Harper's Weekly Celebrates the Centennial of the Supreme Court of the United States: A Bicentennial Retrospective

PETER J. FISH

Acknowledgements: I am indebted to Duke graduate Paul Whitlock Cobb (Trinity '87) and to Sandra Perkins of the Duke University Law School for assistance in research and production of this article.

The Judiciary Act of 1789 mandated opening of the United States Supreme Court's initial term on the first Monday in February 1790.[1] The Court lacked a quorum on that date, but the next day, Tuesday, February 2, 1790, the requisite number of Justices assembled and organized the Court in the old Royal Exchange at the intersection of Broad and Water Streets in what is now the financial district of New York City.[2] A hundred years later, on the first Tuesday in February, 1890, the New York Bar, the Association of the Bar of the City of New York, and the American Bar Association jointly sponsored the official centennial celebration. Chief Justice Melville W. Fuller, the Associate Justices, President Benjamin Harrison and his Cabinet, and members of the House and Senate Judiciary Committees attended.[3]

Harper's Weekly, the leading popular journal of the day, publicized the Supreme Court centennial. Established in 1857 by the New York publishing house of Harper and Brothers, this self-styled "Journal of Civilization's" illustrations and political coverage under editor George W. Curtis (1863-1892), earned wide acclaim.[4] True to form, its issue of February 8, 1890 featured an appropriate essay by forty-five-year-old Elihu Root, a prominent New York lawyer then on the threshold of a distinguished career in public service. Entitled "The Centennial of the Supreme Court, "Root's piece reflected the conservative response to perceived political threats arising out of post-Civil War agricultural distress and industrial strife.[5] The High Court, he wrote, had "contributed more than any other agency toward the successful working and stability of the Federal Constitution and the triumph of the American experiment in government."[6] Above all, that institution had stood firm against "the most formidable danger which threatens the permanence of democratic government. . .," that arising from "a tyrannical majority."[7]

Leading the Court against the feared majoritarian tide were Chief Justices who served during its first century of existence. Harper's honored them with a special centerfold containing portraits of each.[8] Omitted was that of John Rutledge of South Carolina. Appointed Chief Justice by President George Washington, he presided over the 1795 August Term, but the Senate subsequently refused to confirm his nomination.[9] Depicted front left to right on the top row: John Jay (1789-1795); Oliver Ellsworth (1796-1799); John Marshall (1801-1835); Roger B. Taney (1836-1864); from left to right on the bottom row: Salmon P. Chase (1864-1873); Morrison R. Waite (1874-1888); Melville W. Fuller (1888-1910).

The portraits were, like all of Harper's illustrations, wood engravings or woodcuts as they were called. Unlike stone lithographs and copper or steel etchings, wood engravings could be locked up with raised or "hot lead" type employed by publications with newspaper formats. In the United States Harper's led in the use of this illustration medium as did the Illustrated London News abroad. But even in 1890, photo engraving was making inroads and would eventually displace the older craft-based technology.[10]

The portrait of the first Chief Justice is a copy of an original completed in 1794 by the renowned American painter Gilbert Stuart (1755-1828), best known for his "Athenaeum Portrait" of George Washington. Stuart had studied in England under Benjamin West (1738-1820) and returned to America in 1792, working in New York City from 1793-1794 and in Philadelphia and Germantown, Pennsylvania from 1794-1803 before beginning a long and successful residency in Boston.[11] Harper's portrait was cut from a copy of the Stuart original probably executed by Henry Peters Gray (1819-1877). Gray was a leading nineteenth-century American portrait and figure painter who, early in his career, studied and copied the old masters hanging in Italian museums.[12]

William R. Wheeler (1832-1894) was credited by Harper's with the portrait of Connecticut's Oliver Ellsworth. A portrait painter and miniaturist, specializing in children's portraits, Wheeler at age 30 began an extended residency in Hartford, Connecticut in 1862, long after Ellsworth's death in 1807.[13] Ralph Earl[e] (1751-1801) painted the original portrait of the second Chief Justice on which this copy is based. Earl[e] was esteemed the best portrait painter in Connecticut in the late eighteenth century. He typically placed his subjects in conventional period settings complete with draperies and cluttered landscapes. His Ellsworth portrait was the exception. Executed in 1792 in the midst of his subject's illustrious seven-year senatorial career (1788-1796) which had included sponsorship of the 1789 Judiciary Act, the portrait included Ellsworth and his wife of twenty years, as well as the family's red-roofed white mansion in Winsor, Connecticut and its grounds, patriotically enveloped by thirteen elms, visible through the window-framed background.[14] The Wheeler copy apparently derived from a copy of Earl[e]'s original by Charles Loring Elliott (1812-1868), who reputedly painted more than 700 portraits of eminent people in his New York studios.[15] The Wheeler-Elliott portrait of Ellsworth, purchased by the Supreme Court under the Act of October 2, 1888,[16] notably cropped Earl[e]'s wife and thus eliminated the original painting's theme of domesticity.

Harper's erroneously attributed its portrait of John Marshall to Rembrandt Peale (1778-1860), the most gifted son of Charles Wilson Peale (1741-1827) and, like Stuart, a former pupil of Benjamin West.[17] However, this likeness of the great Chief Justice was apparently cut from an oil painting commissioned In 1880 by the Library Committee of Congress and executed by Richard Norris Brooke (1847-1920). Brooke's source was the monumental posthumous portrait of Marshall done in 1859 by the portrait and historical painter William DeHartburn Washington (1834-1870) for the Fauquier County Courthouse in Warrenton, Virginia. Washington, in turn, derived his portrait from one by Henry Inman (1801-1846) and commissioned by the Bar of Philadelphia.[18] In man was a major American portraitist and landscape painter who did his study of Marshall in 1831, four years before his subject's death in the same city.[19] The Inman portrait received wide circulation through the exceptional lithography of Albert Newsam and engraving by Asher Brown Durand whose portrait work has reputedly never been surpassed by an American engraver.[20]

George Peter Alexander Healy (1813-1894) painted the portrait of 79-year old Roger Brooke Taney in 1856, a year before the Court handed down its fateful Dred Scott decision. Healy studied in Paris and became one of the nineteenth century's most successful portrait painters even though his fame rests as much upon his historical works, including "Franklin Urging the Claims of the American Colonies Before Louis XVI" and "Webster's Reply to Hayne." His portrait subjects included most prominent statesmen of his time as well as social and business leaders. Presidents from John Quincy Adams through Abraham Lincoln sat for him as did Chief Justice Taney, whose head reflects characteristic Healy traits--strength and dignity.[22] Friends of Taney raised the necessary funds to purchase this painting from the artist for the Supreme Court.[23]

Salmon Portland Chase's portrait is the first of the seven cut from a photographic original. The studio of famed Civil War photographer Mathew B. Brady (1823-1896) produced the portrait. The actual photographer was probably not Brady, but rather his wife's nephew, Levin C. Handy, who carried on the work of the Brady National Photographic Art Gallery while the firm's founder wallowed in bankruptcy, devastating litigation, and alcohol.[24] A care-worn Chase, frustrated in his attempts to achieve the presidency from his position of Chief Justice, assumed a Napoleonic pose in the uncropped Brady-Handy original photograph.[25]

Adele M. Fassett (Lornelia Adele Strong) (1831-1898) painted the portrait of Morrison R. Waite from which Harper's cut its centennial portrait A portrait and figure painter, Fassett studied in New York, Paris and Rome before establishing a studio in Chicago in 1855. In 1875, she moved to Washington where, in 1876, she did the likeness of Waite, then in the third year of his chief justiceship. The following year Fassett produced her most noted work, a historical painting, "The Florida Case Before The Electoral Commission." Set in the old Supreme Court Chamber with the great courtroom advocate William Maxwell Evarts at its center, the canvas contains portraits of approximately 260 men and women.[26] The Waite portrait was purchased from the artist by the Supreme Court with money appropriated under the 1888 Act.[27]

The centennial Chief Justice was Melville Weston Fuller whose Harper's portrait originated in the studio of Charles Milton Bell (1848-1893).[28] C.M. Bell, as he was known professionally, established his own Washington photography business in 1873, and soon enjoyed a reputation rivaling that of Mathew Brady's. Although noted today for his photographs of native Americans, Bell's subjects included a large and diverse cross-section of Washington notables. Among them was President Grover Cleveland, the one who had named Fuller to the High Court and with whom Bell enjoyed a close business relationship.[29]

Under Fuller the Supreme Court would hew closely to the theme struck by Elihu Root in his Harper's essay. Six weeks after the centennial issue appeared, the Court handed down its decision in Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota.[30] That historic ruling interposed national judicial power between popular majorities and the rates charged by investor-owned private utilities. The Fuller Court would thereafter limit government's power to restrain economic enterprise by the application of the substantive due process doctrine,[31] and at the same time control industrial strife by use of equitable restraints on labor unions.[32]Meanwhile, Harper's Weekly would continue to serve with pictures, political essays, and fiction stories a literate middle class readership until its demise in 1916.[33]

Endnotes

1. Act of September 24, 1789, sec. 1, 1 Stat. 73.
2. Charles Warren, The Supreme Court in United States History, 1789-1835 (Boston: Little, Brown and Co., 1928) 1:46-48; The Documentary History of the Supreme Court of the United States, 1789-1800: Appointments and proceedings, Maeva Marcus and James R. Perry (eds.) (New York: Columbia Univ. Press, 1985) 1:171-176.
3. 134 U.S. 711 (1890); Hampton L. Carson, The Supreme Court of the United States: Its History and Its Centennial Celebration, February 4^th, 1890 (Philadelphia: A.R. Keller Co., 1894) 2:585-735.
4. Frank Luther Mott, A History of American Magazines. 1850-1865 (Cambridge: Harvard Univ. Press, 1938), pp. 468, 469, 483.
5. Harper’s Weekly (Feb. 8, 1890) 34:110; see Robert H. Wiebe, The Search for Order, 1877-1920 (New York: Hill and Wang, 1967).
6. Harper’s, supra note 5.
7. Id.
8. Id. pp. 104-05.
9. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2d ed., (New York: Oxford Univ. Press, 1985), pp. 72-73.
10. David M. Sander, Wood Engraving: An Adventure in Printmaking (New York: The Viking Press, 1978), pp. 19-20).
11. Charles Merrill Mount, Gilbert Stuart: A Biography (New York: W.W. Norton and Co., Inc., 1964), pp. 176-180, 183-185, reproduction of the Stuart original in the National Gallery of Art follows p. 128.
12. Dictionary of American Biography (New York: Charles Scribner’s Sons, 1931) 7:517-518; Charles E. Fairman, Art and Artists of the Capitol of the United States of America (Washington: Government Printing Office, 1927); 361, reproduction of Gray’s copy on p. 362.
13. George C. Groce and David H. Wallace, New York Historical Society’s Dictionary of American Artists, 1564-1860 (New Haven: Yale Univ. Press, 1957), p. 678.
14. William Sawitzky, Connecticut Portraits by Ralph Earl, 1751-1801 (Connecticut Portraits by Ralph Earl, 1751-1801 (Connecticut Tercentenary Commission, 1635-1935) (New Haven: Yale Univ., gallery of Fine Arts, 1935), pp. 4-8, 15-16, reproduction of the original in Wadsworth Atheneum, p. 14. The artist’s name is variously spelled Earl or Earle.
15. Fairman, supra note 12, pp. 280, 284, 363.
16. 25 Star. 547.
17. Groce, supra note 13, p. 493; See Andrew Oliver, The Portraits of John Marshall (Charlottesville: The Univ. Press of Virginia, 1977), pp. 158-162.
18. Oliver, supra note 16, pp. 134-138; reproduction of Brooke’s copy is on p. 161; of Washington’s, on p. 160; of Inman’s original, on p. 135.
19. Id., pp. 134-138.
20. Id., pp. 138-142; American Portrait Prints: Proceedings of the Tenth Annual American Print Conference, Wendy Wick Reaves (ed.) (Charlottesville, The Univ. Press of Virginia, 1984), p. 76 ("A.B. Durand after H. Inman"); p. 126 ("Childs and Inman," publisher of Newsam’s work).
21. The original is reproduced in Charles Warren, The Supreme Court in United States History, 1836-1918 (Boston: Little, Brown and Co., 1928), 2: facing title page; a dated copy is in the Biographical File, Prints and Photos Division, Library of Congress; Scott v. Sandford, 19 How. 393 (1857).
22. Groce, supra note 13, p. 304; Cyclopedia of Painters and Paintings, John Denison Champlin, Jr. (ed.) (New York: Empire State Book Co., 1927) 2:219-20; see Marie DeMare, G.P.A. Healy: American Artist (New York: David McKay Co., Inc., 1954).
23. Fairman, supra note 12, p. 361.
24. Dorothy Meserve Munhardt and Philip B. Munhardt, Jr., Mathew Brady and His World (Alexandria, Va.: Time-Life Books, 1977), pp. 64-65.
25. On Chase’s presidential ambitions, see David M. Silver, Lincoln’s Supreme Court (Illinois studies in the Social Science: Volume 38 (Urbana: The Univ. of Illinois Press, 1956), p. 209; J.W. Schuckers, The Life and Public Services of Salmon Portland Chase (New York: D. Appleton and Co., 1874) pp. 560-573. The original glass negative (LCBH 83-1392) is in the Brady Handy Collection, Prints and Photographs Division, Library of Congress.
26. Dictionary of American Biography, (New York: Charles Scribner’s Sons, 1931) 6:296; Fairman, supra note 12, p. 314, "Electoral Commission" reproduced with key, pp. 313-314; a reproduction of the Waite portrait in the Biographical File, Prints and Photographs Division, Library of Congress.
27. Fairman, supra note 12, p. 363.
28. The original is reproduced in Memorials of the Justices of the Supreme Court of the United States, Roger F. Jacobs (ed.) (Littleton, Colorado: Fred B. Rothman and Co., 1981) 2:152.
29. James Glenn and Kathleen Collins, "History of the C.M. Bell Photographic Studio, Washington, D.C., 1873-1909," typed ms., Prints and Photographs Division, Library of Congress.
30. 134 U.S. 418 (1890).
31. United States v. E.C. Knight Co., 156 U.S. 1 (1895); Allgeyer v. Louisiana, 165 U.S. 578 (1897); Smyth v. Ames, 169 U.S. 466 (1898); Lochner v. New York, 198 U.S. 45 (1905).
32. In re Debs, 158 U.S. 564 (1895).
33. Mott, supra note 4, p. 469.