Andrew Johnson: A Study in Courage

By Lloyd Paul Stryker | Go to book overview
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XLVIII
JOHNSON IS ACCUSED OF LINCOLN'S MURDER

SEVEN days after Ashley introduced his resolution of impeachment, the conspirators were startled as with a thunderclap,-- the Supreme Court spoke again! The Cummings and the Garland cases were decided;1 they came like detonating echoes of the Milligan decision. The great tribunal had not been intimidated. The balance wheel of the Constitution was still in equilibrium!

The question in the Cummings case was: Could a state require a priest or clergyman in order to continue his profession, to take an oath that he had not at any time manifested his desire for the triumph of the South? The Supreme Court thundered no. It was an ex post facto law, and under the Constitution, therefore, void. "We admit," said Mr. Justice Field (a Lincoln appointee) writing for the court, "that the states which existed previous to the adoption of the Federal Constitution possessed originally all the attributes of sovereignty; that they still retain those attributes, except as they have been surrendered by the formation of the Constitution, and the amendments thereto; that the new states upon their admission into the Union became invested with equal rights, and were thereafter subject only to similar restrictions. . . ."2

In the Garland case, the act of Congress of January 24th, 1865, imposing a test oath for lawyers practicing in the Supreme Court, was involved. Garland had been admitted in that court before the war. He had been a Representative and then a Senator in the Confederate Congress; he, therefore, could not take the oath. He was pardoned by President Johnson in July, 1865, and afterwards petitioned for leave to practice without being forced to take the oath, claiming that the act of January 24th was ex post facto and unconstitutional,--and further that in any event his pardon

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