CROSSING THE RUBICON

On the 17th of December, 1866, the Supreme Court rendered its decision in the Milligan case, which had reached that tribunal on a certificate of disagreement between the two judges of the United States Circuit Court for Indiana. Milligan, a citizen, not in the military or naval service, had been arrested in October, 1864, by General A. P. Hovey, commanding the military district of Indiana, for alleged treasonable acts, had been tried by a military commission, found guilty, and sentenced to be hanged on the 19th day of May, 1865. He petitioned the court for a discharge from custody under the terms of the Habeas Corpus Act passed by Congress March 3, 1863. He affirmed that, since his arrest, there had been a session of the grand jury in his district and that it had adjourned without finding an indictment against him. The act of Congress provided that the names of all civilians arrested by the military authorities in places where the courts were open should be reported to the judges within twenty days after their arrest, and that if they were not indicted at the first term of court thereafter they should be set at liberty.

This question had been pretty thoroughly thrashed out in the Vallandigham case, but it had been imperfectly understood; President Lincoln had gone astray in that labyrinth, and judges on the bench had differed from each other in their interpretation of an unambiguous statute. The most commonly accepted opinion was that the act of 1863 was not applicable to Copperheads, or, if it was, that it ought not to be obeyed.

The Supreme Court was unanimous in the opinion that Milligan must be discharged, since the law was plain and unequivocal, but there was a division among the nine judges of the court as to the power to try persons not in the military service, by military commission. Five judges held that Congress could not abolish trial by jury in places where the courts were open and the course of justice unimpeded. Four judges maintained that Congress might authorize military commissions to try civilians in certain cases where the civil courts were open and freely exercising their functions, although Congress had not actually done so. The five judges constituting the majority were Davis (who wrote the opinion of the court), Clifford, Nelson, Grier, and Field. The four who dissented from the argument, but not from the judgment, were Chief Justice Chase (who wrote the minority opinion), and Judges Wayne, Swayne, and Miller. Davis's opinion is not surpassed in argumentative power or in literary expression by anything in the annals of that great tribunal.

The logical consequences of the decision were tremendous, or would have been, if the public mind had been in a condition to appreciate its gravity. Not only did it follow logically that the trial and execution of Booth's fellow conspirators, Payne, Atzerodt, Herold, and Mrs. Surratt, were, in contemplation of law, no better than lynching, but that Andrew Johnson's endeavor to put an end to government by military commissions, as soon as possible, was right, and that the contrary design, by whomsoever held, was wrong.

The radicals in Congress, however, were only angered by the decision. They were not in the least disconcerted by it, but the court itself was very much so. If it had been necessary to pass a law reorganizing the court, in order to reap the fruits of the victory won in the recent elections, a majority could have been obtained for it.

Under date of January 8, 1867, the "Diary of Gideon Welles" tells us that there was a Cabinet meeting at which the President said that he wished to obtain the views of each member on the subject, already mooted, of dismantling states and throwing them into a territorial condition. A colloquy ensued which is reported as follows:

Seward was evidently taken by surprise. Said he had avoided expressing himself on these questions; did not think it judicious to anticipate them; that storms were never so furious as they threatened; but as the subject had been brought up, he would say that never, under any circumstances, could he be brought to admit that a sovereign state had been destroyed, or could be reduced to a territorial condition.

McCulloch was equally decided, that the states could not be converted into territories.

Stanton said he had communicated his views to no man. Here, in the Cabinet, he had assented to and cordially approved of every step which had been taken, to reorganize the governments of the states which had rebelled, and saw no cause to change or depart from it. Stevens's proposition he had not seen, and did not care to, for it was one of those schemes which would end in noise and smoke. He had conversed with but one Senator, Mr. Sumner, and that was one year ago, when Sumner said he disapproved of the policy of the Administration and intended to upset it. He had never since conversed with Sumner nor any one else. He did not concur in Mr. Sumner's views, nor did he think a state would or could be remanded to a territorial condition.

I stated my concurrence in the opinions which had been expressed by the Secretary of War, and that I held Congress had no power to take from a state its reserved rights and sovereignty, or to impose terms on one state which were not imposed on all states.

Stanbery said he was clear and unqualifiedly against the whole talk and theory of territorializing the states. Congress could not dismantle them. It had not the power, and on that point he would say that it was never expedient to do or attempt to do that which we had not the power to do.

Browning declared that no state could be cut down or extinguished. Congress could make and admit states, but could not destroy or extinguish them after they were made.[98]

This extract is rather astounding for what it tells us of Stanton's position. Simultaneously, or nearly so, Congress passed an act virtually making the General of the Army independent of the President, and prohibiting the President from assigning him to duty elsewhere than in Washington City without the consent of the Senate, except at his own request. Congressman Boutwell, of Massachusetts, tells us that this provision was privately suggested to him by Stanton and that he (Boutwell) wrote it down at the War Department as dictated by Stanton, and took it to Thaddeus Stevens who incorporated it in an appropriation bill.[99]

If the radicals were elated by the result of the elections, the conservatives were correspondingly depressed. It was no longer possible to prevent Stevens and Sumner from taking the lead, which they did forthwith. They crossed the Rubicon with the whole army. The Reconstruction policy initiated by Lincoln was now for the first time definitely abandoned by the Union party. In the month of February, Stevens carried through the House a bill declaring that there were no legal governments in the ten rebel states, and providing that the existing governments should be superseded by the military authority. It provided for no termination of such military government. Amendments were added by the Senate providing for constitutional conventions in those states, to be elected by the male citizens twenty-one years old and upward, of whatever race or color, except those disfranchised for participation in rebellion. It was provided further that when the constitutions so framed should contain clauses giving the elective franchise to all persons entitled to vote in the election for delegates, and when the constitutions should be ratified by a majority of the people, and when such constitutions should have been submitted to and approved by Congress, and when the states should have ratified the Fourteenth Amendment and it should have been adopted, then the states so reorganized should be entitled to representation in Congress, provided that no persons disfranchised by the Fourteenth Amendment should vote at the election or be eligible to membership of the conventions. The clause making negro suffrage a permanent condition of Reconstruction was adopted in a senatorial caucus on the motion of Sumner by a majority of two, after it had been rejected almost unanimously by the Senate committee to which it had been referred.[100]

Trumbull, Fessenden, and Sherman voted against Sumner's motion, but after it became the policy of the party they supported it. And here they made a mistake, for this was the act which placed the governments of ten states in the hands of the most ignorant portion of the community and disfranchised the most intelligent, entailing the direful consequences of the succeeding ten years.

The road which the dominant party had now taken was, however, taken conscientiously. Congress and the Northern people sincerely believed that slavery would be reËstablished in some form unless the negroes had the right to vote and the assurance that their votes would be counted, and that, in that case, the war would have to be fought over again. Of course, party spirit and the greed of office had a place among the impelling motives at Washington, but these considerations would not have availed had not the opinion been deep-seated that a Democratic victory won by the votes of the solid South and a minority of the North would endanger the Union.

Senator Cullom, of Illinois, who was then a member of the House, said, forty-four years later, that "the motive of the opposition to the Johnson plan of Reconstruction was a firm conviction that its success would wreck the Republican party and, by restoring the Democracy to power, bring back Southern supremacy and Northern vassalage."[101]

Montgomery Blair apprehended another revolution or rebellion and said that there might be two opposing governments organized in Washington. Maynard, of Tennessee, a stanch loyalist, believed that Senators and Representatives from all the states would soon make their appearance at the national capital and that those from the rebel states would join with the Democratic members from the loyal states, constitute a majority, organize, repeal the test oath, and have things their own way. Welles, while recording these opinions, held the sounder one that the South was too exhausted and the Northern Democrats too timid for such a step.[102]

The Reconstruction Bill passed both houses on the 20th day of February, 1867, was vetoed by the President on the 2d of March, and was repassed on the same day by more than two-thirds majority in each house, Trumbull voting in the affirmative.

It was followed by a supplementary bill even more drastic, providing for a registration of voters, and requiring each person, before he could be registered, to take an oath that he had not been disfranchised for participation in any rebellion, or civil war, against the United States, and had never held any legislative, executive, or judicial office and afterwards engaged in rebellion against the United States, or given aid or comfort to the enemies thereof. The President was not slow to perceive the monstrosity of these provisions. In his veto message he dwelt on the absurdity of expecting every man to know whether he had been disfranchised or not, and what acts amounted to "participation" or fell short of it, and what constituted the giving of aid and comfort to the enemies of the United States. With genuine pathos he added:

When I contemplate the millions of our fellow citizens of the South with no alternative left but to impose upon themselves this fearful and untried experiment of complete negro enfranchisement, and white disfranchisement (it may be) almost as complete, or submit indefinitely to the rigor of martial law without a single attribute of freemen, deprived of all the sacred guaranties of our Federal Constitution, and threatened with even worse wrongs, if any worse are possible, it seems to me their condition is the most deplorable to which any people can be reduced.

This bill was passed over the veto on the 23d of March, Trumbull voting in the affirmative. These votes, however, did not prevent him from publishing in the Chicago Advance of September 5, the same year, a carefully written article denying the power of Congress to regulate the suffrage in the states, concluding with the following paragraphs:

If the views expressed are correct, it follows that there are but two ways of securing impartial suffrage throughout the Union. One is, for the states themselves to adopt it, which is being done by some already; and now that the subject is being agitated and its justice being made apparent, it is to be hoped it will soon commend itself to all: the other is, by an amendment to the Constitution of the United States, adopting impartial suffrage throughout the Union, which to become effective must be ratified by three fourths of the States.

Amendments of the constitutions of Ohio, Kansas, and Minnesota for that purpose were then pending, but they were all voted down by the people in October and November, 1867.

Congress continued to pass supplementary Reconstruction measures at short intervals. One such authorized the commanders of the military districts to suspend or remove any persons holding any office, civil or military, in their districts and appoint other persons to fill their places and exercise their functions subject to the disapproval of the General of the Army of the United States. It was declared to be the duty of the commanders aforesaid to remove from office all persons disloyal to the United States and all who should seek to hinder, delay, or obstruct the administration of the Reconstruction Acts. Section eight of this act made members of boards of registration removable in like manner. Section eleven provided that "all the provisions of this act, and of the acts to which it is supplementary, should be construed liberally." This bill was vetoed by the President July 19, 1867, and was passed over the veto by both houses the same day. Still another supplementary act was passed on the 11th of March, 1868, relating to the election of members of Congress in the rebel states.

Under this harness of militarism constitutional conventions were held and constitutions adopted by all of said states, except Texas and Mississippi, during the year 1868, and all the rest of them were admitted to the Union except Virginia, subject, however, to the condition that their constitutions should never be amended, or changed, so as to deprive any citizen, or class of citizens, of the right to vote, except as a punishment for crimes of the grade of felonies at common law.

Delays having occurred in the course of procedure in Virginia, Mississippi, and Texas, there was opportunity to apply new conditions to their readmission and this chance was eagerly seized by the radicals. Trumbull, on the 13th of January, 1870, reported from the Judiciary Committee a simple resolution reciting that Virginia, having complied with all the requirements, was entitled to representation in Congress. This was amended on motion of Drake, of Missouri, by a proviso that it should never be lawful for the state to deprive any citizen of the United States, on account of race, color, or previous condition of servitude, of the right to hold office. Trumbull said in the debate on this proposition that Congress had no authority to enact it and that it would not be binding on the state. Yet it was adopted by a majority of one vote, 30 to 29. Wilson then moved as an amendment that the state constitution should never be so changed as to deprive any citizen or class of citizens of school privileges, and this was adopted by 31 to 29, Trumbull in the negative. In addition to these a long section was added prescribing a new form of oath to be taken by all state officers and members of the legislature, which was adopted by 45 to 16, Trumbull voting no. In the final vote on the Bill, however, he voted in the affirmative. The same conditions were applied to Mississippi and Texas.

In the debate on the Virginia Bill there was a passage-at-arms between Trumbull and Sumner which came near to overstepping parliamentary rules on both sides and which caused widespread newspaper comment. It was generally believed that a rupture had taken place between them which would never be healed; yet a year later, when the decree went forth (presumably from the White House) that Sumner must be deposed from the chairmanship of the Committee on Foreign Relations, Trumbull was one of his strongest supporters in the fight which ensued.

Following close after the reconstruction of Virginia came the re-reconstruction of Georgia. That state ratified her post-bellum constitution on the 11th of May, 1868, and elected Rufus P. Bullock, governor. He represented the radicals, but the conservatives at the same time carried the state legislature. A few negroes had been elected as members, and these were expelled on the ground that the right to hold office had not been conferred upon them by the new constitution. The supreme court of the state a few months later decided that since the rights of citizenship and of voting had been conferred upon them, the right to hold office belonged to them also unless expressly denied. In addition to unseating the blacks, the conservatives had admitted certain members who could not take the oath prescribed in the Fourteenth Amendment of the Constitution. Governor Bullock needed a legislature different from the one which had been elected, in order to accomplish certain ends which he had in view, and he seized upon these irregularities as a means of overturning the majority. He then raised an outcry, which he knew would stir the north,—that the blacks in Georgia were still terrorized by the Ku-Klux Klans.

President Grant soon thereafter recommended that Congress take Georgia again in hand. This was done promptly. An act was passed directing Governor Bullock to call the legislature together and directing the legislature to reorganize itself in accordance with the oaths of office heretofore prescribed, including that of the Fourteenth Amendment; to exclude all persons who could not lawfully take those oaths and to admit all who had been expelled on account of color; also requiring Georgia to ratify the Fifteenth Amendment before her Representatives and Senators should be admitted to seats in Congress. The seventh section of the act authorized Governor Bullock to call for the services of the army and navy of the United States to enforce the provisions of the act. Under this authority, exercised by General Terry, twenty-four conservatives were expelled from the legislature and their places were filled by radicals, and the negroes formerly excluded were returned to their places. Even this did not satisfy Bullock. He went to Washington with a troop of carpet-baggers and a pocketful of money and railroad bonds and persuaded General Butler, who was chairman of the House Committee on Reconstruction, to bring in a bill for the restoration of Georgia similar to that of Virginia, with a proviso extending for two years the term of office of the present legislature, which would otherwise expire in November, 1870. Butler reported such a bill from his committee, but Bingham, of Ohio, offered an amendment to require a new election of the legislature at the time fixed in the state constitution, and this amendment was agreed to, in spite of Butler's opposition, by 115 to 71.

The Georgia Bill was the subject of an exciting battle in the Senate where Trumbull supported the Bingham proviso against the efforts of Morton, Howard, Drake, Stewart, Sumner, Wilson, and all of the new Senators from the South, two of whom (those of Texas) were hastily admitted in time to vote on the Georgia question. The first vote was on the motion of Williams, of Oregon, to prolong the life of the existing legislature till November, 1872. One effect of so doing would be to save a seat in the United States Senate for a man who had been elected unlawfully. The vacancy would occur on March 4, 1871, and could be lawfully filled only by the legislature chosen next preceding that date.

Williams's motion was voted down April 14, by a majority of one. On the 19th of the same month, Trumbull made one of the great speeches of his public career, filling twelve columns of the Congressional Globe, on the Georgia question, demolishing the Bullock case and stirring public opinion strongly. The struggle was protracted till July 8, when the bill passed, as Trumbull desired, with the Bingham proviso.

An editorial in the Nation of May 26, 1870, tells, in brief compass, what took place while the Georgia Bill was the matter of chief concern in the Senate:

Our readers may remember that when Mr. Trumbull, some weeks ago, made his severe summing up of the "Georgia difficulty," he hinted in very plain terms that the patriots of the Bullock faction had been guilty of both corruption and intimidation in trying to get their "Reconstruction" bill through, installing them in office for two years. By many people this charge was ascribed partly to Mr. Trumbull's hatred of the black man, and partly to his hostility to the pure and good of all colors, and doubtless some asked themselves, as they asked themselves when the Traitor Ross refused to give up his chair to Senator Revels, for the sake of the dramatic unities: "What else can we expect of a man who voted No on the Eleventh Article?"

[A committee of the Senate, appointed to look into the matter, had taken a mass of testimony and submitted a report.] Their finding is—and we blush to write it—that Bullock and his friends have been for a long time in Washington, complaining of the Ku-Klux Klan, and asking fresh guarantees for "the persecuted Unionists" of Georgia; that somehow or other, while there, they have had a great deal of money and railroad bonds, which they seemed to have no particular use for, themselves; that they tried unsuccessfully to purchase the votes of Senators Carpenter and Tipton against the Bingham amendments; that harrowing reports of "outrages" in Georgia were actually prepared to order, like boots or dinners, furnished to them and paid for; that the writing of threatening letters to Senators was procured in the same manner; that $4000 was paid to that good and great man, Colonel Forney, of the Washington Chronicle, for "advertising and printing speeches and documents," the Colonel's editorial denunciations of the opponents of the Georgia Bill, we suppose, being thrown into the bargain. The Washington correspondent of the Boston Advertiser—a wicked fellow—adds that some of the witnesses when first examined "were very loath to tell what they knew, and indulged in the tallest kind of lying." The report of the committee is unanimous.

The result of this exposÉ probably will be that the Georgia question will at last, after a year's delay, filled with this lying and intrigue and corruption, be settled at the outset, by handing the State Government back to the electors on the same terms as Virginia, and letting the "Bullock faction" go home and find some means of gaining an honest livelihood.... We cannot pass from this affair, however, without bearing hearty testimony to the services which Mr. Trumbull has, by his attitude in it from the very beginning, rendered to truth, justice, good government, and civilization. He has made every honest man, North and South, his debtor, not for being able, for this he cannot help, but for being bold, and hitting hard. "By Time," says Hosea Biglow, "I du like a man that ain't afeared!"