The Life of Lyman Trumbull

by Horace White

CHAPTER XXI

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.