Henry Stanbery served as attorney general of the United States from 1866 to 1868 under President Andrew Johnson.
Stanbery, the son of Jonas Stanbery, a physician, was born February 20, 1803, in New York. He moved with his family from New York to Zanesville, Ohio, in 1814. An excellent student, Stanbery required greater academic challenge than early Zanesville schools could provide. Recognizing his scholastic aptitude, his father made arrangements for him to attend Washington College, in Pennsylvania. He graduated in 1819 at the age of sixteen.
Stanbery studied law, and he was admitted to the bar in 1824 when he came of age. The same year, he entered into practice with Thomas Ewing, an attorney from Lancaster County, Ohio. They worked together for more than twenty years and handled a wide variety of cases.
Stanbery's growing prominence in the Ohio courts made him a natural candidate for public office. He dissolved his longtime partnership with Ewing in 1846 and moved to Columbus to serve as Ohio's first attorney general. He also served as a delegate to the convention that framed the Ohio state constitution in 1851. After the constitutional convention, Stanbery reestablished his private practice—first in Cincinnati (1853) and later in northern Kentucky (1857). He maintained an active law practice throughout the U.S. Civil War.
After the Civil War, Stanbery became embroiled in the conflict and controversy surrounding Johnson's presidency. Johnson supported the policies of reconstruction and reconciliation favored by the late president Abraham Lincoln, but his efforts were met with strong opposition from Radical Republicans in the Senate. Johnson's first attorney general, James Speed, resigned in 1866 when he could no longer support presidential initiatives.
Amid this turmoil, Stanbery was asked to step in, and accepted the post of attorney general. Almost immediately, he was nominated by Johnson to fill a U.S. Supreme Court vacancy left by the death of Justice John Catron. Most senators liked the new attorney general and recognized him to be an able lawyer, but Radical Republicans were determined to prevent the confirmation of any nominee put forth by Johnson. To ensure that Johnson would not be able to fill the vacancy, the Senate enacted legislation to reduce the number of High Court justices from ten to seven as vacancies occurred. Accordingly, the seat for which Stanbery had been considered in April 1866 was abolished, and his nomination was never considered.
"The Constitution is not silent. It provides for insurrection, whether small or great; … whether in one State or many."
Although sixty-three years old and in failing health, Stanbery served Johnson as a loyal and active attorney general. Prior to Stanbery's appointment, the president had vetoed early Civil Rights legislation and was eager to restore full jurisdiction to Southern state courts. As attorney general, Stanbery supported Johnson by refusing to encourage enforcement of the Civil Rights Acts or providing any guidance to U.S. attorneys seeking to implement them.
When Johnson faced Impeachment by the Senate in March 1868, Stanbery resigned his office to serve as the president's counsel. So poor was Stanbery's physical health during Johnson's impeachment trial that he submitted most of his arguments in writing. Upon termination of the trial, Johnson sought to reappoint his friend and counsel as attorney general, but the Senate rejected Stanbery's reinstatement.
Stanbery remained in Washington, D.C., for the next few years and continued to participate in high-profile cases of the Reconstruction Era—including a number of cases that tested the constitutionality of the government's criminal prosecutions of the Ku Klux Klan.
In the mid-1870s, Stanbery returned to Ohio and served a short term as president of the Cincinnati Bar Association. In retirement, he wrote occasionally on political and legal topics, but he devoted most of his time to the management of his vast property holdings. The year before his death, a newspaper account identified him as the largest property owner in Campbell County, Kentucky. Stanbery died in New York on June 26, 1881.
Kaczorowski, Robert J. 1990. "The Common-Law Background of Nineteenth-Century Tort Law." Ohio State Law Journal 51 (November).
Lawlor, John M. 1986. "Court Packing Revisited: A Proposal for Rationalizing the Timing of Appointments to the Supreme Court." University of Pennsylvania Law Review 134 (April).