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 Const.i.tution. 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 const.i.tutional limits of legislative or executive authority.

If power was a.s.sumed from patriotic motives, the a.s.sumption 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 Const.i.tution as strictly as though no war had ever existed. The Const.i.tution 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 Const.i.tution, 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 pet.i.tion 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 pet.i.tioner. 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 pet.i.tioner; 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 const.i.tutional 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 Const.i.tution 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 circ.u.mstances.

This decision was concurred in by Justices Nelson, Grier, Clifford, and myself, then const.i.tuting, 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 cla.s.s--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."

At the same term with the Milligan case the test-oath case from Missouri was brought before the Court and argued. In January, 1865, a convention had a.s.sembled in that State to amend its const.i.tution. Its members had been elected in November previous. In April, 1865, the const.i.tution, as revised and amended, was adopted by the convention, and in June following by the people. Elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered. By its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government. The oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires. Every person unable to take the oath was declared incapable of holding, in the State, "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational inst.i.tution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation."

And every person holding, at the time the amended const.i.tution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should _ipso facto_ become vacant.

No person, after the expiration of the sixty days, was permitted, without taking the oath, "to practice as an attorney or counsellor-at-law," nor, after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages."

Fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary.

Mr. c.u.mmings of Missouri, a priest of the Roman Catholic Church, was indicted and convicted in one of the Circuit Courts of that State, of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed, and the case was brought on a writ of error to our court. It was there argued with great learning and ability by Mr. Montgomery Blair, of Washington, Mr.

David Dudley Field, of New York, and Mr. Reverdy Johnson, of Maryland, for Mr. c.u.mmings; and by Mr. G.P. Strong and Mr. John B. Henderson, of Missouri, the latter then United States Senator for the State.

It was evident, after a brief consideration of the case, that the power a.s.serted by the State of Missouri to exact this oath for past conduct from parties, as a condition of their continuing to pursue certain professions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. For, if the State could require the oath for the acts mentioned, it might require it for any other acts of one's past life, the number and character of which would depend upon the mere will of its legislature. It might compel one to affirm, under oath, that he had never violated the ten commandments, nor exercised his political rights except in conformity with the views of the existing majority. Indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole cla.s.ses of people deprived, not only of their political, but of their civil rights.

It is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect. Such oaths have never been exacted in England, nor on the Continent of Europe; at least I can recall no instance of the kind. Test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power. It was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct.

The Court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the Const.i.tution against the pa.s.sage of bills of attainder. In depriving parties of existing rights for past conduct, the provisions of the const.i.tution of Missouri imposed, in effect, a punishment for such conduct. Some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the Const.i.tution against the pa.s.sage of an _ex post facto_ law. The decision of the Court, therefore, was for the discharge of the Catholic priest. The judgment against him was reversed, and the Supreme Court of Missouri was directed to order the inferior court by which he was tried to set him at liberty.

Immediately following the case of c.u.mmings that of _Ex-parte_ Garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of Congress of January 24th, 1865. Mr. A.H. Garland, now United States Senator from Arkansas, had been a member of the Bar of the Supreme Court of the United States before the civil war. When Arkansas pa.s.sed her ordinance of secession and joined the Confederate States, he went with her, and was one of her representatives in the Congress of the Confederacy. In July, 1865, he received from the President a full pardon for all offences committed by his partic.i.p.ation, direct or implied, in the rebellion. At the following term of the Court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of Congress, and the rule of the Court made in conformity with it, which he was unable to take by reason of the offices he had held under the Confederate government. The application was argued by Mr. Matthew H.

Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the pet.i.tioner--Mr. Garland and Mr. Marr, another applicant for admission, who had partic.i.p.ated in the rebellion, filing printed arguments--and by Mr. Speed, of Kentucky, and Mr. Henry Stanbery, the Attorney-General, on the other side. The whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented.

The Court in its decision followed the reasoning of the c.u.mmings case and held the law invalid, as applied to the exercise of the pet.i.tioner's right to practice his profession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the Court, or at the command of the legislature; but was a right of which the pet.i.tioner could be deprived only by the judgment of the Court for moral or professional delinquency. The Court also held that the pardon of the pet.i.tioner released him from all penalties and disabilities attached to the offence of treason committed by his partic.i.p.ation in the rebellion, and that, so far as that offence was concerned, he was placed beyond the reach of punishment of any kind.

But to exclude him by reason of that offence--that is, by requiring him to take an oath that he had never committed it--was to enforce a punishment for it notwithstanding the pardon; and that it was not within the const.i.tutional power of Congress thus to inflict punishment beyond the reach of executive clemency.

I had the honor to deliver the opinion of the Court in these cases--the c.u.mmings 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 a.s.sailed. 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 const.i.tutionality 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 G.o.ds wish to destroy they first make mad,' is having a pointed ill.u.s.tration in these successive judicial a.s.saults 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 inst.i.tutions, 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 Ma.s.sachusetts, 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 pa.s.sage, 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 Const.i.tution 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 pa.s.sed, 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, unconst.i.tutional, 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 const.i.tutions, containing various provisions stated, were adopted and approved by Congress, and the States declared to be ent.i.tled 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, a.s.signed 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution 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 pet.i.tioner 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 pet.i.tioner could not be held, and he was ent.i.tled 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 Const.i.tution 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 pa.s.sed, 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 pa.s.sed 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:

IN RE } MCARDLE.} PROTEST OF MR. JUSTICE GEIER.

This case was fully argued in the beginning of this month. It is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of this Court. By the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Const.i.tution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. I am not willing to be a partaker either of the eulogy or opprobrium that may follow;

and can only say:

"Pudet haec opprobria n.o.bis, Et dici potuisse; et non potuisse repelli."[4]

R.C. GRIER.

I am of the same opinion with my brother Grier, and unite in his protest.

FIELD, J.

After the pa.s.sage of the repealing act, the case was continued; and at the ensuing term the appeal was dismissed for want of jurisdiction.--(7 Wall., 506.)

The record had been filed early in the term, and, as the case involved the liberty of the citizen, it was advanced on the calendar on motion of the appellant. From that time until its final disposition the Judges were subjected to close observation, and most of them to unfriendly comment. Their every action and word were watched and canva.s.sed as though national interests depended upon them. I was myself the subject of a most extraordinary exhibition of feeling on the part of members of the lower house of Congress, the immediate cause of which was a circ.u.mstance calculated to provoke merriment. Towards the close of January, 1868, I was invited to a dinner given by Mr. Samuel Ward to the Secretary of the Treasury, Mr. McCullough. It was understood that the dinner was to be one of unusual excellence, and that gentlemen of distinction in Congress would be present. As some of the invited guests desired to go to New York on the same evening, the hour was fixed at five. A distinguished party a.s.sembled at that time at the rooms of Welcker, a noted restaurateur in Washington. Our host, Mr.

Ward, was a character deserving of special notice. He had been a member of the noted firm of bankers, Prime, Ward & King, of New York; and afterwards represented our government in Brazil. He was an accomplished linguist, familiar with several languages, ancient and modern. He was a profound mathematician, and had read, without the a.s.sistance of Bowditch's translation, Laplace's celebrated work, the "Mecanique Celeste." He pa.s.sed most of his time during the sessions of Congress in Washington, looking after the interests of bankers and others in New York, as they might be affected by pending legislation.

Though called "King of the Lobby," he had little of the character of the lobbyist. He was a gentleman in manners and education, and as such he always drew the company of gentlemen to his entertainments. On the occasion mentioned, some of the brightest spirits of Congress were present. As we took our seats at the table I noticed on the menu a choice collection of wines, Johannisberg among others. The dinner was sumptuous and admirably served. Our host saw that the appropriate wine accompanied the successive courses. As the dinner progressed, and the wine circulated, the wit of the guests sparkled. Story and anecdote, laughter and mirth abounded, and each guest seemed joyous and happy. At about eight song had been added to other manifestations of pleasure. I then concluded that I had better retire. So I said to my host, that if he would excuse me, I would seek the open air; and I left.

Just at this moment Mr. Rodman M. Price, formerly Governor of New Jersey, made his appearance and exclaimed, "How is this? I was invited to dinner at eight"--producing his card of invitation. "Look again,"

said Ward, "and you will see that your eight is a five," And so it was, "But never mind," said Ward; "the dinner is not over. Judge Field has just left. Take his seat." And so Price took my place. He had been travelling in the Southern States, and had been an observer of the proceedings of various State conventions then in session to frame const.i.tutions under the Reconstruction Acts, which he termed "Congo Conventions." To the amus.e.m.e.nt of the party he gave an account of some curious scenes he had witnessed in these conventions; and wound up one or two of his stories by expressing his opinion that the whole reconstruction measures would soon be "smashed up" and sent to "kingdom come" by the Supreme Court. The loud mirth and the singing attracted the attention of news-hunters for the Press--item gatherers in the rooms below. Unfortunately one of these gentlemen looked into the banquet-hall just as Price had predicted the fate of the reconstruction measures at the hands of the Supreme Court. He instantly smelt news, and enquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the Court. The waiter quietly approached the seat of the Governor, and, whilst he was looking in another direction, abstracted the card near his plate which bore my name. Here was, indeed, a grand item for a sensational paragraph. Straight way the newsgatherer communicated it to a newspaper in Washington, and it appeared under an editorial notice. It was also telegraphed to a paper in Baltimore. But it was too good to be lost in the columns of a newspaper. Mr. Scofield, a member of Congress from Pennsylvania, on the 30th of January, 1868, asked and obtained unanimous consent of the House to present the following preamble and resolution:

"Whereas it is editorially stated in the _Evening Express_, a newspaper published in this city, on the afternoon of Wednesday, January 29, as follows: 'At a private gathering of gentlemen of both political parties, one of the Justices of the Supreme Court spoke very freely concerning the reconstruction measures of Congress, and declared in the most positive terms that all those laws were unconst.i.tutional, and that the Court would be sure to p.r.o.nounce them so. Some of his friends near him suggested that it was quite indiscreet to speak so positively; when he at once repeated his views in a more emphatic manner; 'and whereas several cases under said reconstruction measures are now pending in the Supreme Court: Therefore, be it--

"_Resolved_, That the Committee on the Judiciary be directed to enquire into the truth of the declarations therein contained, and report whether the facts as ascertained const.i.tute such a misdemeanor in office as to require this House to present to the Senate articles of impeachment against said Justice of the Supreme Court; and that the committee have power to send for persons and papers, and have leave to report at any time."

An excited debate at once sprung up in the House, and in the course of it I was stated to be the offending Justice referred to. Thereupon the members for California vouched for my loyalty during the war. Other members wished to know whether an anonymous article in a newspaper was to be considered sufficient evidence to authorize a committee of the House to enquire into the private conversation of members of the Supreme Court. The mover of the resolution, Mr. Scofield, declared that he knew nothing of the truth of the statement in the paper, but deemed it sufficient authority for his action, and moved the previous question on the resolution. Several of the members protested against the resolution, declaring that it was unworthy of the House to direct an investigation into the conduct of a judicial officer upon a mere newspaper statement. But it was of no use. The resolution was adopted by a vote of 97 to 57--34 not voting. Some members, indeed, voted for its pa.s.sage, stating that it was due to myself that I should be vindicated from the charge implied in the debate; the force of which reason I have never been able to appreciate.

The resolution was evidently intended to intimidate me, and to act as a warning to all the Judges as to what they might expect if they presumed to question the wisdom or validity of the reconstruction measures of Congress. What little effect it had on me my subsequent course in the McArdle case probably showed to the House. I had only one feeling for the movement--that of profound contempt; and I believe that a similar feeling was entertained by every right-thinking person having any knowledge of the proceeding.

The facts of the case soon became generally known, and created a good deal of merriment in Washington. But all through the country the wildest stories were circulated. Communications of a sensational character relating to the matter were published in the leading journals. Here is one which appeared in the New York _Evening Post_ from its correspondent:

"It is the intention of the committee to examine the matter thoroughly, and in view of this a large number of witnesses have been summoned to appear on Friday.

"The friends of Justice Field are endeavoring to hush the matter up, and, if possible, to avert an investigation; but in this they will be disappointed, for the members of the Judiciary Committee express themselves firmly determined to sift the case, and will not hesitate to report articles of impeachment against Justice Field if the statements are proved."

Other papers called for the strictest scrutiny and the presentation of articles of impeachment, representing that I was terribly frightened by the threatened exposure. So for some months I was amused reading about my supposed terrible excitement in antic.i.p.ation of a threatened removal from office. But, as soon as the author of the objectionable observations was ascertained, the ridiculous nature of the subsequent proceedings became manifest. The Chairman of the Judiciary Committee, Mr. Wilson, of Iowa, occupied a seat next to me at Mr. Ward's dinner, and knew, of course, that, so far as I was concerned, the whole story was without foundation. And so he said to his a.s.sociates on the Judiciary Comnfittee.