Personal reminiscences of early days in California, with other sketches

by Stephen J. Field; George C. Gorham

I had the honor to deliver the opinion of the Court in these cases—the Cummings case and the Garland case. At the present day both opinions are generally admitted to be sound, but when announced they were received by a portion of the Northern Press with apparent astonishment and undisguised condemnation. It is difficult to appreciate at this day the fierceness with which the majority of the Court was assailed. That majority consisted of Justices Wayne, Nelson, Grier, Clifford, and myself. I was particularly taken to task, however, as it was supposed—at least I can only so infer from the tone of the Press—that because I had been appointed by Mr. Lincoln, I was under some sort of moral obligation to support all the measures taken by the States or by Congress during the war. The following, respecting the opinion in the Garland case, from the editor of the Daily Chronicle, of Washington, to the Press, of Philadelphia, under date of January 16, 1867, is moderate in its language compared with what appeared in many other journals:

"Dred Scott Number Three has just been enacted in the Supreme Court of the United States, Justice Field, of California, taking the leading part as the representative of the majority decision against the constitutionality of the iron-clad test-oath, to prevent traitors from practicing before that high tribunal. I understand it takes the ground that, as the law is a living or profession, the oath cannot be insisted upon to take that living away, and that the President's pardon restores all such rights. The country has been repeatedly admonished that such a decision would be made about this time; nevertheless, a very considerable sensation was created when it was officially enunciated. All these movements are but preparations for a counter-revolution in the interest of slavery and treason." —— "I learn that the opinion of Justice Field against the test-oath, like that against military trials in time of war, goes outside of the immediate case in issue, and indulges in a fierce onslaught upon test-oaths in general. If so, it will only add another reason for such a re-organization as will prevent the judges in the last resort from becoming the mere agents of party, or the mere defenders of rebellion. The adage constantly quoted, yet never out of fashion, that 'Whom the Gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. Although the Supreme Judges hold for life, there is at once precedent, necessity, and law for such a change in the present system as will in a short time make it a fearless interpreter of republican institutions, instead of the defender and apologist of treason."

The decisions were announced on the 14th of January, 1867. On the 22d of the month, Mr. Boutwell, from Massachusetts, introduced a bill into the House far more stringent in its provisions than the act of Congress just declared invalid. It was a pitiable exhibition of hate and vengeance against all persons who had been engaged, directly or indirectly, in the rebellion. It declared that no person who had been thus engaged should be permitted to act as an attorney and counsellor in any courts of the United States; and made it the duty of the judges, when it was suggested in open court, or when they had reason to believe that any person was thus debarred, to enquire and ascertain whether he had been so engaged, and if the court was of opinion that such was the fact, he was to be excluded. The court was thus, upon the suggestion of any one, to be turned into a tribunal for the summary trial of the accused without the ordinary safeguards for the protection of his rights. In introducing it Mr. Boutwell, referring to the decision of the Court, said that—

"If there be five judges upon the bench of the highest tribunal who have not that respect for themselves to enact rules, and to enforce proper regulations, by which they will protect themselves from the contamination of conspirators and traitors against the government of the country, then the time has already arrived when the legislative department of the government should exercise its power to declare who shall be officers of the government in the administration of the law in the courts of the Union; and this bill is for that purpose."

And he called for the previous question upon it. In subsequently advocating its passage, he said:

"I say here upon my responsibility, with reference to the recent decision of the Supreme Court, that it is an offence to the dignity and respectability of the nation that this tribunal, under the general authority vested in it under the Constitution and laws, does not protect itself from the contamination of rebels and traitors, until the rebellion itself shall be suppressed and those men shall be restored to their former rights as citizens of the country."

This language was used in 1867, and the last gun of the war had been fired in May, 1865. It showed the irritation of violent partisans of the North against the Court because it gave no sanction to their vindictive and proscriptive measures.

The bill was passed, under a suspension of the rules, by a vote of 111 to 40.[1]

The Reconstruction Acts, so-called—that is, "An act to provide for the more efficient government of the rebel States," of March 2d, 1867, and an act of the 23d of the same month, supplementary to the former—were at once attacked, as may well be supposed, as invalid, unconstitutional, and arbitrary measures of the government; and various steps were taken at an early day to bring them to the test of judicial examination and arrest their enforcement. Those acts divided the late insurgent States, except Tennessee, into five military districts, and placed them under military control to be exercised until constitutions, containing various provisions stated, were adopted and approved by Congress, and the States declared to be entitled to representation in that body. In the month of April following the State of Georgia filed a bill in the Supreme Court, invoking the exercise of its original jurisdiction, against Stanton, Secretary of War, Grant, General of the Army, and Pope, Major-General, assigned to the command of the Third Military District, consisting of the States of Georgia, Florida, and Alabama; to restrain those officers from carrying into effect the provisions of those acts. The bill set forth the existence of the State of Georgia as one of the States of the Union; the civil war in which she, with other States forming the Confederate States, had been engaged with the government of the United States; the surrender of the Confederate armies in 1865, and her submission afterwards to the Constitution and laws of the Union; the withdrawal of the military government from Georgia by the President as Commander-in-Chief of the Army of the United States; the re-organization of the civil government of the State under his direction and with his sanction; and that the government thus re-organized was in the full possession and enjoyment of all the rights and privileges, executive, legislative, and judicial, belonging to a State in the Union under the Constitution, with the exception of a representation in the Senate and House of Representatives. The bill alleged that the acts were designed to overthrow and annul the existing government of the State, and to erect another and a different government in its place, unauthorized by the Constitution and in defiance of its guarantees; that the defendants, acting under orders of the President, were about to set in motion a portion of the army to take military possession of the State, subvert her government, and subject her people to military rule. The presentation of this bill and the argument on the motion of the Attorney-General to dismiss it produced a good deal of hostile comment against the Judges, which did not end when the motion was granted. It was held that the bill called for judgment upon a political question, which the Court had no jurisdiction to entertain.[2]

Soon afterwards the validity of the Reconstruction Acts was again presented in the celebrated McArdle case, and in such a form that the decision of the question could not well be avoided. In November, 1867, McArdle had been arrested and held in custody by a military commission organized in Mississippi under the Reconstruction Acts, for trial upon charges of (1) disturbance of the public peace; (2) inciting to insurrection, disorder, and violence; (3) libel; and (4) impeding reconstruction. He thereupon applied to the Circuit Court of the United States for the District of Mississippi for a writ of habeas corpus, in order that he might be discharged from his alleged illegal imprisonment. The writ was accordingly issued, but on the return of the officer showing the authority under which the petitioner was held, he was ordered to be remanded. From that judgment he appealed to the Supreme Court. Of course, if the Reconstruction Acts were invalid, the petitioner could not be held, and he was entitled to his discharge. The case excited great interest throughout the country. Judge Sharkey and Robert J. Walker, of Mississippi, David Dudley Field and Charles O'Connor, of New York, and Jeremiah S. Black, of Pennsylvania, appeared for the appellant; and Matthew H. Carpenter, of Wisconsin, Lyman Trumbull, of Illinois, and Henry Stanbery, the Attorney-General, appeared for the other side. The hearing of it occupied four days, and seldom has it been my fortune during my judicial life, now (1877) of nearly twenty years, to listen to arguments equal in learning, ability, and eloquence. The whole subject was exhausted. As the arguments were widely published in the public journals, and read throughout the country, they produced a profound effect. The impression was general that the Reconstruction Acts could not be sustained; that they were revolutionary and destructive of a republican form of government in the States, which the Constitution required the Federal government to guarantee. I speak now merely of the general impression. I say nothing of the fact, as the Court never expressed its opinion in judgment. The argument was had on the 2d, 3d, 4th, and 9th of March, 1868, and it ought to have been decided in regular course of proceedings when it was reached on the second subsequent consultation day, the 21st. The Judges had all formed their conclusions, and no excuse was urged that more time was wanted for examination. In the meantime an act was quietly introduced into the House, and passed, repealing so much of the law of February 5th, 1867, as authorized an appeal to the Supreme Court from the judgment of the Circuit Court on writs of habeas corpus, or the exercise of jurisdiction on appeals already taken. The President vetoed the bill, but Congress passed it over his veto, and it became a law on the 27th of the month.[3] Whilst it was pending in Congress the attention of the Judges was called to it, and in consultation on the 21st they postponed the decision of the case until it should be disposed of. It was then that Mr. Justice Grier wrote the following protest, which he afterwards read in Court: