Brewer, David Josiah (b. Smyrna, Asia Minor [modern Turkey], 20 Jan. 1837; d. Washington, D.C., 28 Mar. 1910; interred Mt. Muncie Cemetery, Leavenworth, Kans.), associate justice, 1890–1910. Brewer was born of Congregational missionary parents in Asia Minor and then raised in privilege. After attending Wesleyan and Yale Universities and Albany Law School, Brewer moved to Kansas in the late 1850s to begin his professional career. There he served on the Supreme Court of Kansas (1870–1884) and the Eighth Federal Circuit Court (1884–1889). In 1890 President Benjamin Harrison appointed him to the U.S. Supreme Court. Brewer was twice married: to Louise R. Landon of Burlington, Vt., in 1861, and after her death, to Emma Miner Mott of Washington, D.C., in 1901.

Today Brewer is largely forgotten, partly because at various points his tenure overlapped with three titans of the law—his uncle, Stephen J. Field, John Marshall Harlan, and Oliver Wendell Holmes. Nevertheless, it was Brewer, along with Rufus W. Peckham, who served as the intellectual leader of a bloc of justices—largely appointed by Grover Cleveland, a Democrat, and Benjamin Harrison, a Republican—that dominated the Supreme Court at the turn of the century. That group included Chief Justice Melville W. Fuller, who described Brewer as “one of the most lovable of them all.”

Brewer's overriding purpose was to affirm the idea of limited state interference with the economy. He marveled at the abundance that capitalism had produced and defended inequalities in the distribution of wealth as inevitable and just.

In In re Debs (1895), Brewer wrote a unanimous opinion for the Court upholding an injunction against the Pullman strike of 1894 on the theory that Eugene Debs and his followers were obstructing the free flow of commerce among the states (see Commerce Power). In Reagan v. Farmers' Loan and Trust Co. (1894), Brewer set aside a regulation of the Texas Railroad Commission limiting railroad rates because investors were receiving no return. He thereby limited the impact of Munn v. Illinois (1877) and in that respect showed a philosophical link with his uncle Field, who originally dissented in that case and was adamant on the protection of property rights.

Brewer was not, however, altogether blinded by his devotion to capitalism, and he was not opposed to the use of state authority when business power threatened the market. In Northern Securities v. United States (1904), for example, he provided the decisive vote to sustain Theodore Roosevelt's effort to set aside a merger between two corporate barons of the day, James Hill and J. P. Morgan.

Moreover, for a man so committed to the market and the system of liberties it implied, Brewer evidenced an instinctive concern for the disenfranchised. Although he joined Peckham's opinion in Lochner v. New York (1905), which invalidated a statute establishing maximum hours for bakers, he wrote the opinion for a unanimous Court in Muller v. Oregon (1908), upholding a similar statute for women working in laundries. Brewer also passionately protested the treatment of the Chinese, on both substantive and procedural grounds. He dissented from Holmes's opinions in United States v. Sing Tuck (1904) and United States v. Ju Toy (1905), which denied resident Chinese access to the Federal courts to try their claims of citizenship, and from Harlan's opinion in the Japanese Immigrant Case (1903), which undermined a Japanese alien's claim for due process in deportation proceedings. He also dissented in Fong Yue Ting v. United States (1893), which involved the use of a pass system for resident Chinese under the Geary Act of 1892. Brewer complained: “In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, why do they send missionaries here?” Brewer also spoke out against the colonialism that swept the nation in the years immediately following the Spanish American War in 1898. “To introduce government by force over any portion of the nation,” he said, “is to start the second quarter of the second century of our life upon principles which are the exact opposite of those upon which we have hitherto lived.”

Like the records of most justices of his time, Brewer's is mixed on the rights of blacks. In Berea College v. Kentucky (1908), he upheld a state statute prohibiting private schools and colleges from providing instruction on an integrated basis; in Hodges v. United States (1906), he ruled that the Federal government lacked the power to prosecute a gang of whites who forced blacks off a job in Arkansas (see Race and Racism). The Berea decision rested on Brewer's view of the totality of a state's power over corporations, entities, or institutions that it helped create; he thought there would be serious constitutional doubts if the Kentucky statute were applied to individuals. The Hodges decision reflected the allocation of power between the states and the national government effectuated by the Civil Rights Cases of 1883. In a critical decision concerning voting discrimination, Giles v. Harris (1903), Brewer, along with Harlan, dissented from an opinion of Holmes that confessed an inability or unwillingness of the Federal courts to provide relief against the massive program of racial disenfranchisement against African‐Americans then sweeping the South (see Vote, Right to).

Brewer's special gift was his conception of the judge's role, which he both propounded and exemplified. He feared the popular movements of his day, which he saw as a threat to civilization, but unlike Holmes, who harbored similar sentiments, Brewer did not believe that the judge was to sit as a spectator while history unfolded; Brewer believed a judge's duty was to remind the people of their highest ideals, to lead rather than to acquiesce. He recognized that there was nothing a judge could do to stop the inevitable triumph of the masses, but still believed that it was the judge's obligation to try. “It is one thing,” Brewer once said, “to fail of reaching your ideal. It is an entirely different thing to deliberately turn your back on it.”

Bibliography

Owen M. Fiss , The Fuller Court, in History of the Supreme Court of the United States, vol. 8, Troubled Beginnings of the Modern State, 1888–1910 (1993).
Arnold M. Paul , Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (1960).

Owen M. Fiss

BREWER, DAVID JOSIAH

David Josiah Brewer was an associate justice of the Supreme Court from 1890 to 1910. A defender of personal liberty and property rights, he also supported states' rights and was opposed to centralization of power in the federal government.

Brewer was born June 20, 1837, in Smyrna, Asia Minor (now Turkey). His father, Josiah Brewer, was a Yale graduate who worked in Turkey as a missionary. His mother, Emilia Field, was the sister of Supreme Court justice stephen j. field, with whom Brewer eventually served. After returning to the United States from their missionary work, the Brewers settled in Wethersfield, Connecticut. Brewer attended Wesleyan University for two years before transferring to Yale, where he graduated with honors in 1856. He studied law for a year with an uncle and then enrolled in Albany Law School. He received his law degree in 1858 and was admitted to the New York bar the same year.

Brewer decided to stake his future on the frontier West. He settled in Leavenworth, Kansas, and almost immediately began his long judicial career. He was appointed commissioner of the U.S. Circuit Court for the District of Kansas in 1861 and was elected judge of the probate and criminal courts of Leavenworth County in 1862. Brewer served as a judge of the first judicial district of Kansas from 1865 to 1869. He briefly left the judiciary in 1869 to become Leavenworth's city attorney, but returned in 1870 when, at the age of thirty-three, he was elected to the Kansas Supreme Court. He sat on the Kansas bench until 1884 when President chester arthur named him to the federal circuit court for the eighth circuit. Five years later, President william h. harrison appointed him to the U.S. Supreme Court, where he remained until his death.

As a Supreme Court justice, Brewer was known for his ardent support of individual rights against the tyranny of the majority. "Here there is no monarch threatening trespass upon an individual," he once said. "The danger is from the multitude—the majority with whom lies the power." Brewer had great compassion for the marginalized members of U.S. society. In 1908, he wrote the opinion for a unanimous Court in Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551, upholding a statute that established maximum work hours for women toiling in laundries. Although he had in 1905 voted to invalidate a similar statute that applied to bakers, in lochner v. new york (198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]), Brewer was convinced that the particular statute at issue in Muller did not unnecessarily limit an individual's contract liberty.

Brewer also wrote strong dissents in several cases limiting the rights of Chinese and Japanese immigrants (see Fong v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905 [1893]; United States v. Sing Tuck, 194 U.S. 161, 24 S. Ct. 621, 48 L. Ed. 917 [1904]; United States v. Ju Toy, 198 U.S. 253, 25 S. Ct. 644, 49 L. Ed. 1040 [1905]; the Japanese Immigrant case, 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 721 [1903]). His dissent in Fong, in which the Court found that the power of Congress to deport aliens was inherent in national sovereignty, included this sarcastic indictment of what he considered Congress's arbitrary denial of plaintiffs' rights: "In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, Why do they send missionaries here?"

Brewer was, in most cases, a moderate conservative. He spoke out against racial disfranchisement in Giles v. Harris, 189 U.S. 475, 23 S. Ct. 639, 47 L. Ed. 909 (1903). However, reflecting his belief in states' rights, he held that a state had the right to prohibit integration in an institution it had created (Berea College v. Kentucky, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81 [1908]) and that the federal government lacked power to prosecute a case of racially motivated harassment (Hodges v. United States, 203 U.S. 1, 27 S. Ct. 6, 51 L. Ed. 65 [1906]). A lifelong advocate of international peace, Brewer served as president of a congressional commission investigating a border dispute between Venezuela and British Guyana, and later served on the tribunal that ended the controversy. Brewer advocated women's suffrage and restrictions on immigration. He was a vigorous anti-imperialist who believed that the Philippines should be given independence with guaranteed neutrality.

Brewer was an unusually outgoing justice who lectured frequently and wrote several books, including The Pew to the Pulpit, The Twentieth Century from Another Viewpoint, American Citizenship, and The United States: A Christian Nation. He felt strongly that judges have a moral obligation to use their lofty position to lead rather than simply observe. "It is one thing," he once said, "to fail of reaching your ideal. It is an entirely different thing to deliberately turn your back on it."

"You cannot disassociate the character of the nation and that of its citizens."
—David Brewer

Brewer died in Washington, D.C., on March 28, 1910.

further readings

Brodhead, Michael J. 1994. David J. Brewer: The Life of a Supreme Court Justice, 1837-1910. Carbondale: Southern Illinois Univ. Press.

Hylton, Joseph Gordon. 1994. "David Josiah Brewer: A Conservative Justice Reconsidered." Journal of Supreme Court History. 45–64.

Schwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford Univ. Press.

Tribe, Laurence H. 1985. God Save This Honorable Court. New York: Random House.

BEREA COLLEGE

Known for its unique approach to service learning, Berea College provides an education to those traditionally denied access because of race or poverty. Founded in 1855, the college was fully incorporated on April 5, 1866, with the first bachelor's degrees granted in 1873. Berea began as a one-room school in Berea, Kentucky, under the direction of the abolitionist Reverend John G. Fee. Edward H. Fairchild was the first Berea president (1869–1889), followed by William B. Stewart (1890–1892) and William G. Frost (1892–1920). Reverend Fee was never an official president, but served as the president of the board of trustees from 1858–1892. Articles of incorporation for the college were adopted in 1859 in the midst of increasing hostility to abolitionists.

Fee advocated an education built on Christian character, excellence, and equality for all, including African Americans. Teachers for Berea were recruited from Oberlin, an Ohio institution known for its antislavery stance. Following the Civil War, Berea began to enroll African-American and white students. The admission of African-American students was not without controversy and influenced policy from 1875 through 1890; the debate continued through the tenure of William Frost. Frost sought to strengthen the financial endowment of Berea, and gained support from notables such as Theodore Roosevelt, Julia Ward Howe, Charles Eliot, and Woodrow Wilson.

Concern for the education of African Americans in the era of Jim Crow was undermined when the Kentucky legislature passed the Day Law in 1904, which forbade the education of African Americans and whites together. In 1901 Berea was the only interracial institution in the South. Although Berea officials challenged the law, the Kentucky Court of Appeals and the U.S. Supreme Court upheld segregation. The enforced segregation led Berea to establish the Lincoln Institute near Louisville, Kentucky, for the education of African-American students.

The effects of the Day Law and the influence of Frost led Berea to stress the education of the white mountain people of Appalachia, whom Frost believed were of pure Anglo-Saxon stock. Part of the new mission was to train teachers to teach in the remote areas of Appalachia. Frost also advocated a form of manual training that integrated intellectual and vocational labor as a form of social and economic support. This emphasis on labor was continued during the term of President William James Hutchins, who served Berea from 1920 to 1939. Building on its commitment to the region, Berea committed itself to remedial education through an nongraded high school, continuing to serve students needing financial assistance. Guided by Berea's motto, "To Promote the Cause of Christ," Hutchins sought to prepare mountain leaders for Christian citizenship and service to others. Following the end of World War II and the repeal of the Day Law in 1950, Berea once again slowly began to educate African Americans. During the 1960s changes were made in the curriculum to place more emphasis on student freedom, flexibility, and responsibility. This resulted in strengthening the liberals arts and the professional programs, and included a growing interest in African-American studies and civil rights.

In the early twenty-first century, Berea's mission emphasizes a commitment to equality of opportunity for students from Appalachia, including all people of color. This commitment is grounded in a strong focus on the Christian ethic through study of the liberal arts; an understanding and appreciation of labor; a sense of democratic community; and an obligation of service to Appalachia. Students are admitted to Berea on need and pay no tuition except through their labor.

See also: Service Learning, subentries on Higher Education, Schools.

bibliography

Frost, William G. 1937. For the Mountains: An Autobiography by William Goodell Frost. New York: Fleming Revell.

Peck, Elisabeth S. 1982. Berea's First 125 Years, 1855–1980. Lexington: University of Kentucky Press.

Wood, Gerald E. 1998. "Organizational Culture and Leadership at Berea College." Ph.D diss., West Virginia University, Morgantown.

Sam Stack

Berea College at Berea, Ky.; coeducational; founded 1855 by John G. Fee as a one-room school, chartered 1866, a college since 1869. Fostered by abolitionists including Cassius M. Clay , it aimed to educate both black and white, male and female residents of Appalachia. Students (whose families must earn below a certain level) are guaranteed tuition through grants, scholarships, and a minimum of 10 hours of work a week in school-owned operations including a bakery, laundry, printing shop, and hotel.