Bancroft Davis, JC

https://truthout.org/articles/unequal-protection-the-deciding-moment/

...

Once that time bomb was put into place, Conkling and Bingham left elective office to join in litigating on behalf of the railroads, with the goal of exploding their carefully worded amendment in the face of the Supreme Court.

Thus “Republican lawmakers,” theBeards said, conspired in advance to give full human constitutional rights to corporate legal fictions. “By a few words skillfully chosen,” they wrote, “every act of every state and local government which touched adversely the rights of [corporate] persons and property was made subject to review and liable to annulment by the Supreme Court at Washington.”

This conspiracy theory was widely accepted because the supposed conspirators themselves had said, very publicly, “We did it!” Earlier, in an 1882 case pitting the railroads against San Mateo County, California, Conkling testified (as a paid witness for the railroads) that he had slipped the “person” language into the amendment to ensure that corporations would one day receive the same civil rights Congress was giving to freed slaves. Bingham made similar assertions when appropriate during his turns as a paid witness for the railroads. As a result of these assertions, through the late years of the 1800s both Congressman (and railroad lawyer) were the well-off darlings of the railroads, basking in the light of their successful appropriation of human rights for corporations.

When the Beards’ book was widely read in the early 1930s, it gave names and faces to the villains who had turned control of America over to what were then called the Robber Barons of industry. Conkling, Bingham, and Justice Waite were all dead by the time of the Great Depression, and all were judged guilty by the American public of pulling off the biggest con in the history of the republic.

The firestorm of indignation that swept the country helped set the stage for Franklin D. Roosevelt’s New Deal, using legislative means and packing the Supreme Court to turn back the corporate takeover—at least in part—and returning to average working citizens some of the rights and the benefits they felt had been stolen from them in 1886.

It was widely accepted that Conkling and Bingham had pulled off this trick successfully—purposefully using person instead of natural person or citizen when they helped write the Fourteenth Amendment—and corporate personhood was a fait accompli. It was done, and it couldn’t be undone. Confronted with the reality of the language of the Fourteenth Amendment, the Supreme Court had been forced to recognize that corporations were persons under the U.S. Constitution because of the precedent of the 1886 Santa Clara case.

Senator Henry Cabot Lodge apparently ratified the coup on January 8, 1915, when he unwittingly promulgated Conkling’s myth in a speech to the Senate about the 1882 San Mateo case:

In the case of San Mateo County against Southern Pacific Railroad, Mr. Conkling introduced in his arguments excerpts from the Journal [of the Senate committee writing the Fourteenth Amendment], then unprinted, to show that the Fourteenth Amendment did not apply solely to Negroes, but applied to persons, real and artificial of any kind. It was owing to this, undoubtedly, that the [Supreme] Court extended it to corporations.

The journal Lodge referenced is the secret journal that never existed. Nonetheless, it was a done deal, conventional wisdom suggested, and the Supreme Court had been forced to acknowledge the reality of corporate personhood —or, some suggested, had gone along with it because Waite and the other justices were corrupt stooges of the railroads but wielded the majority vote. In either case, it had been the intent of at least some of the legislators who draft ed the Fourteenth Amendment (Conkling and Bingham) that corporations should have the constitutional rights of natural persons.

The Republican Conspiracy Theory Collapses

In the 1960s author, attorney, and legal historian Howard Jay Graham came across a previously unexamined treasure in the personal papers of Chief Justice Waite, which had been gathering dust at the Library of Congress.

In Waite’s private correspondence withJ. C. Bancroft Davis(his former recorder of the Court’s decisions), Graham made a startling discovery: the entire thing had been a mistake.

What had vexed legal authorities for nearly eighty years was why Waite would say, “The Court does not wish to hear argument…” when the arguments were already finished. Further, why wasn’t there any discussion of this explosive new doctrine of corporate personhood in the Court’s ruling or in its dissents? It was as if they said it and then forgot they had said it. Complicating the situation further, if the Court had arrived at a huge constitutional decision with sweeping implications, why did the decision say it was based on a technicality about fences? It just didn’t seem to add up.

Looking over Justice Waite’s personal papers, Graham found a note from Davis to Waite. At one point in the arguments, Waite had apparently told railroad lawyer Sanderson to get beyond his arguments that corporations are persons and get to the point of the case. Court reporter Davis, apparently seeking to clarify that, wrote to Waite, “‘In opening, the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the judges were of opinion that it does.’

“Please let me know whether I correctly caught your words and oblige.”

Waite wrote back, “I think your mem. in the California Rail Road Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.” (Italics added.)

With thanks to Michael Kinder, who found this in the J. C. Bancroft Davis collection of personal papers in the National Archives in Washington, D.C., where they had been sitting, largely unnoticed, for almost a century, the actual letters are reproduced on the following pages.

...The Hartmann theory

Court recorders had a very different role in the 19th Century than court reporters do today.}:

It wasn't until 1913 that the Stenograph machine was invented to automate the work of court reporters. Prior to that time, notes were kept in a variety of shorthand forms, both institutionalized and informal. Thus, the memory of the reporter, and his (in the 19th century nearly all were men) understanding of the case before him, was essentially to a clear and informed record being made for posterity.

Being a recorder for the Supreme Court was also not simply a stenographic or recording position. It was a job of high status and high pay. Although the Chief Justice in 1886 earned $10,500 a year, and the Associate Justices earned $10,000 per year, the Recorder of the Court could expect an income over $12,000 per year, between his salary and his royalties from publishing the United States Reports. And the status of the job was substantial, as Magrath notes: 'In those days the reportership was a coveted position, attracting men of public stature who associated as equals with the justices''

Prior to his appointment to the Court, John Chandler Bancroft Davis was a politically active and ambitious man. A Harvard educated attorney, Davis held a number of public service and political appointment jobs ranging from Asst. Secretary of State for two Presidents to Minister of Germany to Court of Claims Judge.

This was no ordinary court reporter, in the sense of today's professionals who do their jobs with clarity and precision but completely uninvolved in the cases or with the parties involved. He was a political animal, well educated and traveled, and well connected to the levers of power in his world, which in the 1880s were principally the railroads.

In 1875, while Minister to Germany, Davis even took the time to visit Karl Marx, transcribing in their conversations one of what was considered one of the era's clearest commentaries about Marx. But Davis also left out part of what Marx said - Davis apparently viewed himself as both reporter and editor. In late 1878, a second reporter tracked down Marx and asked about Davis' omission. Here's an excerpt from that second article, as it appeared in the January 9, 1879 issue of The Chicago Tribune:

During my visit to Dr. Marx, I alluded to the platform given by J.C. Bancroft Davis in his official report of 1877 as the clearest and most concise exposition of socialism that I had seen. He said it was taken from the report of the socialist reunion at Gotha, Germany, in May, 1875. The translation was incorrect, he said, and he [Marx] volunteered correction, which I append as he dictated...'

Marx then proceeds to give this second reporter an entire Twelfth Clause about state aid and credit for industrial societies, and suggests that Davis had cooperated with Marx in producing a skewed record in recognition of the times and place where the discussion was held.

I own twelve books written by Davis, which give an insight into the status and role he held as Recorder for the Court. In his Mr. Sumner, theAlabamaClaims and Their Settlement, published by Douglas Taylor in New York in 1878, my frayed, disintegrating copy is filled with Davis's personal thoughts and insights on a testimony before Congress. The book, first published as an article in The New York Herald by Davis, says such things as, 'Like Mr. Sumner's speech in April 1869, this remarkable document would have shut the door to all settlement, had it been listened to. To a suggestion that we should negotiate for the settlement of our disputed boundary and of the fisheries, it proposed to answer that we would negotiate only on condition that Great Britain would first abandon the whole subject of the proposed negotiation. I well remember Mr. Fish's astonishment when he received this document.'

He summarizes with extensive commentary such as, 'I add to the foregoing narrative that Mr. Motley's friends were (perhaps not unnaturally) indignant at his removal, and joined him in attributing it to Mr. Sumner's course toward the St. Domingo Treaty'' He indirectly references his own time as Envoy to Germany when he writes, 'They apparently forgot that the more brilliant, the more distinguished, and the more attractive in social life an envoy is, the more dangerous he may be to his country when he breaks loose from his instructions and communicates socially to the world and officially...'

As you can see, Davis was fond of flowery writing, and thought well of himself.

And then I realized what I was reading. It related to the famous 1871 Geneva Arbitration Case, led by attorney Morrison Remick Waite, which won over $15 million for the US Government from England for their help of the Confederate army during the Civil War. Going to another book by Davis that I'd purchased while researching this book, published in 1903 and titled A Chapter in Diplomatic History, I discovered that Davis had been quite active in the Geneva Arbitration Case.

During the negotiations with England, he writes, 'I answered that I was very sorry at the position of things, but that the difficulty was not of our making; that I would carry his message to Lord Tenterden, but could hold out little hope that he would adopt the suggestion; and that, in my opinion, the Arbitrators should take up the indirect claims and pass upon them while this motion was pending.

'That evening I saw Lord Tenterden,' Davis continues, 'and told him what had taken place between me and Mr. Adams and the Brazilian arbitrator' About midnight he came to me to say that he had told Sir Roundell Palmer what had passed between him and me, and that Sir Roundell had made a minute of some points which would have to be borne in mind, should the Arbitrators do as suggested. He was not at liberty to communicate these points to me officially; but, if I chose to write them down from his dictation, he would state them. I wrote them down from his dictation, and, early the next morning, convened a meeting of the counsel and laid the whole matter before them.'

That Davis was playing more than just the role of a stenographer in this case was indisputable. And the case?

It was, again, the Alabama Claims or Geneva Settlement case, which had made Morrison Remick Waite's career. Checking the University of Virginia's law school, I found the following notes on the Geneva Arbitration case: 'The United States' case was argued by former Assistant Secretary of State Bancroft Davis, along with lawyers Caleb Cushing, William M. Evarts, and Morrison R. Waite, under the direction of Secretary of State Hamilton Fish and Secretary of Treasury George Boutwell' (italics added).

Waite and Davis had worked side-by-side on one of the most famous cases in American history (at the time), both in Geneva, Switzerland, and before the United States Congress. And all this a full 15 years before Davis was to put his pen to his understanding of the Santa Clara County v. Southern Pacific Railroad case when it came before the Supreme Court which Waite was now Chief Justice of and for which Davis was the head Recorder.

Searching for traces of Davis on the Internet, I found an autograph for sale - it was a letter by President Ulysses Grant, signed by Grant, and also signed by Grant's Acting Secretary of State - J. C. Bancroft Davis.

And looking through the records of the City of Newburgh, New York, where Davis once lived, the Orange County New York Directory of 1878-9 lists the following note about one of that city's distinguished citizens:

'The Newburgh and New York Railroad Company was organized December 14th, 1864, the road was completed September 1st, 1869. J.C. Bancroft Davis was elected President of the Board of Directors'[on] August 1st, 1868.'

Given his distinguished background, and his having worked with James Taylor and Jay Cooke of the railroads in late 1860s, it's hard to imagine that Davis would insert 'corporations are persons' into the record of a Supreme Court proceeding without understanding full well its importance and consequences, even if he was encouraged to do so by Justice Field.

So here is the fourth and final possibility: John Chandler Bancroft Davis undertook to rewrite that part of the United States Constitution himself, for reasons that to this day are still unknown, but probably not inconsistent with his own personal political worldview and affiliation with the railroads, and that he did it with the encouragement of Fields.

Waite was so ill that he missed the entire session of 1885 Court, was very weak and sick in 1886 and 1887, and died in March of 1888: in all probability he never knew what Davis had written in his name.

Regardless how it happened - whether it was a simple error by Davis, or Davis was bending to pressure from Fields, or if Davis simply took it upon himself to use the voice of the Supreme Court to modify the United States Constitution - the fact is that an amendment to the Constitution which had been written by and passed in Congress, voted on and ratified by the states, and signed into law by the president, was radically altered in 1886 from the intent of its post-Civil War authors.

And the hand on the pen that did it was that of J. C. Bancroft Davis.

https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/

no lnx

BUSINESS

‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie

How a farcical series of events in the 1880s produced an enduring and controversial legal precedent

By Adam Winkler

[An archival caricature of a railroad baron swallowing America’s train lines

A 1907 caricature of the railroad baron Edward H. Harriman swallowing America’s train lines. (Luther Bradley / Library of Congress / Corbis / Getty)]

MARCH 5, 2018

Somewhat counterintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights?The answer can be found in a bizarre—even farcical—series of lawsuits more than 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

That corporation was the Southern Pacific Railroad, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under theFourteenth Amendment.Adopted after the Civil War to protect the rights of freed slaves, that amendment guarantees every “person” the “equal protection of the laws.” Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity.

The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation).More than most lawyers, Conkling was seen by the justices as a peer.

It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.

Years later, historians would discover that Conkling’s journal was real but his story was a fraud. The journal was in fact a record of the congressional committee’s deliberations, but, upon close examination, it offered no evidence that the drafters intended to protect corporations. It showed, in fact, that the language of the equal-protection clause was never changed from “citizen” to “person.” So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions. And prior to Conkling’s appearance on behalf of Southern Pacific, no member of the drafting committee had ever suggested that corporations were covered.

There’s reason to suspect that Conkling’s deception was uncovered back in his time too.The justices held onto the case for three years without ever issuing a decision, until Southern Pacific unexpectedly settled the case. Then, shortly after, another case from Southern Pacific reached the Supreme Court, raising the exact same legal question. The company had the same team of lawyers, with the exception of Conkling. Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal. Had those lawyers believed Conkling, it would have been malpractice to leave out his story.

When the Court issued its decision on this second case, the justices expressly declined to decide if corporations were people. The dispute could be, and was, resolved on other grounds, prompting an angry rebuke from one justice, Stephen J. Field, who castigated his colleagues for failing to address “the important constitutional questions involved.” “At the present day, nearly all great enterprises are conducted by corporations,” he wrote, and they deserved to know if they had equal rights too.

Rumored to carry a gun with him at all times, the colorful Field was the only sitting justice ever arrested—and the charge was murder. He was innocent, but nonetheless guilty of serious ethical violations in the Southern Pacific cases, at least by modern standards:A confidant of Leland Stanford, Field had advised the company on which lawyers to hire for this very series of cases and thus should have recused himself from them. He refused to—and, worse, while the first case was pending, covertly shared internal memoranda of the justices with Southern Pacific’s legal team.

The rules of judicial ethics were not well developed in the Gilded Age, however, and the self-assured Field, who feared the forces of socialism, did not hesitate to weigh in. Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”

So, with Field on the Court, still more twists were yet to come. The Supreme Court’s opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court’s opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J. C. Bancroft Davis, whose wildly inaccurate summary of the Southern Pacific case said that the Court had ruled that “corporations are persons within … the Fourteenth Amendment.” Whether his summary was an error or something more nefarious—Davis had once been the president of the Newburgh and New York Railway company—will likely never be known.

Field nonetheless saw Davis’s erroneous summary as an opportunity. A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.

His gambit worked. In the following years, the case would be cited over and over by courts across the nation, including the Supreme Court, for deciding that corporations had rights under the Fourteenth Amendment.

Indeed, the faux precedent in the Southern Pacific case would go on to be used by a Supreme Court that in the early 20th century became famous for striking down numerous economic regulations, including federal child-labor laws, zoning laws, and wage-and-hour laws. Meanwhile, in cases like the notorious Plessy v. Ferguson (1896), those same justices refused to read the Constitution as protecting the rights of African Americans, the real intended beneficiaries of the Fourteenth Amendment. Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.

The day back in 1882 when the Supreme Court first heard Roscoe Conkling’s argument, the New-York Daily Tribune featured a story on the case with a headline that would turn out to be prophetic: “Civil Rights of Corporations.” Indeed, in a feat of deceitful legal alchemy, Southern Pacific and its wily legal team had, with the help of an audacious Supreme Court justice, set up the Fourteenth Amendment to be more of a bulwark for the rights of businesses than the rights of minorities.

Adam Winkler is a professor at the UCLA School of Law. He is the author ofWe the Corporations: How American Businesses Won Their Civil Rightsand Gunfight: The Battle Over the Right to Bear Arms in America.

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http://en.wikipedia.org/wiki/Bancroft_Davis

John Chandler Bancroft Davis (December 22, 1822 – December 27, 1907), commonly known as Bancroft Davis, was an American lawyer, judge, diplomat, and president of Newburgh and New York Railway Company.^[1]

Early life[

Career[

In 1849, Davis became secretary of the American embassy in London and later its :{chargé d'affaires:(style="background-color:#ffffff"):}:. He practiced law in New York City and was the correspondent for :{The Times:(style="background-color:#ffffff"):}: in London. Because of ill health, he retired from his law work in 1862. He was a member of the :{New York State Assembly:(style="background-color:#ffffff"):}: (Orange Co., 1st D.) in :{1869:(style="background-color:#ffffff"):}:, but vacated his seat on March 26 after his appointment as Assistant U.S. Secretary of State.

Under :{President:(style="background-color:#ffffff"):}: :{Ulysses S. Grant:(style="background-color:#ffffff"):}:, he was :{Assistant Secretary of State:(style="background-color:#ffffff;"):}: in 1869–1871 and again in 1873–1874.

Between times he was a secretary of the commission which concluded the :{Treaty of Washington:(style="background-color:#ffffff"):}: in 1871, to create a tribunal to settle the :{Alabama claims:(style="background-color:#ffffff"):}:. He subsequently represented the United States at the tribunal, the Geneva Court of Arbitration, which met at :{Geneva:(style="background-color:#ffffff"):}: on December 15, 1871. The American case was prepared and presented by him.

In 1874, he was appointed as the U.S. Minister to Germany, serving in that position until 1877. President:{Rutherford B. Hayes:(style="background-color:#ffffff"):}: appointed him to be an associate judge on the :{United States Court of Claims:(style="background-color:#ffffff"):}: on December 14, 1877, replacing retiring Judge :{Edward G. Loring:(style="background-color:#ffffff"):}:.

For another special assignment at the State Department, he resigned from the Court of Claims in 1881 at the request of President :{Chester A. Arthur:(style="background-color:#ffffff"):}:, who reappointed him to the court in 1882. He resigned again in 1883 to become Reporter of Decisions for the Supreme Court, and was replaced on the Court of Claims by :{Lawrence Weldon:(style="background-color:#ffffff"):}:.

Role in corporate personhood controversy

:{:{:{

Acting as court reporter in the 1886 :{Santa Clara County v. Southern Pacific Railroad:(style="background-color:#ffffff"):}: case, Davis is a key figure in the :{corporate personhood debate:(style="background-color:#ffffff"):}:. Journalists have since cited Davis's prior position as president of Newburgh and New York Railway as evidence of a conflict of interest in the :{corporate personhood:(style="background-color:#ffffff"):}: interpretation of the ruling.

Death

Bancroft Davis died in Washington, DC in 1907.

Works[

(1847) The Massachusetts Justice :{LCCN:(style="background-color:#ffffff"):}: :{05-17539:(style="background-color:#ffffff"):}:
(1871) The Case of the United States Laid before the Tribunal of Arbitration at Geneva :{LCCN:(style="background-color:#ffffff"):}: :{10-16624:(style="background-color:#ffffff"):}:
(1873) Treaties and Conventions Concluded between the United States of America and Other Powers, Since July 4, 1776 (Revised edition) :{LCCN:(style="background-color:#ffffff"):}: :{11-33794:(style="background-color:#ffffff"):}:
(1893) Mr. Fish and the Alabama Claims: A Chapter in Diplomatic History :{LCCN:(style="background-color:#ffffff"):}: :{11-24903:(style="background-color:#ffffff"):}:, :{LCCN:(style="background-color:#ffffff"):}: :{71-95065:(style="background-color:#ffffff"):}:
(1897) Origin of the Book of Common Prayer of the Protestant Episcopal Church in the United States of America

References[

The United States Court of Claims : a history / pt. 1. The judges, 1855–1976 / by Marion T. Bennett / pt. 2. Origin, development, jurisdiction, 1855–1978 / W. Cowen, P. Nichols, M.T. Bennett. Washington, D.C. : Committee on the Bicentennial of Independence and the Constitution of the Judicial Conference of the United States, 1976 i.e. 1977–1978. 2 vols.

Legal offices	Legal offices	Legal offices
Preceded by William Tod Otto}:	Reporter of Decisions of the Supreme Court of the United States:{ 1883–1902}:	:{Succeeded by Charles Henry Butler}:

Legal offices

Preceded by

William Tod Otto}:

Reporter of Decisions of the Supreme Court of the United States:{

1883–1902}:

:{Succeeded by

Charles Henry Butler}:

Categories:

Hubert Howe Bancroft was born May 5, 1832, in Granville, Ohio, to Azariah Ashley Bancroft and Lucy Howe Bancroft. The Howe and Bancroft families originally hailed from the New England states of Vermont and Massachusetts, respectively.^[1] Bancroft's parents were staunch abolitionists and the family home was a station on the Underground Railroad.^[2]

In the late 19th century, it was determined that much of the work of which Bancroft claimed authorship had in fact been written by others. This tainted his legacy in the eyes of some scholars, on the principle "false in one thing, false in all."^[7] The Salt Lake Tribune called him a "purloiner of other peoples' brains" in 1893.^[8]

The Bancroft Library at UC Berkeley, named in his honor, was founded when the University of California purchased his 60,000-volume book collection in 1905. Bancroft is also the namesake of Bancroft Way in Berkeley, California.^[5]