice Field,” said Carpenter. “That interpretation would break down the whole system of confederated State government, centralize the beautiful and harmonious system we enjoy into a consolidated and unlimited government, and render the Constitution of the United States, now the object of our love and veneration, as awful and insupportable as its enemies would wish to make it.”

“Here is my question,” said Field. “The statute takes the right to pursue a lawful and necessary calling and awards it exclusively to a single corporation for twenty-five years. What if the Act vested this right in the corporation for one hundred years?”

“That is not the situation here — ”

“I am well aware of that.  But if it can be awarded to a single corporation for twenty-five years, why not one hundred years?”

“The Louisiana legislature sought to address the conditions that are currently harmful to public health,” said Carpenter,  “and did so, for the first time, with representatives of the Negro population of Louisiana to add to its wisdom. The legislature decided that twenty-five years was a reasonable period of time.  One hundred years seems like far more time than would be necessary.”

“Why not ten?” asked Field. “Why not fifty?”

“The primary concern of the Legislature is the public health,” Carpenter intoned, “and the Legislature is entitled to decide that twenty-five years is necessary to ameliorate the foul odors, the rotting carcasses — ”

“Enough of your rotting carcasses!  If this is a matter of public health, then why not grant the monopoly only until such time as the threat to public health has been removed? And if the power is given to a single corporation, why can it not be given to a single person?”

“A single person could hardly slaughter all of the animals that the city consumes,” Carpenter said, chuckling.

“But this Act cares nothing about how much the people consume,” Field shot back. “You just told me that the primary concern was public health.”

“It is,” said Carpenter. “But it had never been held prior to the passage of the Fourteenth Amendment that the privileges and immunities of citizens would be affected by a law enacted to protect the public health. The Fourteenth Amendment was designed to eliminate distinctions between the races, solely with regard to existing laws.”

“But what were those privileges and immunities?” Field objected. “You are simply exchanging one ambiguity for another.”

 “Now, Justice Field,” Carpenter said. “As you know, I participated in the drafting of the Fourteenth Amendment — ”

“Then you utterly failed at your obligation to draft it clearly,” said Field. “The Fourteenth Amendment assumes that there are such privileges and immunities which belong as to citizens and protects them from State legislation. Clearly, among these privileges and immunities must be placed the right to pursue employment in a lawful manner.”

“Only insofar as protected by law.”

“Good heavens!  That is meaningless.” Field drew out a bound volume and threw it upon the bench with vigor.  An observer in the gallery might be forgiven in mistaking Field for Moses casting the stone tablets of the law to the ground.

“Here,” Field exclaimed, “Adam Smith, in his Wealth of Nations, states the point very clearly: ‘The property which every man has in his own labor as it is the original foundation of all other property, so it is the most sacred and inviolable.’”

“I shall cast my lot with the law,” Carpenter replied loftily, “and not with the economists.”

Field threw up his hands.

The conference that followed was equally disputatious.

“I believe that the question comes down to this,” said Miller. “The text of the Fourteenth Amendment draws a clear distinction between the ‘citizens of the United States,’ and ‘citizens of the State wherein they reside.’ Do you not agree with that?”

“The two are one and the same!” Field howled. “The purpose of the text is to equate the two, not distinguish one from the other.”

“Look here, Field,” said Davis. “We can disagree over the import of the text, but — ”

“But that is the entire point of the matter!” Field cried.

“— but, but,” Davis continued, “the fact remains that the Fourteenth Amendment was not enacted to protect the French butchers of New Orleans.”

“Your view is altogether too narrow,” Field complained, “because — ”

“Field,” Miller leaned forward and laid his hands upon the conference table. “Do you not find it curious that a man who left this bench to support and defend the Confederacy now argues for a broader reading of the Amendment?”

“Do not attack the motive of the man because you have no answer to his argument!” Field hissed. “If this war accomplished all that you Republicans claimed for it, then at the very least, it made clear that all of the fundamental rights of citizens are protected against intrusion by the States. Is that not what your party sought?”

“What the Republican party sought,” said Davis, “was the elimination of slavery, not the protection of the rights of butchers against a state legislature that, for the first time, included former slaves as its members.”

“Campbell’s position is no more unusual than Carpenter’s.” Field barreled past Davis. “The author of the amendment has disclaimed its very purpose, to advance the interest of his client.”

Miller shook his head. “If we have an author of the amendment instructing us as to its meaning, that is persuasive indeed.  The Fourteenth Amendment, Carpenter says, was not intended to redress every alleged violation of rights by the State. All the Fourteenth Amendment does is protect the federal rights of citizens against the state government. The Fourteenth Amendment does not protect the state rights of citizens against the state government, as that remains a question of state law.  Campbell is seizing upon a law intended to help the Negro and exploiting it to suit his client’s interests.”

“But that broad reading, as you call it, gives every American the greatest protection to liberty, including the Negro!” Field pounded the table.

“What is the use?” Chase spoke for the first time in many hours. Field abruptly stopped. “We are outvoted. The deed is done.”

“I am not sure that we are outvoted,” said Field, turning to Hunt.

“Well,” Hunt said nervously.  “I very much appreciate the extensive discussion this case has occasioned. But I quite agree with the arguments Brothers Miller and Davis have made. The narrow reading is the correct one.”

Field arched an eyebrow.

“For,” Hunt coughed, “the reasons that they have expressed. I should add in this context that I am also concerned about the overly expansive use of the Fourteenth Amendment.  Why, I have a case I am to hear this summer in which Miss Anthony maintains that the Fourteenth Amendment entitles her to vote.”

“I shall circulate a dissent!” Field snarled. He abruptly stood, gathered his papers, and left.  Miller exhaled a long breath of satisfaction.

“And I as well,” said Bradley, paying no heed to the disruptive circumstances of Field’s withdrawal. “I was quite persuaded by Judge Campbell, who in my view is the beau ideal of forensic perfectness. They say in the Fifth Circuit that the wise litigant ought to ‘Leave it to God and Mr. Campbell.’ ”

“He is an apologist for the Confederacy, Brother Bradley!” Miller admonished.

“Our task here is to consider the strength of his argument,” Bradley said. “Wouldn’t you agree, Mr. Chief Justice?”

Chase did not answer but gazed dully into the distance.

A few weeks later, Chase slumped at his writing-desk and considered Miller’s draft opinion in the Slaughter-House Cases. It was an abomination, he reckoned, but he was too fatigued to raise his pen in defiance. He wrote a short note expressing his agreement with Field’s dissent, and because he could scarcely be bothered with a second letter, added that he also dissented from an opinion Bradley had circulated holding that a woman, Myra Bradwell, could be barred from practicing law in Illinois.

“The natural timidity and delicacy of the female sex,” Bradley wrote, evidently unfits it for many of the occupations of civil life. The constitution of the family is founded in the divine ordinance and reserves the domestic sphere to womanhood. The harmony of the family institution is repugnant to the idea of a woman adopting a distinct and independent career from her husband. The paramount destiny of woman is to fulfill the noble offices of wife and mother. This is the law of the Creator.

Kate would never stand for that, Chase thought. He placed his note to Field in an envelope, sealed it with wax, and regarded it for several moments. He was dissenting from the Court’s decisions more than ever before, no longer esteemed by his colleagues, the pageant passing him by, his only consolation that Bradley could opine all he wanted about the law of the Creator, for Chase reckoned that he would be meeting him soon enough.