The Southern States refused to agree to the Fourteenth Amendment. To them the insuperable objection was the clause excluding from the office-holding class those who had taken an oath to support the Constitution of the United States and had afterwards engaged in insurrection against the same. The common people refused to accept better terms than were accorded to their leaders. This was true chivalry and is not to be condemned, but the consequence was an increase of the power of the radicals in the North. It disabled conservatives like Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward Beecher, and William C. Bryant, influential in other walks in life, from making effective resistance to the measures of Sumner and Stevens. If the Fourteenth Amendment had been ratified by any of the other ex-Confederate States, such states would have been admitted at once as Tennessee was. Both Wade and Howard, hot radicals as they were, refused to go with Sumner when he insisted that further conditions should be exacted. When he offered an amendment looking to negro suffrage, Howard said that the Joint Committee on Reconstruction had maturely considered that question and had carefully abstained from interfering with "that very sacred right"—the right of each state to regulate the suffrage within its own limits. He argued that it was inexpedient in a party point of view to do so, and predicted that if the rebel states were coerced to adopt negro suffrage by an act of Congress, or by constitutional amendment, they would rid themselves of it after gaining admission.[97]
FOOTNOTES:
[96] Trumbull did not take an active part in the framing of the Fourteenth Amendment. A minute and unbiased history of it has been written by Horace Edgar Flack, Ph.D., and published by the Johns Hopkins Press, Baltimore, 1908. It is impossible to resist the conclusion of this writer, that partisanship was a potent factor in the framing and adoption of it.
[97] Cong. Globe, February 15, 1867, p. 1381.
CHAPTER XIX
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.