Personal reminiscences of early days in California, with other sketches

by Stephen J. Field; George C. Gorham

The insurrection was overthrown after a contest which, for its magnitude and the number and courage of the belligerents, was without a parallel in history. The immense loss of life and destruction of property caused by the contest, and the burden of the enormous debt created in its prosecution, left a bitterness in the hearts of the victors which it was difficult to remove. The assassination of Mr. Lincoln added intensity to the feeling. That act of a madman, who had conceived the idea that he might become in our history what Brutus was in the history of Rome, the destroyer of the enemy of his country, was ascribed to a conspiracy of leading Confederates. The proclamation of the Secretary of War, offering a reward for the arrest of parties charged with complicity in the act, gave support to this notion. The wildest stories, now known to have had no foundation, were circulated and obtained ready credence among the people of the North, already wrought up to the highest pitch of excitement. They manifested, therefore, great impatience when a doubt was cast upon the propriety or validity of the acts of the government, or of its officers, which were taken for the suppression of the rebellion or "the reconstruction" of the States; and to question their validity was almost considered proof of hostility to the Union.

By those who considered the union indissoluble, except by the common consent of the people of the several States, the organization known as the Confederate States could only be regarded as unlawful and rebellious, to be suppressed, if necessary, by force of arms. The Constitution prohibits any treaty, alliance, or confederation by one State with another, and it declares on its face that it is the supreme law of the land. The Confederate government, therefore, could only be treated by the United States as the military representative of the insurrection against their authority. Belligerent rights were accorded to its armed forces in the conduct of the war, and they thus had the standing and rights of parties engaged in lawful warfare. But no further recognition was ever given to it, and when those forces were overthrown its whole fabric disappeared. But not so with the insurgent States which had composed the Confederacy. They retained the same form of government and the same general system of laws, during and subsequent to the war, which they had possessed previously. Their organizations as distinct political communities were not destroyed by the war, although their relations to the central authority were changed. And their acts, so far as they did not impair or tend to impair the supremacy of the general government, or the rights of citizens of the loyal States, were valid and binding. All the ordinary authority of government for the protection of rights of persons and property, the enforcement of contracts, the punishment of crime, and the due order of society, continued to be exercised by them as though no civil war had existed.

There was, therefore, a general expectation throughout the country, upon the cessation of actual hostilities, that these States would be restored to their former relations in the Union as soon as satisfactory evidence was furnished to the general government that resistance to its authority was overthrown and abandoned, and its laws were enforced and obeyed. Some little time might elapse before this result would clearly appear. It was not expected that they would be immediately restored upon the defeat of the armies of the Confederacy, nor that their public men, with the animosities of the struggle still alive, would at once be admitted into the councils of the nation, and allowed to participate in its government. But whenever it was satisfactorily established that there would be no renewal of the struggle and that the laws of the United States would be obeyed, it was generally believed that the restoration of the States would be an accomplished fact.

President Johnson saw in the institution of slavery the principal source of the irritation and ill-feeling between the North and the South, which had led to the war. He believed, therefore, that its abolition should be exacted, and that this would constitute a complete guaranty for the future. At that time the amendment for its abolition, which had passed the two Houses of Congress, was pending before the States for their action. He was of opinion, and so expressed himself in his first message to Congress, that its ratification should be required of the insurgent States on resuming their places in the family of the Union; that it was not too much, he said, to ask of them "to give this pledge of perpetual loyalty and peace." "Until it is done," he added, "the past, however much we may desire it, will not be forgotten. The adoption of the amendment re-unites us beyond all power of disruption. It heals the wound that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support."

It would have been most fortunate for the country had this condition been deemed sufficient and been accepted as such. But the North was in no mood for a course so simple and just. Its leaders clamored for more stringent measures, on the ground that they were needed for the protection of the freedmen, and the defeat of possible schemes for a new insurrection. It was not long, therefore, before a system of measures was adopted, which resulted in the establishment at the South of temporary governments, subject to military control, the offices of which were filled chiefly by men alien to the States and indifferent to their interests. The misrule and corruption which followed are matters of public history. It is no part of my purpose to speak of them. I wish merely to refer to the state of feeling existing upon the close of the civil war as introductory to what I have to say of the unfriendly disposition manifested at the North towards the Supreme Court and some of its members, myself in particular.

Acts of the military officers, and legislation of some of the States and of Congress, during and immediately succeeding the war, were soon brought to the consideration of the Court. Its action thereon was watched by members of the Republican party with manifest uneasiness and distrust. Its decision in the Dred Scott case had greatly impaired their confidence in its wisdom and freedom from political influences. Many of them looked upon that decision as precipitating the war upon the country, by the sanction it gave to efforts made to introduce slavery into the Territories; and they did not hesitate to express their belief that the sympathies of a majority of the Court were with the Confederates. Intimations to that effect were thrown out in some of the journals of the day, at first in guarded language, and afterwards more directly, until finally it came to be generally believed that it was the purpose of the Court, if an opportunity offered, to declare invalid most of the legislation relating to the Southern States which had been enacted during the war and immediately afterwards. Nothing could have been more unjust and unfounded. Many things, indeed, were done during the war, and more after its close, which could not be sustained by any just construction of the limitations of the Constitution. It was to be expected that many things would be done in the heat of the contest which could not bear the examination of calmer times. Mr. Chief Justice Chase expressed this fact in felicitous language when speaking of his own change of views as to the validity of the provision of law making government notes a legal tender, he said: "It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the Republic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent. Those who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered this conclusion, and now concur in those which we have just announced."

Similar language might be used with reference to other things done during the war and afterwards, besides making government notes a legal tender. The Court and all its members appreciated the great difficulties and responsibilities of the government, both in the conduct of the war, and in effecting an early restoration of the States afterwards, and no disposition was manifested at any time to place unnecessary obstacles in its way. But when its measures and legislation were brought to the test of judicial judgment there was but one course to pursue, and that was to apply the law and the Constitution as strictly as though no war had ever existed. The Constitution was not one thing in war, and another in peace. It always spoke the same language, and was intended as a rule for all times and occasions. It recognized, indeed, the possibility of war, and, of course, that the rules of war had to be applied in its conduct in the field of military operations. The Court never presumed to interfere there, but outside of that field, and with respect to persons not in the military service within States which adhered to the Union, and after the war in all the States, the Court could not hesitate to say that the Constitution, with all its limitations upon the exercise of executive and legislative authority, was, what it declares on its face to be, the supreme law of the land, by which all legislation, State and federal, must be measured.

The first case growing out of the acts of military officers during the war, which attracted general attention and created throughout the North an uneasy feeling, was the Milligan case, which was before the Court on habeas corpus. In October, 1864, Milligan, a citizen of the United States and a resident of Indiana, had been arrested by order of the military commander of the district and confined in a military prison near the capital of the State. He was subsequently, on the 21st of the same month, put on trial before a military commission convened at Indianapolis, in that State, upon charges of: 1st. Conspiring against the government of the United States; 2d. Affording aid and comfort to the rebels against the authority of the United States; 3d. Inciting insurrection; 4th. Disloyal practices; and 5th. Violations of the laws of war; and was found guilty and sentenced to death by hanging. He had never been in the military service; there was no rebellion in Indiana; and the civil courts were open in that State and in the undisturbed exercise of their jurisdiction. The sentence of the military commission was affirmed by the President, who directed that it should be carried into immediate execution. The condemned thereupon presented a petition to the Circuit Court of the United States in Indiana for a writ of habeas corpus, praying to be discharged from custody, alleging the illegality of his arrest and of the proceedings of the military commission. The judges of the Circuit Court were divided in opinion upon the question whether the writ should be issued and the prisoner be discharged, which, of course, involved the jurisdiction of the military commission to try the petitioner. Upon a certificate of the division the case was brought to the Supreme Court at the December term of 1865. The case has become historical in the jurisprudence of the country, and it is unnecessary to state the proceedings at length. Suffice it to say that it was argued with great ability by eminent counsel—consisting of Mr. Joseph E. McDonald, now U.S. Senator from Indiana, Mr. James A. Garfield, a distinguished member of Congress, Mr. Jeremiah S. Black, the eminent jurist of Pennsylvania, and Mr. David Dudley Field, of New York, for the petitioner; and by Mr. Henry Stanbery, the Attorney-General, and Gen. B.F. Butler, for the government. Their arguments were remarkable for learning, research, ability, and eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. Only a brief synopsis of them is given in the report of the case in 4th Wallace. The decision of the Court was in favor of the liberty of the citizen. Its opinion was announced by Mr. Justice Davis, and it will stand as a perpetual monument to his honor. It laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a State not invaded nor engaged in rebellion, in which the federal courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a State in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that Congress could not invest them with any such power; and that in States where the courts were thus open and undisturbed the guaranty of trial by jury contained in the Constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

This decision was concurred in by Justices Nelson, Grier, Clifford, and myself, then constituting, with Justice Davis, a majority of the Court. At this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class—perhaps a majority of the Northern people—with disfavor, and was denounced in unmeasured terms by many influential journals. It was cited as conclusive evidence of the hostility of the Court to the acts of the government for the suppression of the rebellion. The following, taken from the Daily Chronicle of January 14th, 1867, a journal of Washington, edited by Mr. Forney, then Secretary of the Senate, is a fair sample of the language applied to the decision:

"The opinion of the Supreme Court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic. It has surprised all, too, by its total want of sympathy with the spirit in which the war for the Union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the Republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion."