[The court had failed in] its duty to decide the important constitution questions involved, and particularly the one which was so fully considered in the Circuit Court [where Field was also the judge], and elaborately argued here, that in the assessment, upon which the taxes claimed were levied, an unlawful and unjust discrimination was made"-and to that extent depriving it [the railroad "person"] of the equal protection of the laws. At the present day nearly all great enterprises are conducted by corporations"- [a] vast portion of the wealth "-is in their hands. It is, therefore, of the greatest interest to them whether their property is subject to the same rules of assessment and taxation as like property of natural persons"-whether the State"-may prescribe rules for the valuation of property for taxation which will vary according as it is held by individuals or by corporations. The question is of transcendent importance, and it will come here and continue to come until it is authoritatively decided in harmony with the great constitutional amendment (Fourteenth) which insures to every person, whatever his position or association, the equal protection of the laws; and that necessarily implies freedom from the imposition of unequal burdens under the same conditions.
In Everyman's Constitution, Graham documents scores of additional attempts by Supreme Court Justice Field to influence or even suborn the legal process to the benefit of his open patrons, the railroad corporations. Field's personal letters, revealed nearly a century after his death, show that his motivations, in addition to wealth and fame, were Presidential aspirations - he wrote about his hopes that in 1880 and 1884 the railroads would finance his rise to the Presidency, which may explain his zeal to please his potential financiers in 1882 in the San Mateo case and the 1886 Santa Clara case .
So, this conspiracy theory goes, after the case was decided - without reference to corporations being persons and without anybody on the court except Field agreeing with Sanderson's railroad arguments that they were persons under the Fourteenth Amendment - Justice Field took it upon himself to make sure the court's record was slightly revised: it wouldn't be published until J.C. Bancroft Davis submitted his manuscript of the Court's proceedings (titled "United States Reports") to his publisher, Banks & Brothers in New York, in 1887, and not released until Waite's death in 1888 or later.
After all, Waite's comments to reporter Davis were a bit ambiguous - although he was explicit that no constitutional issue had been decided. Nonetheless, Recorder Davis, with his instruction from Waite that Davis, himself, should "determine whether anything need be said"-in the report," may well have even welcomed the input of Field. And since Field, acting as the judge of the Ninth Circuit in California, had already and repeatedly ruled that corporations were persons under the Fourteenth Amendment, it doesn't take much imagination to guess what Field would have suggested Court Recorder Davis include in the transcript, perhaps even offering the language, curiously matching his own language in previous lower court cases.
Graham and McGrath, two of the preeminent scholars of the twentieth century (Graham on this issue, and McGrath also Waite's biographer), both agree that this is the most likely scenario. At the suggestion of Justice Field, almost certainly unknown to Waite, "a few sentences" were inserted into Davis's final written record "to clarify" the decision. It wasn't until a year or more later, when Waite was fatally ill, that the lawyers for the railroads safely announced they had seized control of vital rights in the United States Constitution.
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 [Maarx] 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, the Alabama Claims 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"-"
