Page:EB1911 - Volume 27.djvu/740

HISTORY 1865-1910] time of peace the Supreme Court interposed no effective obstacle. Like the executive it was subordinated to Congress.

It is true that in the case ex parte Milligan, decided in December 1866, the court held military commissions unlawful where the ordinary civil tribunals were open. In the case of Cummings v. Missouri (Jan. 14, 1867) it decided also that a state test oath excluding Confederate sympathizers from professions was a violation of the prohibition of ex post facto laws; and the court (ex parte Garland) applied the same rule to the Federal test oath so far as the right of attorneys to practise in Federal courts was concerned.

288. But threats were made by the radicals in Congress to take away the appellate jurisdiction of the court, and even to abolish the tribunal by constitutional amendment. The judges had been closely divided in these cases and, when the real test came, the court refused to set itself in opposition to Congress. When Mississippi attempted to secure an injunction to prevent the president from carrying out the Reconstruction acts, and when Georgia asked the court to enjoin the military officers from enforcing these acts in that state, the Supreme Court refused (April and May 1867), pleading want of jurisdiction. Chief Justice Salmon P. Chase argued that if the president refused to obey the court could not enforce its decree, while if he complied with the order of the court, and if the House of Representatives impeached him for refusing to enforce the law, the Supreme Court would be forced to the vain attempt to enjoin the Senate from sitting as a court of impeachment.

289. In one instance it seemed inevitable that the court would clash with Congress; the McCardle case involved an

editor's arrest by military authority for criticizing that authority and the Reconstruction policy. But Congress, apprehending that the majority of the court would declare the Reconstruction acts unconstitutional, promptly repealed that portion of the act which gave the court jurisdiction in the case, and thus enabled the judges to dismiss the appeal. Afterwards, when the Reconstruction policy had been accomplished, the court, in the case of Texas v. White (1869), held that the Constitution looked to “an indestructible Union composed of indestructible states”; and that although the secession acts were null, and the Federal obligations of the seceding

states remained unimpaired, yet their rights were suspended during the war. It also held that in re-establishing the broken relations of the state with the Union, Congress, under the authority to guarantee to every state a republican form of government, was obliged to regard the freedmen as part of the people of the state, and was entitled to decide what government was the established one. This decision, though it did not involve the direct question of the constitutionality of the Reconstruction acts, harmonized with the general doctrines of the Congressional majority.

290. The powerful leaders of the Republicans in Congress had been awaiting their opportunity to rid themselves of

President Johnson by impeachment. After various failures to convince a majority of the House that articles should be preferred against him, an opportunity seemed to present itself when Johnson, in the summer recess of 1867, suspended Secretary Stanton and made General Grant the acting secretary of war. The Senate, on reassembling, refused to consent to the suspension, and General Grant yielded his office to Stanton, thus spoiling the president's plan to force Stanton to appeal to the courts to obtain his office and so test the constitutionality of the Tenure of Office Act. This proved to be a turning-point in Grant's political career, for by his break with Johnson he gained new support among the masses of the Republican party. To Johnson's foes it seemed that the president had delivered himself into their hands when he next defied Congress by taking the decisive step of removing Stanton in defiance of the Tenure of Office Act, and the House announced to the Senate (Feb. 25, 1868) its decision to bring articles of impeachment against

the president. But careful reading of the law showed that it could not be relied on as conclusive ground for impeachment, for it provided that cabinet officers should hold office during the term of the president by whom they were appointed and for one month thereafter, subject to removal with the consent of the Senate. As Stanton had been appointed by President Lincoln and had merely continued under Johnson, a doubtful question was raised. The leaders, therefore, incorporated additional charges in the articles of impeachment which they pushed through the House of Representatives. By these the president was accused of attempting to bring the legislative branch into disgrace by his public utterances and of stigmatizing it as a Congress of only part of the states. This raised the question whether it was necessary to show a legal, technical crime or misdemeanour as the necessary ground of impeachment. Had the theory of the leaders that this was not the case been successful, the executive would have been reduced to an obvious dependence upon Congress.

In the spring of 1868, however, the trial by the Senate resulted in a verdict of acquittal. (See .)

291. Meanwhile the military Reconstruction of the South and the organization of the negro vote progressed effectively.

The party management of the negroes was conducted by “carpet-baggers,” as the Northern men who came South to try their fortunes under these new conditions were nicknamed, and by the white loyalists of the South, to whom was given the name “scalawags.” In the work of marshalling the freedmen's vote for the Republican party secret societies like the Loyal League, or (q.v.), played an important part. As the newly enfranchised mass of politically untrained negroes passed under Northern influence politically, the Southern whites drew more and more together in most of the former Confederate States, and although they were unable under the existing conditions to take control, they awaited their opportunity. A “Solid South” was forming in which old party divisions gave way to the one dominant antagonism to Republican ascendancy by negro suffrage; and a race antagonism developed which revealed the fact that underneath the slavery question was the negro question.

292. Politically the important fact was that the Republicans had rejected the possibility of reviving the old party lines in the South, and had gambled upon the expectation of wielding the united coloured vote with such leadership and support as might be gained from former Northerners and loyal whites. In the end negro rule failed, as was inevitable when legal disabilities and military force were removed; but the masses of the Southern whites emerged with a power which they had not possessed under the old rule of the planting aristocracy. For the time being, however, negro votes gave control to the Republicans. In South Carolina, Florida, Alabama, Mississippi and Louisiana the negroes were in a majority; in Virginia, North Carolina, Arkansas and Texas they were in the minority; while in Georgia the two races were nearly evenly balanced.

293. The white leaders of the South were divided as to the best means of meeting the problem. Some advocated that

those entitled to vote should register, and then refrain from the polls, in order to defeat the constitutions made under negro suffrage, for the law required them to be ratified by a majority of the qualified voters. Others would have the white race bear no part in the process. Societies such as the “Ku-Klux Klan” and the “Knights of the White Camelia” were organized to intimidate or restrain the freedmen. But for the present the Republicans carried all before them in the South. Some of the new state constitutions imposed severe disfranchisement upon the former dominant class, and before the end of July 1868 all of the former Confederate States, except Virginia, Mississippi and Texas, had ratified the Fourteenth Amendment, which was proclaimed in effect. By the beginning of 1870 these three states had also ratified the amendment, as had