Justice David J. Brewer: A Voice for Peace on the Supreme Court

by Michael J. Brodhead


David Josiah Brewer's long career as a jurist spanned most of the reform era of the late nineteenth and early twentieth centuries. In many works dealing with the American judiciary in those years he appears as a genial conservative who consistently opposed the public's reform demands. In some respects this reputation is warranted. Yet on and off the bench he spoke out for a variety of causes, notably women's rights, education, charities, the rights of the Chinese in America, and--most of all--peace. Given his prominence and the force and frequency of his peace advocacy, it is somewhat surprising to find him so seldom mentioned in the historical treatments of the peace movements of his time.

Nowhere does he tell us directly what forces shaped his opposition to war. But there are certain events, institutions and persons that certainly must have been influences. The peaceable teachings of Christianity were there from his birth in 1837, in Smyrna, Asia Minor (then the Ottoman Empire), where his father, a Congregationalist minister was serving as a missionary. His uncle, the distinguished lawyer David Dudley Field, who helped to guide his namesakes' early legal career, was a conspicuous advocate of the arbitration of international disputes.[1] Perhaps also contributing to Brewer's antipathy to war was the fact that one of his brothers lost his life in the Civil War.

After graduating from Yale, Brewer received his law training at Albany Law School, taking his diploma in 1858. From there he migrated to Leavenworth, Kansas, married, and began his long and successful climb through the American judicial system.

A county and state district judge during the Civil War, he performed no military duties beyond those of a lieutenant in a home guard unit in Leavenworth.[2] Being a Republican, he believed in the Union cause but was not blind to the horrors of war. Although eastern Kansas was far from the main centers of the conflict, vicious fighting did take place in the area. He saw at close hand that military force not only destroyed lives and property but also impaired the rights of individuals and property--rights to which he was steadfastly devoted for a lifetime.

A clash with army authority just at the close of the hostilities no doubt added to his dislike of all things military. Major General John Pope, commander of the Department of the Missouri, authorized the seizure of horses and other livestock believed to have been illegally obtained from the Indians. Brewer, then judge of the first judicial district of Kansas, saw the entire affair as a highhanded taking of property without due process. Pope wrote an intemperate letter to Brewer informing him that the matter was outside the jurisdiction of the state courts. In stern letters to Pope and his superior, Major General William T. Sherman, Brewer denounced the military's violations of civil law and its brushing aside of the civil courts.[3]

In 1883, while serving as an associate justice of the state's supreme court, Brewer addressed the graduates of Washburn College of Topeka, warning them against "the man on horseback" and the "pride, pomp and circumstances of glorious war." He singled out Sherman's march to the sea for special attention:

"The soldier," he continued, "is not the ruler of a free people. He is by nature a despot. He speaks of force, not thought; of arms, not ideas. His ideal of society is the army where each individual is but one part of a vast machine moved with mechanical certainty and metallic rigidity by the central and absolute power."[4]

Less than a year after speaking these words, Brewer received appointment as judge of the Eighth Circuit Court. His elevation to associate justice of the United States Supreme Court came in 1889.

As a national figure and a willing and accomplished orator, Brewer was much in demand as a public speaker. To the dismay of some of his colleagues on the court, he often gave his frank opinions on a variety of issues. Peace was a constant theme in his addresses.

Earlier in the nineteenth century, pacifist sects and peace and anti-war organizations of a general nature, such as the American Peace Society, had characterized the peace movement in America. In the 1890s, by which time arbitration of international disputes had long been practiced in American diplomacy, many conservative leaders embraced this device as a favorite remedy for preventing war.[5] The arbitration movement gathered much popular support in the last years of the century. David Dudley Field, in a paper for the World's Congress on Jurisprudence and Law Reform in 1893, proudly announced that the United States was doing more than any other nation to advance the cause of arbitration.[6]
The practice appealed strongly to Brewer's judicial temperament. His attachment to the movement is evident in the early 1890s. The press of court business prevented his acceptance of an invitation to attend the Lake Mohonk conference on arbitration in 1895, but for the next several years he regularly participated in its annual gatherings.[7]

That summer he addressed the American Bar Association in Detroit. His remarks on arbitration were especially well received. He noted the growing number of successful arbitrations and the progress being made towards the establishment of a world tribunal to adjudicate international conflict.[8] Notions of a "parliament of man" and a world federation were, he argued, impractical dreams; a far more realistic proposal for insuring peace was adjudication by international courts. The lawyer and the judge, he told his appreciative audience, would lead the way.[9]

Soon thereafter Brewer had the opportunity to put his faith into action. The Cleveland administration, in an effort to goad Great Britain into accepting arbitration to settle the disputed boundary between Venezuela and British Guiana, persuaded Congress to establish a commission consisting of lawyers, jurists, and scholars, to investigate the question. Cleveland appointed Brewer to it and the other members unanimously elected him as its president. The commission and its staff began poring over a mass of documentary evidence. When it became apparent that the findings would be detrimental to the British claims, Britain agreed to arbitration.[10]

In submitting their final report, Brewer and the other commissioners pointed out that the boundary question had created "no little bitterness of feeling between the people of Great Britain and the United States" and that there had been talk of war. The commissioners took pride in the influence of their work in bringing about arbitration and in allaying fears of war. They further expressed the hope that their findings would facilitate the work of the arbitral tribunal.[11]

Brewer was appointed to 'serve on the tribunal, as was Chief Justice Melville W Fuller. The other members were two British jurists and a Russian diplomat. Meeting in Paris from June to September, 1899, the tribunal arrived at a decision and the matter was settled. Since it was a compromise settlement which perhaps gave more to Britain than was just, no one, least of all Brewer, was entirely satisfied.[12] Yet the experience strengthened his conviction that arbitration was the best means of peaceably solving quarrels between nations.

Severely impairing his optimism for a pacific world was the bellicose mood of his own countrymen in the 1890s. Numerous American politicians, journalists, intellectuals, and other public figures were preaching the desirability and necessity of war--war with anybody and for any reason. Oliver Wendell Holmes, Jr., who was to join Brewer on the Supreme Court in 1902, is a prominent example of a fin-de-siecle exponent of the benefits of war. Brewer stoutly opposed all glorification of war. Even when addressing the cadets at West Point during the dedication of a battle monument in 1897 he reminded them that their highest duty was to be "defenders of law and the guardians of peace."[13]

He openly ridiculed patriotic and veterans' societies that were so active in whipping up the war spirit. Such organizations "must have their local branches, and each with a roster of officials startling in number and amusing with the magnificence of their titles; presidents and president generals and honorary presidents. . . . It seems sometimes as though the dictionary had been ransacked not merely to find titles but adjectives to adorn those titles."[14]

As tensions between Spain and the United States mounted in the later 1890s Brewer voiced the belief that war was not likely since Spain could not hope to conquer and hold any portion of American soil.[15] Such wishful thinking was no match for American demands for military action against Spain. When war did come he damned it with faint praise. He believed it to be justified only because of Spanish atrocities and by the freeing of Cuba.[16]

While the fighting was taking place, Brewer told his countrymen that America's strength lay "not so much in its army and navy as its public schools" and warned against "the dazzle of military glory." He also voiced his anxiety over the talk of seizing the Philippines, Cuba, and Puerto Rico. The nation, he believed, would be far better off if it let the oceans continue to separate the new world from the old and ceased looking outside of her borders for wrongs to make right; instead, Americans should use their energy to promote domestic reform and commercial and industrial advancement. "So doing we shall make the United States the mightiest of nations, mightier than Great Britain with her navy, than Germany with her soldiers, than Russia with all her vastness of territory; mightier through the might of a great and bold example and thus more than in any other way hasten the day when the tramp of the armed battalion and the boom of the destroying cannon shall no more be heard, and peace shall fill the earth with the blessed sunlight of heaven."[17]

His grudging endorsement of the war did not lead to acceptance of the imperial expansion resulting from the conflict. He frequently and vigorously denounced his country's venture in imperialism. Even before the peace treaty was agreed to, he told a newspaper interviewer that American ownership of Puerto Rico and the Philippines would be contrary to America's traditional opposition to government by force and would weaken the Monroe Doctrine.[18]

Once the former Spanish possessions became United States property, Brewer expressed his anti-imperialist sentiments in two ways. As a member of the Supreme Court he consistently voted with those of his colleagues who opposed the view that the new territories were not fully incorporated into the American constitutional system.[19] Although he wrote none of the opinions in the Insular Cases, he urged the Chief Justice, in a private letter, to "stay on the court till we overthrow this unconstitutional idea of colonial supreme control."[20]

Off the bench he inveighed against American participation in European-style colonialism. In a magazine article he wrote of his difficulty understanding how the Constitution--written by men who had overthrown colonial rule--could be interpreted as granting power to Congress "to hold other people in like colonial subjection."[21]

His major statement on the war and the acquisition of the Spanish islands was an address before the Liberal Club in Buffalo, "The Spanish War: A Prophecy or an Exception?" In it he conceded that the war was waged mostly for humanitarian reasons, but he noted other, less exalted factors: threats to American commercial relations and investments; the "tempestuous utterances of those jingo orators who shouted for war but never enlisted"; and of course the desire for military glory.[22] As the title of the address suggests, Brewer hoped that the war and its imperialistic aftermath were aberrations, not portents of things to come, and that the United States would not seek other wars or more colonies to govern by force.

The main theme of the Buffalo address was anti-imperialism but throughout his remarks he consistently emphasized peace and opposition to militarism: " . . . is there not such a thing as overdoing this getting ready for war? I have noticed that a man who goes about with a chip on his shoulder is very apt to have many quarrels, but the gentleman who minds his own business is ordinarily let alone and goes through life without a fight."[23]

In a talk before the New England Society of Pennsylvania he argued that the United States had not become a world power because of the Spanish-American War; rather it was already a world power by virtue of religious strength and commercial growth.[24] Not all commercial activity met with Brewer's approval. He no doubt took satisfaction in writing two opinions in which the Supreme Court ruled against shipbuilding companies seeking more than the agreed-upon payment for the construction of naval vessels.[25]

At the end of the nineteenth century Brewer predicted that the coming century would bring a better day for mankind: "Peace, with its white wings, hovers everywhere in the air," even though "the steady arming of the world goes on and the great battallions and huge armaments increase."[26] Had he not added these qualifying words he would appear impossibly naive because the first years of the century were marked by the increase of tensions that were to culminate in the outbreak of World War I.

The first ten years of the new century was also the last decade of Brewer's life. During this time, despite declining health, he redoubled his efforts in the cause of peace. Before a variety of audiences--lawyers, church groups, businessmen, and students--he spoke out on the same themes he had addressed previously: the promise and practicality of arbitration and adjudication, the evils of imperialism, the dangerous and expensive increase of armaments, the duty of Christians to work for peace, the Golden Rule as the guiding principle in diplomacy, the incompatibility of war and civilization, the rule of law in international relations, the progress being made in mitigating the horrors of war, and the role of commerce in promoting harmony between nations.[27]

Several of these public addresses were also printed as articles or pamphlets, thereby reaching still more people. His willingness to grant interviews to journalists gave him further opportunities to incline public opinion towards peace.
Brewer continued to be active at the Lake Mohonk conferences. At the 1904 meeting he spoke optimistically on the work of the Hague Conference in furthering the cause of arbitration. Four years later at Lake Mohonk he urged that the United States assume leadership in the disarmament movement and praised the part played by women in promoting peace.[28]

At the 1905 meeting, where he spoke on "The Enforcement of Arbitral Awards," he and other distinguished lawyers, jurists, and diplomats laid the groundwork for an organization, the American Society of International Law, which they formally established in 1907. Brewer was chosen as one of its vice-presidents.[29]

With Charles Henry Butler he wrote a treatise on international law. In the preface they expressed their faith in international tribunals.[30] Brewer was one of many of his generation who saw the United States Supreme Court, with its history of successfully settling quarrels between states, as a "pattern for a future court of nations" which could similarly decide controversies between sovereign powers. "This method of determining causes," he believed, "will be extended throughout the world."[31]

Despite a growing sentiment for peace, Brewer was sadly aware that most Americans of the early twentieth century seemed to favor the aggressive foreign policies of the Roosevelt administration and a larger army and navy to back up such policies. He repeatedly and forthrightly condemned the Big Stick in general and denounced in particular the wresting of Panama from Colombia. His views of course came to Roosevelt's attention and may have been more important than his judicial responses to social and economic matters in shaping Roosevelt's privately expressed antipathy for the justice.[32]

Most of Brewer's addresses, lectures, interviews, and articles covered more than one topic, not peace alone. His last major address, however, a speech before the New Jersey State Bar Association in 1909, dealt with peace exclusively. Entitled "The Mission of the United States in the Cause of Peace," it was a forceful summing up of the peace themes he had long espoused, e.g., arbitration and the' Christian duty of the United States to lead the movement against war, but the major point was his opposition to increased armaments and the Big Navy thinking then so fashionable. Brewer blasted those "interests which profit by naval construction" for being "active and clamorous" in the Big Navy movement.[33]

He then decried other manifestations of the martial spirit: "From the football field to the ironclad, from the athlete to the admiral the thought and the talk is fight." The increasingly military aspect of the nation's capitol, so evident since the Spanish-American war, disturbed him. He considered the global voyage of the Great White Heet to have been so much "parade and frolic" which contributed nothing to the promotion of peace. Also, he pointed out the disadvantages of war for both businessmen and the working classes; in time of war the former lost money and property, while the latter bore the brunt of the destruction of life.[34]

Shortly after agreeing to speak before the New England Arbitration and Peace Conference,[35] Brewer, on March 28, 1910, died quietly in Washington. His passing was a deeply felt loss in American peace circles.[36] As the city of Leavenworth was preparing for his internment there, a spokesman for Fort Leavenworth announced that army regulations had no provision for a military escort for the funeral of an associate justice.[37] No doubt David Brewer would have preferred it so.

In some respects Brewer was typical of the peace advocates of his day: a conservative member of an elite class who saw war as destructive to property and the social order and who had a legalistic faith in the efficacy of arbitration and adjudication.[38]

Yet in other important ways, Brewer went beyond the typical anti-war spokesmen of that period. Unlike them, he was not content to work only within the small elitist peace groups. Although he did not attempt to reach a mass audience, he did take his message to many diverse groups of middle-class Americans. Several of his colleagues in the peace movement accepted imperialism and even embraced Big Navy thinking. Not Brewer. To him imperialism was both the evil fruit of past war and productive of future ones. And increased armaments in any form, he believed, inevitably resulted in war.

One recent student of early twentieth century peace movements has written that the peace advocates of that time "refused to accept militarism as a growing evil of modern life. Rather, they regarded it as an anachronistic survival of an earlier, unenlightened era and as incompatible with modern industrialism."[39] If this generalization is valid, Brewer again is an exception. He was acutely aware that militarism was on the rise and said so repeatedly.

On the other hand, he was not a thorough pacifist. He believed that the Civil War had been necessary because it preserved the union and ended slavery and that the freeing of Cuba had given the Spanish-American War a measure of respectability. When American lives and property were in real jeopardy, armed force, he acknowledged, was justified. Brewer even stated that an American citizen owed military service to his country in time of war, even if the war itself was not altogether a just one.[40]

These qualifications aside, we must recognize that David J. Brewer was a tireless, dedicated, and eloquent advocate of peace and among the most visible and vocal critics of militarism in his time.


Endnotes

1 Henry M. Field, The Life of David Dudley Field (New York Charles Scribner's Sons, 1898), 219-242, passim.

2 Undated clipping, c. 1881, in scrapbook, Box 9, Brewer Papers, Yale University.

3 William E. Unrau, "Joseph G. McCoy and Federal Regulation of the Cattle Trade," The Colorado Magazine, 43 (Winter, 1966), 36-38; unidentified clipping, scrapbook, David B. Karrick Papers, Yale University.

4 Brewer, "The Scholar in Politics," Commencement Exercises, Washburn College, June '83 (Manhattan, KS, n. p.: 1883), 23-24.

5 C. Roland Marchand, The American Peace Movement and Social Reform, 189-1918 (Princeton, NJ: Princeton University Press, 1972), 55, 63-64. The term arbitration, as used here, refers to the settlement of international quarrels with the participation of a person or persons mutually agreeable to the parties in the controversy. Arbitration, as opposed to adjudication, is not a judicial proceeding.

6 American Advocate of Peace, 55 (Nov., 1893), 254.

7 Report of the First Annual Meeting of the Lake Mohonk Conference on International Arbitration (1895), 17.

8 Adjudication, as distinguished from arbitration, is the settlement of international disputes by a court, tribunal, or other judicial body.

9 Brewer, "A Better Education the Great Need of the Profession," The American Lawyer, 4 (Jan. 1896), 13.

10 Leslie B. Rout, Jr., Which Way Out? A Study of the Guyana-Venezuela boundary Dispute (East Lansing, MI: Latin American Studies Center, Michigan State University, 1971), 18-20; Marcus Baker, "The Venezuelan Boundary Commission and Its Work," National Geographic Magazine, 8 (July-Aug., 1897), 195-97.

11 Report of the Special Commission . . . to Examine and Report upon the True Divisional Line between the Republic of Venezuela and British Guiana. 4 vols. Sen. Doc. No. 91, 55th Cong., 2d sess. (1898), I, 21-22.

12 Marcus Baker, "The Anglo-Venezuelan Boundary Dispute," National Geographic Magazine, 11 (April 1900), 143; Otto Shoenrich, "The Venezuela-British Boundary Dispute," American Journal of International Law, 53 (July 1949), 528-530; Willard L. King, Melville Weston Fuller, Chief Justice of the United States, 1888-1910 (Chicago: University of Chicago Press, 1967), 259-260; Kansas City Star, June 30,. 1900).

13 Address of David J. Brewer . . . at the Dedication of the Battle Monument, West Point, New York, May 31, 1897 (West Point [?]: U.S.M.A., Press and Bindery, 1897).

14 Brewer, The Twentieth Century from Another Viewpoint (New York: Fleming H. Revell Company, 1899), 23.

15 Topeka Capital, July 30, 1897.

16 New York Times, Dec. 17, 1906, 7:2.

17 Brewer, The Income tax Cases, Address Delivered before the Graduating Class of the Law Department of the University of Iowa at the Annual Commencement, June 8, 1898 (n. p., n. d.), 17, 21-23.

18 New York Times, July 22, 1898, 12:5.

19 James E. Kerr, The Insular Cases: The Role of the Judiciary in American Expansion (Port Washington, NY: Kennikat Press, 1982), 19-20.

20 King, Fuller, 265-67, 269, 270-71, 273-76.

21 Brewer, "What I Have Gained from Bible Teaching," article from unidentified magazine, Brewer Papers, Box 3.

22 Brewer, The Spanish War: A Prophecy or an Exception? (Buffalo: The Liberal Club, 1899), 3-4.

23 Ibid., 12, 21-22.

24 New York Times, Dec. 24, 1901, 1:1.

25 United States v. Bliss, 172 U.S. 321 (1899); United States v. Cramp & Sons Ship & Engine Bldg. Co., 206 U.S. 118 (1907).

26 Brewer, The Twentieth Century from Another Viewpoint, 54.

27 Brewer, "The Triumph of Justice" (University of Kansas, commencement address), Lawrence Journal, June 10, 1903; Brewer, The United States a Christian Nation. Haverford Library Lectures (Philadelphia: John C. Winston Co., 1905), 63, 66, 68, 88-89, New York Times, Nov. 21, 1905, 2:3; ibid., Dec. 17, 1906, 7:2; Brewer, American Citizenship. Yale Lectures on the Responsibilities of Citizenship (New York: Charles Scribner's Sons, 1906), 43, 51-54, 125-127; Association of Agents of the Northwestern Mutual Life Insurance Company, Minutes of the Twenty-fifth Annual Meeting, July 16th and 17th (1901), 30-41; Brewer, "The Ideal Lawyer," Atlantic Monthly, 98 (Nov., 1906), 597; Official Report of the Universal Congress of Lawyers and Jurists, Held at St. Louis, Missouri, U.S.A., September 28, 29 and 320, 1904, under the Auspices of the Universal Exposition and the American Bar Association (St. Louis, 1905), 5, 7.

28 Brewer, "Keeping to the Highest Ideals," Report of the Tenth Annual Meeting of the Laker Mohonk Conference on International Arbitration (1904), 116-19; Brewer, "America's Duty in the Peace Movement," ibid., Fourteenth Annual Meeting (1908), 147-49.

29 Proceedings of the American Society of International Law at its First Annual Meeting, Held at Washington, D.C., April 19 and 20, 1907 (New York: American Society of International Law, 1908), 9, 23-24, 37.

30 Brewer and Butler, International Law (New York: American Law Book Company, 1906), 4-5.

31 "Remarks of Hon. David J. Brewer," Report of the Thirteenth Annual Meeting of the Lake Mohonk Conference on International Arbitration (1907), 169-71; Kansas City Journal, June 3, 1907.

32 E. F. Ware, D. J. Brewer," Proceedings of the Twenty-eighth Annual Meeting of the Bar Association of the State of Kansas (1911), 20; Brewer, American Citizenship, 120-21, 122, New York Times Dec. 17, 1906, 7:2; Brewer, "Why Do I Believe in Foreign Missions?", The Envelope Series, 8 (April 1905), 7-8.

33 Brewer, The Mission of the United States in the Cause of Peace (Boston: International School of Peace, 1910), 2, 3, 13.

34 Ibid., 10-11, 15, 16, 18-20.

35 Arthur Deer Call to Brewer, March 9, 1910, Brewer Papers.

36 "Justice David J. Brewer," Advocate of Peace, 72 (May 1910), 98-99.

37 Leavenworth Times, April 1, 1910.

38 David S. Patterson, "An Interpretation of the American Peace Movement, 1898-1914," in Peace Movements in America, ed., by Charles Chatfield ( New York: Schocken Books, 1973), 20-38; see also Sondra R. Herman, Eleven Against War: Studies in American Internationalist Thought, 1898-1921 (Stanford, CA: Hoover Institution Press, 1969).

39 Patterson, "An Interpretation of the American Peace Movement," 31.