THE McCARDLE CASE—GRANT'S CABINET—THE FIFTEENTH AMENDMENT

In November, 1867, General Ord, commanding the military district of Mississippi, arrested and imprisoned an editor named W. H. McCardle, for alleged libelous and incendiary publications. McCardle applied to the United States Circuit Court for a writ of habeas corpus under the same act of Congress which Milligan had successfully invoked. The writ was granted, a hearing was had, and the prisoner was remanded to the custody of the military authorities. McCardle took an appeal to the Supreme Court. The Attorney-General of the United States, Mr. Henry Stanbery, decided not to appear in the case. General Grant was at this time Secretary of War ad interim, and Stanbery notified him of the pending case and suggested to him the propriety of employing counsel to represent the military authorities having McCardle in custody. As this was a case involving the validity of the Reconstruction laws of Congress, General Grant took steps to defend, and addressed a letter to Senator Trumbull, dated January 8, 1868, saying: "This Department desires to engage your professional services, for that object." Trumbull replied on the 11th, accepting the employment, and saying that he should desire to have other counsel associated with him. A few days later he secured the assistance of Matt. H. Carpenter, of Wisconsin. A brief was prepared, and both Trumbull and Carpenter made oral arguments. McCardle was represented by Jeremiah S. Black.

Trumbull's argument was made on the 4th of March. He contended that the court had no jurisdiction, and that, therefore, the appeal should be dismissed. The legislation of Congress on the subject was as follows: The Act of 1789, establishing the judiciary, did not give the right of appeal to the Supreme Court in habeas corpus cases. It was omitted in order to avoid lumbering the docket of the highest tribunal with petty details. On the 5th of February, 1867, Congress passed an act granting the right of appeal to the Supreme Court in such cases, in order to protect negroes and white Unionists in the South. The last clause of the act was in these words:

This act shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United States charged with any military offense, or with having aided or abetted rebellion against the Government of the United States prior to the passage of this act.

It was Trumbull's contention that McCardle fell within this exception, and hence that the right of appeal, so far as he was concerned, did not exist.

Congress was in trepidation as to the outcome of the case and was resolved to take no chances on it. Various legislative remedies were proposed. One was to require a unanimous vote of the Supreme Court to pronounce any act of Congress unconstitutional and void. A bill requiring a two-thirds vote of the court in such cases actually passed the House on the 13th of January by yeas 116, nays 39, but it was never considered by the Senate. The end was accomplished, however, in a different way. The Senate had passed a bill of only one section, reported by Williams, of Oregon, from the Committee on Finance, to amend the code of judicial procedure in revenue cases. The House attached to this bill another section repealing so much of the Act of February 5, 1867, as authorized an appeal to the Supreme Court in the class of cases therein named, and withdrawing from the Supreme Court jurisdiction as to appeals already taken. This bill passed the House March 13, 1868, without a division. It was taken up in the Senate on the motion of Senator Williams and passed by a vote of 32 to 6 the same day, although Senators Buckalew and Hendricks asked for an explanation of its meaning, which was not given to them.

Although Buckalew and Hendricks did not have time to find out the nature of this bill, Andrew Johnson did. In due time he returned it to the Senate with a veto message, exposing it as a measure to deprive citizens of their rights under existing law and to arrest proceedings already in course of judicial determination. On this veto there was a debate in the Senate beginning on March 25, 1868, in which the Democrats, led by Hendricks, had decidedly the best of it. The supporters of the bill had very little to say for themselves. Trumbull contended that the bill did not affect any case then pending in the court, but in this debate he was worsted by Doolittle, who showed that it applied to the McCardle case. Trumbull and Carpenter had argued that the Supreme Court had no jurisdiction, since military cases were not appealable under the Act of February 5, 1867. The court had ruled against them because McCardle was arrested, not for a military, but for a civil offense. It still remained to be determined whether the court below had jurisdiction. Trumbull was confident that the Supreme Court would hold that the lower court had no such jurisdiction, in which case the appeal would fail and the bill vetoed by the President would be nugatory as to McCardle. Doolittle in reply showed that the bill did cut off McCardle's rights as an appellant, and the Supreme Court so held in the month of December following, when it dismissed the petition expressly on the ground that its jurisdiction had been withdrawn by the Act of March 27, 1868. The bill was passed over the veto on that date, by 33 to 9 in the Senate and by 115 to 34 in the House. It was partisan legislation. The Republicans drew a long breath after its passage because they had apprehended another Milligan decision, undermining, perhaps, the whole fabric of Congressional Reconstruction. Had not the court been deterred by the critical condition of public affairs, it might with perfect propriety have retained its jurisdiction and decided in favor of McCardle, since the Act of March 27 was glaringly unjust as to him. But the judges were intimidated by the awful pother o'er their heads and were glad of an excuse to drop McCardle.

It was not so easy to drop Trumbull, however. He was both Senator and retained counsel in this case. Therefore he ought not to have used the former position to help his own side in the litigation. The bill did not originate with him, or his committee, but he voted for it twice, although his vote was not needed. There was a two-thirds majority without him. True, he maintained that the bill did not apply to McCardle, but most of the Senators who took part in the debate held that it did. In a case of doubt involving the rights of a litigant, he ought to have refrained from voting.

Eventually he received $10,000 as compensation for legal services in this and one other case in which he had been retained by the War Department. The amount was fixed by Stanton, and was paid in part by him and in part by Secretary Rawlins after Grant became President. Somewhat later this payment became a subject of criticism in hostile newspapers; and inasmuch as the McCardle case had been tried during Johnson's Administration, it was hastily assumed that it had had some shady connection with Trumbull's vote of not guilty in the impeachment case. When it became evident that the opponents of Johnson were the ones who had employed him and fixed the amount to be paid, the accusers said that his action was contrary to law and that he ought not to have taken any pay at all for legal services to the Government while he was a Senator. This charge was made by Chandler, of Michigan, on the floor of the Senate, and it led to a sharp debate, in which Chandler was called to order by the Vice-President for using unparliamentary language.

There was a law, enacted in 1808, prohibiting executive officers of the Government from making contracts with members of Congress, and prohibiting the latter from receiving payment therefor. This law did not apply in terms to legal services, and the presumption was that it did not apply to them in spirit, since there were precedents for such employment of members of Congress as late as 1864, when Roscoe Conkling, then a member of the House from New York, had been employed by the War Department and had been paid for the service rendered.

Chandler, in the debate, quoted an opinion of Attorney-General Wirt, given in 1828, to the effect that although the circumstances attending the passage of the Act of 1808 showed that Congress was then legislating on contracts for carrying the mails and for the purchase of supplies and not for legal services, yet, in his belief, the law was broad enough to include such services. An opinion of an Attorney-General, however, was not binding on Senators.

Trumbull replied that the law had been settled differently as to legal services, and that the only prohibition then in force was against Congressmen practicing for compensation in the Court of Claims or before the executive departments. In this contention he could hardly fail to be correct, since all such laws later than 1861 had emanated from, or had passed through, the committee of which he was chairman. The governing statute was the act of June 11, 1864, introduced by Senator Wade, in 1863. As originally drawn, it prohibited Congressmen from practicing for or against the Government before any court, or department; but the word "court" was stricken out while it was pending in the Senate, and this was good evidence to show what the intention of Congress was.

Although the payment was certainly legal, it would have been better for Trumbull if he had not taken it. Whenever he came before the people for public preferment thereafter, the Chandler accusation was brought against him afresh and it required a new refutation.

After the impeachment fiasco was ended, the nomination of Grant for President by the Republican party was inevitable—not because he was a Republican, but because he was the only man whom the party could certainly elect. Until he quarreled with Andrew Johnson, nobody knew which side he favored. Indeed, the Democrats, until that time, had looked hopefully to him as a possible candidate for themselves.

The convention which nominated him was confronted by the fact that Congress had imposed negro suffrage on the South, while some of the largest Northern States had not yet adopted it, but had flatly refused to do so. The platform committee, therefore, reported, and the convention adopted, a resolution declaring:

The guaranty by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of gratitude, and of justice, and must be maintained, but the question of suffrage in all the loyal states properly belongs to the people of those states.

Grant was nominated unanimously May 20, 1868, and Schuyler Colfax was nominated as Vice-President. The Democrats nominated Horatio Seymour for President and Frank P. Blair for Vice-president. In the election, Grant and Colfax received 214 electoral votes and Seymour and Blair 80.

Grant's first Cabinet was a conglomerate which stupefied the politicians. For Secretary of State he named Elihu B. Washburne, of Illinois. Washburne had represented the Galena District in Congress continuously and creditably for twelve years, and was just entering upon a new term. He was a fellow townsman of Grant when the war broke out and had recommended him to Governor Yates as a military helper, and from that time onward had been his stanch and unwavering supporter. When Grant fell into disfavor after the battle of Shiloh, and almost everybody in Washington was clamoring against him, Washburne fairly roared on the other side, and contended not only that he ought to be retained in his place, but that he ought to be promoted to Halleck's place in command of all the Western armies—and here he was right. His personal relations with the General had been so close and his services so conspicuous that there was a general expectation that he would have a place in the Cabinet; but nobody supposed that it would be the Department of State, for which he was wholly unfitted. Although a man of ability, tenacity, and long experience in public affairs, he was impulsive, headstrong, combative, and unbalanced. The Department of State was regarded then as the premier position, where equipoise was the chief requisite, and this quality Washburne lacked.

Grant had chosen James F. Wilson, of Iowa, as Secretary of State and Wilson had accepted the appointment. He had been a leading member of the House and chairman of its Judiciary Committee, and had been consulted by Grant on the most important matters connected with his duties as Secretary of War ad interim, including his correspondence with Andrew Johnson after he had resigned that office. Wilson had declined a reËlection to Congress because he wished to retire from public life, and he accepted the appointment offered by Grant with reluctance and only at the urgent solicitation of the latter.

Washburne had been promised the office of Minister to France. When he knew that Wilson was to be appointed Secretary of State, he went to Grant and asked that the appointment of Secretary might be conferred upon himself temporarily so as to give him prestige in his office as Minister. Grant saw no objection to this, but he asked Wilson's permission first. Wilson did not relish the proposition, but he consented, on condition that Washburne should not take any action as Secretary, either in the way of appointments to office or the announcement of policies. As soon as Washburne had been confirmed by the Senate, he began to make appointments and announce policies, and Grant did not immediately call him to order. Wilson accordingly notified Grant that as the conditions had been broken he would not now accept the office. Grant then compelled Washburne to resign. But meanwhile Wilson had gone to New York en route to his home in Iowa, and a messenger (A. D. Richardson) was sent after him by Grant to urge him to change his mind; he declined to do so, in terms, however, which preserved their friendship unimpaired.[113]

"Who ever heard before of a man nominated Secretary of State merely as a compliment?" was Fessenden's comment on the Washburne episode.

Wilson afterward served a term in the United States Senate. He was a good lawyer, a man of sound judgment, of probity and stability of character, and would have filled the office of Secretary of State creditably if not brilliantly. When Grant found that Wilson's purpose to withdraw could not be changed he offered the place to Hamilton Fish, who accepted it.

Grant's mishaps in filling the Treasury Department were quite as droll as the foregoing. He first sent in the name of Alexander T. Stewart, the great dry-goods merchant of New York, as Secretary. Stewart was a Scotch-Irishman who had migrated as a young man, and had taken up the vocation of a school-teacher in his adopted country. Of his start in life he was very proud. He kept a well-thumbed copy of the New Testament in Greek on the centre table of his hospitable mansion, which he was fond of exhibiting to his guests as one of the tools of trade with which he began his career in America. Pedagogy, however, did not detain him long. He had brought some capital from the old country and he turned his attention to silks and muslins, and by diligence, skill, and integrity had reached the foremost place in the nation as a merchant, before the outbreak of the Civil War. His wholesale business was chiefly with the South, and this part of it was suddenly obliterated in 1861. Yet he recovered his leadership in dry goods before the war ended, and was then rated as third in the list of rich men in the United States, the names of Astor and Vanderbilt only being placed higher.

Nobody knew, at the time when he was named for a place in the Cabinet, what political party he belonged to or favored. His most intimate friend and counselor was Henry Hilton, a Democratic ex-judge, potent in Tammany Hall. That fact, however, implied no political bias on the part of Stewart. Hilton was his watch-dog at the place where the local taxing and blackmailing power lay. Nor did Grant have any political aims or thought in selecting Stewart for the portfolio of the Treasury. He chose him because great wealth appealed strongly to the imagination of one who had had severe struggles with poverty, and because he reasoned that a man who had been very successful in his private business would necessarily know how to manage the public business. Both Sumner and Gideon Welles said that Stewart had made a gift of considerable amount to Grant.

The nomination of Stewart was scoffed at by nearly everybody in Washington, but it was well received by the press and no Senator dared to vote against it. It was presently discovered, however, that he could not legally hold the office, as he was disqualified by a law of 1789, which provided that nobody engaged in trade or commerce, nor any owner of a seagoing vessel, nor any dealer in public lands or in public securities, should be eligible. Stewart had not been a candidate for the position, or for any position, but when it was offered to him, he thought he would like to have it, and to this end he proposed to retire temporarily from trade and commerce, and put his business in the hands of trustees for charitable use, in order to meet the requirements of law. The President also requested Congress to change the law so that he might be qualified. Congress, however, did not think it desirable to trim the law to fit a particular case, and Stewart did not raise his bid. After a week's delay the President sent in the name of George S. Boutwell, of Massachusetts, for Secretary of the Treasury, and he entered upon the duties of the office with general satisfaction.

When the name of Adolph Borie was announced for Secretary of the Navy, everybody began to ask, Who is Borie? Even Admiral Farragut had never heard of him. The answer came that he was a rich man in Philadelphia who had entertained General Grant handsomely on some occasion when he was temporarily in that city. Sumner said in his speech of May 31, 1872, that he also had made a gift to Grant. He retained the position of Secretary only three months. He then resigned and recommended George M. Robeson, a lawyer of New Jersey, as his successor, and the latter was appointed. Robeson was as little known as Borie had been before he was appointed, but he was not the same kind of nonentity.

John A. J. Cresswell, of Maryland, who became Postmaster-General, had been a member of Congress. If there was not much to be said for him, there was nothing at all to be said against him.

John A. Rawlins, Grant's chief-of-staff during the war, a man of high character and ability, chose himself for Secretary of War, and communicated his preference to his chief through General James H. Wilson, who was on terms of intimacy with both parties. Grant received the communication favorably and sent the name of Rawlins to the Senate and here he made no mistake. But Rawlins lived less than a year after his appointment.

The two remaining members of the Cabinet, General Jacob D. Cox, of Ohio, Secretary of the Interior, and E. R. Hoar, of Massachusetts, Attorney-General, were ideal selections. The former had been governor of his state and had served with distinguished valor and efficiency in the Civil War. The latter was a man of sparkling wit and conversational powers, which, however, did not outshine his solid qualities of mind and character. Both these men came early into collision with the "spoils system," which afflicted the whole of Grant's administration with ever-increasing virulence. Both of them fought a losing battle with it, as did George William Curtis, who essayed, in a humbler capacity, to grapple with it. All three were retired, or retired voluntarily, before the end of Grant's first term.

The plank in the Republican platform forcing negro suffrage upon the South, but leaving it optional with the Northern States, was too brazen to be long maintained. Moreover, there was danger lest this right of the negroes should be taken from them after the Southern States should have recovered the right to amend their own constitutions. These things absorbed the attention of the Fortieth Congress during the last month of its existence.

On January 30, 1869, the House passed an amendment to the Constitution by more than two-thirds majority in these words:

The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any state by reason of race, color, or previous condition of slavery of any citizen or class of citizens of the United States.

In the Senate, Vickers, of Maryland, moved to amend by providing that the right to vote should not be denied because of participation in the rebellion. This was rejected by 21 to 32, but it received the votes of eleven Republicans, among whom were Grimes, Harlan, Trumbull, and Wilson. Wilson, of Massachusetts, moved to add the words "nativity, property, education, or creed" to the words "race or color," and this was adopted by 31 to 27, Trumbull voting in the negative. The House rejected the amendment by 37 to 133 and sent it back to the Senate, which, by a vote of 33 to 24, receded from its amendment. The vote was then taken on concurring in the House Resolution as originally presented, and it failed by 31 to 27, not two thirds.

The Senate then took up a resolution that had been previously reported by the Committee on the Judiciary which was similar in terms to the one originally passed by the House, except that it added the words "and hold office" after the word "vote." The resolution was passed by 35 to 11 and sent to the House. Logan, of Illinois, moved to strike out the words "and hold office." This was defeated. Bingham, of Ohio, moved to insert the words "nativity, property, or creed," after the word "color." This was adopted by 92 to 71, and the resolution passed by 140 to 37. The Senate disagreed to both of the House amendments. The measure then went to a Conference Committee consisting of Senators Stewart, Conkling, and Edmunds, and Representatives Boutwell, Bingham, and Logan, who reported in favor of Logan's amendment and against Bingham's, and in this shape the resolution passed both houses by the requisite majorities. If the word "nativity" had been retained the Southern States could not have disfranchised the negroes by means of the "Grandfather Clause," as some of them did. Morton, of Indiana, predicted that the South would find means of circumventing the clause if the prohibitions were limited to race, color, and servitude. When Morton came to Washington as Senator he was bitterly opposed to negro suffrage. He was now so hot for it that he shared the leadership of the radicals with Sumner.

The Fifteenth Amendment as finally passed by Congress, February 26, 1869, was in these words:

ARTICLE XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

It was declared ratified by the legislatures of twenty-nine states on March 30, 1870. Ohio at first rejected, but later ratified it. New York at first ratified, but later reconsidered and rejected it.

[113] Mr. Wilson communicated these facts to me at the time of their occurrence, and the correctness of this narrative has been confirmed by Major-General Grenville M. Dodge, who was then in close communication with both parties.