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]