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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/35668-8.txt b/35668-8.txt new file mode 100644 index 0000000..bf7af63 --- /dev/null +++ b/35668-8.txt @@ -0,0 +1,4963 @@ +The Project Gutenberg EBook of The Struggle between President Johnson and +Congress over Reconstruction, by Charles Ernest Chadsey + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Struggle between President Johnson and Congress over Reconstruction + +Author: Charles Ernest Chadsey + +Release Date: March 24, 2011 [EBook #35668] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + + + + + I + + THE STRUGGLE BETWEEN PRESIDENT JOHNSON + AND CONGRESS OVER RECONSTRUCTION + + + + + _STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW_ + + EDITED BY + THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA + UNIVERSITY IN THE CITY OF NEW YORK. + + Volume VIII] [Number 1 + + + THE STRUGGLE + BETWEEN + PRESIDENT JOHNSON AND CONGRESS + OVER RECONSTRUCTION + + + BY CHARLES ERNEST CHADSEY, Ph.D. + + + NEW YORK + 1896 + + + + +CONTENTS + + + PAGE + + CHAPTER I. THEORIES PRIOR TO THE CLOSE OF THE WAR. + + 1. The Problem 7 + + 2. Common Belief at Opening of Hostilities: The Crittenden + Resolution 8 + + 3. The Democratic Theory 10 + + 4. Lincoln: The Development of his Theory 14 + + 5. The Congressional Policy 18 + + CHAPTER II. JOHNSON'S THEORY: THE EXPERIMENT AND ITS RESULTS. + + 1. Conditions at Accession of Johnson 28 + + 2. Lincoln _vs._ Johnson 28 + + 3. Johnson's views before Accession 29 + + 4. Speeches in the Spring after his Accession 30 + + 5. Secret of his Attitude 32 + + 6. Development of his Theory 34 + + 7. Attitude towards Enfranchisement of the Negro 41 + + 8. Legislative Action in the South 42 + + 9. The Defense of the South 46 + + 10. Effect of the Attitude of the South upon the North 47 + + CHAPTER III. ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT: + DEVELOPMENT OF THE CONGRESSIONAL THEORY. + + 1. Attitude of Parties towards the Administration at + Beginning of the Session 49 + + 2. Opening Scenes in Congress 50 + + 3. The Annual Message: Debate on Reconstruction 55 + + 4. The Freedmen's Bureau 59 + + 5. Johnson's Indiscreet Speeches in February, 1866 65 + + 6. Civil Rights; Other Bills 68 + + 7. Report of Committee on Reconstruction 73 + + 8. Authorized Measures of First Session 80 + + CHAPTER IV. THE CAMPAIGN OF 1866. + + 1. Crisis in the Cabinet 87 + + 2. The New Orleans Riots 88 + + 3. Administration Conventions 91 + + 4. Anti-Administration Conventions 98 + + 5. The Fall Elections 103 + + 6. Action on the XIV Amendment 104 + + CHAPTER V. THE CONGRESSIONAL THEORY FULLY DEVELOPED. + + 1. The Second Session Convenes; The Annual Message 107 + + 2. First Reconstruction Bill 109 + + 3. First Supplementary Bill 117 + + 4. Second Supplementary Bill 122 + + 5. State Conventions 124 + + 6. Third Supplementary Bill 125 + + 7. Ratification of Constitutions 125 + + 8. Acts Re-admitting States to Representation in Congress 125 + + CHAPTER VI. THE IMPEACHMENT OF THE PRESIDENT. + + 1. Why Congress Wished to Impeach 127 + + 2. What is an Impeachable Offense 128 + + 3. The Opening Attack 129 + + 4. The Work of the Judiciary Committee 131 + + 5. The Attack Fails 132 + + 6. The Limitation of Presidential Powers 133 + + 7. The Tenure-of-Office Act 134 + + 8. Struggle with Secretary Stanton 135 + + 9. Articles of Impeachment 138 + + 10. Attitude of Conservative Republicans 140 + + 11. Conclusion 141 + + + + +THE STRUGGLE BETWEEN PRESIDENT JOHNSON AND CONGRESS OVER RECONSTRUCTION. + + + + +CHAPTER I. + +THEORIES OF RECONSTRUCTION PRIOR TO THE CLOSE OF THE WAR. + + +1. The war of the rebellion afforded opportunity for the people of the +United States to obtain a far clearer conception of the powers and +limitations of the federal constitution than had previously been possible, +and settled beyond possibility of further debate some of the most +important questions which had arisen since its interpretation as an +"instrument of evidence" had begun. Yet when General Johnston had +surrendered his army on April 26, 1865, virtually bringing the war to a +close, the country found that one great constitutional question, a +question of the highest practical importance, still remained unsolved; and +for several years the best energies of our statesmen were occupied with +its solution. Eleven of the States had for four years been in armed +insurrection, but now, through superior force, they lay helpless at the +feet of the Union. Under these circumstances, what was their +constitutional relation to the federal government? + +Previous to the passage of the ordinance of secession by the convention of +South Carolina in 1860, the nation never had been called upon to determine +the status of a State which declared its relation to the federal +government severed. Certainly if a State could establish its independence +by war, the question, so far as such State was concerned, would have no +significance; but as such a conclusion of the difficulty could not be +considered for an instant, the status of the seceded State, both before +and after the cessation of hostilities, immediately became an important +subject of discussion. The gradual evolution of popular sentiment, from +the belief that the dignity of a State should not be tampered with, to the +belief that by an act of secession a State divested itself of all its +rights and privileges as a State, and reverted to the condition of a +Territory, forms an interesting chapter in the history of the unwritten +constitution of the United States. + +2. When the 37th Congress met on July 4, 1861, in pursuance of Lincoln's +proclamation, the war had not been in progress long enough to show to the +country the extreme gravity of the situation and the wideness of the gap +which had arisen between the Southern States and the rest of the Union. +The common belief was that unprincipled agitators, who represented only a +small minority of the legal voters in the insurrectionary States, had +obtained temporary control over the governments of these States, and were +waging a war against the Union, in which they were unsupported by the +majority; and that the latter would joyfully resume control of their +governments as soon as the opportunity should be given them, which it was +confidently believed would soon happen. That is, the war was to be carried +on, not against the States which claimed to have seceded, but against a +certain element of the Southern population. + +The extreme solicitude felt by Congress for the proper preservation of the +sovereign privileges of these States is shown by the practical unanimity +with which a resolution submitted by Mr. Crittenden, on July 22, was +carried, there being only two dissenting voices.[1] It declared the sense +of the House to be that[2] "this war is not waged upon our part in any +spirit of oppression, nor for any purpose of conquest or subjugation, nor +purpose of overthrowing or interfering with the rights or established +institutions of those States, but to defend and maintain the supremacy of +the Constitution and to preserve the Union with all the dignity, equality +and rights of the several States unimpaired; and that as soon as these +objects are accomplished the war ought to cease." Three days later, Andrew +Johnson, then a Senator from Tennessee, submitted the same resolution in +the Senate,[3] where it was also carried with practical unanimity, +although the discussion indicated a confused idea as to its exact +significance. + +But few months passed by before this staunch confidence in the rights of +the States began to be shaken; a feeling of doubt had arisen which had not +as yet resolved itself into a definite change of attitude, yet which was +sufficient to prevent the re-endorsement of Mr. Crittenden's resolution, +introduced by Mr. Holman, December 4, 1861, and tabled by a vote of 71 to +65.[4] + +A series of resolutions introduced in the Senate by Mr. Davis of Kentucky, +on February 13, 1862,[5] while preserving in the main the principles then +in vogue, assumed a somewhat broader tone and expressed very clearly the +belief of a large element of the thoughtful classes. Affirming the +permanency of the privileges of the people of the United States, it denied +the criminality of the citizen who does not perform "his duties of loyalty +and obedience, when the government fails to give him protection and +security," and declared that the powers of the nation and State in the +State are simply in suspension during a period of insurrection, and should +be resumed, unimpaired, when the insurrection ceases. Here also was +affirmed, in unmistakable terms, the inability of the State to secede, and +the consequent obligation of the United States to preserve in these States +republican forms of government. The guilty leaders should be punished, but +the masses should receive amnesty; and immediately following the important +admission was made that "if the people of any State cannot or will not +reconstruct their state government, and return to loyalty and duty, +Congress should provide a government for such State as a territory of the +United States, securing to the people thereof their appropriate +constitutional rights." + +Here, in connection with the positive statement that a State cannot +secede, and the implication that the insurrectionary citizen may be upheld +in his actions, was a clear expression of so-called extra-constitutional +powers in treating incorrigible States as territories. It would be +interesting to know how these resolutions were viewed by the Senate, but +they were laid on the table and never taken up for discussion. + +3. During the opening days of the 3d Session of the 37th Congress, the +question of the right to interfere with the States as States, was brought +fairly before the House by a series of resolutions in which the policy of +the extreme wing of the Democratic party was expressed.[6] In them it is +declared that "the Union _as it was_, must be restored and maintained, one +and indivisible."[7] When this declaration is examined, with the +President's preliminary proclamation of emancipation in mind, the +significance of the three italicised words can be seen. The resolutions, +after quoting the substance of the Crittenden resolution, further declared +that "whoever shall pervert or attempt to pervert the same to a war of +conquest or subjugation, or for the overthrowing or interfering with the +rights or established institutions of any of the States, and to abolish +slavery therein, or for the purpose of destroying or impairing the +dignity, equality, or rights of any of the States, will be guilty of a +flagrant breach of public faith and of a high crime against the +Constitution and the Union." The same guilt was declared to attach to all +who should "propose by federal authority, to extinguish any of the States +of the Union, or to declare any of them extinguished, and to establish +territorial governments within the same." + +These resolutions, which were an open attack upon the presidential policy, +were tabled by a vote of 79 to 50, a party vote. This fact is of +significance as an evidence of the growing feeling in the House, that the +sovereign rights of the States might be too highly considered, and that +decided discipline of some kind might be found a measure of necessity. It +began to be doubted whether in some of these States there could be found a +sufficient number of loyal citizens to carry on the government without +modifications of the old constitution and laws. At the same time the small +majority by which the resolutions were tabled shows that the old idea +still exercised a powerful influence in the House. + +On December 14, 1863, resolutions were introduced by Mr. Finck,[8] and +others two days later by Mr. Rollins,[9] which were very similar to the +Crittenden resolution, and were introduced merely as expressions of the +Democratic policy, since the Republican majority was too pronounced to +permit their adoption. + +From the beginning of the war, the policy of the Democratic party in the +North was to bring about some agreement between the North and the South, +by compromises and concessions, and should the issue finally be determined +in favor of the Union even by dint of superior strength, to restore the +Southern States to their former condition. In short, the theory held +almost unanimously by Congress at the opening of the 37th Congress, was +retained as the Democratic theory,[10] while the Republicans gradually +modified their opinions, and with the progress of events developed a +theory different from both the Democratic and the presidential theory. + +Even after the proclamation of emancipation had come to be recognized as +one of the natural results of the war, the policy of the Democratic party +was unchanged except as necessarily modified by emancipation, and in the +House, on February 8, 1864, Jacob B. Blair submitted resolutions[11] in +which it was stated that "every State which has ever been, is still a +State in the Union, and that when this rebellion shall have been put down, +each of the so-called seceding States will have the same rights, +privileges, and immunities under the Constitution as any one of the loyal +States, except so far as the holding of African slaves in bondage is +affected by the President's proclamation." These resolutions also +repudiated "the doctrine advanced by some, that the so-called seceding +States have ceased to be States of and in the Union, and have become +territories thereof, or stand in the relation of foreign powers at war +therewith." + +But besides political declarations, the Democratic theory found other ways +of expression in Congress. From the very commencement of the war, many of +the leaders of the party were confident that hostilities could be brought +to an end and peaceful relations restored by a convention of States, and +several attempts were made to induce Congress to consider favorably some +such plan.[12] As early as July 15, 1861, only eleven days after the +convening of the extra session of Congress, Benjamin Wood introduced a +resolution in the House,[13] which recommended that the governors of the +several States "convene their legislatures for the purpose of calling an +election to select two delegates from each Congressional district, to meet +in general convention at Louisville, in Kentucky, on the first Monday in +September next; the purpose of the said convention to be to devise +measures for the restoration of peace to our country." + +Again at the opening of the second session on December 4, 1861, joint +resolutions were introduced by Mr. Saulsbury, in the Senate,[14] to +appoint Millard Fillmore, Franklin Pierce, Roger B. Taney, Edward Everett, +Geo. M. Dallas, Thomas Ewing, Horace Binney, Reverdy Johnson, John J. +Crittenden, George E. Pugh, and R. W. Thompson, "commissioners on the part +of Congress, to confer with a like number of commissioners to be appointed +by the States" in rebellion, "for the preservation of the Union and the +maintenance of the Constitution." The resolutions also provided that when +the several States should have appointed their commissioners, hostilities +should cease, "and not be renewed unless said commission shall be unable +to agree," or "agreement shall be rejected either by Congress or by the +aforesaid States." + +One year later, December 2, 1862, a third attempt[15] was made by Mr. +Davis, who submitted a joint resolution in the Senate (S. 104), proposing +a convention from all the States to devise means for the reconstruction of +the Union, and on May 30, 1864, Mr. Lazear submitted in the House, +resolutions which were to authorize the President to "adopt or agree upon +some plan upon which the decision of the great body of the people north +and south may be secured upon the question of calling a convention +composed of delegates from all the States, to which shall be referred the +settlement of all questions now dividing the southern States from the rest +of the Union, with a view to the restoration of the several States to the +places they were intended to occupy in the Union." + +During the later years of the war, after hope of success had begun to die +out, some of the Southern States looked very favorably upon the plan; but +nothing approximating such a convention resulted.[16] + +4. At the beginning of his term of office, President Lincoln held the then +prevailing belief in the supremacy of the States in all matters not +directly under federal control, and as a matter of course believed that at +the cessation of hostilities each State should immediately resume its old +relations to the government, its local matters untouched by the central +administration.[17] But the ability of Lincoln to modify his own beliefs +on any subject as his experience widened was never better manifested than +on this very question, and had he lived to control the administration +through the period of reconstruction, it is not unreasonable to suppose +that his attitude would have undergone still greater change. As the +magnitude of the struggle became more apparent, he began to deliberate +upon the advisability of striking at the root of the evil, despite the +blow it struck at state liberty, and the two proclamations of September +22, 1862, and January 1, 1863,[18] mark the basis of the executive plan of +reconstruction. The Pierpoint government of Virginia had been recognized +in 1861, but its recognition was in harmony with the early attitude of +Congress towards the States, and involved no questions which could show a +distinct executive policy. + +In 1862, after the capture of New Orleans, a military governor of +Louisiana was appointed, many persons in the vicinity of New Orleans were +enrolled as citizens of the United States, and two districts elected +representatives to Congress, under the provisions of the old state +constitution.[19] In this case there was a distinct development of the +executive policy. Here was a military governor, appointed by the President +and so an instrument of the Executive, interfering with the civil +government of the State, controlling elections, deciding what districts +were entitled to elections, and fixing the date of election. This was very +different from simple restoration, with its theory that the national +government must in no way interfere with the State governments. And when +the two members elect, Messrs. Flanders and Hahn, presented themselves for +admission into the House of Representatives, the Democrats, consistently +with their belief in restoration, which up to that time had met with no +serious opposition, opposed their admission strongly. In the discussion +which arose, Mr. Voorhees well expressed the difference in theory between +the Democratic view and that which was ultimately to be adopted. The +problem was stated by him as follows:[20] "If the Southern Confederacy is +a foreign power, an independent nationality to-day, and you have conquered +back the territory of Louisiana, you may then substitute a new system of +laws in the place of the laws of that State. You may then supplant her +civil institutions by institutions made anew for her by the proper +authority of this _Government_--not by the executive, but by the +_legislative_ branch of the Government, assisted by the Executive simply +to the extent of signing his name to the bills of legislation." "But if +the theory we have been proceeding upon here, that this Union is unbroken; +that no States have sundered the bonds that bind us together; that no +successful disunion has yet taken place--if that theory is still to +prevail in these halls, then this can not be done. You are as much bound +to uphold the laws of Louisiana in all their extent and in all their +parts, as you are to uphold the laws of Pennsylvania or New York, or any +other State whose civil policy has not been disturbed." + +The strong appeal to remain true to the theory first maintained by +Congress, did not succeed in shutting the Louisianians out, and for one +month, February to March, 1863, they were recognized as members. The later +refusal to admit members from insurrectionary States was due, not to a +supposed inconsistency with restoration proper, but to dislike of the +presidential policy. + +And now with emancipation still another element entered into the question, +and in the future reconstruction, Congress was of necessity forced to +follow to a certain extent a new path laid out by the President. A State +after January, 1863, in order to resume its former relations, must at +least make one change in its institutions, and perfect restoration could +no longer be considered. True, a large minority opposed the emancipation +policy of the President, and their discontent took expression in +resolutions such as Mr. Conway introduced into the House on December 15, +1862, in which he says that "the seceded States can only be put down, if +at all, by being regarded as out of constitutional relations with the +Union," implying, of course, the inability of the President to extinguish +their local institutions. But such resolutions were never considered, +while resolutions endorsing the policy of the President were agreed +to.[21] + +The next step in the development of the President's policy was the +formation of a definite program, which States wishing to be restored to +equal rights with the loyal States should follow. This plan of +reconstruction, called by him at a later period the "Louisiana plan," was +officially announced by the proclamation of December 8, 1863, and the +annual message to Congress of the same date defended the stand taken.[22] +This proclamation granted amnesty to all citizens (excepting certain +specified classes[23]) who would take an oath to support the +Constitution, as well as all acts of Congress and proclamations of the +President relating to slaves; and declared that whenever one-tenth of the +voters of any insurrectionary State should take the oath, and re-establish +their state government, "which shall be republican, and in no wise +contravening said oath," that government would be recognized as the true +government of the State and would receive the protection guaranteed to the +States. But all questions concerning admission to Congress would, in +accordance with the provisions of the Constitution, rest entirely with the +respective houses of Congress. The questions of negro suffrage and federal +supervision of the freedmen were not touched, and no provision was made to +ensure good faith in reconstruction, beyond the mere oath exacted, and the +general oversight of the President. + +5. Under the provisions of the proclamation, three States, Louisiana, +Arkansas, and Tennessee,[24] set up new governments, which were recognized +by the President as true governments.[25] Congress, however, was by no +means satisfied with this lenient way of treating the humbled States. The +feeling that the executive was encroaching upon the legislative power +added strength to the discontent. Many thought that if the presidential +policy, without modification, were carried out, the reconstructed States +would speedily revert to the control of the very element against whom the +war had been waged. The House, by a strict party vote,[26] authorized the +appointment of a select committee of nine, to consider that portion of +the President's message relating to reconstruction, with authority to +report by bill or otherwise. Henry Winter Davis was appointed chairman. +Resolutions were submitted by Mr. Williams on March 14, 1864, which were +backed by a sentiment in Congress that was of great significance. Congress +began to feel its way towards a distinctive policy, which had heretofore +been supported by only a few, who were considered as holding extremely +wild and untenable views. These resolutions stated that although the local +laws were subverted, and the functions of the civil authorities suspended +in the States under armed occupation, "as soon as the rebellion is +suppressed in any of the revolting States," the President should +communicate the fact to _Congress_, "in order that it may take the proper +measures for the reorganization of the civil governments and the +re-establishment of the civil functionaries therein, and prescribe such +terms as it may deem wise and proper and consistent with the public safety +for the readmission of those districts as States of this Union." The +exclusive right of the legislative power "to say upon what terms those +territories shall be allowed to return to the Union," was also asserted. + +The issue between Congress and the President took more definite form +through the Davis-Wade bill of 1864.[27] This bill had been drafted during +the latter part of 1863 by the select committee of nine, but it did not +come before the House for consideration till March 22, 1864. + +The objections of those who supported this bill to the Presidential plan, +are clearly expressed in the speech of H. Winter Davis, in support of his +measure. He says[28] that it (the Presidential plan), "proposed no +guardianship of the United States over the reorganization of the +governments, no law to prescribe who shall vote, no civil functionaries to +see that the law is faithfully executed, no supervising authority to +control and judge of the elections. But if, in any manner, by the +toleration of martial law lately proclaimed the fundamental law, under the +dictation of any military authority, or under the prescriptions of a +provost marshal, something in the form of a government shall be presented, +represented to rest on the votes of one-tenth of the population, the +President will recognize that, provided it does not _contravene_ the +proclamation of freedom and the laws of Congress; and to secure that, an +oath is exacted." This government "may be recognized by the military power +and may not be recognized by the civil power, so that it would have a +doubtful existence, half civil and half military, neither a temporary +government by law of Congress, nor a state government, something as +unknown to the Constitution as the rebel government that refuses to +recognize it." + +In place of this method of organization, which Mr. Davis justly thought so +wretchedly loose, he proposed that the President should appoint +provisional governors over these States, whose first duty should be to +enroll the white citizens, through duly appointed United States marshals. +Then when a majority of these citizens should have taken the oath of +allegiance, they should be permitted to hold a State convention for the +purpose of forming a constitution under which the government might be +re-established. But all Confederate office-holders and those voluntarily +bearing arms against the United States were to be ineligible as delegates +to the convention. The bill further provided that the constitution should +"repudiate the rebel debt, abolish slavery, and prohibit the higher +military and civil officers from voting for or serving as governors or +members of the legislature." When these conditions should have been +fulfilled, and the assent of Congress to the recognition of the new +government obtained, the President should be notified, and should then +officially recognize the government by proclamation, after which senators +and representatives would be admitted to Congress.[29] + +In the speech mentioned above, Mr. Davis claimed that "the bill challenges +the support of all who consider slavery the cause of the rebellion, and +that in it the embers of rebellion will always smoulder; of those who +think that freedom and permanent peace are inseparable, and who are +determined, so far as their constitutional authority will allow them, to +secure these fruits by adequate legislation." + +But in this plan there was no attempt to introduce negro suffrage. The +only question of importance seemed to be: "How can we ensure the +subservience of these States to the federal constitution?" The supporters +of the Davis plan insisted that "the rebel States must be governed by +Congress till they submit and form a state government under the +Constitution"; otherwise "Congress must recognize state governments which +do not recognize either Congress or the Constitution of the United States; +or there must be an entire absence of all government in the rebel States; +and that is anarchy." It was absurd, the argument continued, to recognize +a government which did not recognize the Constitution; and "to accept the +alternative of anarchy as the constitutional condition of a State is to +assert the failure of the Constitution and the end of republican +government. Until, therefore, Congress recognize a state government, +organized under its auspices, there is no government in the rebel States +except the authority of Congress." From this it logically followed that in +the absence of all State government it was the duty of Congress to +"administer civil government until the people shall, under its guidance, +submit to the Constitution of the United States," and reorganize +government under whatever conditions Congress might require. + +These arguments appealed to sentiments which were becoming very popular in +Congress. The theory that a State by seceding ceased to exist as a State +was gradually gaining ground, and the Davis plan, by which the central +government was to control the State as a territory, though for so limited +a time, rapidly gained supporters. + +Mr. Fernando Beaman, of Michigan, who also considered that the seceded +States had ceased to exist, said in an extended speech favoring the +adoption of this bill:[30] "As a people without government or organization +are in a state of anarchy, their efforts to establish law and order must +be more or less impeded by caprice, by divided counsels, and by the want +of forms, regulations, and methods. The passage of this bill is the +establishment of incipient civil government, and provides at once rules, +regulations and system, with the proper officials to carry them into +execution." + +Although the bill was avowedly drawn up to provide what the presidential +plan failed to provide, a method of reconstruction so thorough that those +elements which had produced the discord could no longer influence the +state governments, it itself furnished no means to prevent any of these +States from so amending their constitutions, after their senators and +representatives had received recognition, that the very conditions of +readmittance might be rendered nugatory. + +But the bill seemed to the majority in Congress to offer a more practical +plan than any yet proposed, and it passed the House May 4, by a vote of 73 +to 59; the Senate, two months later, adopted it by a majority of four. But +it failed to become a law by the adjournment of Congress before it +received the President's signature.[31] + +The President, in justification of his neglect to sign the bill, issued a +proclamation on July 8.[32] This stated that while he was unprepared "to +be inflexibly committed to any single plan of restoration," and also +"unprepared to declare that the free State constitutions and governments +already adopted and installed in Arkansas and Louisiana, shall be set +aside and held for naught, thereby repelling and discouraging the loyal +citizens who have set up the same as to further effort," nevertheless he +was "fully satisfied with the system for restoration contained in the +bill, as one very proper plan for the loyal people of any State choosing +to adopt it," and that in such case when the people "shall have +sufficiently returned to their obedience to the Constitution and laws of +the United States," military governors would be appointed, "with +directions to proceed according to the bill." + +This attempt to modify the presidential plan virtually ended for the time +the efforts of Congress towards the development of a distinctive theory, +and the war thus closed with no well defined plan in operation, except +that of President Lincoln, which was not well sustained by Congress. Only +one thing seemed to be definitely decided. That was, that the seceded +States, in whatever light they might be considered, were incapacitated +from participating in presidential elections. A joint resolution to this +effect was passed in 1865,[33] and in accordance with its provisions the +electoral vote of Louisiana was ruled out. + +Two men in the Republican party wielded the chief power in influencing +that party to adopt the theory of reconstruction which was finally to +prevail as the congressional theory.[34] One was Thaddeus Stevens of +Pennsylvania, and the other Charles Sumner, of Massachusetts. The latter +was a recognized leader of the Senate, and his views concerning the mutual +relations of the States in rebellion and the federal government were +clearly expressed in a series of resolutions which he submitted February +11, 1862. These resolutions, although never brought forward for +consideration, were printed, and coming from so influential a man had +considerable influence in shaping the general attitude of Congress towards +the question, and affected to some extent its future policy. They[35] were +nine in number, with a well-worded preamble which put forward as a premise +that "the extensive territory, thus usurped by these pretended +governments, and organized into a hostile confederacy, belongs to the +United States, as an inseparable part thereof, under the sanction of the +Constitution, to be held in trust for the inhabitants in the present and +future generations, * * * The Constitution, which is the supreme law of +the land, cannot be displaced in its rightful operation within this +territory, but must ever continue the supreme law thereof." + +The first resolution declares that a vote of secession is void as against +the Constitution, "and when sustained by force it becomes a practical +_abdication_ by the State of all rights under the Constitution, while the +treason which it involves still further works an instant _forfeiture_ of +all those functions and powers essential to the continued existence of the +State as a body politic, so that from that time forward, the territory +falls under the exclusive jurisdiction of Congress as other territory, and +the State being, according to the language of the law, _felo de se_, +ceases to exist." + +The second resolution denies the constitutional existence of the +Confederate States. The third and fourth declare that the termination of a +State terminates its peculiar local institutions, therefore slavery ceases +to exist; and the fifth, sixth and seventh declare it necessary not to +recognize or tolerate slavery. The eighth declares the obligation of the +United States to protect all inhabitants, "without distinction of color or +class." The ninth declares that Congress, in pursuance of the duties cast +upon it by the total extinction of the States and by the constitutional +obligation that the "United States shall guarantee to every State in this +Union a republican form of government,"[36] "will assume complete +jurisdiction of such vacated territory where such unconstitutional and +illegal things have been attempted, and will proceed to establish therein +republican forms of government under the Constitution; and in execution of +this trust will provide carefully for the protection of all the +inhabitants thereof, for the security of families, the organization of +labor, the encouragement of industry, and the welfare of society, and will +in every way discharge the duties of a just, merciful, and paternal +government." + +Thaddeus Stevens, although recognized as one of the foremost men of the +Republican party, advocated from the very commencement of hostilities +views of so radical a nature, that he was looked upon by many as a +fanatic. His influence accordingly worked in a different way from +Sumner's. At no time did he consolidate his views into a series of +resolutions, but upon every occasion where the subject could be touched +upon, no matter how indirectly the topic might refer to it, he would state +his theory of the relation of the seceded States to the Union. +Persistently and consistently he advocated it; and he took pleasure in +considering himself as in advance of his party, a prophet, pointing out +the only right road, confident that sooner or later his party would see +the wisdom of his policy and adopt it. Throughout those tempestuous years, +his undaunted faith in the infallibility of his plan served to keep it +constantly in mind, and attracted to him a constantly increasing number of +followers, until at the beginning of the 39th Congress he obtained +control, and became the recognized leader of his party in all matters +relating to the Southern States. Though the plan of reconstruction as +finally adopted contained many modifications, it was to a great extent the +logical outgrowth of the Stevens theory. His whole theory rested upon the +simple premise that wherever there is resistance to the Constitution, and +that resistance cannot be overthrown without appeal to violent methods, +there the Constitution is theoretically as well as practically suspended. +As long as such resistance continues, the Constitution remains suspended, +and only the law-making and war-making power is able to determine when +resistance has ceased. Consequently the federal government would have the +undisputed right to treat the South as a conquered territory until there +should be no question as to the safety of granting greater privileges. +Those States had ceased to be States, consequently the "guarantee clause" +had no application. Congress had unrestricted power over them, as simple +territories of the federal government. On May 2, 1864, during the +discussion of the bill to guarantee republican forms of government to the +rebellious States, he declared that the rebellious States "were entitled +to no rights under the Constitution and laws, which as to them were +abrogated; that they could invoke the aid of neither in their behalf; that +they could claim to be treated during the war as belligerents according to +the laws of war and the law of nations; that they could claim no other +rights than a foreign nation with whom we might be at war; and that they +were subject to all the liabilities of such foreign belligerent," and that +"the property of the morally and politically guilty should be taken for +public use."[37] + + + + +CHAPTER II. + +JOHNSON'S THEORY: THE EXPERIMENT, AND ITS RESULTS. + + +1. We have briefly reviewed the theories that obtained greater or less +consideration during the progress of the war, and have seen that plan had +been agreed upon by which the Southern States might resume their normal +relations with the rest of the Union. Two or three States had, it is true, +been nominally reconstructed under the provisions of the proclamation of +December 8, 1863, but their good faith was strongly suspected, and their +representatives were not able to secure recognition in Congress. The high +personal esteem in which President Lincoln was held had prevented general +demonstrations against his policy, but there was a wide-spread suspicion +that he was inclined to deal too leniently with a people who had brought +so much expense and misery upon the nation. The indignation of the North +had increased with the progress of the war, and the belief that the South +could be held in check only by the most stringent regulations and +requirements was held by many. + +2. So long as armed rebellion existed the question of reconstruction was a +minor one, the attention of all being chiefly directed to the problem: +"How can this rebellion be crushed out, and the South made thoroughly to +realize that resistance is useless?" But when Andrew Johnson took the oath +of office the rebellion was virtually a thing of the past, and the giant +problem for the nation to solve during his administration was: "How shall +we treat these conquered States lying helpless, awaiting whatever fate +may be allotted them?" No other issue of importance served to offset it. +The whole nation was debating the question, and all were waiting to see in +what way the Executive would grapple with it.[38] + +3. Those who feared that Lincoln had lacked sufficient firmness and had +been too tender hearted, believed that in Johnson the nation had as its +Executive a man with correct convictions and a strength of character which +ensured both the proper treatment of the South and the stability of the +Union. Johnson had an excellent record as military governor of Tennessee, +where his fearlessness and vigorous administration had given him a +reputation which brought to him the nomination of vice-president. From his +severity to the rebels while governor of Tennessee it was reasoned that he +would still remain severe and unyielding in his treatment of them as +President of the United States. He himself was always fond of alluding to +his past record as indicating his future course. Thus, only six days after +he took the oath of office, he said while addressing a delegation of +citizens of Indiana:[39] "In reference to what my administration will be, +while I occupy my present position, I must refer you to the past. You may +look back to it as evidence of what my course will be; * * * mine has been +but one straightforward and unswerving course, and I see no reason now why +I should depart from it. * * * My past is a better foreshadowing of my +future course than any other statement on paper that might be made." +Moreover, an examination of the speeches made by him during the war shows +the grounds on which the people were justified in expecting a severe +policy. An extract from an address delivered in Nashville, June 9, 1864, +shows his views at that time as to who should carry on the work of +reconstruction.[40] "In calling a convention to restore the State, who +shall restore and re-establish it? Shall the man who gave his influence +and his means to destroy the government * * * participate in the great +work of reorganization? * * * Traitors should take a back seat in the work +of restoration. If there be but five thousand men in Tennessee loyal to +the Constitution, loyal to freedom, loyal to justice, these true and +faithful men should control the work of reorganization and reformation +absolutely." Later on in the same speech he said, referring to the traitor +"born and reared among us:" "My judgment is that he should be subjected to +a severe ordeal before he is restored to citizenship. A fellow who takes +the oath merely to save his property, and denies the validity of the oath, +is a perjured man, and not to be trusted." + +4. Emphatic statements such as these, often repeated, insisting that the +government of the States must be carefully kept in the hands of those +whose loyalty was above suspicion, and advocating severe ordeals for those +considered traitors, warranted the people of the nation in their faith in +his extreme devotion to a strong Union. Yet soon after his inauguration a +change in his attitude could be noticed. In his numerous speeches and +interviews he shifts his ground, very gradually at first, but soon meeting +the issue squarely, pledging himself to a policy which he faithfully +carried into execution, and which the candid student must recognize as +being thoroughly believed in by the President. Clemency towards the +masses, but severity towards the leaders of the rebellion, was his +attitude in his speech of April 21, above alluded to. He expressed his +views as follows:[41] "It is not promulgating anything I have not +heretofore said, to say that traitors must be made odious, that treason +must be made odious, that traitors must be punished and impoverished. +They must not only be punished, but their social power must be destroyed. +If not, they will still maintain an ascendency, and may again become +numerous and powerful; for, in the words of a former senator of the United +States, 'when traitors become numerous enough, treason becomes +respectable.' And I say that, after making treason odious, every Union man +and the Government should be remunerated out of the pockets of those who +have inflicted this great suffering upon the country. But do not +understand me as saying this in a spirit of anger, for, if I understand my +own heart, the reverse is the case; and while I say that the penalties of +the law, in a stern and inflexible manner, should be executed upon +conscious, intelligent and influential traitors--the leaders, who have +deceived thousands upon thousands of laboring men who have been drawn into +this rebellion--and while I say, as to the leaders, punishment, I also say +leniency, conciliation and amnesty to the thousands whom they have misled +and deceived." + +As Johnson said, he promulgated nothing new in this statement of his +beliefs regarding the treatment of the South, save possibly a more +definite affirmation of clemency to the masses. In the Nashville speech of +June 9, 1864, he had still more emphatically urged extreme measures +towards the leaders.[42] "Treason must be made odious, and traitors must +be punished and impoverished. Their great plantations must be seized and +divided into small farms, and sold to honest, industrious men. The day for +protecting the lands and negroes of these authors of the rebellion is +past." Again on April 24, 1865, in an interview with a number of Virginia +refugees, he reiterated the necessity of severity. In this case, perhaps +owing to the nature of the interview, and the character of those to whom +he was speaking, he makes no distinction between the leaders and their +followers, his definition of treason apparently including all soldiers and +their abettors. In it he says:[43] "It is time that our people were taught +that treason is a crime, not a mere political difference, not a mere +contest between two parties, in which one succeeded and the other simply +failed. They must know it is treason; for if they had succeeded, the life +of the nation would have been reft from it, the Union would have been +destroyed. Surely the Constitution sufficiently defines treason. It +consists in levying war against the United States, and in giving their +enemies aid and comfort." + +The great liberality with which, beginning with the following month, the +President used the pardoning power, and the extreme leniency with which +all the leaders were treated, were in striking contrast with these +sentiments. A situation was presented for Johnson to meet as President, +which necessitated modifications of views held by him as governor. His +attitude towards the leaders must be admitted to have undergone actual +modification, notwithstanding his claim a few months later that he simply +wished to make the leaders sue for pardon and realize the enormity of +their offence. + +5. The real secret of the apparently strange development of his policy, +which we are about to trace out, lies in the fact that although at this +time nominally a Republican, he was in reality a strict constructionist. +He had always been a Democrat, and still held Democratic views. Only when +secession began to be urged by the southern branch of the Democracy, did +he break loose from his old ties. Accustomed to interpret the Constitution +from a strict constructionist standpoint, accustomed to the belief that +the power of the State was restricted only by the specific limitations of +the Constitution, and that the federal government could exercise no power +beyond that expressly granted it, he naturally treated the question of +reconstruction from the same standpoint. The surprising thing in Johnson's +career is the fact that in spite of his strict construction views, he was +strongly opposed to secession. He was therefore not strictly logical. The +extreme strict constructionist claimed that the fact that the Constitution +did not forbid a State from seceding, made secession constitutional. But +Johnson's love for the Union was too great to permit him to carry his +strict construction views to such an extreme. On the contrary, the fact +that the Constitution offered no way for a State to secede from the Union +proved to him that secession was unconstitutional, and he looked upon that +fact as one of the greatest safeguards for the protection of the +Commonwealth.[44] To his mind it logically followed that because secession +was unconstitutional, it was absolutely impossible for a State to secede, +and therefore equally impossible for a State to commit treason. +Individuals might commit treason and be punished therefor, but States +never. However strongly at any time he may have urged the punishment of +traitors, he never argued for or believed in the abrogation of any of the +State's privileges. His reputation for belief in severity was based +entirely upon severity on individuals. "Make treason odious" was his +favorite expression, but always used in a concrete sense.[45] + +6. After his accession to the Presidency, the only modification of his +policy was an increased clemency to the conquered rebel. This can be +accounted for easily as the natural result of actual contact with the +problem. Rhetorically to assert that all traitors must be punished is one +thing--to apply the punishment is another. Then Johnson's most able +advisers approved his attitude and urged even greater moderation. Finally, +his firm faith in the success of his provisional governments persuaded him +to a still more liberal use of the pardoning power, while the growing +opposition of Congress added the element of stubbornness to the +complication. But, the true explanation of the change is to be found in +his general constitutional views. + +So early as April 21 he frankly states his position. In his speech on +that day he says: "Provision" (in the Constitution) "is made for the +admission of new States; no provision is made for the secession of old +ones. * * * The Government is composed of parts, each essential to the +whole, and the whole essential to each part."[46] He emphatically urges +that the Constitution provides a panacea for rebellion. "The United States +(that is, the great integer) shall guarantee to each State (the integers +composing the whole) in this Union a republican form of government. Yes, +if rebellion has been rampant, and set aside the machinery of a State for +a time, there stands the great law to remove the paralysis and revitalize +it, and put it on its feet again." He also harmonizes his strict +construction views with the fact of emancipation. "A State may be in the +Government with a peculiar institution, and by the operation of rebellion +lose that feature; but it was a State when it went into rebellion, and +when it comes out without the institution it is still a State." + +President Johnson did not allow many days to pass by after his +installation, before he began to give practical evidence of his attitude +towards the conquered South.[47] The first step which he made was an +order, issued April 29, restoring partial commercial intercourse to that +portion of the Confederate States lying east of the Mississippi river and +within the lines of national military occupation. This removed at the +outset one of the chief burdens that had resulted from the insurrection, +and would he thought act powerfully in the restoration of peaceful +pursuits in that section. The following August another proclamation +removed all remaining restrictions on trade in those States, declaring +that all necessity for restriction had ceased.[48] + +On May 9, 1865, the order restoring the administration of the United +States in the State of Virginia was issued.[49] It authorized the +Secretary of the Treasury to nominate assessors of taxes, collectors of +customs, and other officers of the Treasury Department, and further +provided that in making appointments the preference should be given to +"qualified loyal persons residing within the districts where their +respective duties are to be performed. But if suitable persons shall not +be found residents of the districts, then persons residing in other States +or districts shall be appointed." Post offices and post routes were to be +established, and district judges empowered to hold courts, while "to carry +into effect the guarantee of the Federal Constitution of a republican form +of state government, * * * Francis H. Pierpiont, Governor of the State of +Virginia, will be aided by the Federal Government," in his administration +of the state government, in whatever way might be necessary. + +The Amnesty Proclamation was issued on May 29, and was in effect a renewal +of the provisions of Lincoln's proclamation of December 8, 1863, relating +to amnesty; but it increased the number of classes excepted from the +benefits of the proclamation, from seven to fourteen,[50] and provided +that special application for pardon might be made by any of the excepted +classes, to the President, who would exercise liberal clemency. Inasmuch +as the excepted classes included all those whom less than three weeks +previously he had been denouncing as traitors to be punished and +impoverished, such great liberality, displayed in so short a time, was +somewhat surprising.[51] The proclamation further empowered the Secretary +of State to make all needful regulations for the administration and +recording of the amnesty oath; and in accordance with this provision the +Secretary of State ordered that the oath might be taken before any +commissioned officer of the United States, or before any civil or military +officer of a loyal State or Territory, who was legally qualified to +administer oaths. + +On the same day that he issued the Amnesty Proclamation, President Johnson +appointed William W. Holden Provisional Governor of North Carolina.[52] +This was his first radical step in the carrying out of his policy of +reconstruction. The order restoring the authority of the United States in +Virginia was not of so great importance, as the State had nominally been +under the Pierpiont government since near the beginning of the war, and the +mere restoration of certain United States officers in that State did not +involve to any extent the vital questions of the hour.[53] But with the +appointment of Mr. Holden, and the instructions accompanying the order of +appointment, President Johnson unfolded, in its entirety, his theory. + +The order declared that the rebellion, though now almost entirely +overcome, had deprived the people of North Carolina of all civil +government, and that accordingly the United States was constitutionally +bound to secure to them a republican form of government. Therefore for the +purpose of enabling the people to organize a government, he appointed +William W. Holden Provisional Governor of North Carolina, whose duty it +should be "at the earliest practicable period, to prescribe such rules and +regulations as may be necessary and proper for convening a convention, +composed of delegates to be chosen by that portion of the people of said +State who are loyal to the United States, and no others, for the purpose +of altering or amending the constitution thereof; and with authority to +exercise, within the limits of said state, all the powers necessary and +proper to enable such loyal people of the State of North Carolina to +restore said State to its constitutional relations to the Federal +government, and to present such a republican form of state government as +will entitle the State to the guarantee of the United States therefor, and +its people to protection by the United States against invasion, +insurrection, and domestic violence," provided, however, that all electors +should have previously taken the oath of allegiance, and should be voters +according to the law of North Carolina in force previous to secession. The +order further directed that the Provisional Governor should be aided by +the military power in carrying out the proclamation. The other clauses +were similar to clauses in the order re-establishing the authority of the +United States in Virginia. + +Similar proclamations were issued as follows: June 13, for Mississippi; +June 17, for Georgia and Texas; June 21, for Alabama; June 30, for South +Carolina; July 13, for Florida. + +Within three months after his inauguration, accordingly, Johnson had set +the forces going throughout the South by which he hoped that peace and +tranquillity might be established, and the Union once more become an +undivided whole. In the execution of this most important work, he had not +asked for the co-operation or advice of Congress. Confident of the +correctness of his ideas, feeling sure that they were only the logical +results of a true interpretation of the Constitution, he pursued his +policy of reconstruction. In so doing he was also consistently following +the path marked out by his predecessor. His plan was essentially that +which Lincoln had advocated and attempted to carry into execution. But we +have seen that even under a man enjoying such universal confidence as did +Lincoln, the country viewed with distrust, and Congress openly resented, a +policy which seemed to commit to a recently insurrectionary people the +whole responsibility for proper reconstruction, requiring from them no +surety for sincerity save an oath which all knew would be regarded by the +majority as a mere form with little significance. The same policy when +adopted by Johnson was naturally looked upon with still more suspicion. + +Lincoln was a man of tact and judgment, who was capable of seeing and +confessing a mistake, whose sole object was to do that which, all things +being considered, should seem best for the Union. + +Johnson, on the contrary, from his natural arbitrariness and narrowness, +was a man who held most tenaciously to his views, had little consideration +for the views of others, and who was always determined that his own way +should be carried out. Under such circumstances it would have been little +short of marvelous, had he been able to carry out a policy in itself +disliked, without sooner or later coming into collision with those who +disapproved his theory. + +The provisional governors appointed were not slow in carrying out the +provisions of the proclamations, and conventions met in the various states +as follows: Mississippi, August 14; Alabama, September 12; South Carolina, +September 13; North Carolina, October 2; Georgia, October 25; Florida, +October 25; and Texas in March, 1866. In all these conventions the +secession ordinances were repealed, annulled or declared null and +void,[54] and slavery was declared abolished. All but Mississippi and +South Carolina repudiated the rebel debt, and all but Mississippi and +Texas ratified the 13th Amendment. + +Meanwhile Johnson made liberal use of the pardoning power, and large +numbers of the excepted classes were thus restored to all the privileges +of citizens of the United States. The reconstruction was very rapid; so +rapid, as Johnson himself said, that he could scarcely realize it; "it +appears like a dream." + +The extreme similarity of this method of reconstruction to that advocated +by the Democracy could not escape attention, and Democrats freely asserted +that in his ideas the President was "going over to them." This, while to a +certain extent true, for he was always a Democrat in principle, was +vigorously denied by Johnson in an interview with Geo. L. Stearns on +October 3, 1865. In it he claimed that the Democratic party, finding its +own views untenable, was gradually coming to adopt his principles, which +he reasserted in the following form: "The States are in the Union, which +is one and indivisible. Individuals tried to carry them out, but did not +succeed, as a man may try to cut his throat and be prevented by the +bystanders; and you can not say he cut his throat because he tried to do +it. * * * Now we want to reconstruct the state governments, and have the +power to do it. The state institutions are prostrated, laid out on the +ground, and they must be taken up and adapted to the progress of events; +this cannot be done in a moment. * * * We must not be in too much of a +hurry; it is better to let them reconstruct themselves than to force them +to do it; for if they go wrong the power is in our hands, and we can check +them in any stage, to the end, and oblige them to correct their errors; we +must be patient with them. I did not expect to keep out all who were +excluded from the amnesty, or even a large number of them; but I intended +they should sue for pardon, and so realize the enormity of the crime they +had committed." + +7. Johnson realized that the sentiment in favor of negro suffrage was +gaining great power in the North; and while feeling that pure manhood +suffrage was undesirable and totally impracticable, because of the danger +of thereby creating a "war of races," which he seemed constantly to fear, +he determined to use his influence towards a gradual introduction of the +suffrage. He would give the suffrage to negroes who had served in the +army, to those who could read and write, and to those owning real estate +to the value of two hundred and fifty dollars. He made suggestions of this +nature in letters to Governor Starkey of Mississippi, and Governor Hahn of +Louisiana.[55] By some such limited suffrage he hoped that the radical +element in the North would be satisfied, while there could result no +danger to those States in which the negro population predominated. + +He had long believed that the apportionment of Representatives should be +based on the number of qualified voters; while a member of the legislature +of Tennessee he had moved that the apportionment in that State be so made; +and in the interview with Mr. Stearns he said: "The apportionment is now +fixed until 1872; before that time we might change the basis of +representation from population to qualified voters, North as well as +South, and, in due course of time, the States, _without regard_ to color, +might extend the elective franchise to all who possessed certain mental, +moral or such other qualifications as might be determined by an +enlightened public judgment."[56] + +But however desirable a limited suffrage might be, he insisted that the +only safety for the nation lay in leaving the whole subject to the +discretion of the individual State. The only approach which he would make +to national interference would be through constitutional amendment. In an +interview with Senator Dixon of Connecticut, on January 28, 1866, he +suggested that such an amendment might be worded in the following manner: + +"Representatives shall be apportioned among the several States which may +be included within this Union according to the number of qualified voters +in each State. + +"Direct taxes shall be apportioned among the several States which may be +included within this Union according to the value of all taxable property +in each State."[57] + +The great advantage of an amendment of this kind, in President Johnson's +opinion, was that Congress would thus shift all responsibility regarding +negro suffrage to the States. Each State would determine the +qualifications for voters, and its representation in Congress would depend +entirely upon the narrowness or broadness of the suffrage. + +In the same interview with Senator Dixon, he described the current +contention over negro suffrage as "ill-timed, uncalled for, and calculated +to do great harm." + +8. While the President was expressing his belief in qualified +representation, and advising the States in process of reconstruction to +grant some form of limited suffrage, the States themselves manifested no +disposition to follow his advice. While he was describing them in October +as lying helpless, they were busy framing laws which were aimed to +counteract, so far as possible, the force of the emancipation +proclamation. + +When Georgia declared slavery abolished she did so with the proviso that +"acquiescence in the action of the Government of the United States is not +intended to operate as a relinquishment, or waiver, or estoppel of such +claim for compensation of loss sustained by reason of the emancipation of +his slaves, as any citizen of Georgia may hereafter make upon the justice +and magnanimity of that Government."[58] Alabama, South Carolina, and +Florida in their ratifications of the 13th Amendment stated their +understanding to be that it did not confer upon Congress power to +legislate upon the political status of the freedman. The Alabama +legislature passed joint resolutions in which it was affirmed: "That +Alabama will not voluntarily consent to change the adjustment of political +power as fixed by the Constitution of the United States, and to constrain +her to do so, in her present prostrate and helpless condition, with no +voice in the councils of the nation, would be an unjustifiable breach of +faith."[59] + +But most important of all was the legislation of these States respecting +the freedman. All were confronted by a host of emancipated blacks, whose +legal status had to be determined. The legislatures had before them work +of the most delicate nature, inasmuch as it not only vitally affected +every person in their own section, but also attracted the keenest interest +from the whole North. All realized that Johnson's policy would here +undergo the crucial test. Would the legislators of these States, so soon +thrown upon their own responsibility, show due consideration for the new +order of things, or would they take advantage of their opportunity and +proceed to draw the color line as sharply as ever, discriminating against +the negro, and denying him privileges which should be allowed him? Had +the South proved equal to the situation, the wisdom of Johnson's policy +would have been sustained, and the bitterness characteristic of the 39th +and 40th Congresses would have been avoided. + +Mississippi was the first to adopt "black laws" obnoxious to the North. +Her vagrant act was passed November 24, 1865. This provided that freedmen +found with no lawful employment or business, or unlawfully assembling +together, should be deemed vagrants, and be fined and imprisoned at the +discretion of the court. A poll tax for a freedmen's pauper fund was to be +levied on all freedmen, and should any fail or refuse to pay, he was to be +hired out by the sheriff to any one who would pay the tax and costs, +preference being given to his former master. Two days later a civil rights +act was passed. This allowed freedmen to sue and be sued, implead and be +impleaded, and to own personal property, but added the important proviso +that the section should not be construed "to allow any freedman, free +negro or mulatto to rent or lease any lands or tenements, except in +incorporated towns or cities," where they should be controlled by the +corporate authorities. Intermarriage of a white with any freedman, free +negro or mulatto, should be punished by imprisonment in the state +penitentiary for life. A laborer quitting before expiration of term of +service without good cause, forfeited to his employer all wages for that +year up to the time of quitting. Any one was authorized to arrest and +return a deserting freedman, receiving therefor five dollars reward and +mileage, all costs to be paid from the wages of the deserter. Any one +persuading or attempting to persuade any freedman to desert his employer +before his term of service expired, was guilty of a misdemeanor, and +liable to a fine of not less than twenty-five and not more than two +hundred dollars, and if the offender attempted to persuade the freedman +to desert, with a view of employing him without the limits of the State, +the fine was to be not less than fifty nor more than five hundred dollars. +While it was made lawful for a freedman to charge a white man with a +criminal offence against his person or property, and to make all needful +affidavits, a supplementary act passed December 2 provided that where +sufficient proof was made before a court or jury that the arrest and trial +had been falsely or maliciously caused, the freedman should be fined, and +charged with all costs, and on failure to pay should be hired out at +public outcry for the shortest time necessary to discharge the debt. An +act passed November 29, among other restrictions, forbade freedmen to +carry any fire arms, ammunition, dirk or bowie knife, under penalty, and +declared that a freedman exercising the functions of a minister of the +gospel, without a license from some regularly organized church, should be +guilty of a misdemeanor, and become liable to an imprisonment not +exceeding thirty days and to a fine not exceeding one hundred dollars. + +Similar laws were enacted in the other States, varying slightly in +severity of punishment. The labor contract act of Louisiana, passed in +December, is of especial interest as an evidence of the systematic way in +which the Southern legislators hoped to mould the unwieldy mass of +freedmen into a docile set of serfs. All agricultural laborers were +required by this act to make their contract for the ensuing year before +the tenth day of January; said contract to embrace the labor of the whole +family. After the contract had been agreed to, no laborer was to be +allowed to "leave his place of employment until the fulfillment of his +contract, unless by consent of his employer, or on account of harsh +treatment, or breach of contract on the part of employer," under penalty +of forfeiture of all wages to the time of leaving. "Failing to obey +reasonable orders, neglect of duty, and leaving home without permission, +will be deemed disobedience; impudence, swearing, or indecent language to +or in the presence of the employer, his family or agent, or quarreling or +fighting with one another, shall be deemed disobedience. For any +disobedience a fine of one dollar shall be imposed upon the offender. For +all lost time from work hours, unless in case of sickness, the laborer +shall be fined twenty-five cents per hour. For all absence from home +without leave the laborer will be fined at the rate of two dollars per +day."[60] + +The cruelty and injustice possible in the administration of these acts is +even greater than their casual perusal would indicate. Many of these acts, +nominally applying to both races with equal severity, were in reality +intended to apply solely to the negro. The vagrants always proved to be +colored. The acts purporting to secure the protection of the freedmen were +cunningly hedged in by limitations which made them worthless. The employer +was made the sole judge of the acts of his employees--a privilege which +could not but be flagrantly abused. Laws that made it almost impossible +for the freedman to secure the just return for his labor, were followed by +laws punishing him for his poverty. The fines for his so-called offences +were excessively severe, and the punishments were almost always such as to +reduce him to slavery for limited terms. The whole system, taken advantage +of as it could not fail to be where the dominant classes were almost +unanimously desirous to retain the negro in subjection, resulted in his +practical slavery during those seasons of the year in which his labor was +most needed, and in utter neglect and lack of support when his labor was +not in demand. + +9. Although the enactment of these stringent laws at this time was a +political mistake, and was fraught with most serious consequences for the +South, it is proper to notice what was said in their justification. Many +of them did not differ materially from similar statutes in the Northern +States. Even some of the harshest laws, those which were received with +wide-spread indignation throughout the North, could almost be duplicated +by laws at that time in force in such States as Rhode Island and +Connecticut. Even the phraseology, the using of the words master, mistress +and servant, which was deemed objectionable and suggestive by Northern +Republicans, could be found in Northern statutes. + +The South felt confident that the negro was unable actively to assume the +duties of citizenship. The Southern people feared, and with reason, that +the immense mass of undeveloped humanity was liable to become turbulent +and unmanageable, unless stringent laws could be framed which would hold +it in check.[61] They were sincere in their statements that they believed +that the interests of property, peace and good order demanded these laws. +Unfortunately, the humanitarian ideas of the North harmonized too well +with the political ideas of Congress. The enactment of the laws against +the negro seemed to strike at the one and make possible the success of the +other. The radical majority were quick to see their advantage, and did not +hesitate to make the most of the opportunity. They assumed that the South +deliberately intended to defy Northern sentiment, and ignored the +possibility that the legislation in question was sincerely believed to be +a necessary act of self-defense. + +10. To Stevens and his followers the South had proved its impenitent +condition, and had justified the most stringent measures of +reconstruction. They declared that Johnson's policy had been fairly tested +and that the results of the experiment were apparent. They argued that the +South, emboldened by the conciliatory conduct of the President, was +permitting the old rebel leaders to continue to wield the chief influence +in affairs of state. The exclusion of these leaders from participation in +the preliminary work of the reconstruction conventions was no check upon +their influence in the State, and with the completion of reconstruction +there was nothing to prevent them from occupying the chief state offices. +What the President in the previous April had feared, was coming to pass, +through his failure to do that which he had then said must be done--to +make treason and traitors odious. In proof of the ascendency of the old +elements, the highly questionable legislation of the South was cited, and +the conviction of the Republican party that sterner measures were +necessary was strengthened. As a natural result the doctrine of Thaddeus +Stevens that the South should be regarded and governed as a conquered +territory became practically the doctrine of the majority of Republicans, +and Stevens became the leader of the House of Representatives. The year +1865 had made plain the necessities of the hour, the condition of the +South, the attitude of the President, and in short had prepared the people +for the great struggle which was to follow in the 39th and 40th +Congresses.[62] + + + + +CHAPTER III. + +THE ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT: DEVELOPMENT OF THE +CONGRESSIONAL THEORY. + + +1. The Thirty-ninth Congress began its labors on December 4, 1865, well +aware that the President had separated himself from the Republican party +so far that it was improbable that the executive and legislative +departments would be able to work in harmony. The Democrats were beginning +to commend the administration, and had even gone so far in some instances +as to indicate, in resolutions passed in their state conventions, their +approval of Johnson's plan of reconstruction. Republicans, on the other +hand, were becoming quite reserved in their expressions of approval, and +began to show a decided sentiment in favor of manhood suffrage as +involving less danger and more benefit to the Republic than any plan which +even partially excluded the negro from the franchise. The legislation of +the Southern States had convinced many that without the negro vote there +would be no way to keep the old insurrectionary element from completely +monopolizing their state governments.[63] + +Congress with its large Republican majorities[64] in both houses was +expected to deal with the problem, correct the abuses which had arisen +from the too lenient policy of the President, and inaugurate a policy +which should bring about an equality of individual rights throughout the +Union. + +2. The calling of the roll by the clerk of the House, Edward McPherson, +marked the commencement of active opposition to the presidential policy. +All of the late insurrectionary States excepting Texas, whose convention +did not meet until the following March, had elected senators and +representatives. Their action in choosing for these and other high +official positions members of the Confederate Congress, and civil and +military officers of the Confederacy, was very unwise and did much to +strengthen opposition to the recognition of these States.[65] + +Louisiana, Arkansas and Tennessee, having been recognized by Lincoln as +reconstructed, stood upon a somewhat different footing from the others, +but in a caucus of the Republican members of the House, held previous to +the organization of Congress, it had been decided to omit the names of +their representatives from the rolls so as to reduce all to a common +level, that no embarrassing distinctions might exist to hamper Congress in +the adoption of whatever policy it chose. + +In accordance with the instructions of the caucus, the clerk refused to +call the names of these representatives elect. A lively discussion +immediately arose, in which emphatic protest was made against forcing in +this way a policy upon the House at a time when due deliberation could not +be had. It was boldly asserted[66] that the clerk was acting merely as the +tool of the Republican party, and the claim was also made that the +resolutions about to be introduced by Mr. Stevens of Pennsylvania were +another part of the general plan to commit the House to a +quasi-condemnation of the President, and virtually nullify in advance the +recommendations which it was supposed he would make. But protest was +useless; the names were not placed on the rolls, and the first roll-call +gave evidence that active resistance to the President was determined upon. + +The Senate was almost equally prompt in making public its determination to +take the process of reconstruction out of the hands of the President. It +is the custom in Congress to refrain from the consideration of questions +of public importance until the President's message has been received. At +the opening of this Congress no such courtesy was observed. Among the very +first proceedings of the Senate after its organization was the +introduction of three series of resolutions by Sumner.[67] The first +series was in reference to the Thirteenth Amendment, declaring it to have +become a part of the Constitution without reference to the action of the +late so-called Confederate States. Such States, the resolutions affirmed, +should be required to ratify the Amendment as one of the conditions +precedent to restoration. The second series related to the guarantees +which should be required of the States prior to resuming their relations +to the Union. These guarantees were five in number. First: "The complete +re-establishment of loyalty, as shown by an honest recognition of the +unity of the Republic, and the duty of allegiance to it at all times, +without mental reservation or equivocation of any kind." Second: "The +complete suppression of all oligarchical pretensions, and the complete +enfranchisement of all citizens;" impartial justice, and equality before +the law. Third: The repudiation of the rebel debt and the assumption of +the proper proportion of the national debts and obligations. Fourth: "The +organization of an educational system for the equal benefit of all, +without distinction of color or race." Fifth: "The choice of citizens for +office, whether State or National, of constant and undoubted loyalty, +whose conduct and conversation shall give assurances of peace and +reconciliation." The third series was declaratory of the duty of Congress +to the loyal citizens in the rebel States. They, especially those who had +served in the Union army and those excluded from the ballot at the time of +secession, should have control of the conventions to be called for +reorganizing the state governments. "No state law or state constitution +can be set up as an impediment to the national power" in the +reorganization of these States. No State recently in rebellion could be +considered to have a republican form of government "where the elective +franchise and civil rights are denied to the Union soldier, his relatives, +or the colored race." + +The submission of these resolutions was of significance merely as a formal +declaration that the President was to be ignored and an independent policy +formed. The plan of reconstruction, as here presented, embodied many +impracticabilities and impossibilities, but it indicated in broad outlines +the propositions to be discussed in the succeeding months. + +The House was still more active in its initiatory steps toward a policy. +The resolution for the establishment of a joint committee on +reconstruction was introduced by Mr. Stevens at the first opportunity on +the opening day, and immediately adopted. This resolution, after having +been discussed in a Republican caucus,[68] was taken up for consideration +in the Senate on December 12,[69] was made a concurrent resolution, that +it might not need the approval of the President, and was passed with +amendments. The debate on this resolution is of especial importance as the +first formal test of the attitude of the individual Senators towards the +administration. It brought out the fact that Senators Cowan of +Pennsylvania, Dixon of Connecticut, and Doolittle of Wisconsin, would +support the administration and oppose the congressional policy. Senator +Norton, of Minnesota, soon joined their ranks, and Senator Lane[70] of +Kansas, broke from the party on the Civil Rights bill. The remaining +Republican senators, while exhibiting natural differences of opinion, were +united in their hostility to the existing method of restoration. + +The resolution, as amended and concurred in by the House, provided for a +joint committee of fifteen, nine from the House and six from the Senate, +"who shall inquire into the condition of the States which formed the +so-called Confederate States of America, and report whether they or any of +them are entitled to be represented in either House of Congress, with +leave to report at any time by bill or otherwise."[71] + +The appointment of this committee, with Thaddeus Stevens as a member, +although Senator Fessenden of Maine was chairman, marks an important epoch +in the history of reconstruction.[72] Stevens, now the virtual leader of +the House, represented a policy to which Johnson was thoroughly +antagonistic, and from this time forth everything relating to the +reconstruction of the Southern States was to be referred to this +committee. In addition, the committee took large masses of testimony from +southerners, federal officers, and northerners travelling through the +Southern States, in order that an intelligent judgment might be reached +regarding the actual condition of these States. The bills in which they +embodied the results of their investigations constituted the basis of the +final reconstruction. The ill-defined sentiment of the Republicans, that +the proper mode of dealing with the Southern States had not been found, +was to be replaced by a vigorous policy which looked primarily to the +proper protection of the freedman. + +3. The message of the President, which was read on the 5th of December, +had been eagerly awaited.[73] It had been expected that it would contain a +decided statement of his exact views on reconstruction, and expectations +were fulfilled. It was a clearly written document, and outlined in extreme +simplicity his attitude. In it he says, referring to the rebel States: +"Whether the territory within the limits of those States should be held as +conquered territory, under military authority emanating from the President +as the head of the army, was the first question that presented itself for +decision." His unhesitating answer to this question was that military rule +was extremely undesirable, especially from the greatly increased powers +which thereby would be held by the President. "The powers of patronage and +rule * * * I could never, unless on occasions of great emergency, consent +to exercise. * * * Besides, the policy of military rule over a conquered +territory would have implied that the States whose inhabitants may have +taken part in the rebellion, had, by the act of those inhabitants, ceased +to exist. But the true theory is, that all pretended acts of secession +were, from the beginning, null, and void. The States cannot commit +treason, nor screen the individual citizens who may have committed +treason, any more than they can make valid treaties or engage in lawful +commerce with any foreign power. The States attempting to secede placed +themselves in a condition where their vitality was impaired, but not +extinguished--their functions suspended, but not destroyed." These +sentiments were but the repetition, in almost the same language, of +sentiments previously expressed in various interviews and speeches. The +significance of the message was merely his recommitment to the policy he +was applying in practice. But the consideration of the message in +committee of the whole afforded a good opportunity for general discussions +of reconstruction, which were continued at intervals throughout the whole +session. + +The great debate was opened on December 18 by Mr. Stevens, who reasserted +his views, declaring that Congress has the sole power to receive back the +States, the Executive concurring.[74] The States as States made war. "The +idea that the States could not and did not make war because the +Constitution forbids it, and that this must be treated as a war of +individuals, is a very injurious fallacy. Individuals cannot make war. +They may commit murder, but that is not war. Communities, societies, +states, make war." He earnestly pleaded for negro suffrage both on grounds +of expediency and of right, closing his speech with the oft-quoted +sentence: "Sir, this doctrine of a white man's government is as atrocious +as the infamous sentiment that damned the late Chief Justice to +everlasting fame, and I fear, to everlasting fire."[75] Mr. Beaman, on +February 24, after dwelling upon the horrors of the late war, said: "Those +were sad, dark days, whose tinge was deepened by the frowns and hostile +intrigues of foreign nations. But sadder still, and darker and more +gloomy, will be that day in which the rebel States shall assume the +control of our national government; when without guards or security for +future good conduct, without protection to the blacks and loyal whites who +have freely shed their blood in our defense, the seceded districts shall +be declared reconstructed and restored States, and again launched upon +their career of oppression, tyranny and crime."[76] + +On March 10, Mr. Stevens made a speech upholding the right of the federal +government to treat the conquered States in whatever manner was deemed +advisable. "I trust yet to see our confiscation laws fully executed; and +then the malefactors will learn that what Congress has seized as enemy's +property and invested in the United States, cannot be divested and +returned to the conquered belligerent by the mere voice of the Executive. +I hope to see the property of the subdued enemy pay the damages done to +loyal men, North and South, and help to support the helpless, armless, +mutilated soldiers who have been made wretched by this unholy war. I do +not believe the action of the President is worth a farthing in releasing +the property conquered from the enemy, from the appropriation made of it +by Congress."[76] + +Other speeches just as violent, condemning Johnson and his policy, were +made during these general discussions. Thus Mr. Dumont of Indiana said: +"Some gentlemen seem to be anxious to hear within this Hall the crack of +the plantation whip, and to have a manifestation of plantation manners as +in days of other years; and as sure as God lives they will be abundantly +gratified, if the policy of letting in the rebel States without guaranties +shall prevail."[77] And Mr. Moulton, of Illinois, a week later declared +that "Andy Johnson will go down to posterity, not only as the betrayer of +his party, but as an ingrate, infamous in all time to come to all +honorable men."[78] In the same speech he says: "No rights of the South +that were lost by the rebellion were revived or repossessed by traitors on +the cessation of hostilities. War destroys all rights but the rights of +war."[79] Mr. Baldwin, of Massachusetts, described the attitude of the +Southern States as follows: "It is undeniably the aim of the old +pro-slavery spirit to reduce them [the freedmen] to a condition as nearly +like that of slavery as circumstances will admit; a condition that would +yield all the advantages of slavery without any of its incumbrances. The +hatred which has declared the freedom of these people a calamity conspires +diligently to make it so; the government is angrily forbidden to interfere +with its operations; and if there be an epithet of contumely and reproach +that has not been hurled at those who would allow these people the +protection they need, it must be some blackguard epithet not yet +invented."[81] + +But the policy of the President was not without its vigorous supporters, +although they generally were found among the Democrats. Thus Voorhees, on +January 9, eulogized Johnson's policy as having "cleared away the wreck +of a gigantic fraternal war, laid anew the foundation of government +throughout an extent of country more vast than the most powerful kingdoms +of Europe, revived confidence and hopes in the breasts of a despairing +people, and won for its author the respect and admiration of the civilized +nations of both hemispheres."[82] He also introduced a series of +resolutions endorsing the policy of the President, and expressing +confidence in him;[83] but these, together with an amendment by Bingham, +expressing confidence that the President would co-operate with Congress, +were referred to the Committee on Reconstruction, from which they were +never reported. + +Mr. Thornton, of Illinois, thought that "if those States are ever to be +bound together in an equal and enduring union by us, we must rise to the +high dignity of true manhood and Christian charity, and bury forever the +feelings of distrust which now haunt the mind. The charge is constantly +made that the Southern people are perfidious; that they will keep no +pledges; that no oath will bind them. Can they accept your conditions +precedent tendered in such a spirit? Never!"[84] Mr. Harding, of Kentucky, +declared that the Republican party "with the cry of liberty on its tongue, +is earnestly striving to subvert the foundations of republican government, +laboring to centralize, consolidate and build up a frightful Federal +despotism, under whose dark and deadly shadow self-government and all +state rights would utterly sink and perish."[85] + +4. The objectionable "black laws" of the Southern States, and the many +tales of the oppression and cruel treatment of negroes, brought about a +strong sentiment in favor of legislation by Congress giving additional +protection to the freedman.[86] The Act of March 3, 1865, had established +in the War Department a "Bureau for the relief of Freedmen and Refugees," +which was "to continue during the present war of rebellion, and for one +year thereafter."[87] This bureau was to assume control of all abandoned +or confiscated lands in the insurrectionary States, and to assign tracts +not to exceed forty acres each to freedmen and refugees at an annual rent +of not more than six per cent. of the value. The occupants were to be +allowed to purchase the land at any time within three years. The bureau +was also authorized to supervise all matters that might concern freedmen +and refugees from any of the rebel States or from districts occupied by +the army, and to furnish supplies to such as were in need. + +To extend the powers of this bureau and to continue it in operation until +affairs had resumed their normal course, appeared to be a practicable way +to protect the emancipated race. A bill to this effect was introduced in +the Senate by Mr. Trumbull on January 5, 1866,[88] and the Senate +proceeded to its consideration on the 12th. With certain amendments the +bill passed the Senate on the 25th by a vote of 37 to 10. The Select +Committee on Freedmen[89] to which the Senate bill had been referred by +the House, reported on January 30 a substitute bill. This passed the House +on the 6th of February by a vote of 136 to 33; it was amended by the +Senate on the 7th, the House concurring on the 9th. It was vetoed by the +President on the 10th, and the Senate on the 10th attempted to pass the +bill over the veto. The result showed 30 votes in favor, 19 against, less +than a two-thirds majority, and the bill thus failed to become a law.[90] + +The bill as presented to the President for his signature was entitled "An +Act to amend an act entitled 'An act to establish a Bureau for the relief +of Freedmen and Refugees,' and for other purposes."[91] It continued in +force the act of March 3, 1865, and extended the jurisdiction of the +bureau to freedmen and refugees in all parts of the United States. The +President was authorized to "divide the section of country containing such +refugees and freedmen into districts, each containing one or more States, +not to exceed twelve in number, and, by and with the consent of the +Senate, appoint an assistant commissioner for each of said districts;" or +in the discretion of the President "the bureau might be placed under a +commissioner and assistant commissioner to be detailed from the army." +Districts when necessary were divided into sub districts under agents. +Military jurisdiction and protection were to extend over all connected +with the bureau. Unoccupied public lands in the Southern States, not to +exceed three million acres, were to be set apart for freedmen. Military +protection was to be extended over all persons denied civil rights on +account of race, color or previous servitude, and punishment was provided +for those who deprived such parties of their civil rights. + +The debates on this bill, occurring as they did before the President's +speech of February 22, which will hereafter be noticed, lacked the great +bitterness which was frequently manifested in the later days of the +session. The fact that the veto message was received before the 22d +accounts for the failure of the attempt to override it.[92] + +The bill itself was moderate, the freedmen obviously needed the +legislation, but the President considered the principles at stake of +sufficient importance to justify him in further antagonizing Congress. His +veto message cited a number of reasons for withholding the executive +approval.[93] In the first place he claimed that there was no immediate +necessity for the measure. Then it also contained provisions which were +unconstitutional and unsuited to accomplish the desired end. His chief +objection, of course, was based upon the continuance of military +jurisdiction into a time of peace. This he declared clearly +unconstitutional, a violation of the right of _habeas corpus_ and of trial +by jury; and he added that "for the sake of a more vigorous interposition +in behalf of justice we are to take the risks of the many acts of +injustice that would necessarily follow from an almost countless number of +agents, * * * over whose decisions there is to be no supervision or +control by the federal courts. * * * The country has returned or is +returning to a state of peace and industry, and the rebellion is in fact +at an end. The measure, therefore, seems to be as inconsistent with the +actual conditions of the country as it is at variance with the +Constitution of the United States." He considered the provisions which +proposed to take away land from its former owners without due process of +law, unconstitutional. Other more general objections were mentioned, such +as the immense patronage created and immense expense involved, the +dangerous concentration of power in the Executive, and the ethical +objection that legislation which implies that the freedmen "are not +expected to attain a self-sustaining condition must have a tendency +injurious alike to their character and their prospects."[94] + +The unification of opposition to the President, which was accomplished +through his speech of February 22, afterwards impelled the friends of the +Freedmen's Bureau bill to make another attempt to secure its passage, +believing that it then could be passed over the President's veto.[95] The +ball was again set rolling by Mr. Eliot, of Massachusetts, who on May 22 +introduced a bill designed to take the place of the defeated bill, yet +different enough to afford a plausible pretext for again bringing the +question forward. Slightly amended, it passed the House on May 29 by a +vote of 96 to 32. The bill, with amendments, reported from the Committee +on Military Affairs, of which Senator Wilson, of Massachusetts, was +chairman, was taken up for consideration by the Senate on June 26, and +passed. The House non-concurring, a committee of conference was appointed, +which made some minor changes, to which the Senate on July 2, and the +House on July 3, agreed. A veto message of the President was received on +July 16, and the bill was passed over the veto on the same day.[96] + +To all intents and purposes this act differed but little from the first +vetoed bill. It continued the original Freedmen's Bureau Act in force for +two years, and contained certain additional provisions for the education +of the freedmen, for the recognition of their civil rights, and for the +protection of such rights by military power. + +President Johnson, in his veto message, declared that a careful +examination had convinced him that the same reasons assigned in his veto +of February 19, applied also to this measure. Such legislation was +justifiable only under the war power, and should not extend to times of +peace. The now existing federal and state courts, he went on to say, were +amply sufficient for the protection of the freedmen, and the existence of +the prevalent disorders furnished no necessity for the extension of the +bureau system. The practical operation of the bureau showed that it was +becoming an instrument of fraud, corruption and oppression, while the +civil rights bill, needless as it was, provided methods of protection far +preferable to the military protection authorized by this bill. The +legislation regarding the disposal of land was discriminating, unsafe, and +unconstitutional, and in conclusion he urged upon Congress the dangers of +class legislation. + +5. The mere veto of the first Freedmen's Bureau bill would not have been +of great significance had it been the only act of the President at this +time offensive to the rank and file of the Republican party. But on two +other occasions he acted very indiscreetly, February 7 and February 22, +the latter coming so shortly after the veto message on the first bill that +the antagonism of Congress was greatly intensified. + +On February 7, 1866, a delegation of colored representatives from fifteen +States and the District of Columbia called upon President Johnson in order +to present their wishes concerning the granting of suffrage to their race. +Geo. T. Downing and Frederick Douglass acted as spokesmen. In reply, +President Johnson described his sacrifices for the colored man, and went +on to express his indignation at being arraigned by incompetent persons. +Although he was willing to be the colored man's Moses, he was not willing +"to adopt a policy which he believed would only result in the sacrifice of +his [the colored man's] life and the shedding of his blood." The war was +not waged for the suppression of slavery; "the abolition of slavery has +come as an incident to the suppression of a great rebellion--as an +incident, and as an incident we should give it the proper direction." He +went on to state that the negro was unprepared for the ballot, and that +there was a danger of a race war. The States must decide for themselves on +the question of the franchise. "Each community is better prepared to +determine the depository of its political power than anybody else, and it +is for the legislature * * * to say who shall vote, and not for the +Congress of the United States."[97] + +This plain statement of his opposition to negro suffrage greatly added to +Johnson's unpopularity. This was not due to the fact that his views on +that subject had not been made public before, for he never had tried to +conceal his attitude towards any of the questions before the people. But +the attitude of the people themselves had greatly changed since the ill +treatment of the freedmen and the objectionable legislation of the +Southern States had been placed vividly before the public through the +newspapers. The sentiment in favor of the extension of the franchise had +rapidly gained strength; and the attitude of the President, made +conspicuous anew by his almost harsh reply to so prominent a delegation +representing such a wide extent of territory, called forth much hostile +criticism, which, added to the vigorous letter published by the delegation +in reply to the President, aided in unifying the opposition to him. + +On February 22 he made a speech in which he not only attacked by name +certain leading politicians, but also criticised in terms the legislative +branch of the government. This speech marks a distinct epoch in the +history of the struggle between the President and Congress. Prior to it, +the latter, although conscious of the rapid divergence of the paths each +was following, and determined to render as nugatory as possible the +President's policy, had not permitted the feeling of personal antagonism +to influence its actions to any great extent. But from this time forth the +lines were sharply drawn, culminating in the impeachment. Johnson bitterly +hated the Joint Committee on Reconstruction. The very manner in which it +had been authorized--through a concurrent resolution instead of a joint +resolution for the purpose of preventing executive action--had embittered +him; the principles which its majority represented and the _personnel_ of +the committee were equally distasteful to him. + +In connection with the speech of February 22, it should be noticed that +Mr. Stevens had two days before introduced a concurrent resolution, which +passed the House, providing that no senators or representatives were to +be admitted until Congress should declare the State entitled to +representation. Such a provision, the practical effect of which would be +to place the subject in the exclusive control of the Joint Committee on +Reconstruction, Congress, as we have seen, struck out of the resolution +authorizing that committee's appointment.[98] The President had good +reason to believe that Mr. Stevens' resolution would pass the Senate, as +it did on the 2d of March, and he looked upon it as one more step in the +usurpation of power by an "irresponsible directory." Sensitive to all +tendencies towards centralization, he saw in the power granted to the +committee, and the measures proposed by it, a tendency towards the +conditions against which he had spoken on April 21, 1865, when he said: +"While I have opposed dissolution and disintegration on the one hand, on +the other I am equally opposed to consolidation, or the centralization of +power in the hands of a few." + +Public sentiment in Washington was very hostile to the Freedmen's Bureau, +and on February 22 a mass-meeting was held to express popular approval of +the action of the President in vetoing the bill. Adjourning to the White +House, the crowd congratulated Johnson with tumultuous enthusiasm. A man +more cautious would have limited his reply to a temperate expression of +his views; but Johnson, ever eager to pose as the leader of the people, +was led by the enthusiasm of the moment to abandon himself entirely to his +prejudices, aggravated as they were by the circumstances above mentioned. +Thus, on the anniversary of Washington's birthday, a day when he should +have particularly refrained from partisan politics, he took occasion to +assail the committee violently, declaring that the end of one rebellion +was witnessing the beginning of a new rebellion; saying that "there is an +attempt now to concentrate all power in the hands of a few at the federal +head, and thereby bring about a consolidation of the Republic, which is +equally objectionable with its dissolution. * * * The substance of your +government may be taken away, while there is held out to you the form and +the shadow." He described the Joint Committee as an "irresponsible central +directory," which had assumed "nearly all the powers of Congress," without +"even consulting the legislative and executive departments of the +Government. * * * Suppose I should name to you those whom I look upon as +being opposed to the fundamental principles of this Government, and as +laboring to destroy them. I say Thaddeus Stevens, of Pennsylvania; I say +Charles Sumner, of Massachusetts; I say Wendell Phillips, of +Massachusetts."[99] + +6. After the President had thus publicly stigmatized the opponents of his +policy as instigators of a new rebellion, and classed Stevens, Sumner and +Wendell Phillips as traitors to be compared with Davis, there could be no +hope of reconciliation, and the Republican party grimly settled down to +fight for its principles. The first important measure to take effect was +the civil rights bill.[100] + +On the first day of the session Senator Wilson, of Massachusetts, had +introduced a bill looking to the personal protection of the freedmen. It +was aimed directly at the "black laws" of the Southern States, and +declared all laws, statutes, acts, etc., of any description whatsoever, +which caused any inequality of civil rights, in consequence of race or +color, to be void. In his speech of December 13, 1865, explaining his +reasons for introducing the bill, Wilson said that, while honest +differences as to the expediency of negro suffrage might exist, he could +not comprehend "how any humane, just and Christian man can, for a moment, +permit the laws that are on the statute-books of the States in rebellion, +and the laws that are now pending before their legislatures, to be +executed upon men whom we have declared to be free. * * * To turn these +freedmen over to the tender mercies of men who hate them for their +fidelity to the country is a crime that will bring the judgment of heaven +upon us."[101] + +This bill and a similar bill introduced by the same senator on December +21, and one introduced by Senator Sumner on the first day of the session, +never came to a vote, the last two being postponed indefinitely by the +Senate. In place of these bills, Senator Trumbull of Illinois, chairman of +the Committee on the Judiciary, on January 5, 1866, introduced a bill +which, slightly amended, became a law. This measure passed the Senate on +February 2, was amended and passed by the House on March 13, and the +amendments were concurred in by the Senate on the 15th. It was returned to +the Senate by the President, without his approval, March 27, and on April +6 the Senate passed the bill over the veto of the President by a vote of +33 to 15. Three days later the House passed the bill by a vote of 122 to +41, and the measure became a law. + +As passed it was entitled, "An Act to protect all persons in the United +States in their civil rights, and furnish the means of their vindication." +It first declared "all persons born in the United States, and not subject +to any foreign power, excluding Indians not taxed," to be citizens of the +United States. Such citizens, without regard to race, color, or previous +servitude, were declared to have the same rights in all the States and +Territories, as white citizens, to make and enforce contracts; to "sue, +be parties, and give evidence; to inherit, purchase, lease, sell, hold, +and convey real and personal property;" to enjoy the equal benefit of all +laws for the security of person and property, and to be subject only to +the same punishments. The second section provided penalties for the +deprivation of equal rights. The third gave to the United States courts +exclusive cognizance of all causes involving the denial of the rights +secured by the first section. The remaining sections specified the powers +and duties of the district attorneys, marshals, deputy marshals and +special commissioners, in connection with the enforcement of the act, the +ninth section providing: "It shall be lawful for the President of the +United States, or such person as he may empower for that purpose, to +employ such part of the land or naval forces of the United States, or of +the militia, as shall be necessary to prevent the violation and enforce +the due execution of the Act."[102] + +From this summary of the act its nature can be seen plainly. Up to this +time there had been no legislation affecting the _status_ of the freedman. +This declared him to be a citizen of the United States, and thereby +entitled to all the privileges of citizenship. The war having resulted in +the anomalous condition of the several millions of freedmen, some such +legislation was necessary, especially in view of the fact that +discriminative legislation was being enacted in the South. The bill was +moderate in its terms, the most questionable portion being the section +empowering the President to enforce the act through the war department, +but even that in the then unsettled condition of the country had much to +justify it. + +The President's veto message was a lengthy document and discussed in +detail the significance of the bill.[103] He questioned the policy of +conferring citizenship on four million blacks while eleven of the States +were unrepresented in Congress. He doubted whether the negroes possessed +the qualifications for citizenship, and thought that their proper +protection did not require that they be made citizens, as civil rights +were secured to them as they were, while the bill discriminated against +the intelligent foreigner. Naturally, he also declared that the securing +by federal law of equality of the races was an infringement upon state +jurisdiction. "Hitherto, every subject embraced in the enumeration of +rights contained in this bill has been considered as exclusively belonging +to the States." The second section he thought to be of doubtful +constitutionality and unnecessary, "as adequate judicial remedies could be +adopted to secure the desired end, without invading the immunities of +legislators, * * * without assailing the independence of the judiciary, * +* * and without impairing the efficiency of ministerial officers. * * * +The legislative department of the United States thus takes from the +judicial department of the States the sacred and exclusive duty of +judicial decision, and converts the State judge into a mere ministerial +officer bound to decide according to the will of Congress." The third +section he characterized as undoubtedly comprehending cases and +authorizing the "exercise of powers that are not by the Constitution +within the jurisdiction of the courts of the United States." He also +considered the extraordinary powers of the numerous officials created by +the act as jeopardizing the liberties of the people, and the provisions in +regard to fees as liable to bring about persecution and fraud. + +In addition to these objections he argued that the bill frustrated the +natural adjustment between capital and labor in a way potent to cause +discord. It was "an absorption and assumption of power by the General +Government which, if acquiesced in, must sap and destroy our federative +system of limited powers, and break down the barriers which preserve the +rights of the States. * * * The tendency of the bill must be to +resuscitate the spirit of rebellion, and to arrest the progress of those +influences which are more closely drawing around the States the bonds of +union and peace." + +The next clash between the executive and legislative branches of the +government was over the Colorado bill.[104] This bill provided for the +admission of Colorado into the Union, and was passed May 3, being vetoed +by the President on May 15, in accordance with the policy which he was +endeavoring to carry out.[105] The nominal grounds, while strong in +themselves, had less weight in Johnson's mind than the argument reserved +for the final sentence of the message. This referred to the fact that +eleven of the old States were unrepresented in Congress, and that it was +in the "common interest of all the States, as well those represented as +those unrepresented, that the integrity and harmony of the Union should be +restored as completely as possible, so that all those who are expected to +bear the burdens of the Federal Government shall be consulted concerning +the admission of new States; and that in the mean time no new State shall +be prematurely and unnecessarily admitted to a participation in the +political power which the Federal Government wields." A second bill for +the admission of Colorado was vetoed on January 29, 1867.[106] In the +message President Johnson stated that he could change none of his +opinions expressed in the first veto, while he now saw many additional +objections. Neither bill was passed over the veto. + +Another measure of like nature was the Nebraska bill, which was passed on +July 27, the last day but one of the session. The President "pocketed" it. +Both bills were again introduced at the beginning of the second session by +Senator Wade, and the Nebraska bill was duly passed. It was vetoed January +30, 1867, but within ten days was passed over the veto by both houses, +Nebraska being able to present stronger arguments for receiving statehood +than Colorado, and consequently obtaining more support from the +conservative members of the Republican party. The principal objection +expressed in the veto message was the incongruities existing in the bill, +the first section admitting the State "upon an equal footing with the +original States in all respects whatsoever," and the third section +providing that "there shall be no denial of the elective franchise, or of +any other right, to any person by reason of race or color, except Indians +not taxed." This assertion of the right of Congress to regulate the +elective franchise the President declared clearly unconstitutional, +incompatible with an equal footing with the original States.[107] + +7. The central event, naturally, of the first session of the 39th Congress +was the report of the Joint Committee on Reconstruction. Although during +the session there was a great amount of discussion as to the theory and +method of reconstruction, and, as has been shown, two important measures +were passed over the President's veto, the majority in the House still +felt uncommitted as to the policy they should favor, excepting so far as +the measures already reported from the committee had given shape to their +plans. A definite platform had not been erected on which they could stand, +and they were not certain of the foundations on which to base constructive +legislation. It was quite evident from the resolutions and bills reported +from the committee to Congress, that the testimony taken before it had not +changed the views of the majority of the committee, and the general tenor +of the report was not a surprise to any one. Its constitutional importance +cannot be questioned, since the Republican party adopted its construction +of the Constitution, and proceeded to frame, on the lines marked out by +the report, the bills which changed decidedly the relations between the +States and the Federal Government, affording precedents for an extension +of federal power which previous to the close of the war few could have +been found to support.[108] + +No theory as to the _status_ of the Southern States was agreed on by the +committee.[109] Among those signing the majority report several distinct +views can be noted. The theory of Thaddeus Stevens, that the States were +now merely conquered territory, at the mercy of the conqueror, has already +been noticed. Mr. Boutwell, of Massachusetts, was one of those who +theoretically differed from Mr. Stevens, preferring to consider the States +as "dead States" within the Union. Mr. Bingham, of Ohio, was still less +radical, simply calling them "disorganized States." But realizing the +futility of introducing distinctions which could not affect the main +question at issue, the majority dropped "the profitless abstraction," and +agreed upon the general conclusions and recommendations. The report was +finally presented to Congress on June 18, all the members signing +excepting Johnson, Rogers and Grider, who submitted a minority report four +days later. + +The first portion of the report is a general review of the steps which had +already been taken by the President, and of the powers of the executive +and legislative departments. It was declared that at the close of the war +the Confederate States were in a condition of utter exhaustion and +complete anarchy. Congress having failed to provide for the contingency, +the President had no power except to execute the national laws and +establish "such a system of government as might be provided for by +existing national statutes." These States "by withdrawing their +representatives in Congress, by renouncing the privilege of +representation, by organizing a separate government, and by levying war +against the United States, destroyed their State constitutions in respect +to the vital principle which connected their respective States with the +Union and secured their federal relations; and nothing of these +constitutions was left of which the United States were bound to take +notice." The President had two alternatives: either to "assemble Congress +and submit the whole matter to the law-making power," or to continue +military supervision in his capacity as commander-in-chief of the army, +until the regular assembling. Choosing the latter course, he appointed +over the revolted States provisional governors who possessed military +authority, but who "had no power to organize civil governments nor to +exercise any authority except that which inhered in their own persons +under their commissions." The President in his military capacity might +properly permit the people to form local governments, execute local laws +not inconsistent with national laws, and even withdraw military forces +altogether if he deemed it safe. But to Congress, not to the President, +belonged the power "to decide upon the nature or effect of any system of +government which the people of these States might see fit to adopt," and +to fix terms by which the States might be restored to all their rights and +privileges as States of the Union. "The loss of representation by the +people of the insurrectionary States was their own voluntary choice. They +might abandon their privileges, but they could not escape their +obligations," and they could not complain. + +None of the revolted States, the report continued, excepting perhaps +Tennessee, were in a condition to resume their former political relations. +Their so-called "amended constitutions" had never been submitted to the +people for adoption, and when they were thus submitted there was nothing +to prevent their repudiation. If these States were without state +governments, they should be regularly organized, but in no case had the +proper preliminary steps been taken. The conventions assumed that the old +constitutions were still in force, and that only such amendments as the +federal government required, were needed. "In no instance was regard paid +to any other consideration than obtaining immediate admission to Congress, +under the barren form of an election in which no precautions were taken to +secure regularity of proceedings or the consent of the people." Before +they were restored to their full rights "they should exhibit in their acts +something more than unwilling submission to an unavoidable necessity." +Great stress was laid upon the headstrong action of the States since +Johnson's proclamation of amnesty: the character of the men elevated to +the highest positions; the discriminating legislation; the arrogance of +the Southern press, and the opposition to the Freedmen's Bureau. The +testimony of witnesses as to the general disposition to repudiate the +national debt, if such a thing should prove possible, and as to the +natural reluctance to pay taxes, were perhaps too seriously taken, as was +also the "proof of a condition of feeling hostile to the Union and +dangerous to the government." + +But, whether acting on exaggerated estimates or not, the majority of the +committee formulated their conclusions into three clauses, which were as +follows: + +1. "That the States lately in rebellion were at the close of the war +disorganized communities, without civil government, and without +constitutions or other forms by virtue of which political relations could +legally exist between them and the Federal Government. + +2. "That Congress cannot be expected to recognize as valid the election of +representatives from disorganized communities, which, from the very nature +of the case, were unable to present their claim to representation under +those established and recognized rules, the observance of which has been +hitherto required. + +3. "That Congress would not be justified in admitting such communities to +a participation in the government of the country without first providing +such constitutional or other guaranties as will tend to secure the civil +rights of all citizens of the Republic; a just equality of representation; +protection against claims founded in rebellion and crime; a temporary +restoration of the right of suffrage to those who have not actively +participated in the efforts to destroy the Union and overthrow the +government; and the exclusion from positions of public trust of at least a +portion of those whose crimes have proved them to be enemies to the Union, +and unworthy of public confidence." + +In addition, the report contained an enumerated statement of "general +facts and principles" which it was claimed were "applicable to all the +States recently in rebellion." In this statement it was asserted that from +the time war was declared the great majority of the Southerners "became +and were insurgents, rebels, traitors; and all of them assumed the +political, legal, and practical relation of enemies of the United States." +The States did not desist from war till "every vestige of State and +Confederate government" was obliterated, "their people reduced to the +condition of enemies conquered in war, entitled only by public law to such +rights, privileges and conditions as might be vouchsafed by the +conqueror." They thus had "no right to complain of temporary exclusion +from Congress," until they could "show that they are qualified to resume +federal relations. * * * They must prove that they have established _with +the consent of the people_, republican forms of government in harmony with +the Constitution and laws of the United States, that all hostile purposes +have ceased, and should give adequate guaranties against future treason +and rebellion--guaranties which shall prove satisfactory to the Government +against which they rebelled, and by whose arms they were subdued." The +rebels "were conquered by the people of the United States acting through +all the co-ordinate branches of the Government, and not by the Executive +alone. * * * The authority to restore rebels to political power in the +Federal Government can be exercised only with the concurrence of all the +departments in which political power is vested," and the proclamations of +the President could only be regarded as provisional permission "to do +certain acts, the effect and validity whereof is to be determined by the +constitutional government, and not solely by the executive power." If the +President had the power to "qualify persons to appoint Senators and elect +Representatives, and empower others to appoint and elect them, he thereby +practically controls the organization of the legislative department and +destroys the constitutional form of government."[110] + +The report of the dissenting members of the committee, Messrs. Johnson, +Rogers and Grider, was an ably prepared document embodying at length the +doctrines of the minority in Congress, composed of the Democrats and the +few Republicans who still sustained the President. As a matter of course +the argument was built upon the premise that the so-called Confederate +States were never legally separated from the Union, but were bound by all +the obligations and entitled to all the privileges of other States. "In +its nature the government is formed of and by States possessing equal +rights and powers." A State cannot be held to have forfeited its rights. +"To concede that by the illegal conduct of her own citizens she can be +withdrawn from the Union, is virtually to concede the right of secession." + +Were the States out of the Union, the minority continued, the submission +to them of the proposed constitutional amendment would be absurd; and such +submission virtually conceded that the condition of the States remained +unchanged. The constitutional power to suppress insurrection is for the +preservation, not the subjugation of the State. "The continuance of the +Union of all the States is necessary to the intended existence of the +Government," and a different principle leads to disintegration. The war +power, as such, cannot be used to extinguish the States; the Government +only seeks to suppress the insurrection, achieving which all the States +resume their normal relations. The States now have organized governments, +republican in form, and the manner in which they were formed is no concern +of Congress. "Congress may admit new States, but a State once admitted +ceases to be within its control and can never again be brought within it." +There is nothing in the political condition of these States justifying +their exclusion from representation in Congress. The proposed amendment +would degrade the Southern States, as it would compel them to accept +either a lessened representation or negro suffrage. Further, it interfered +with the right of every State to regulate the franchise; and, by joining +several subjects and requiring them to be voted on as a whole, deprived +the people of the opportunity of passing on this important question +separately. + +8. The Joint Committee on Reconstruction had already reported two bills +and one joint resolution which in its report of June 18 were declared to +be the fruit of its labors. These were introduced in the House by Mr. +Stevens, April 30. The resolution proposed an amendment to the +Constitution, which, as finally amended, became the 14th Amendment.[111] +The two accompanying bills were entitled respectively: (1) "A Bill to +provide for restoring the States lately in insurrection to their full +political rights." (2) "A Bill declaring certain persons ineligible to +office under the Government of the United States." + +The first of these bills prescribed the conditions on which a State lately +in insurrection might secure representation in Congress, as well as a ten +years' postponement of the exaction of any unpaid part of the direct tax +of 1861. It provided that representation might be secured after the +proposed amendment should have become a part of the Constitution, and the +State seeking representation should have ratified such amendment. +Postponement of the tax might be secured by ratifying the amendment. This +bill served as a basis for general discussion of the best method of +restoring to the States their political rights; but, no action was taken +on it during this session, and it went over as unfinished business to the +following December. + +The second bill declared as ineligible to office: the President, +Vice-President, and foreign agents of the Confederate States; "heads of +departments of the United States, officers of the army and navy of the +United States, and all persons educated at the Military or Naval Academy +of the United States," federal judges and members of the 36th Congress, +who had given aid or comfort to the rebellion; Confederate officers above +the rank of colonel in the army or master in the navy; governors of the +Confederate States, and "those who have treated officers or soldiers or +sailors of the army or navy of the United States, captured during the late +war, otherwise than lawfully as prisoners of war." This bill was less +fortunate than the first, since it failed even to receive consideration +during the session. + +The proposed constitutional amendment, however, fared better. It had been +well demonstrated by the discussions during the session that an amendment +to the Constitution would be submitted to the States, if a resolution +could be framed which would satisfy the heterogeneous elements of the +reconstruction party. But the framing of such a resolution had proved a +very difficult matter. Stevens, and those most influenced by him, were +especially radical in their doctrines, not hesitating to express their +desire for the confiscation of rebels' property and for other extreme +measures. Some believed that there should be nothing short of complete +disfranchisement, for a term of years, of all who had aided the rebellion +in any way--they had acted deliberately, and they must suffer the +consequences. Others cared only for the disfranchisement of the more +prominent offenders, and for the establishment of negro suffrage. Still +another faction wished liberal terms to be offered to the +States--limitations, but no interference. + +The radicals recognized that their extreme ideas could not obtain +congressional sanction, and made no effort to embody them in the plans +submitted. From the beginning of the session various propositions were +under discussion. Among these, the most attention was attracted by the +various propositions to modify the existing basis of apportionment of +representatives in Congress. Emancipation had rendered this necessary. The +"three-fifths clause" of the Constitution having become inoperative, the +increased representation resulting from the freeing of the slaves +necessitated a change. The first plan was "to apportion Representatives +according to the number of voters in the several States."[112] It was then +proposed to exclude from the basis of representation all whose political +rights were denied or abridged by any State on account of race or color. +This plan, supported by Blaine and Conkling,[113] passed the House on +January 31, 1866,[114] but was defeated in the Senate. Many felt that the +measure was too stringent. The object was virtually to force upon the +Southern States the enfranchisement of the negro.[115] + +The Committee on Reconstruction hesitated for over a month after the +defeat of this resolution in the Senate. It was finally decided that the +only way in which the submission of the desired amendment could be +effected, was to concede something to the conservative element of the +Senate. Accordingly the draft of April 30 was presented as the +recommendation of the committee. This passed the House without +difficulty,[116] but encountered fierce opposition in the Senate. The +House resolution contained a provision which would have summarily and +unconditionally excluded from the franchise all participating in the +rebellion, until July 4, 1870. This was virtually a complete +disfranchisement of the Southern people, and although only temporary, it +was felt to be contrary to the spirit of our institutions and too +indiscriminate a punishment. It was accordingly stricken out by a +unanimous vote.[117] In its place Senator Howard proposed a clause which +forms section 3 of the 14th Amendment as it now stands. This clause, while +it withheld certain privileges of citizenship from participants in the +rebellion who had previously held civil or military office and had taken +an oath to support the Constitution of the United States, did not affect +the vast majority of Southerners; and it provided that Congress might, by +a two-thirds vote of each house, remove the disability of those who were +excepted from the restoration of privileges. Moreover, in place of the +plan supported by Blaine and Conkling for reducing the basis of +representation, the Committee on Reconstruction presented a proposition +which better satisfied the conservative element, and which stands to-day +as section 2 of the 14th Amendment. It provided that in case the right of +any male inhabitant of a State to vote was denied or abridged for any +reason "except for participation in rebellion or other crime, the basis of +representation therein shall be reduced in the proportion which the number +of such male citizens shall bear to the whole number of male citizens +twenty-one years of age in such state." It was argued that in this way +fairness was assured, as a State could have no right to claim +representation for that portion of her population which was denied the +franchise. + +On June 8, 1866, the final touches were put on the resolution. Five days +later the House concurred in the Senate's revision, and the 14th Amendment +was ready for the ratification of the States. + +Johnson's followers and the Democrats bitterly opposed the submission of +this amendment. The more extreme of them asserted that the Republican +majority acted from purely partisan motives. Fearful for the continuance +of its supremacy, it desired to place before the States a measure so +distasteful to the South as to ensure its rejection. In that way there +would be an excuse for additional legislation to prevent the States from +obtaining representation, and to preserve Republican control.[118] The +composite character of the amendment provoked severe criticism. It was +claimed that the sections should be submitted to the States as separate +articles, to give opportunity for the rejection of some and the +ratification of others. Senator Doolittle moved an amendment to this +effect,[119] but the solid reconstruction majority could not be shaken, +and the five sections were submitted to the States to stand or fall +together. Technical objections were deemed unworthy of consideration when +it was supposed to be necessary for the safety of the Union that all the +sections should be ratified. + +The inadvisability of submitting a constitutional amendment while eleven +of the States were not permitted a voice in legislation was strongly urged +by the opposition. The President reiterated the protest in his message of +June 22, affirming that the submission of the proposed amendment to the +States through the executive department was a purely ministerial duty, in +no way committing the department to an approval of the action. The first +section of the amendment was condemned as a subtle plan eventually to +force negro suffrage upon the people as an incident of negro citizenship. +It was claimed that the second discriminated too severely against the +Southern States with their large preponderance of colored population, and +that the third virtually forced them to insult their most respected +citizens--a humiliation which would drive them to renewed insurrection. +The validity of some of the objections was proved by subsequent history; +some have proved groundless; others still remain among the unsettled +questions. + +The reconstruction legislation of the first session of the 39th Congress +closed with the restoration of Tennessee to the Union. Other measures were +under consideration, but were not acted upon until the following session. +The attitude of Tennessee, since her re-organization under the provisions +of the proclamation of 1863, had been the most consistent of any of the +Southern States.[120] From March 3, 1862, until March 3, 1865, Johnson, as +military governor, had preserved law and order to a great extent. The +formal reorganization of the State was undertaken by a convention of the +loyal citizens convened January 8, 1865, acting upon the recommendation +and personal approval of Johnson. This convention proposed the amendments +to the constitution of the State, made necessary by the changes brought +about by the war, and they were adopted by the loyal voters of the State +on February 22. On March 4 a governor and legislature were elected, who +assumed their duties on April 3. The work of the legislature was +characterized by an apparent eagerness to do all that should be done by a +State loyal to the Union. + +The popular ratification of the amendments to the Constitution +distinguished the action of Tennessee from that of the other Southern +States, and this fact, united to her uniformly consistent attitude, formed +the ground for the recommendation of the Committee on Reconstruction that +this State should be restored to her former rights and privileges. This +recommendation, in the form of a joint resolution, was reported from the +committee by Mr. Bingham on March 5,[121] but no action was taken until +July 20. Tennessee's prompt action in ratifying the 14th Amendment[122] +was taken as good evidence that her government was thoroughly +reconstructed, and the State entitled to representation. Accordingly a +substitute resolution, noting these facts, was introduced and passed, the +Senate amending and passing it three days later. This declared Tennessee +to be restored to her former relations to the Union, and entitled to +representation in Congress,[123] but the preamble was used as a vehicle +for the assertion of the sole power of Congress to restore State +governments. President Johnson, while approving the resolution, explained +in his message that his approval was "not to be construed as an +acknowledgment of the right of Congress to pass laws preliminary to the +admission of duly qualified representatives from any of the States," nor +as committing him "to all the statements made in the preamble." + +The session had proved far from fruitless, although nothing but the +preliminary steps had been taken. The Freedmen's Bureau and civil rights +bills constituted a temporary protection to the freedmen; the right of +_habeas corpus_ still remained suspended and military authority prevailed +throughout the conquered region. The 14th Amendment was before the people, +to be a rallying point for the autumn campaign. The lines between the +presidential and congressional parties were now closely drawn. Each knew +the strong and the weak points of its opponent. The issue must now be +turned over to the people as final judges of its merits. The congressional +elections of the fall would decide the issue, and also the future method +of reconstruction. + + + + +CHAPTER IV. + +THE CAMPAIGN OF 1866. + + +1. The four months following the adjournment of the first session of the +39th Congress were full of excitement. The public was thoroughly aroused, +and all incidents were considered in the light they threw upon the +question of the hour. The President's uncompromising hostility to the 14th +Amendment brought about a crisis in the Cabinet.[124] William Dennison, +Postmaster-General, was the first to declare the impossibility of +maintaining cabinet relations with the President. He resigned on July 11, +and A. W. Randall, of Wisconsin, First Assistant Postmaster-General, was +appointed in his place. Mr. Randall was a devoted adherent of the +administration, and president of the National Union Club which called the +convention of August 14. The second resignation was that of James Speed, +Attorney-General, on July 18. Coming from Kentucky, Mr. Speed had had the +reputation of being quite conservative in his views regarding +reconstruction, and his formal notice of separation from the President +created no little excitement. His intimate connection with the +administration gave unusual force to his denunciation of its policy, made +at the time of taking the chair as permanent president of the convention +of Southern loyalists. Henry Stanbery of Ohio was appointed as his +successor, and retained his position until he resigned to assist in the +defense of the President in the impeachment trial. A few days after Mr. +Speed's withdrawal, the Secretary of the Interior, James Harlan, tendered +his resignation, and O. H. Browning, of Illinois, was appointed to fill +the vacancy. + +It is altogether probable that these resignations would have been made +earlier than they were, had it not been feared that the control of these +important administrative departments would fall into the hands of those +who would use their powers in opposition to Congress. But the time had +come when the incumbents considered that by the retention of the offices +they were being forced to share the odium attached to the President, and +deemed total separation from him as the best method of justification. + +The laws discriminating against the colored man, and the numerous +instances of cruelty which had been reported to the North, were an +important factor in creating and sustaining the common feeling of +hostility to the administration. But the New Orleans riots, occurring on +July 30, did more to rouse the people of the North, and convince them that +stern measures were necessary, than all that had preceded. The massacre +stood out vividly against the background of "black laws," and furnished an +argument of the most effective kind to be used in the campaign. + +2. The riots were of a peculiarly exasperating character. The +constitutional convention of 1864, summoned by the proclamation of Major +General Banks, had passed resolutions giving the president of the +convention power "to reconvoke the convention for any cause." A majority +of the members came to the conclusion, in the spring of 1866, that the +State constitution should be amended, to place it in harmony with the +congressional policy.[125] They determined to have the convention +reconvoked for this purpose. The president, Judge E. H. Durell, declined +to take advantage of his prerogative, but the delegates, not to be +thwarted in this way, proceeded to elect a president _pro tem._ who was +willing to issue the desired proclamation. The governor of the State, J. +M. Wells, concurred in this rather questionable procedure, and issued a +proclamation for an election to fill existing vacancies. + +It being well understood that negro suffrage was one of the ultimate +objects desired by the supporters of the proposed constitutional +convention, active hostility to the movement rapidly developed. The +proclamation of the president _pro tem._ called for the assembling of the +delegates on July 30; and though the only object of this meeting was to +determine officially the existing vacancies to be filled in the fall +elections, the enemies to the enfranchisement of the freedmen determined +to crush the movement in its incipient stage. It is an easy matter to stir +up the passions and prejudices of the people, and the indiscreet speeches +of certain of the delegates only added to the popular excitement. A negro +procession organized in honor of the convention was attacked by a mob in +front of Mechanics' Hall, where the convention was in session. The attack +was soon extended to the hall itself, the police of the city joining hands +with the assailants. When the riot was over nearly two hundred persons +were found to have been killed or wounded, the greatest sufferers being +the negroes, who were shot down in front of the hall without mercy. + +The flagrancy of the act, the connivance of the city authorities, and the +fact that, while legal steps were taken against the delegates and innocent +spectators, the actual murderers were in no way molested, furnished to the +people of the incensed North ample proof of the inability of the South to +maintain local government, and of the advisability of refusing to restore +these States to their former position in the Union. New Orleans was taken +as a fair example of what might happen at any place in the South. There +was no satisfactory justification for these acts of violence, and there +was little inclination in the North to consider the legal technicalities +involved in the attempt to amend the constitution of Louisiana. They +simply took cognizance of the fact that about fifty loyal citizens had +been murdered in cold blood, with the city authorities silently +acquiescing. In the face of such a fact, the solicitude of the President +to preserve the "inherent rights of the States" did not appeal to the +masses, and Johnson was forced to begin his campaign badly handicapped. + +But, in addition to the blow given to the theory of the administration, +Johnson was forced to labor against a certain amount of personal censure, +brought about by his supposed attitude before the riots and his known +attitude after them. It was freely charged that he was in full sympathy +with the determination of the Mayor of New Orleans, and the +Lieutenant-Governor and Attorney-General of Louisiana, to prevent the +convention from accomplishing its plans. In support of the charge, his +answer to the inquiry as to whether the military power would interfere +with the attempt to arrest the members of the convention upon criminal +process was cited. His reply was as follows:[126] "The military will be +expected to sustain, and not to obstruct or interfere with the proceedings +of the court." While this may have indicated too great confidence in the +civil authorities of Louisiana, it certainly did not imply any connivance +in or sympathy with the summary proceeding of July 30. Possibly the +well-known opposition of Johnson to negro suffrage may have stimulated the +rioters to bolder defiance of Northern sentiment, but censure of him can +extend no farther. But, in his political canvass in the fall,[127] while +endeavoring in every way to discredit the 39th Congress in the eyes of the +people, he committed a grave error by an indirect defense of the rioters, +attacking the members of the convention as traitors who incited the negro +population to rioting, and throwing the responsibility of the whole affair +back upon Congress as having originated and fostered the plan to force +negro suffrage upon Louisiana.[128] + +3. The fall campaign was formally opened by the supporters of the +presidential policy, who had immediately accepted the report of the +Committee on Reconstruction as the platform of the Republican +anti-administration faction, and had determined to appeal on that issue to +the people. Their hope was that the conservative element of the +population, thoroughly worn out by the struggle, would uphold the speedy +restoration of the Southern States, and that thereby a coalition might be +made between the Democrats and the administration Republicans strong +enough to unseat many of the radical members, reverse the majority, and so +give the administration control in the 40th Congress. + +The first steps were promptly taken. The executive committee of the +National Union Club, a political organization established in Washington by +supporters of the administration, issued on June 25, just one week after +the submission of the report of the Committee on Reconstruction, a call +for a national convention to be held in Philadelphia on August 14.[129] +Delegates to this convention were to be chosen by those supporting the +administration and agreeing to certain "fundamental propositions" which +formed the platform of the conservatives. These propositions maintained +the absolute indissolubility of the Union, the universal supremacy of the +Constitution and acts of Congress in pursuance thereof, the constitutional +guarantee to maintain the rights, dignity and equality of the States, and +the right of each State to prescribe the qualifications of electors, +without any federal interference. They declared that the usurpation and +centralization of powers infringing upon the rights of the States "would +be a revolution, dangerous to republican government, and destructive of +liberty;" that the exclusion of loyal senators and representatives, +properly chosen and qualified under the Constitution and laws, was unjust +and revolutionary; that as the war was at an end, "war measures should +also cease, and should be followed by measures of peaceful +administration;" and that the restoration of the rights and privileges of +the States was necessary for the prosperity of the Union. This formal call +was approved, and its principles endorsed by the Democratic congressmen, +who issued an address to the "People of the United States" on July 4, +urging them to act promptly in the selection of delegates to the +convention. + +In accordance with the call, every State and Territory was represented in +the convention. A glance at the list of delegates shows that they included +many of the prominent Democrats of the country, re-enforced by a number of +the prominent Republicans[130] who were in sympathy with the +administration. The enthusiastic manner in which the summons was answered +seemed to the friends of the administration to indicate an unquestionable +overthrow of the radicals. They thought that harmony was soon to reign +over all portions of the Union, which was once more being drawn closely +together by the watchword "National Union." + +Reverdy Johnson, who had submitted in the Senate the minority report of +the Committee on Reconstruction, was chosen chairman, and Senator Cowan, +of Pennsylvania, chairman of the committee on resolutions. The resolutions +were reported on August 17, and unanimously adopted by the convention. +They re-affirmed the fundamental principles set forth in the call of June +25, and appealed to the people of the United States to elect none to +Congress but those who "will receive to seats therein loyal +representatives from every State in allegiance to the United States." They +reiterated the claim that in the ratification of constitutional amendments +all the States "have an equal and an indefeasible right to a voice and +vote thereon." In concession to Northern sentiment, they declared that the +South had no desire to re-establish slavery; that the civil rights of the +freedmen were to be respected, the rebel debt repudiated, the national +debt declared sacred and inviolable, and the duty of the government to +recognize the services of the federal soldiers and sailors admitted. A +final resolution commended the President in the highest terms, as worthy +of the nation, "having faith unassailable in the people and in the +principles of free government."[131] + +These views were fully elaborated in an address prepared by Henry J. +Raymond, and read before the convention. Little attempt was made to +qualify or render less offensive the argument that the Southern States +must be allowed their representation in Congress, whether or not such +action was for the best interest of the Union. Referring to this the +address declared that "we have no right, for such reasons, to deny to any +portion of the States or people rights expressly conferred upon them by +the Constitution of the United States." We should trust to the ability of +our people "to protect and defend, under all contingencies and by +whatever means may be required, its honor and welfare."[132] + +A committee of the convention hastened formally to present its proceedings +to President Johnson, who had taken the keenest interest in the plans of +the National Union party. In his remarks to the committee he feelingly +referred to the somewhat theatrical entrance of the delegates of South +Carolina and Massachusetts, "arm in arm, marching into that vast +assemblage, and thus giving evidence that the two extremes had come +together again, and that for the future they were united, as they had been +in the past, for the preservation of the Union." Speaking to a sympathetic +audience, who applauded him to the echo, and believing that the people +were now endorsing his opposition to Congress, he saw no necessity for +tempering his statements, and cast aside his discretion. His +characterization of Congress was as follows: "We have witnessed, in one +department of the government, every endeavor to prevent the restoration of +peace, harmony and union. We have seen hanging upon the verge of the +Government, as it were, a body called, or which assumes to be, the +Congress of the United States, while in fact it is a Congress of only a +part of the States. We have seen this Congress pretend to be for the +Union, when its every step and act tended to perpetuate disunion and make +a disruption of the States inevitable. Instead of promoting reconciliation +and harmony, its legislation has partaken of the character of penalties, +retaliation and revenge. This has been the course and policy of one +portion of the Government."[133] Again, to show the disinterestedness of +his own course, he said: "If I had wanted authority, or if I had wished to +perpetuate my own power, how easily could I have held and wielded that +power which was placed in my hands by the measure called the Freedmen's +Bureau bill (laughter and applause). With an army, which it placed at my +discretion, I could have remained at the capital of the nation, and with +fifty or sixty millions of appropriations at my disposal, with the +machinery to be unlocked by my own hands, with my satraps and dependents +in every town and village, with the Civil Rights bill following as an +auxiliary (laughter), and with the patronage and other appliances of the +Government, I could have proclaimed myself dictator." ("That's true!" and +applause.)[134] + +But his indiscretions did not end with speeches before his sympathizers. +Two weeks later he started on a trip, nominally to assist in the ceremony +of laying the cornerstone of the Douglas monument in Chicago.[135] As a +matter of fact, however, he was merely taking advantage of an opportunity +to defend his policy publicly. Johnson was of too impassioned a nature to +be able to judge as to how far the President of the United States could +afford to adopt the methods of the stump speaker. All constraint was +thrown away, and he acted at many times the part most natural to him, that +of a popular orator addressing the masses. His speeches at no time lacked +clearness. All could see where he stood, and nothing was left for +speculation. + +His first important effort while on his journey was at New York on August +29, where he responded to a toast proposed by the mayor of the city. In +this speech he defined the issue as follows: "The rebellion has been +suppressed, and in the suppression of the rebellion it [the government] +has * * * established the great fact that these States have not the power, +and it denied their right, by forcible or peaceable means, to separate +themselves from the Union. (Cheers, 'Good!') That having been determined +and settled by the Government of the United States in the field and in one +of the departments of the government--the executive department of the +government--there is an open issue; there is another department of your +government which has declared by its official acts, and by the position of +the Government, notwithstanding the rebellion was suppressed for the +purpose of preserving the Union of the States and establishing the +doctrine that the States could not secede, yet they have practically +assumed and declared and carried up to the present point, that the +Government was dissolved and the States were out of the Union. (Cheers.) +We who contended for the opposite doctrine years ago contended that even +the States had not the right to peaceably secede; and one of the means and +modes of possible secession was that the States of the Union might +withdraw their representatives from the Congress of the United States, and +that would be practical dissolution. We denied that they had any such +right. (Cheers.) And now, when the doctrine is established that they have +no right to withdraw, and the rebellion is at an end * * * we find that in +violation of the Constitution, in express terms as well as in spirit, that +these States of the Union have been and still are denied their +representation in the Senate and in the House of Representatives."[136] +Then, speaking of the people of the South: "* * Do we want to humiliate +them and degrade them and drag them in the dust? ('No, no!' Cheers.) I say +this, and I repeat it here to-night, I do not want them to come back to +this Union a degraded and debased people. (Loud cheers.) They are not fit +to be a part of this great American family if they are degraded and +treated with ignominy and contempt. I want them when they come back to +become a part of this great country, an honored portion of the American +people."[137] + +Another representative speech was the one which he made in Cleveland on +September 3: "I tell you, my countrymen, I have been fighting the South, +and they have been whipped and crushed, and they acknowledge their defeat +and accept the terms of the Constitution; and now, as I go around the +circle, having fought traitors at the South, I am prepared to fight +traitors at the North. (Cheers.) God willing, with your help we will do +it. (Cries of 'We won't.') It will be crushed North and South, and this +glorious Union of ours will be preserved. (Cheers.) I do not come here as +the Chief Magistrate of twenty-five States out of thirty-six. (Cheers.) I +came here to-night with the flag of my country and the Constitution of +thirty-six States untarnished. Are you for dividing this country? (Cries +of 'No.') Then I am President, and I am President of the whole United +States. (Cheers.)"[138] + +Speeches of this nature, coming at a time when the outrages in the South +had so greatly incensed the North, had a most depressing influence upon +the fortunes of the National Union party, and failed utterly in the object +for which they were intended. The trip proved to be a grave political +mistake. The undignified spectacle of a President receiving coarse +personal abuse and retorting in scarcely less coarse expressions was +quickly taken advantage of by his opponents; and the phrase "swinging +around the circle" has assumed historic dignity as a description of his +journey. + +4. The "off year" national convention plan adopted by the National Union +Club was immediately accepted by the congressional party, which was no +less active in preparations for the struggle. On July 4, the same day on +which the Democratic congressmen issued their address to the people, +representative Southern Unionists,[139] supporters of Congress, issued a +call to "the Loyal Unionists of the South," for a convention to be held in +Philadelphia on September 3.[140] The call stated that the convention was +"for the purpose of bringing the loyal Unionists of the South" into +conjunction with the true friends of republican government in the North. +"* * The time has come when the restructure of Southern State government +must be laid on constitutional principles. * * * We maintain that no +State, either by its organic law or legislation, can make transgression on +the rights of the citizen legitimate. * * * Under the doctrine of 'State +sovereignty,' with rebels in the foreground, controlling Southern +legislatures, and embittered by disappointment in their schemes to destroy +the Union, there will be no safety for the loyal element of the South. Our +reliance for protection is now on Congress, and the great Union party that +has stood and is standing by our nationality, by the constitutional +rights of the citizen, and by the beneficent principles of the +government." + +The convention met at the time appointed, with representatives present +from all the lately insurrectionary States.[141] James Speed of Kentucky, +Attorney-General until July 18, was elected permanent chairman. For +purposes of co-operation, the Northern States had been invited to send +delegations, and all responded. Thus the convention was as truly national +as the "National Union" convention of August 14 had been. It was decided, +however, that for the purpose of rendering the declaration of the Southern +Unionists more significant, the Northern and Southern Unionists should +hold their sessions separately, and Governor Curtin of Pennsylvania was +accordingly elected chairman of the Northern section. + +The resolutions of the Southern section were reported by Governor Hamilton +of Texas, chairman of the committee on resolutions, and they naturally +endorsed the action of Congress in its entirety.[142] While demanding the +restoration of the States, they declared Johnson's policy to be "unjust, +oppressive, and intolerable," and that restoration under his "inadequate +conditions" would only magnify "the perils and sorrows of our condition." +They agreed to support Congress and to endeavor to secure the ratification +of the 14th Amendment. Congress alone had power to determine the political +status of the States and the rights of the people, "to the exclusion of +the independent action of any and every other department of the +Government." "The organizations of the unrepresented States, assuming to +be state governments, not having been legally established," were declared +"not legitimate governments until reorganized by Congress." In addition to +these resolutions, an address "from the loyal men of the South to their +fellow-citizens of the United States," was prepared and adopted after the +formal adjournment of the convention.[143] This reaffirmed, in far +stronger terms, the condemnation of President Johnson, specifying many +ways in which he had wrought injury to them, and closing with the +following significant and powerful declaration: "We affirm that the +loyalists of the South look to Congress with affectionate gratitude and +confidence, as the only means to save us from persecution, exile and death +itself; and we also declare that there can be no security for us or our +children, there can be no safety for the country against the fell spirit +of slavery, now organized in the form of serfdom, unless the Government, +by national and appropriate legislation, enforced by national authority, +shall confer on every citizen in the States we represent the American +birthright of impartial suffrage and equality before the law. This is the +one all-sufficient remedy. This is our great need and pressing +necessity."[144] + +A third convention of the year was the Cleveland convention of soldiers +and sailors,[145] organized on September 17, with General Wood of the +regular army as chairman. This convention was composed of supporters of +the administration, and, like the National Union convention, contained a +considerable proportion of Democrats. The resolutions endorsed those of +the National Union convention, and declared that "our object in taking up +arms to suppress the late rebellion was to defend and maintain the +supremacy of the Constitution, and to preserve the Union with all the +dignity, equality, and rights of the States unimpaired." + +The great mass of the soldiers, however, were earnest supporters of +Congress, and the results of the Cleveland convention were disappointing +to its originators; its principal effect was to create great enthusiasm +over the anti-administration convention of soldiers and sailors, which met +in Pittsburg on September 25 and 26.[146] This demonstration was intended +to offset whatever influence the Cleveland convention might have had over +the people, and it proved wonderfully effective. It was estimated that at +least twenty-five thousand old soldiers were in the city at the time. The +cause for this enthusiastic support is not difficult to find. The policy +of the administration appealed to the moderates--those who wished as rapid +a restoration to former conditions as possible, and those who were most +influenced by the appeal to so-called justice. The majority of the +soldiers, on the contrary, those who had made the greatest sacrifices for +their country, were the most sensitive concerning the results of their +sacrifices. Thoroughly accustomed to the thought of their great +accomplishments, the manumission of the slaves and the preservation of the +integrity of national power, they were keen to resent any steps which they +thought tended toward the annulling of these results. With this natural +bias, the arguments which the congressional party brought to bear upon +them were accepted with enthusiasm; and many of the leaders went into the +political campaign to be followed by the same soldiers who had followed +them through their military campaigns. The convention, however, was in no +sense a convention of officers. While the permanent president, Jacob D. +Cox, of Ohio,[147] had been a general of volunteers, the temporary +chairman, L. E. Dudley, had been a private, and the majority of the +offices of the convention were filled by men below the rank of +lieutenant. + +As was to be expected from the nature of the convention, the feeling +against the administration was stronger and declared in more impassioned +tones than in the previous anti-administration convention. Its influence +upon the country was correspondingly greater. The army, recognized at this +time as the great preserver of the commonwealth, had great influence over +all classes of citizens. The anti-administration conventions, the New +Orleans massacre, and the violent attacks on Congress by the President +while "swinging around the circle," assured the triumph of the +congressional party. + +The resolutions adopted at Pittsburgh were presented by General +Butler.[148] They were emphatic in tone, commencing with the declaration +that "the action of the present Congress in passing the pending +constitutional amendment is wise, prudent, and just," and that it was +unfortunate that it was not received in the proper spirit, the terms being +the mildest "ever granted to subdued rebels." The President's policy was +declared to be "as dangerous as it is unwise," and "if consummated it +would render the sacrifices of the nation useless." The power "to pass all +acts of legislation that are necessary for the complete restoration of the +Union" was declared to rest in Congress. The declaration of the President +to the committee of the National Union convention, that he could have made +himself dictator through the Freedmen's Bureau, aided by the army and +navy, was characterized as an insult to "every soldier and sailor in the +Republic." The obligation of the soldiers and sailors to the loyal men of +the South was acknowledged; and it was added: "We will stand by and +protect with our lives, if necessary, those brave men who remain true to +us when all around are false and faithless." + +This, the most successful of the four conventions, completed the +remarkable series of national gatherings organized for effect on the State +elections. They were all characterized by frankness of statement, and by +clear recognition of the points at issue. But, as frequently happens in +political campaigns, the most important incidents were those which were +not designed to affect national issues. The riot at New Orleans was +intended, by its participants, to affect only Louisiana politics, yet all +the Southern States were compelled to share the responsibility. The same +thing was true of all other incidents through which the South manifested, +during these critical months, an unwillingness to accept the political +results of the war. + +5. The fall elections resulted in a decisive victory for the congressional +policy, which secured a two-thirds majority in both houses. The protests +of the President were shown to lack popular support, and his vetoes in the +coming sessions were to be considered as merely one necessary step in the +legislative formality of passing a bill. The country had decreed that +Johnson could not have a voice in legislation. The campaign had been in +all respects disastrous to the President. The support which he had +received was mainly drawn from the Democratic party, and was of a +half-hearted nature; for, however nearly they agreed in theory, the fact +still remained that he was nominally a Republican President, and that +almost all of his patronage was bestowed upon Republicans. He had thrown +out decided hints that he would reverse his policy. For example, in St. +Louis, on September 8, he said: "I believe in the good old doctrine +advocated by Washington, Jefferson and Madison--of rotation in office. +These people who have been enjoying these offices seem to have lost sight +of this doctrine. I believe that one set of men have enjoyed the +emoluments of office long enough. They should let another portion of the +people have a chance. * * * Congress says he [the President] shall not +turn them out, and they are trying to pass laws to prevent it being done. +Well, let me say to you, if you will stand by me in this action (cheers), +if you will stand by me in trying to give the people a fair +chance--soldiers and citizens--to participate in these offices, God being +willing I will kick them out. * * * God willing, with your help, I will +veto their measures whenever any of them come to me."[149] But all this +failed to give him that which he prided himself so much on having, the +support of the people; and, so far as reconstruction was concerned, his +influence was ended by the fall elections of 1866. + +6. While such was the general result of the campaign, the South voted to +sustain the President's policy. The fact that Johnson had taken direct +issue with Congress, and was actively supporting Democratic principles, +had a wonderful influence upon the South. The papers enthusiastically +prophesied the complete overthrow of the Republican party. They reasoned +that the enormous patronage of the President would ensure him a following +so powerful that its coalition with Democracy could not but result in +victory. Then, they reasoned, it would only be necessary to wait until the +convening of the 40th Congress, when the obnoxious amendment would be +discredited and the States readmitted to the possession of all their +rights and privileges without further delay or conditions. They utterly +failed to realize the injury which their discriminative legislation, the +New Orleans riots, the widely spread reports of cruelty and oppression, +and the defiant attitude of their press, had inflicted on their cause. +They only saw that the administration and Congress were estranged, and +believed that to be a sure indication of final success. + +In this frame of mind they came to the polls, and in all the Southern +States overwhelming Democratic majorities evidenced the popular sentiment +among the dominant classes. Accordingly, when the State legislatures +convened, the 14th amendment was rejected almost unanimously in all except +Tennessee, which had ratified it in July. Delaware, Maryland and Kentucky, +the border Union States, also rejected the amendment, allying themselves +with the Southern cause. Twenty-one of the remaining twenty-four States +ratified the amendment, endorsing thereby the action of Congress.[150] +Iowa, Nebraska and California did not act upon the amendment at this time. + +Had Thaddeus Stevens and Charles Sumner been able to persuade Congress to +adopt their theory of the status of the Southern States, the amendment +would have been assumed to be a part of the Constitution, as twenty-one +States were more than three-quarters of twenty-seven, the total number of +States represented in Congress. But the majority of congressmen were never +able to adopt, in its entirety, the theory that the rebellion had utterly +destroyed the States and left them mere territory. It preferred to +accomplish the same result by less violent means. The legislation enacted +as a result of the attitude of the South towards the amendment practically +treated the States as conquered territory, yet they were counted in +determining the ratification of both the 13th and the 14th amendment. + +The defiant attitude taken by the Southern legislatures was a grave +mistake. The most of them did not convene until Congress was again in +session, after the defeat of the administration, and when they should have +been able to see that their only hope was in submission. But the South, +ever too ready to act first and consider the consequences afterwards, only +saw in the proposed amendment an insult to the white race and an injustice +to their leaders. That they should be asked deliberately to inflict upon +themselves this punishment, seemed a humiliation which self-respect could +permit them only to spurn. They did not stop to realize that the rejection +of these terms would cause measures still more severe to be enacted. + + + + +CHAPTER V. + +THE CONGRESSIONAL THEORY FULLY DEVELOPED. + + +1. The second session of the 39th Congress opened with its members in a +far different frame of mind from that in which they had assembled in 1865. +Then they had approached their work with hesitation; their plans were not +formulated; they could not know how far the country would sustain them in +their opposition to the President. Now, in the flush of victory, their +policy sustained, the President discredited, with their two-thirds +majority in both houses unbroken, they were prepared to proceed to enact +legislation which not only should secure that which had been accomplished +already, but also should settle finally the problem of reconstruction, and +place the President in a position where he could do no harm.[151] + +Much curiosity had been felt as to the attitude which Johnson would take +in his annual message. He believed thoroughly in the righteousness of his +cause, and had such implicit confidence in the unerring judgment of the +people that he had deemed it impossible that his policy would be +repudiated. The results of the election were a great disappointment to +him, and some had believed that he would introduce into the message the +abuse which he had so unsparingly inflicted upon Congress during the +campaign. The message, however, contained nothing approaching virulence, +but on the contrary was a document eminently creditable to the +President.[152] It restated in a powerful way the constitutional position +of the administration, and defended its actions in a dignified yet +spirited manner. The fearlessness of his attitude was characteristic; the +argumentative brilliancy of its presentation was unsurpassed. Unmindful of +the fact that Congress had assembled to complete the overthrow of his +policy of reconstruction, he reminded Congress that "the Constitution of +the United States makes it the duty of the President to recommend to the +consideration of Congress" such measures as he shall judge necessary or +expedient. "* * * I know," he said, "of no measure more imperatively +demanded by every consideration of national interest, sound policy, and +equal justice, than the admission of loyal members from the now +unrepresented States. * * * The interests of the nation are best to be +promoted by the revival of fraternal relations, the complete obliteration +of our past differences, and the re-inauguration of all pursuits of +peace."[153] The message closed with the request: "Let us endeavor to +preserve harmony between the co-ordinate departments of the Government, +that each in its proper sphere may cordially co-operate with the other in +securing the maintenance of the Constitution, the preservation of the +Union, and the perpetuity of our free institutions." + +Unfortunately for the country, there could be no harmony "between the +co-ordinate departments of the Government," where there was such +fundamental disagreement. Neither side proposed to retreat an inch from +the stand taken, and the message served no other purpose than to leave a +very excellent state paper as a memento of the session. + +The Joint Committee on Reconstruction[154] was immediately re-appointed by +a concurrent resolution. Only one change was necessary--Mr. Grider, of +Kentucky, one of the minority members, had died during the recess of +Congress, and in his place Mr. Hise, of the same State, was appointed. The +committee immediately resumed its labors, and proceeded to frame a bill +"for the more efficient government of the rebel States." The developments +of the last three months had created a sentiment favorable to more +stringent conditions of re-admission, and the action of the various +Southern legislatures, who were rejecting the 14th amendment during this +period, served as a further stimulus to vigorous action. + +2. Several weeks elapsed before the committee was willing to adopt any +definite plan. Finally, on February 4, 1867, Mr. Williams reported from +the committee, a bill to the Senate;[155] it was referred back to the +committee, and was formally reported to the House by Mr. Stevens on the +6th.[156] + +The preamble to the bill declared that in the absence of legal State +governments there was no adequate protection for person and property, and +that therefore it was necessary to enforce peace and good order until +loyal State governments could be established. To this end "the so-called +States shall be divided into military districts," five in number, Virginia +to constitute the first, North Carolina and South Carolina the second, +Georgia, Alabama, and Florida the third, Mississippi and Arkansas the +fourth, and Louisiana and Texas the fifth. The General of the Army was "to +assign to the command of each of said districts an officer of the regular +army not below the rank of brigadier-general, and to detail a sufficient +force to enable such officer to enforce his authority." The officer in +command of a district was to have complete authority to protect the civil +rights of all, suppress insurrection and preserve order. To assist him he +could employ civil or military tribunals at his discretion, but no capital +punishment, imposed by a military tribunal, should be executed without the +approval of the officer in charge of the district. Writs of _habeas +corpus_ should not be issued by federal courts or judicial officers except +on endorsement of some commissioned officer in the district. + +The discussion of the bill began on the day following its introduction. +Mr. Stevens, with his usual impetuosity, wished for an immediate vote. The +bill seemed more moderate to him than the South deserved, and with the +large Republican majority intent upon some such legislation, he could see +no reason for delay. The bill was clearly worded and all could understand +it perfectly. But there was an influential element that preferred to make +haste slowly, and many hours were given up to debate before the final +passage of the bill by the House, on February 20. + +The measure certainly was exceedingly radical as it was reported from the +committee. As Mr. Le Blond, of Ohio, said: "It strikes at the civil +governments in those States. It ignores State lines. It destroys their +civil governments. It breaks down the judicial system in those +States."[157] The distrust of the President was evidenced by empowering +General Grant to appoint the commanders of the military districts, +ignoring the President as commander-in-chief of the army. Most important +of all, the bill as it stood was the action of a conquering power over +conquered territory. It provided for an indefinite military control over +the territory, and specified no mode in which a State might free herself +from the onerous conditions. It was not a measure of reconstruction; it +was a measure of subjugation. + +Of course none of its supporters had the slightest idea of its being more +than a temporary measure, but even temporary measures must be considered +in all their aspects. Their idea was that expressed by Mr. Brandegee of +Connecticut when he said: "It holds those revolted communities in the +grasp of war until the rebellion shall have laid down its spirit, as two +years ago it formally laid down its arms."[158] + +Mr. Bingham took an active part in the opposition to the adoption of the +bill as it stood. Representing the more conservative branch of the +anti-administration party, he suggested on the opening day of the +discussion amendments which would make the bill more desirable. On +February 12 he submitted an amendment, the essential features of which +were finally adopted, but which encountered the fiercest opposition and +was only carried when compromise between the House and the Senate was +found to be impossible. His amendment provided as conditions for +re-admitting a State to representation in Congress: Ratification of the +14th amendment; such modification of State constitution and laws as would +make them conform to that amendment; a constitutional provision for negro +suffrage; and the approval of the constitution by Congress as republican +in form and consistent with the Constitution and laws of the United +States. + +Mr. Blaine proposed an amendment similar in its aim to that of Mr. +Bingham, who accepted it as a substitute. But the House was opposed to +providing any loop-holes by which the States could escape the provisions +of the act. The feeling that the South had been weighed in the balance and +found wanting, that its whole attitude was that of defiance, and that it +would endeavor to undo all that had been done as soon as it could obtain +an opportunity, was sufficiently strong to defeat an attempt to refer the +bill to the Judiciary Committee with instructions to incorporate the +amendment. Instead, a substitute measure, introduced by Mr. Stevens, which +differed but little from the original bill, passed the House on February +13.[159] + +The great struggle now began in the Senate, where the Blaine amendment was +moved by Mr. Johnson of Maryland, on February 15. There was an influential +element which feared that its adoption would utterly nullify the object of +the bill--to govern the States until they could be re-admitted with +safety. Their objections were based on the same principles that had proved +fatal to the amendment in the House. "I see," said Senator Howard, "in +this amendment a fatal snare by which we shall be deceived in the end, by +which we are to be deluded into a premature re-admission of the rebel +States in such a manner as to make us ultimately repent of our folly and +rashness. * * * It is a snare by which increased representation from the +rebel States may come into Congress, * * while we have no security at all +that the extended elective franchise will be continued in the rebel States +to the black population. They can disfranchise them whenever they see fit +after having secured increased representation."[160] + +The Senate, more conservative than the House, could not muster such a +strong opposition to the amendment. It was rejected, but rejected in order +to open the way for another amendment in the form of a substitute bill, +which was moved by Senator Sherman.[161] The substitute had been agreed +upon in a Republican caucus, and was accordingly carried. Its first four +sections contained nearly all the features of the original bill; it +substituted "President" for "General," in the second section, and, in +place of the provision against writs of _habeas corpus_, the fourth +section simply enacted that "all persons put under military arrest by +virtue of this act shall be tried without unnecessary delay, and no cruel +or unusual punishment shall be inflicted." The fifth section contained the +features proposed in the Bingham and Blaine amendments, amplified in a +manner satisfactory to the majority of the Senatorial caucus. The +conditions of readmission were as follows: The adoption of a constitution +in conformity with the Constitution of the United States, and the +ratification of the 14th amendment. The constitution, which must be +examined and approved by Congress, must be framed by a convention of +delegates chosen by "the male citizens of said State twenty-one years of +age and upwards, of whatever race, color, or previous condition, who have +been resident in the State for one year previous to the day of such +election, except such as may be disfranchised for participation in the +rebellion, or for felony at common law;" must give the elective franchise +to all qualified as electors for the delegates; and must be ratified by a +majority of the persons voting on ratification, and qualified as such +electors. To this the proviso was added that no person disqualified by the +14th amendment from holding office should be chosen as a delegate to the +convention or vote for members of it. One more amendment to the bill was +made on motion of Senator Doolittle. This added as a proviso to the fourth +section: "That no sentence of death under the provisions of this act shall +be carried into effect without the approval of the President." + +The bill was returned to the House in this form, the Senate having passed +it at six o'clock Sunday morning, February 17. The margin of time that +could be used without permitting the bill to be killed by a "pocket veto" +was now very limited, but the House refused to concur in the amendment +and called for a committee of conference, February 19. The Senate insisted +on its amendment and the bill was again returned to the House, which on +the following day concurred in the Senate amendment, but added an +amendment of its own proposed by Mr. Wilson, of Iowa, and amended on +motion of Mr. Shellabarger.[162] This amendment, constituting the sixth +section of the bill, was speedily concurred in by the Senate, and on +February 20, 1867, the bill was finally passed and ready for the +President's veto. + +The sixth section, so hurriedly tacked on to the bill, was of no slight +importance, as it declared in legal form the _status_ of the Southern +governments, and clinched the qualifications for the elective franchise. +It provided that "until the people of said rebel States shall be by law +admitted to representation in the Congress of the United States, any civil +governments which may exist therein shall be deemed provisional only, and +in all respects subject to the paramount authority of the United States at +any time to abolish, modify, control, or supersede the same; and in all +elections to any office under such provisional governments all persons +shall be entitled to vote, and none others, who are entitled to vote under +the provisions of the fifth section of this act; and no person shall be +eligible to any office under any such provisional governments who would be +disqualified from holding office under the provisions of the third article +of said constitutional amendment."[163] + +As had been expected, Johnson withheld his veto as long as it was possible +for him to do so without permitting the bill to become a law, not +returning the bill until March 2.[164] This was done in the hope that the +minority, by dilatory proceedings, might prevent action on the veto +before the adjournment, on March 4, and so prevent the bill from becoming +a law. But the plan failed, and the bill was immediately passed, "the +objections of the President to the contrary notwithstanding." + +The veto message embodied an exhaustive review of the bill, a criticism of +its "cruelty," and an attack upon its constitutionality. It denied the +statement in the preamble that "no legal State governments or adequate +protection for life or property," existed in these ten States, and +declared that "the establishment of peace and good order is not its real +object. * * * The military rule which it establishes is plainly to be +used, not for any purpose of order or for the prevention of crime, but +solely as a means of coercing the people into the adoption of principles +and measures to which it is known that they are opposed, and upon which +they have an undeniable right to exercise their own judgment." The +despotic authority given to the commander of a district was vigorously +denounced, and all the humane provisions of the bill were declared to +depend upon the will of the commander, who could nullify them and oppress +the people without limitations of any kind. "It reduces the whole +population of the ten States--all persons, of every color, sex and +condition, and every stranger within their limits--to the most abject and +degrading slavery." + +But aside from its injustice, Johnson went on to argue, the measure was +unconstitutional and could not legally be carried into execution. In a +time of peace martial law could not be established, in proof of which +statement he quoted from the decision of the Supreme Court, in _Ex parte_ +Milligan, defining military jurisdiction. The denial of the right of trial +by jury and of the privilege of the writ of _habeas corpus_ was not +counterbalanced by the poor privilege of trial "without unnecessary +delay." In defiance of the constitutional prohibition of bills of +attainder, "here is a bill of attainder against nine millions of people at +once"--a legislative enactment "based upon an accusation so vague as to be +scarcely intelligible, and found to be true upon no credible evidence." +The primary purpose of the bill, to compel these States "by force to the +adoption of organic laws and regulations which they are unwilling to +accept if left to themselves," was in itself unconstitutional. "The +Federal Government has no jurisdiction, authority, or power to regulate +such subjects for any State." + +Respecting the legality of the state governments, the important point was +made that if they were illegal, their ratification of the 13th amendment +could not have been legal. The message closed with an appeal for +restoration "by simple compliance with the plain requirements of the +Constitution." + +Taken as a whole, the message unquestionably contained many strong +arguments against the bill, and was virtually a summary of the arguments +advanced by the minority in Congress. But the struggle had passed beyond +the province of unbiased debate, and each side was equally determined not +to yield any point. A measure open to the most serious suspicions +regarding its constitutionality, was passed by an inflexible majority, +settled in the belief that the condition of the South required the +measure, and that the Constitution must accordingly be stretched to cover +the case. + +Those supporters of the bill who were recognized as the most careful in +their judgments confidently asserted that that portion of it establishing +the military districts contained nothing that could not have been carried +out legally by the government as a military measure, without the formality +of enacting the bill. The insurrectionary States would legally remain in a +condition of insurrection until Congress should formally declare the +insurrection to be at end. Consequently martial law could +constitutionally prevail, trial by jury and the writ of _habeas corpus_ be +suspended, and civil government utilized as an aid to military rule, to +any extent that might seem advisable to the general in charge. The claim +that the measure amounted to an enormous bill of attainder was immediately +dismissed as absurd, as no corruption of blood or forfeiture of estates +was involved, and the whole measure was avowedly temporary, to cease as +soon as the State should comply with the conditions of reconstruction. + +Congress felt justified in passing the bill over the veto, and accordingly +the general process of reconstruction was established with conditions far +more onerous than had been intended in the first session of the 39th +Congress. The provisions of the act immediately went into force, and the +commanders of the districts were appointed on March eleventh. + +3. The bill was conceded by all its supporters to be incomplete. It +provided for the establishment of districts and the governing of these +districts by military law, and it was hoped that the immediate crying need +of a strong government to enforce order and prevent the continuance of the +oppression of the freedmen was satisfied. This done, they could proceed +more deliberately to the enactment of measures which would provide the +mechanism for carrying out the provisions of the fifth section. The +adjournment of the 39th Congress at noon of March 4 prevented any action +until the next Congress; but preparation had been made for such an +emergency by an act which provided that in future each Congress should +convene upon the adjournment of its predecessor.[165] + +The 40th Congress at once settled down to work upon the problem. Chief +Justice Chase prepared a bill which was used as a basis for the +discussion. Senator Wilson and others modified the bill to some extent, +and introduced it in the Senate on March 7.[166] The same bill, slightly +modified, was introduced in the House.[167] Considerable trouble was +experienced in agreeing upon the details of the bill, but on March 19 both +houses finally adopted a compromise proposed by a committee of conference. +The veto message of the President was received four days later; the bill +was immediately passed over the veto and became a law.[168] + +As finally passed, the bill was entitled: "An Act supplementary to an Act +entitled, 'An Act to provide for the more efficient government of the +rebel States,' passed March second, eighteen hundred and sixty-seven, and +to facilitate restoration." It enacted that the commanding general in each +district should cause a registration to be made before September 1, 1867, +of those entitled to vote under the original act, and should require all +registering to take the following oath: "I, ---- do solemnly swear (or +affirm) in the presence of Almighty God, that I am a citizen of the State +of ----; that I have resided in said State for ---- months next preceding +this day, and now reside in the county of ----, or the parish of ----, in +said State (as the case may be); that I am twenty-one years old; that I +have not been disfranchised for participation in any rebellion or civil +war against the United States, nor for felony committed against the laws +of any State or of the United States; that I have never been a member of +any State legislature, nor held any executive or judicial office in any +State and afterwards engaged in insurrection or rebellion against the +United States, or given aid or comfort to the enemies thereof; that I +have never taken an oath as a member of Congress of the United States, or +as an officer of the United States, or as a member of any State +legislature, or as an executive or judicial officer of any State, to +support the Constitution of the United States, and afterwards engaged in +insurrection or rebellion against the United States or given aid or +comfort to the enemies thereof; that I will faithfully support the +Constitution and obey the laws of the United States, and will, to the best +of my ability, encourage others so to do, so help me God."[169] After the +completion of the registration in any State, it was provided that there +should be held, after at least thirty days' public notice by the +commanding general, an election of delegates "to a convention for the +purpose of establishing a constitution and civil government for such State +loyal to the Union." This convention was to consist of the same number of +members as the most numerous branch of the State legislature in 1860.[170] +Those voting at the election of delegates were also to vote for or against +the holding of the convention, and it was not to be held if a majority of +the ballots was cast against it, or if a majority of the registered voters +failed to vote on the question. Boards were to be appointed by the +commanding general to superintend the registration and election, and make +returns to him of the results of the election. The convention was required +to assemble at a place and time appointed by the commanding general, by a +notice to be given by him within sixty days from the date of election; and +to frame a constitution according to the provisions of the original and +the present act. The constitution so framed was then to be submitted to +the registered voters at an election conducted by officials who were to +be appointed by the commanding general, and who were to make returns to +him. In case the constitution was ratified "by a majority of the votes of +the registered electors qualified as herein specified, cast at said +election (at least one-half of all the registered voters voting upon the +question of such ratification)," it was provided that the president of the +convention should "transmit a copy of the same, duly certified, to the +President of the United States, who shall forthwith transmit the same to +Congress," and that, if Congress should be satisfied that all the +provisions of the acts were carried out, and that no force or fraud was +used, and should approve the constitution, the State should "be declared +entitled to representation, and senators and representatives shall be +admitted therefrom as therein provided." It was further provided that all +elections in the States mentioned in the original act should, during the +operation of that act, be by ballot; that the officials in charge of the +registration and elections must take the "iron-clad" oath of July 2, +1862[171] that the expenses incurred by the commanding generals in +carrying out the act should be paid out of the treasury, but that the +state conventions should provide for the levying of taxes to pay other +expenses.[172] + +The veto message on this bill was much shorter than that on the original +reconstruction measure. The President said: "No consideration could induce +me to give my approval to such an election law for any purpose, and +especially for the great purpose of framing the constitution of a State. +If ever the American citizen should be left to the free exercise of his +own judgment, it is when he is engaged in the work of forming the +fundamental law under which he is to live." He animadverted upon the +extreme looseness of the provisions in regard to the registration boards, +and upon the great powers vested in them. The main objections to the bill +were of course those which he had stated in the veto of March 2. + +The passage of the supplementary reconstruction act, and of a joint +resolution providing for the expenses involved in carrying out the +provisions of the act, completed the work of this session of the 40th +Congress. It was hoped that no further congressional action would be +needed until the constitutions of the States should be submitted for +examination and approval, preparatory to granting representation. But the +importance of the measures and the avowed hostility of the President +caused hesitation on the part of Congress as to adjourning till the +regular December session. It was realized that if any loop-hole could be +found by which the intention of the act could be evaded, Johnson would +have no hesitation in taking advantage of it. To provide for such a +contingency Congress passed a concurrent resolution which provided for a +recess until July 3, and authorized the President of the Senate and the +Speaker of the House to adjourn Congress until the first Monday in +December if a quorum did not appear on July 3. In case everything +appeared to be progressing with little friction, the members would not +assemble; but if there should be any unfavorable developments, Congress +could assemble independently of the President and enact legislation to +remedy the difficulty. + +4. July 3 found a quorum in both houses. The Attorney-General had rendered +an opinion upon the act of March 2 which greatly hampered the work of the +commanders of the districts. He advised the President that the act should +be construed strictly, that the commanders should be allowed no powers +beyond those specifically bestowed upon them. This prevented them from +removing state officers, from making new laws for the government of the +people, or from suspending the action of the state courts; and with state +officers hostile to the federal authorities, and using every means to +impede their work, the commanders found it impossible properly to +discharge the duties assigned to them by the act.[173] The intent of the +reconstruction acts obviously was to make the commanders of the districts +commanders _de facto_ as well as _de jure_. Consequently remedial +legislation was deemed necessary, and Congress convened for the purpose of +framing additional acts defining more precisely the intention of the +preceding acts and the powers of the commanders. + +A few days' debate sufficed to bring Congress to an agreement as to the +form of a second supplementary act. The bill passed both Houses on July +13, was vetoed on the 19th, and was immediately passed over the veto.[174] +It declared[175] the true intent and meaning of the previous +reconstruction acts to be that the governments then existing in the ten +States specified in the acts were illegal, and that such governments, "if +continued, were to be continued subject in all respects to the military +commanders of the respective districts, and to the paramount authority of +Congress." It therefore provided that the district commanders should have +the power to suspend or remove all incumbents of offices of "any so-called +State or the government thereof," and to fill all vacancies in such +offices, however caused. The same powers were granted to the General of +the Army, who was also empowered to disapprove the appointments or +removals made by the district commanders. The previous appointments by the +district commanders were confirmed and made subject to the provisions of +the act, and it was declared to be the duty of these commanders to remove +from office all who were disloyal to the United States, or who opposed in +any way the administration of the reconstruction acts. The registration +boards were empowered and required "before allowing the registration of +any person to ascertain, upon such facts or information as they can +obtain, whether such person is entitled to be registered."[176] No person +was to be disqualified as a member of any board of registration by reason +of race or color. The true intent and meaning of the oath prescribed in +the supplementary act was fully explained, the most important portion of +the explanation being that the words "executive or judicial office in any +State" should be construed to "include all civil offices created by law +for the administration of any general law of a State, or for the +administration of justice." The time of registration under the +supplementary act was extended to October 1, 1867, in the discretion of +the commander and it was provided that "the boards of registration shall +have power, and it shall be their duty, commencing fourteen days prior to +any election under said act, and upon reasonable notice of the time and +place thereof, to revise, for a period of five days, the registration +lists," by striking out the names of those found to be disqualified, and +adding the names of those qualified for registration. Executive pardon or +amnesty should not qualify any one for registration who without it would +be disqualified. District commanders were empowered "to remove any member +of a board of registration, and to appoint another in his stead, and to +fill any vacancy in such board." The iron-clad oath was to be required of +all registration boards, and of all persons elected or appointed to office +in the military districts. Further possibility of unfavorable construction +by the Attorney-General was prevented by the provision that "no district +commander or member of the board of registration, or any of the officers +or appointees acting under them, shall be bound in his action by any +opinion of any civil officer of the United States." The closing section, +taken in connection with this, was fully as significant: "All the +provisions of this act and of the acts to which this is supplementary +shall be construed liberally, to the end that all the intents thereof may +be fully and perfectly carried out." + +5. Reconstruction under the provisions of these three acts was rapidly +accomplished in most of the States.[177] In some of the districts the +commanders probably were too severe upon the whites, but in the main the +intent of the acts was carried out with as little harshness as could well +be expected. Those qualified were registered, conventions were held, and +constitutions were framed and submitted to the people for their +ratification according to the provisions of the acts. Alabama was the +first State to vote upon a new constitution, and the Democrats, or +Conservatives, as they styled themselves, took advantage of the fifth +section of the act of March 23, which required at least one-half of the +registered voters to vote on the question of ratification, as a condition +of the validity of the election. Non-action seemed to be the easiest +method of defeating the constitution, and they accordingly absented +themselves from the polls, only 70,812, out of 165,812 registered voters, +casting their ballots.[178] + +6. There had been a strong minority in Congress opposed to the insertion +of this section, who had foreseen this very outcome; and the action of +Alabama converted the minority into a majority. A third supplementary bill +was accordingly passed. Johnson neither signed nor vetoed it; and it +became a law without his signature on March 11, 1868. It provided that in +future all elections authorized by the act of March 23, 1867, "should be +decided by a majority of the votes actually cast," thus preventing any +repetition of the Alabama experiment.[179] + +7. The constitution submitted in Mississippi was rejected. Constitutions +were not submitted in Texas and Virginia until a later date. The other +States ratified their constitutions by large majorities, and on June 22 +the act "to admit the State of Arkansas to representation in Congress" +became a law. + +8. Three days later the act admitting North Carolina, South Carolina, +Louisiana, Georgia, Alabama and Florida to representation, became a law. +Both bills were passed over the President's vetoes, Johnson to the last +refusing to recognize even in the most indirect way the constitutionality +of the congressional plan. + +Eight of the eleven States were now nominally reconstructed, but in fact +they were only entering upon that most trying period of their history, the +era of "carpet-bag government." The whole period of reconstruction is +marked by blindness and prejudice on both sides. The spirit of compromise +could find no place in either's plans. "What might have been" is always a +fruitless subject of discussion; but any student of the three tumultuous +years following the war cannot but see that the attitude of both the North +and the South prevented the adoption of the plan of reconstruction which +would with the least trouble and delay, have remoulded the unwieldy mass +of liberated blacks into an orderly, progressive class of citizens. At the +same time he can see that the divergence of views was inevitable and that +it is impossible to say to one side "You were right," and to the other +"You were wrong." + + + + +CHAPTER VI. + +THE IMPEACHMENT OF THE PRESIDENT. + + +1. In the preceding chapters we have traced step by step the development +of the theory of reconstruction and the formulation of the reconstruction +acts of the 39th and 40th Congresses. We have noticed the wide divergence +between the ideas of Johnson and those of the Republican party, and have +seen that the whole program was carried over the vetoes of the President +by the overwhelming Republican majority. But the contest between the +President and Congress, which had been embittered by so many personalities +on both sides, did not come to an end with the passage of legislation +which fully embodied the congressional theory, but continued until it +culminated in a desperate effort of the Republican party to remove Johnson +from the presidential chair. + +The very conditions under which he assumed the presidential office +rendered his position difficult, and made estrangement of the executive +and legislative departments an easy matter. On the particular issue of +reconstruction Lincoln and Congress were at variance; but the tragic +nature of Lincoln's death caused this matter to be forgotten in the +overwhelming sense of the loss of the man who had safely guided the +government through the most trying years of its history. But, for a +Congress so extremely Northern and Republican, with antagonisms and +prejudices which only fratricidal wars can create, to be compelled to work +with a man not only a Southerner, but practically a Democrat, must of +necessity bring about a crisis. + +Moreover, the flourishing condition of the spoils system served to +aggravate the antagonism between the two departments. History shows that, +while selfish motives are always indignantly repudiated by politicians, +they account for many of the more important political movements of the +century. With the immense federal patronage at his disposal, Johnson +realized that he had a powerful instrument of revenge at hand, and he did +not hesitate to use it. At a time when every congressman was under the +strongest pressure from his home constituency, inability to gratify the +demands of the voracious office-seeker was indeed a cause for bitterness. + +We can thus easily distinguish three causes which, working together upon a +strongly Republican Congress, resulted in the attempted removal of the +President. First, the antagonism arising from different fundamental +political ideas, the strained conditions of the times, and the woeful +tactlessness of Johnson; second, the almost morbid yet natural fears of +the Republican party regarding the sometime seceded States; third, the +anger aroused by the use of federal patronage to further the interests of +the President. + +2. Impeachment, however, was too serious a matter for Congress to enter +upon lightly. Art. II, sec. iv, of the Constitution provides for +impeachment as follows: "The President, Vice-President and all civil +officers of the United States shall be removed from office on impeachment +for, and conviction of, treason, bribery, or other high crimes and +misdemeanors." Obviously the President had not committed and would not +commit anything that could legally be called treason or bribery: Had he +done or would he do anything which could be construed as a high crime or +misdemeanor? The answer largely depended upon the person's point of view. +The extreme radical held that Johnson's whole career as President could be +considered as an attempt treasonably to reinstate the Southern States in a +position of power. The more moderate Republicans could not be made to +acquiesce in this view, and it soon became evident that Johnson would +never be brought to trial on impeachment, unless he could be made to +violate some clearly defined law. The radical element, however, did not +easily accept this situation. By every means possible they tried to force +the moderates into line. The whole past career of the President was +critically studied, and every act which could by any possible means be +construed as a breach of presidential duty was put in the list of offences +for which he should be tried. But all to no purpose. Something more +tangible must be produced, or the trial would never occur. + +3. Notwithstanding the evident indisposition on the part of many to +proceed to extreme measures, the radicals determined to force matters to +an issue, if possible. Under Mr. James M. Ashley of Ohio as leader, the +attack was begun shortly after the opening of the second session of the +Thirty-ninth Congress. On December 17, 1866, Mr. Ashley moved to suspend +the rules so as to permit him to report a resolution from the Committee on +Territories. His motion was not agreed to, and the first step towards +impeachment was therefore a failure. The motion is of interest, however, +as evidencing the deliberate intention of the radicals to discover some +act which would justify impeachment. The resolution provided for a select +committee who were to inquire "whether any acts have been done by any +officer of the Government of the United States which in contemplation of +the Constitution are high crimes or misdemeanors, and whether said acts +were designed or calculated to overthrow, subvert or corrupt the +Government of the United States, or any department thereof." + +Again on January 7 resolutions looking to impeachment were offered by Mr. +Ashley and two other persons. Mr. Ashley's resolution was adopted, while +the others were referred to the Committee on Reconstruction and the +Committee on the Judiciary. The resolutions which were referred gave as a +reason for impeachment, "the purpose of securing the fruits of the +victories gained on the part of the republic during the late war, waged by +rebels and traitors against the life of the nation"--a decidedly strong +statement to make, in view of the predominance of the Republican party at +the time, and its ability to render nugatory any attempt of the President +to take away from the republic "the fruits of the victories gained." +Exaggerated expressions of this sort show how far the contest had +degenerated from a conflict of opinions as to the constitutional position +of the revolted States, into a personal warfare. Another significant +reason for impeachment given in these resolutions was, that it was +necessary in order to give "effect to the will of the people as expressed +at the polls during the recent elections by a majority numbering in the +aggregate more than four hundred thousand votes." It has already been +shown how disastrously the campaign resulted for Johnson, and how it +furnished popular sanction for the radical reconstruction legislation +which was passed over the presidential vetoes. But, to assume that a +popular expression of disapproval of the President's political program +made impeachment a moral necessity, was to assume a novel position. It was +also declared in these resolutions that the President was to be impeached +for the high crimes and misdemeanors "of which he is manifestly and +notoriously guilty, and which render it unsafe longer to permit him to +exercise the powers he has unlawfully assumed." + +These expressions seeming to be too indefinite, the specific charges +submitted by Mr. Ashley met with more favor, and were accordingly adopted. +These charges centered about an alleged "usurpation of power and violation +of law" which was to be found in corrupt uses of the appointing, +pardoning, and veto powers, improper disposition of public offices and +corrupt interference in elections. These were clinched again by the +general charge that the President had "committed acts which, in +contemplation of the Constitution, are high crimes and misdemeanors,"--a +charge obviously introduced to include any points which might in the +future be made against him. + +4. As the event proved, the attempt to bring matters to a successful issue +in the 39th Congress was a failure. The Committee on the Judiciary went to +work vigorously, calling many witnesses and collecting as much material as +possible; but on the 28th of February it reported, with only one +dissenting, voice, that in spite of all its efforts not enough testimony +had been gathered to warrant any report beyond a recommendation that the +investigation be continued. The ninth member of the committee, Mr. Rogers +of New Jersey, reported emphatically that a careful examination of the +subject had convinced him that "there is not a particle of evidence to +sustain any of the charges," and that "the case is wholly without a +particle of evidence upon which an impeachment could be founded." He +further declared that but little of the testimony taken would be admitted +in the courts, and that the whole matter should be dropped, as it would +certainly end "in a complete vindication of the President." Logically, the +standpoint of Mr. Rogers was a correct one. From a strictly legal view of +the case, there was very serious doubt as to the advisability of +attempting impeachment; but the opponents of the President counted upon +their large majority to force the matter, and the line of action +recommended by the majority of the committee was adopted. + +As has been seen, the 40th Congress assembled immediately upon the +adjournment of the 39th; and on March 7, 1867, the new Judiciary Committee +was authorized to proceed with the investigation, and to continue it +during any recess the House might take. By another resolution agreed to +March 29, the committee was requested to report immediately upon the +reassembling of Congress, which was to be in the following July, if +political conditions seemed to require it.[180] + +The committee accordingly continued its investigations, but, though the +radicals felt sure that it was composed of men who would favor +impeachment, it at first reported by a majority of five to four against +impeachment. A recommitment resulted in the conversion of one member of +the committee[181] to impeachment views; and on November 25 Mr. Boutwell, +of Massachusetts, reported from the committee a resolution impeaching the +President for high crimes and misdemeanors. + +5. The debate on this resolution was entered upon in December, 1867, and +was marked by the effort on the part of the radicals to support a most +indefinite and general charge. In spite of the thoroughness of the +investigation of the Judiciary Committee, in which neither time nor +expense had been spared, the attitude of the moderates was justified. +Nothing had been unearthed which from the legal standpoint could be +considered a high crime or misdemeanor. Failing in this, Mr. Boutwell +assumed the ground that the evidence showed that President Johnson had +been deliberately using his office to bring back, so far as possible, the +Democratic party into power, and that his efforts to restore the +insurrectionary States to their former power had been in the interest of +the rebellion. + +Although most Republicans at this time could not believe that the +inhabitants of the Southern States were sincere in their protestations of +a desire to lay aside all differences and once more become loyal citizens, +there were many who could not agree to Mr. Boutwell's definition of high +crimes and misdemeanors; and these moderate Republicans, aided by the +Democrats, defeated the resolution by a vote of one hundred and eight to +fifty-seven.[182] The attempt to impeach without definite legal charges +had failed. + +But the President soon gave the House the very opportunity it desired. +While the direct attack upon the President was being carried on by means +of the effort to impeach him, an indirect attack was made by the +legislative limitation of his powers. One of the cries of alarmists had +been that there was danger that the President might in some way take +advantage of his constitutional position as commander-in-chief of the army +and navy, so as to injure the government and advance his own interests. +Some went even farther and declared that he designed with the aid of the +army to overthrow the government, and place the United States in the power +of the rebels. Such charges, viewed from the standpoint of history, seem +too absurd for consideration, but during the reconstruction period the +feverish condition of the country made possible the acceptance of almost +any startling rumor. + +6. But even those who did not apprehend that Johnson would use the army +for any improper purpose, were willing to limit his power and prestige by +depriving him of his military authority; and this was accordingly done by +a section introduced into the army appropriation bill.[183] This section +required all orders to the army to be made through the General of the +Army, thus practically making his approval of them necessary. It also +prevented the President or the Secretary of War from removing, suspending +or relieving from command the General of the Army, and even forbade his +being assigned for duty away from headquarters, except at his own request. +This had the effect of taking away from the President all his +constitutional powers as commander-in-chief. As the section was put as a +rider on an appropriation bill and a veto must cover the whole bill, +Johnson contented himself with a simple protest and returned the act with +his signature.[184] + +7. The attack upon the civil powers of the President was made through the +Tenure-of-Office Act.[185] As the violation of this act was the ground of +the most serious charge in the impeachment trial, a somewhat detailed +study of its provisions, and of the views expressed by the President in +his veto of it, is advisable. The bill provided that "every person holding +any civil office to which he has been appointed by and with the advice and +consent of the Senate," and every person so appointed in the future, +should be entitled to hold such office until a successor should have been +appointed in like manner, that is to say, _with the advice and consent of +the Senate_. The only liberty of action allowed the President was during +the recess of the Senate, when he was permitted to suspend an officer +until the next meeting of the Senate, and appoint a _pro tempore_ +official. Within twenty days after the meeting of the Senate, however, he +was required to give his reasons for the suspension. If the Senate +approved of the removal, a permanent appointment was to be made; if they +refused to concur, the suspended officer was immediately to resume his +duties. Any violation of this act by the President was made an impeachable +offense, by the declaration that "every removal, appointment, or +employment made, had, or exercised, contrary to the provisions of this act +* * * are hereby declared to be high misdemeanors." The other provisions +were of minor importance, and do not require notice here. + +The veto message of the President was a calm, dignified and judicial +discussion of the constitutionality of the bill, and was in every way a +creditable document, sustaining fully the high character of his previous +vetoes. He called attention to the fact that the whole question of the +authority of the President in cases of removal from office had been +discussed thoroughly in Congress as early as 1789, and decided in favor of +the President. He quoted Madison's argument to prove that all executive +power, except what is specifically excepted, is vested in the President, +and that as no exception was made as to the power of removal, it must be +vested in him. He also cited many possible cases, in which it would be +absolutely necessary for the President to possess the power of +removal.[186] A decision of the Supreme Court was referred to,[187] in +which it was observed that both the legislative and the executive +department had assumed in practice that the power of removal was vested in +the President alone. When, for instance, the Departments of State, War and +the Treasury were created in 1789, provision was made for a subordinate +who should take charge of the office "when the head of the Department +should be removed _by the President of the United States_." Story, Kent +and Webster were all quoted as affirming the same legislative construction +of the Constitution. The great practical value of the power during the +Civil War was noticed, and its present and future necessity strongly +urged; and the message closed with an earnest appeal to Congress not to +violate the original spirit of the Constitution. + +8. The passage of the bill over the veto placed Johnson in a situation in +which a collision was almost sure to come. As the chief executive of the +country he was charged with the duty of carrying out the provisions of the +reconstruction acts, notwithstanding his strong personal repugnance to +them. Under the advice of Attorney-General Stanbery he had construed the +acts literally, and he had thus frustrated in part the object of the +legislation. But the co-operation of the army was necessary, and +unfortunately for President Johnson, the Secretary of War, Mr. Stanton, +strongly opposed his views, and conducted himself as far as possible in +accordance with the wishes of the congressional majority. The continued +friction between the President and the Secretary of War seemed to +President Johnson to necessitate Stanton's retirement, but repeated hints +to that effect were not recognized by the latter. Finally, on August 5, +1867, the President informed him that "public considerations of a high +character constrained" him to say that his resignation would be accepted. +The Secretary's prompt reply was that "public considerations of a high +character" constrained him not to resign until the next session of +Congress. A week later, August 12, the President formally suspended him +and appointed General Grant Secretary _ad interim_.[188] Stanton then +submitted "under protest to superior force." + +When Congress met in December the President reported his suspension of +Stanton, and after long discussion the Senate, on January 13, 1868, +refused to concur.[189] When informed of this action of the Senate, +General Grant immediately turned over the Secretary's office to Stanton, +thus definitely committing himself to the congressional interpretation of +the law. Grant's action was a sore disappointment to the President. +Johnson had refused to accept the Tenure-of-Office Act as constitutional, +and had purposed to make this a test case. In the correspondence which +passed between him and General Grant after the latter's acquiescence in +the action of the Senate, Johnson claimed that it was understood that +Grant was either to refuse to give up the office to Stanton, or, if he +should be unwilling to take so prominent a part in the contest, to resign +and permit the office to be filled with some one whose views agreed with +the President's, so that Stanton, if he sought to regain the office, might +be compelled to resort to the courts. In this way the constitutionality of +the act could be tested. Johnson's statements as to the understanding with +Grant were substantially endorsed by the Cabinet, on the strength of a +conversation between Johnson and Grant at a cabinet meeting. Grant, +however, firmly denied that there was any such agreement or +understanding.[190] + +A few days after Stanton had resumed his duties as Secretary of War, the +President sought to put in operation a plan for rendering his possession +of the office ineffective. On January 19, he ordered General Grant, in +charge of the army, to disregard all of Stanton's orders unless he knew +directly from the President that they were the latter's orders.[191] The +order was repeated in writing at Grant's request on January 29. On the +following day, Grant refused to carry it out, declaring that an order from +Secretary Stanton would be considered satisfactory evidence that it was +authorized by the Executive.[192] This correspondence between Johnson and +Grant was subsequently called for by Congress, and an attempt was made to +frame articles of impeachment on the ground that the President was +instructing Grant to disobey the orders of his superior. Careful +examination of the legal bearings of the question convinced a majority of +the Reconstruction Committee that nothing would be gained by inserting +charges based on this correspondence. The President had shrewdly worded +his communication so as not to violate any legal technicalities.[193] + +Having failed in his first two attacks upon Stanton, Johnson finally +resorted to a still stronger measure. Completely ignoring the +Tenure-of-Office Act, he addressed a letter to Stanton, February 21, +removing him from office, and directing him to transfer all the property +of the War Department to Adjutant General Lorenzo Thomas. Thomas, having +received his appointment as secretary _ad interim_, proceeded to the +office and formally demanded possession. Stanton avoided giving a direct +answer to the demand, and on the following morning Gen. Thomas was +arrested for violation of the Tenure-of-Office Act. After bail had been +procured he renewed his demand, but Stanton ignored his appointment. +Several plans were devised by the President and Thomas' lawyers to make +the contest center around Thomas, but the congressional managers decided +to drop the matter, and concentrate their energies upon a presidential +impeachment.[194] + +The last step of the President opened the way for immediate action. +Violation of the Tenure-of-Office Act was explicitly declared an +impeachable offense, and as to the flagrancy of its violation by the order +of February 21 there could be no question. Many of the wavering +Republicans now had their doubts of the expediency of impeachment cleared +away, and on February 24 the resolution formally impeaching the President +of "high crimes and misdemeanors in office" was passed.[195] + +9. On March 2, the first nine articles of impeachment were adopted; two +additional articles were added on the 3d; and on the 4th they were +presented to the Senate. On March 30, the trial began. The articles +charged the President with high crimes and misdemeanors in respect of the +order for the removal of Stanton, the appointment of Thomas as Secretary +of War _ad interim_, the attempt to hinder Stanton in the exercise of his +lawful duties, the wilful violation of the Tenure-of-Office Act, the +attempt to seize the properties of the War Department, the attempt +unlawfully to disburse moneys through the appointment of Thomas, an +attempt to make General Emory violate the Tenure-of-Office Act, the +attempt to injure the good reputation of the legislative department by +speeches delivered at various specified places, and his determined +opposition to the reconstruction policy as outlined in the various acts of +Congress.[196] + +These articles were very sweeping, and were designed as a sort of drag-net +to include all of the complaints which could possibly be brought against +the President. Yet the House of Representatives, previous to the attempted +removal of Secretary Stanton, after the most searching examination into +the President's record, had failed to find sufficient ground on which to +base an impeachment. Therefore the only charges that deserved really +serious attention were those growing out of the violation of the +Tenure-of-Office Act. In the President's reply to the charges he explains +his attitude on this matter. In his opinion the Tenure-of-Office Act was +unconstitutional. The very fact that he as Executive was legally held +responsible for the acts of the Secretary of War made it necessary for him +to exercise the power of removal or of indefinite suspension. He had at +first complied with the letter of the act in order to avoid a further +struggle with Congress; but, having been frustrated by Congress in his +design, the only alternative that remained to him, in view of his strained +relations with the Secretary of War, was the latter's unconditional +removal. + +10. The President's case, as to the constitutionality of his action and +the unconstitutionality of the Tenure-of-Office Act, was strong, and was +presented with great ability by the President's counsel. But, from the +very beginning, it was obvious that the case would be determined mainly on +political lines. + +If the Republican party could hold all the Republican Senators to the +decision of the majority, a verdict of guilty was assured. Consequently, +the strongest efforts were made to bring all into line. But some proved +recalcitrant. The prospect that the President of the United States was to +be forced out of his office as a punishment for his opposition to the +Legislative Department was not edifying. Hitherto the presidential office +had possessed great dignity. To be sure, Johnson's conduct had gone far +towards the destruction of that dignity, but a conviction on impeachment +charges would drag down the office immeasurably. Some of the Senators also +realized that the tendency of Congress during the whole struggle had been +towards an encroachment upon the executive powers, and that there was +serious danger that the balance of the governmental system might be +destroyed. While, therefore, they strongly disapproved of Johnson's +conduct, they felt unwilling to expose the government to the shock which +would accompany his removal from the presidential chair. The trial +proceeded slowly and the case was ably contested by counsel on both sides; +but the prosecution was practically brought to a close on May 16, by the +vote which was taken on the eleventh article of impeachment. This article +was chosen for the first test of strength, because it embodied those +charges which had caused the most feeling, and which were best calculated +to cause Senators to cast aside judicial restraints and vote according to +their prejudices. But, seven Republicans refused to line themselves with +the radical majority. They and the twelve Democratic Senators voted for +acquittal. Thirty-five Republicans voted "guilty," but this lacked one of +the needful two-thirds majority. Ten days later another vote was taken on +the second and third articles, with the same result. The fight was then +given up, and the court of impeachment was declared adjourned. + +11. It was a fortunate thing for the country that the attempt failed. The +convulsions of the Civil War had unsettled most seriously our conceptions +of the relations of the three co-ordinate departments of the government. +Lincoln had not hesitated to assume powers totally outside the ordinary +functions of the Executive. The country had sustained him in this; but, +with the return of peace, and with Johnson in the presidential chair, +Congress had determined to resume its powers. Again the country responded, +but the violence of the reaction caused the pendulum to swing too far in +the opposite direction; and our institutions were placed in greater danger +than the were in before. But, just as the Civil War had settled the +question as to the indissolubility of the Union, so no less emphatically +did the failure of the impeachment trial confirm the equality of the three +departments of our government. + + + + +AUTHORITIES. + + +Blaine, James G. Twenty Years of Congress. Norwich, 1884. + +Congressional Globe. 37th-40th Congresses. Washington, 1861-1868. + +Cooper, T. V., and Fenton, H. T. American Politics. Boston, 1890. + +Cox, S. S. Three Decades of Federal Legislation. Providence, 1888. + +Dunning, Wm. A. Articles on Civil War and Reconstruction, in Political +Science Quarterly, vols. i. and ii., and on The Impeachment, in Papers Am. +Hist. Assoc., vol. iv. + +Gillet, R. H. Democracy in the United States. New York, 1868. + +Herbert, Hilary A. Editor. Why the Solid South? Baltimore, 1890. + +House Journal. 37th-40th Congresses. Washington, 1861-1868. + +House Reports. Vol. ii., 1865-66. Washington, 1866. + +House Reports. Vol. ii., 1866-67. Washington, 1867. + +Hurd, J. C. Theory of our National Existence. Boston, 1881. + +Johnston, Alexander. History of the United States. New York, 1891. + +Johnston, Alexander. Representative American Orations. New York and +London. + +Johnston, Alexander. Reconstruction, Emancipation Proclamation, Freedmen's +Bureau, etc., Lalor, Cyclopedia of Polit. Science. 3 vols. New York, 1890. + +Lowell. J. R. Political Essays, in "Works." Vol. V. Boston and New York, +1891. + +McPherson, Edward. History of the Reconstruction. Washington, 1880. + +Moore, Frank. Speeches of Andrew Johnson. Boston, 1866. + +Patton, J. H. The Democratic Party. New York, 1888. + +Pollard, E. A. The Lost Cause Regained. New York, 1868. + +Poore, Ben: Perley. Veto Messages of the Presidents of the United States. +Washington, 1886. + +Ridpath. History of the United States. New York and Cincinnati. + +Savage, J. Life and Public Services of Andrew Johnson. New York, 1866. + +Scott, E. G. Reconstruction during the Civil War. Boston and New York, +1895. + +Stanwood, E. History of Presidential Elections. Boston and New York. + +Senate Journal. 37th-40th Congresses. Washington, 1861-1868. + +Sterne, Simon. Constitutional History and Political Development of the +United States. New York and London, 1888. + +Stephens, Alexander H. The War between the States. Philadelphia. + +Taylor, Richard. Destruction and Reconstruction. New York, 1879. + +Williams, G. W. History of the Negro Race in America. New York, 1883. + +Wilson, Henry. Rise and Fall of the Slave Power in America. New York. + +Wilson, Henry. History of the Reconstruction Measures. Hartford, 1868. + + + + +FOOTNOTES: + +[1] Scott, _Reconstruction during the Civil War_, 245 ff. + +[2] _House Journal_, 1st Session, 37th Congress, pp. 123-5. + +[3] Alexander H. Stephens, in _The War between the States_, uses this fact +as a basis for the charge that Johnson was inconsistent in refusing to +ratify the Sherman-Johnston Convention. + +[4] _House Journal_, 2d Session, 37th Congress, p. 33. + +[5] _Senate Journal_, 2d Session, 37th Congress, pp. 202-4. + +[6] _House Journal_, 37th Congress, 3d Session, p. 43. Introduced December +5, 1862, by C. L. Vallandigham, whose subsequent career is well known. See +Cox _Three Decades of Federal Legislation_, pp. 80-85. + +[7] The italics are mine. + +[8] _House Journal_, 1st Session, 38th Congress, p. 48. + +[9] _Ibid._, pp. 65-6. + +[10] See Cox, _Three Decades of Federal Legislation_, 123. + +[11] _House Journal_, 1st Session, 38th Congress, pp. 238-9. + +[12] For a very able discussion of the "Efforts at Compromise, 1860-61," +see Frederic Bancroft's article in _Political Science Quarterly_, vi, pp. +401-423. + +[13] _Congressional Globe_, 1st Session, 37th Congress, p. 129. + +[14] _Ibid._, 2d Session, 37th Congress, part i, p. 8. + +[15] _Senate Journal_, 3d Session, 37th Congress, p. 24. + +[16] See Pollard's _Lost Cause Regained_, pp. 44-57, for a discussion of +the growth of Southern sentiment favoring measures of peace. + +[17] It is improbable that he ever modified his views as to the continued +existence of the States--views which were essentially those of his +successor, though less dogmatically asserted. See Hurd, _Theory of Our +National Existence_, 36 and _Index_; Pollard, _Lost Cause Regained_, 65. + +[18] Cooper, _American Politics_, pp. 141-3. + +[19] Blaine, _Twenty Years of Congress_, ii, 36. + +[20] _Congressional Globe_, 3d Session, 37th Congress, part i, p. 834. + +[21] _House Journal_, 3d Session, 37th Congress, pp. 69, 70. + +[22] Cooper, _American Politics_, bk. i, pp. 141-3. On Lincoln's plan of +Reconstruction, _Cf._ Gillet, _Democracy in the United States_, pp. 297-9; +Pollard, _Lost Cause Regained_, 65, which claims that Lincoln could have +successfully carried out his policy had he lived, but does not sustain the +statement; Cox, _Three Decades_, etc., pp. 336-345; Wilson, _Rise and Fall +of the Slave Power_, iii, 519-20; Scott, _Reconstruction during the Civil +War_, 267 ff. + +[23] These excepted classes were: (1) Confederate civil and diplomatic +officers; (2) Confederates who had left U. S. judicial positions; (3) +officers above colonel in army and lieutenant in navy; (4) those who had +formerly been U. S. Congressmen and had aided the rebellion; (5) those who +left U. S. Army and Navy to aid the rebellion; (6) those who had treated +negroes captured while in U. S. military or naval service otherwise than +as prisoners of war. + +[24] Wilson, _Rise and Fall of the Slave Power in America_, iii, 531-41; +_Cf._ Gillet, _Democracy in the United States_, pp. 304-7. + +[25] For results of this reorganization in Tennessee, see chap. iii. + +[26] With one exception--a Republican, Whaley, of West Virginia, voted +with the negative. + +[27] So called from the chairmen of the House and Senate committees +reporting the bill. + +[28] _Congressional Globe_, appendix, 1st Session, 38th Congress, p. 84. +See also _Lalor_, iii, 546; Cox, _Three Decades_, etc., 339-341; Wilson, +_Rise and Fall of the Slave Power in America_, iii, 520-28; Johnson's +_American Orations_, iii, 242-260; Scott, _Reconstruction during the Civil +War_, 274 ff. + +[29] Cooper, _American Politics_, bk. i, p. 169. + +[30] _Congressional Globe_, part ii, 38th Congress, 1st Session, p. 1246. + +[31] _Congressional Globe_, iii, p. 2106, 1st Session, 38th Congress. + +[32] Cooper, _American Politics_, bk. i, 169-70. The President's action +caused much dissatisfaction, Davis and Wade publishing a protest which +impugned Lincoln's motives, declaring that he had committed an outrage on +American legislation. See Johnson, in _Lalor_, iii. 5 and 6; Cox, _Three +Decades_, etc., 341. + +[33] _Senate Journal_, 2d Session, 38th Congress, Feb. 8. Blaine (_Twenty +Years of Congress_, ii, 46) explains that this joint resolution was +intended as a rebuke to the President by the refusal of Congress to accept +the proclamation of December 8, 1863, as a basis for the restoration of +the States fulfilling its requirements. He then points out how Lincoln, +with his usual tact, overthrows what triumph may have accrued to the +leaders of the opposition by explaining that he "signed the joint +resolution in deference to the view of Congress implied in its passage and +presentation." His (Lincoln's) own opinion was that as a matter of course +Congress had complete power to accept or reject electoral votes, and that +the Executive had no right to interpose with a veto, whatever his own +opinions might be. Blaine says that "his triumph was complete, both in the +estimation of Congress and of the people." + +[34] See Cox, _Three Decades of Federal Legislation_, 123; Johnston, in +_Lalor_, iii, 54; Wilson (Woodrow), _Division and Reunion_, 261-2. + +[35] _Senate Journal_, 2d Session, 37th Congress, pp. 194-6. + +[36] The inconsistency in declaring a State to be extinct, and at the same +time acknowledging the obligation to guarantee to it a republican form of +government, is due to careless phraseology. Obviously Sumner uses the word +"State," in these resolutions, where he means state governments. + +[37] _Congressional Globe_, 1st Session, 38th Congress, part ii, p. 2041. +See also his remarks on the Confiscation bill. Cox's _Three Decades of +Federal Legislation_, pp. 365-374, contains a chapter on the policy of +Stevens. + +[38] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +531-541. + +[39] McPherson, _Reconstruction_, pp. 44 f. Cf. Wilson, _Rise and Fall of +the Slave Power in America_, iii, 592. + +[40] McPherson, pp. 46-7. + +[41] McPherson, 44 ff; Moore, _Life and Speeches of Andrew Johnson_, 481 +ff. + +[42] McPherson, p. 47. + +[43] McPherson, pp. 47-8. + +[44] See Gillett, _Democ. in the U. S._, pp. 333-337, for a discussion of +Johnson's policy and mistakes from the Democratic standpoint. + +[45] Mr. Blaine in his _Twenty Years of Congress_, vol. ii, pp. 63-70, +ascribes the apparently great modification of Johnson's attitude towards +the South to two causes: First, the personal influence of Seward; second, +the flattery of Southern leaders. He assumes Johnson to have been +thoroughly determined to carry out a harsh policy of reconstruction, and +points out that of the six members of the Cabinet, excluding Mr. Seward, +three were radical and three conservative in their views, offsetting each +other in their influence upon Johnson. He then calls attention to the fact +that Mr. Seward's most conspicuous faculty was the power to convince +listeners against their will through his personal conversation with them. +With this remarkable faculty he believes Mr. Seward to have deliberately +settled down to the task of reversing the President's views as to +reconstruction. "Equipped with these rare endowments," he says, "it is not +strange that Mr. Seward made a deep impression upon the mind of the +President. In conflicts of opinion the superior mind, the subtle address, +the fixed purpose, the gentle yet strong will, must in the end prevail." +Mr. Seward's fervent pleadings, Blaine thinks, caused a marked change in +Johnson's beliefs, and inclined him to look favorably upon the glory of a +merciful, lenient administration. The leaders in the South, quickly +noticing the change in Johnson's attitude, took advantage of the +opportunity, and by judicious flattery completed the work which Seward had +begun, and placed Johnson before the world as the ardent champion of +immediate restoration. The theory impresses one with its apparent +reasonableness, but as Mr. Blaine produces no evidence beyond his own +authority, one is inclined to look upon it as an ingenious explanation +based upon the environment of Johnson. Doubtless Seward presented his view +on the situation with his accustomed ability, and probably it influenced +Johnson's view to a certain extent. The second part of the supposition can +also readily be granted--that the vanity of Johnson was played upon by +those whose flattery was most pleasing to one who had sprung from the +ranks of those accustomed to be dictated to and spurned by these same men. +Yet to ascribe the adoption of so important a policy, affecting all the +fundamental principles upon which strict and loose constructionists are +divided, to these influences, appears to be a superficial judgment based +upon opinions formed in the heat of the struggle, when extraneous +influences are always given undue prominence by the participants. The +whole career of Johnson proves the logical exactness with which he +followed strict construction dogma in all points excepting the doctrine of +secession. + +[46] McPherson, _Hist. of Recon._, 45, 46 + +[47] The repudiation of the Sherman-Johnston agreement of April 18th was +of a negative character, and did not commit the administration to any +policy. Coming, as it did, so shortly after his inauguration, it was taken +by those expecting harsh measures from the President as an indication of +such a policy. An examination of the circumstances, however, shows that +Johnson was merely following the policy supposed to have been adopted by +Lincoln, and evidenced by instructions sent to Grant on March 3 in regard +to a proposed conference with Lee. Stephens' charge (_War between the +States_, ii, 632), that Johnson was bound to ratify the agreement as +consistent with the Crittenden Resolution of 1861, is inadmissible. +Generals in the field manifestly have no right to decide momentous +political questions. For a copy of the Sherman-Johnston agreement, and the +official dispatch giving particulars of its disapproval, see McPherson, +_Hist. of Recon._, 121-2. + +[48] McPherson, p. 13-14. + +[49] McPherson, p. 8. + +[50] See Appendix; Savage, _Life and Public Services of Andrew Johnson_, +370-373. + +[51] Blaine, ii, 70-76, ascribes this amnesty proclamation to the personal +influence of Mr. Seward, who favored all but the 13th excepted class +(property holders above $20,000). This certainly offers a good explanation +of the promptness of his action, and is not inconsistent with the theory +of Johnson's attitude as outlined above. + +[52] McPherson, p. 11; Blaine, ii, 77, 78. + +[53] Tennessee, of course, having been reorganized during Lincoln's +administration, under the direction of Military Governor Johnson, cannot +be considered in connection with Johnson's policy as President. Louisiana +and Arkansas also retained their reorganized governments until the +reconstruction acts took effect. See Blaine, ii, 79, 80. + +[54] The phraseology differed in the different States, depending upon the +sensitiveness and pride of the legislature. + +[55] McPherson, _Reconst._, 7, 8. + +[56] McPherson, _Reconst._, 49. + +[57] _Ibid._, 51-2. + +[58] McPherson, 20. + +[59] _Ibid._, 21-2. + +[60] McPherson, 43; Blaine, ii, 102-3. + +[61] See _Why the Solid South_, edited by Hilary A. Herbert, for a +detailed presentation of the Southern view. + +[62] The report of the Joint Committee on Reconstruction, June 18th +(_House Reports_, No. 30, 1st Session, 39th Congress; McPherson, 84-93), +gives a spirited summary of the action of the Southern States since the +appointment of the provisional governors. See also Blaine, _Twenty Years +of Congress_, ii, 84-107. + +[63] Lalor, iii, 546. + +[64] Senate: Republicans, 40; Democrats, 11; House: Republicans, 145; +Democrats, 40. The work before Congress was well expressed by Schuyler +Colfax in his speech made upon taking the Speaker's chair. Speaking of +Congress he said: "Representing, in its two branches, the States and the +people, its first and highest obligation is to guarantee to every State a +republican form of government. The rebellion having overthrown +constitutional State governments in many States, it is yours to mature and +enact legislation which, with the concurrence of the Executive, shall +establish them anew on such a basis of enduring justice as will guarantee +all the necessary safeguards to the people, and afford what our Magna +Charta, the Declaration of Independence, proclaims is the chief object of +government--protection to all men in their inalienable rights. * * * * +Then we may hope to see the vacant and once abandoned seats around us +gradually filling up, until this hall shall contain representatives from +every State and district; their hearts devoted to the Union for which they +are to legislate, jealous of its honor, proud of its glory, watchful of +its rights, and hostile to its enemies." _Congressional Globe_, 39th +Congress, 1st Session, p. 5. See Blaine, _Twenty Years of Congress_, ii, +111, 112. + +[65] Among the Senators elected were Alexander H. Stephens, Vice-President +of the Confederacy, and H. V. Johnson, a Senator in the rebel Congress, +both from Georgia; from North Carolina, W. A. Graham, Senator in the rebel +Congress; from South Carolina, B. F. Perry, a Confederate States judge, +and J. I. Manning, volunteer aid to General Beauregard at Fort Sumter and +Manassas (McPherson, 106-7). Among the Representatives chosen were: from +Alabama, Cullen A. Battle, a Confederate general, and T. J. Foster, a +Representative in the rebel Congress; from Georgia, Philip Cook and W. T. +Wofford, generals in the Confederate army; from Mississippi, A. E. +Reynolds and R. A. Pinson, rebel colonels, and J. T. Harrison, in rebel +provisional Congress; from North Carolina, Josiah Turner was a rebel +colonel, and a member of the rebel Congress, and T. C. Fuller a rebel +Congressman; from South Carolina, J. D. Kennedy was a colonel, and Samuel +McGowan a general in the rebel army, and James Farrow, a rebel +Congressman. + +[66] By Mr. Brooks, of New York. _Congressional Globe_, 39th Congress, 1st +Session, pp. 3, 4. + +[67] _Congressional Globe_, 1st Session, 39th Congress, p. 2; Blaine, +_Twenty Years of Congress_, ii, 113-115. + +[68] Wilson, _History of Reconstruction_, 16 ff. + +[69] _Congressional Globe_, 39th Congress, 1st Session, pp. 24-30. + +[70] Senator Lane committed suicide on July 11, 1866. Mortification caused +by abuse, as the result of his action, is supposed to have unbalanced him +mentally. _Cf._, Blaine, ii, 185. + +[71] The resolution as adopted by the House on the 4th contained in +addition: "and until such report shall have been made, and finally acted +upon by Congress, no member shall be received into either House from any +of the so-called Confederate States, and all papers relating to the +representation of the said States shall be referred to the said committee +without debate." The Senate, however, considered such provisions to affect +powers granted to each House separately, and which should not be entrusted +to a joint committee. Therefore they were struck out, but on December 14 +the House of Representatives passed resolutions binding itself to be +governed by similar principles. + +[72] The other members of the committee were: on the part of the Senate, +Howard of Michigan, Grimes of Iowa, Harris of New York, Williams of +Oregon, and Johnson of Maryland; on the part of the House, Washburne of +Illinois, Morrill of Vermont, Grider of Kentucky, Bingham of Ohio, +Conkling of New York, Boutwell of Massachusetts, Blow of Missouri, and +Rogers of New Jersey. + +[73] Blaine, _Twenty Years of Congress_, ii, 115. + +[74] Wilson, _History of the Reconstruction Measures_, 42-105, contains a +summary of the debates on reconstruction; see also Blaine, _Twenty Years +of Congress_, ii, 128 ff. + +[75] _Congressional Globe_, 39th Congress, 1st Session, pp. 72-5. + +[76] _Congressional Globe_, 1st Session, 39th Congress, p. 1019. + +[77] _Congressional Globe_, 1st Session, 39th Congress, p. 1309. These +strong statements of the advisability of confiscation alarmed the Southern +States greatly, and caused them to hate and fear Thaddeus Stevens. See +Lalor, iii, 546 ff. The following extract from General Taylor's +_Destruction and Reconstruction_ (pp. 243-4), is characteristic of the +Southern estimate of the man. General Taylor had occasion to call upon +Stevens while endeavoring to get permission to visit Jefferson Davis, then +in confinement at Fortress Monroe. He goes on to say: "Thaddeus Stevens +received me with as much civility as he was capable of. Deformed in body +and temper like Caliban, this was the Lord Hategood of the fair; but he +was frankness itself. He wanted no restoration of the Union under the +Constitution, which he called a worthless bit of old parchment. The white +people of the South ought never again to be trusted with power, for they +would inevitably unite with the Northern 'Copperheads' and control the +government. The only sound policy was to confiscate the lands and divide +them among the negroes, to whom, sooner or later, suffrage must be given. +Touching the matter in hand, Johnson was a fool to have captured Davis, +whom it would have been wiser to assist in escaping. Nothing would be done +with him, as the Executive had only pluck enough to hang poor devils, such +as Wirz and Mrs. Surratt. Had the leading traitors been promptly strung +up, well; but the time for that had passed. (Here, I thought, he looked +lovingly at my neck, as Petit André was wont to do at those of his +merry-go-rounds.)" + +[78] _Congressional Globe_, 39th Congress, 1st Session, p. 1476. + +[79] _Congressional Globe_, 39th Congress, 1st Session, p. 1616. + +[80] _Ibid._, p. 1617. + +[81] _Ibid._, p. 1828. + +[82] _Congressional Globe_, 39th Congress, 1st Session, p. 155. + +[83] _Ibid._, p. 150. + +[84] _Congressional Globe_, 39th Congress, 1st Session, p. 1169. + +[85] _Ibid._, p. 2256. + +[86] Gillet's _Democracy in the United States_, pp. 309-13, discusses the +Freedmen's Bureau from the Northern Democratic standpoint. + +[87] The first bill creating a Freedmen's Bureau was introduced in the +House during the 37th Congress by Mr. Eliot, of Massachusetts, who during +the 39th Congress was chairman of the Select Committee on Freedmen. It was +not reported, but the same bill was presented in the first session of the +38th Congress, and passed the House by a vote of 69 to 67. It was returned +from the Senate on June 30, 1864, amended so as to attach the Bureau to +the Treasury Department. A committee of conference agreed upon a new bill +creating a department of freedmen's affairs, reporting to the President. +This passed the House, but failed in the Senate. The next attempt +succeeded. _Congressional Globe_, 2d Session, 38th Congress, p. 1307. See +Cox's _Three Decades of Federal Legislation_ for an account of the +Freedmen's Bureau; also Wilson, _Rise and Fall of the Slave Power in +America_, iii, 472-485; Wilson (Woodrow), _Division and Reunion_, 263. + +[88] _Congressional Globe_, 39th Congress, 1st Session, p. 1299. Mr. +Doolittle on the 19th of December, 1865, had introduced a bill relative to +the Bureau of Freedmen, but when reported from the Committee on Military +Affairs, to which it had been referred, it was indefinitely postponed. + +[89] This committee had been established by a resolution introduced by Mr. +Eliot, of Massachusetts, on December 6, 1865. So much of the President's +message as related to freedmen, and all papers relating to the same +subject, were to be referred to it. The following were appointed members +of the committee: T. D. Eliot of Massachusetts, W. D. Kelley of +Pennsylvania, G. S. Orth of Indiana, J. A. Bingham of Ohio, Nelson Taylor +of New York, B. F. Loan of Missouri, J. B. Grinnell of Iowa, H. E. Paine +of Wisconsin, and S. S. Marshall of Illinois. + +[90] Cox confuses this act with the act passed over the veto on July 16, +declaring that it was passed over the veto on February 21. _Three Decades +of Federal Legislation_, p. 444. + +[91] See Wilson (Henry), _Rise and Fall of the Slave Power in America_, +iii, 490-97; Wilson, _History of Reconstruction_, 148-184; Blaine, _Twenty +Years of Congress_, ii, 164-170; Wilson (Woodrow), _Division and Reunion_, +264. + +[92] _Congressional Globe_, 1st Session, 39th Congress. McPherson, +_History of the Reconstruction_, pp. 73-4. + +[93] The veto messages of the Presidents of the United States, from +Washington to Cleveland, inclusive, have been compiled by Ben: Perley +Poore by order of the Senate. + +[94] _Congressional Globe_, 39th Congress, 1st Session, pp. 915-917; +McPherson, _History of Reconstruction_, pp. 68-72. + +[95] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +497-99; Wilson, _History of the Reconstruction_, 184-195; Blaine, _Twenty +Years of Congress_, ii, 171-2. + +[96] The votes were: House, 104 to 33; Senate, 33 to 12. For the text of +the bill, see _Congressional Globe_, 1st Session, 39th Congress; +McPherson, _History of the Reconstruction_, pp. 149-50. Blaine, _Twenty +Years of Congress_, ii, 172, states that the bill was far less popular +than the measure vetoed on February 19. "It required potent persuasion, +re-enforced by the severest exercise of party discipline, to prevent a +serious break in both Houses against the bill." + +[97] McPherson, _History of the Reconstruction_, 52-56. + +[98] _House journal_, 39th Congress, 1st Session, 300, 315. The resolution +was carried particularly to silence the Tennessee claimants for +recognition. The somewhat anomalous position of that State gave grounds +for the argument that it should be classed in the same category with the +other Southern States. Thus Mr. Stevens was able to get the power for the +joint committee which he had originally claimed. + +[99] McPherson, _History of the Reconstruction_, pp. 58-63. + +[100] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +684-692; _History of Reconstruction_, 117-149; Blaine, _Twenty Years of +Congress_, ii, 172-79. + +[101] _Congressional Globe_, 1st Session, 39th Congress, pp. 39, 40. + +[102] _Congressional Globe_, 39th Congress, 1st Session; McPherson, +_History of the Reconstruction_, pp. 75-8. + +[103] _Congressional Globe_, 39th Congress, 1st Session, pp. 1679-81; +McPherson, _History of Reconstruction_, pp. 75-8. + +[104] _Senate Journal_, 39th Congress, 1st Session, pp. 431-2; McPherson, +_History of the Reconstruction_, pp. 82-3; Blaine, _Twenty Years of +Congress_, ii, 275-80. + +[105] McPherson, _History of the Reconstruction_, 81-2; _Congressional +Globe_, 39th Congress, 1st Session, 2609. + +[106] McPherson, 160-164. + +[107] McPherson, _History of the Reconstruction_, pp. 164-6; +_Congressional Globe_, 39th Congress, 1st Session. + +[108] Hurd, in his _Theory of our National Existence_, p. 42, says that +this report of the Joint Committee on Reconstruction "as being the most +authoritative declaration of principles supposed to have been afterwards +carried out in political action, is a document which, either for good or +evil, will probably be regarded as one of the most important in the +history of this country." + +[109] For an extended discussion of the constitutional views of the +members of the committee, see Hurd's _Theory_, etc., pp. 224 ff. + +[110] _House Reports_, No. 30, 39th Congress, 1st Session. McPherson, +_History of Reconstruction_, pp. 84-93. + +[111] Gillet, _Democracy in the United States_, pp. 318-20. + +[112] _Congressional Globe_, 1st Session, 39th Congress, pp. 9, 10, 351. + +[113] _Ibid._, 141-2, 232. For general discussions and summaries of the +debates on the 14th Amendment, see Wilson, _Rise and Fall of the Slave +Power in America_, iii, 647-660; Wilson, _History of Reconstruction_, +218-266; Blaine, _Twenty Years of Congress_, ii, 193-214. + +[114] The vote was: yeas, 120; nays, 46. + +[115] _Congressional Globe_, 39th Congress, 1st Session, p. 2459. + +[116] Yeas, 128, nays, 37. + +[117] On May 29, _Congressional Globe_, 39th Congress, 1st Session, p. +2869. + +[118] See Pollard's _Lost Cause Regained_, p. 74. + +[119] _Senate Journal_, 39th Congress, 1st Session, p. 502. + +[120] On the reorganization of Tennessee, see Blaine, _Twenty Years of +Congress_, ii, 50-52, 214-17; Cox, _Three Decades of Federal Legislation_. + +[121] _House Reports_, No. 30, pt. 1; McPherson, _History of the +Reconstruction_, pp. 105-6. + +[122] Ratified by the Senate July 11, yeas, 15, nays, 6; by the House July +12, yeas, 43, nays, 11. Tennessee was the third State to ratify the +amendment, Connecticut and New Hampshire being the first two. + +[123] McPherson, _History of the Reconstruction_, pp. 151-4. + +[124] Blaine, _Twenty Years of Congress_, ii, 219-220. + +[125] The Congressional committee of investigation, appointed at the +beginning of the 2d session, in December, submitted a detailed report of +the riots. See _House Reports_, No. 16, 2d Session, 39th Congress. See +also Blaine, _Twenty Years of Congress_, ii, 233-237. + +[126] _House Reports_, No. 16, 39th Congress, 2d Session, p. 26. + +[127] See below for an account of this canvass. + +[128] _House Reports_, No. 16, 39th Congress, 2d Session, pp. 24-27; +McPherson, _History of the Reconstruction_, 137. + +[129] McPherson, _History of the Reconstruction_, 118, 119; Blaine, +_Twenty Years of Congress_, ii, 220-223. + +[130] Among these Republicans were Thurlow Weed, Edgar Cowan, James R. +Doolittle, A. W. Randall, O. H. Browning, James Dixon, Henry J. Raymond, +R. S. Hale, J. A. Dix, Marshall O. Roberts and Montgomery Blair. + +[131] McPherson, _History of the Reconstruction_, 240-1. + +[132] Blaine, _Twenty Years of Congress_, ii, 222. + +[133] McPherson, _History of the Reconstruction_, 127. + +[134] McPherson, _History of the Reconstruction_, 129. This manner of +indicating his disinterestedness caused great offense in some quarters. +See the account below of the Pittsburg convention of soldiers and sailors +of September 26. + +[135] See Blaine, _Twenty Years of Congress_, ii, 237-239. + +[136] McPherson, _History of the Reconstruction_, 130. + +[137] McPherson, _History of the Reconstruction_, 131, 132. + +[138] McPherson, 135. The following is a good example of the manner in +which Johnson lowered himself to the level of the disorderly element, who +made a bedlam out of some of the meetings he attended. The extract is from +the Cleveland speech: "Who can come and place his finger on one pledge I +ever violated, or one principle I ever proved false to? (A voice, 'How +about New Orleans?' Another voice, 'Hang Jeff Davis.') Hang Jeff Davis, he +says. (Cries of 'No' and 'Down with him!') Hang Jeff Davis, he says. (A +voice, 'Hang Thad. Stevens and Wendell Phillips.') Hang Jeff Davis. Why +don't you hang him? (Cries of 'Give us the opportunity.') Have you not got +the court? Have not you got the Attorney General? (A voice, 'Who is your +Chief Justice who has refused to sit upon the trial?' Cheers.) I am not +the Chief Justice. I am not the prosecuting attorney. (Cheers.) I am not +the jury. + +"I will tell you what I did do. I called upon your Congress that is trying +to break up the government. (Cries, 'You be d--d!' and cheers mingled with +hisses. Great confusion. 'Don't get mad, Andy.') Well, I will tell you who +is mad. 'Whom the gods wish to destroy, they first make mad.' Did your +Congress order them to be tried? ('Three cheers for Congress')," etc. + +[139] Tennessee, Texas, Georgia, Missouri, Virginia, North Carolina and +Alabama were represented among the signers to the call. + +[140] McPherson, _History of the Reconstruction_, 124. + +[141] Blaine, _Twenty Years of Congress_, ii, 224-228. + +[142] McPherson, _History of the Reconstruction_, 241, 242. + +[143] McPherson, _History of the Reconstruction_, 242. + +[144] The address was prepared by Senator Creswell, of Maryland. See +Blaine, _Twenty Years of Congress_, ii, 223-228. + +[145] McPherson, _History of the Reconstruction_, 243; Blaine, _Twenty +Years of Congress_, ii, 228-230. + +[146] Blaine, _Twenty Years of Congress_, ii, 230-233. + +[147] General John A. Logan was first chosen president, but was unable to +attend. + +[148] McPherson, _History of the Reconstruction_, 242, 243. + +[149] McPherson, _History of the Reconstruction_, 140. + +[150] McPherson, _History of the Reconstruction_, 194. + +[151] Scott, _Reconstruction during the Civil War_, 290 ff. + +[152] _House Journal_, 2d Session, 39th Congress, 12-23; McPherson, +_History of the Reconstruction_, 143-147. + +[153] _House Journal_, 2d Session, 39th Congress, 15. + +[154] The resolution passed the House on December 4, and the Senate on +December 5. _House Journal_, 2d Session, 39th Congress, 30; _Senate +Journal_, 2d Session, 39th Congress, 22. + +[155] _Senate Journal_, 2d Session, 39th Congress, 202. + +[156] _House Journal_, 2d Session, 39th Congress, 345. + +[157] _Congressional Globe_, 2d Session, 39th Congress, 1074. + +[158] _Congressional Globe_, 2d Session, 39th Congress, 1076. + +[159] _Congressional Globe_, 2d Session, 39th Congress, 1360. + +[160] _Ibid._, 1381-2. + +[161] _Ibid._, 1360. + +[162] _Congressional Globe_, 2d Session, 39th Congress, 1399. + +[163] McPherson, _History of the Reconstruction_, 192. + +[164] _House Journal_, 2d Session, 39th Congress, 563-572. + +[165] Act of January 22, 1867. + +[166] _Congressional Globe_, 1st Session, 40th Congress, 13. + +[167] The Committee on the Judiciary was instructed on March 7 to report a +supplementary bill (_Congressional Globe_, 17), and the Wilson bill was +accordingly reported by it. + +[168] _Congressional Globe_, 1st Session, 40th Congress, 302-3; 313-14. + +[169] _Congressional Globe_, appendix, 1st Session, 40th Congress, 39; +McPherson, _History of the Reconstruction_, 192. + +[170] Except in Virginia, where the number was modified in proportion to +the change made by the separation of West Virginia. + +[171] By the act of that date all persons elected or appointed to any +office under the government of the United States were required to take the +following oath previous to entering upon the duties of such office: "I, A. +B., do solemnly swear (or affirm) that I have never voluntarily borne arms +against the United States since I have been a citizen thereof; that I have +voluntarily given no aid, countenance, counsel, or encouragement to +persons engaged in armed hostility thereto; that I have neither sought nor +accepted nor attempted to exercise the functions of any office whatever, +under any authority or pretended authority in hostility to the United +States; that I have not yielded a voluntary support to any pretended +government, authority, power or constitution within the United States, +hostile or inimical thereto. And I do further swear (or affirm) that, to +the best of my knowledge and ability, I will support and defend the +Constitution of the United States against all enemies, foreign and +domestic; that I will bear true faith and allegiance to the same; that I +take this obligation freely, without any mental reservation or purpose of +evasion, and that I will well and faithfully discharge the duties of the +office on which I am about to enter, so help me God." + +[172] Appendix, _Congressional Globe_, 1st Session, 40th Congress, 39, 40. + +[173] Johnson, _Reconstruction_, in Lalor, iii, 552; Cox, _Three Decades +of Federal Legislation_, 378. + +[174] _Congressional Globe_, appendix, 1st Session, 39th Congress, 43-4. + +[175] McPherson, _History of the Reconstruction_, 335-6. + +[176] Stanbery had ruled that the willingness of an applicant to take the +oath must be regarded as final evidence of his qualification to register. +Thus those notoriously incapacitated from taking the oath honestly, could +not be prevented from registering. This additional power virtually enabled +the boards of registration to exercise their own discretion as to whom +they should enroll. + +[177] Scott, _Reconstruction during the Civil War_, 317 ff. + +[178] Cox, _Three Decades of Federal Legislation_, 512-14. + +[179] McPherson, _History of the Reconstruction_, 336-7. + +[180] McPherson, 190. + +[181] Dunning, in _Papers of the American Historical Association_, iv, +473; _Congressional Globe_, 1st Session, 40th Congress, p. 565. + +[182] McPherson, 264. + +[183] _Ibid._, 178. + +[184] McPherson, 178. + +[185] Vetoed March 2, 1867, and repassed by both houses on the same day. +For copy of the act, see McPherson, 176 ff. + +[186] His argument here, however, is weak, as the power of suspension +would easily have covered all such cases. + +[187] _Ex parte_ Hennen, January, 1839, 13 Peters, 139. + +[188] McPherson, 261. + +[189] _Ibid._, 262. + +[190] The text of the correspondence between Grant and Johnson may be +found in McPherson, _History of the Reconstruction_, p. 282 ff. + +[191] McPherson, p. 283. + +[192] _Ibid._, p. 284. + +[193] McPherson, 265. The fact also that Grant had refused to be governed +by Johnson's instructions made the attempt still less serious. + +[194] See Dunning, _Papers American Historical Association_, 1890, p. 481. + +[195] McPherson, 266. The vote was 128 to 47, divided strictly on party +lines. + +[196] For the full text of the eleven articles, see McPherson, 266 ff. For +a critical discussion of the legal points involved in the trial, see +Dunning, in _Papers American Historical Association_, iv, 483 ff. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _italics_. + +Foonote 80 appears on page 58 of the text, but there is no corresponding +marker on the page. + +Punctuation has been corrected without note. + +The following misprints have been corrected: + "propsed" corrected to "proposed" (page 23) + "Constution" corrected to "Constitution" (page 26-27) + "reconstructon" corrected to "reconstruction" (page 48) + "or" corrected to "for" (page 50) + "join tcommittee" corrected to "joint committee" (page 53) + "falied" changed to "failed" (page 61) + "eqality" corrected to "equality" (page 77) + "resolulutions" corrected to "resolutions" (page 93) + +Other than the corrections listed above, inconsistencies in spelling and +hyphenation have been retained from the original. + + + + + + +End of the Project Gutenberg EBook of The Struggle between President Johnson +and Congress over Reconstruction, by Charles Ernest Chadsey + +*** END OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + +***** This file should be named 35668-8.txt or 35668-8.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/5/6/6/35668/ + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Struggle between President Johnson and Congress over Reconstruction + +Author: Charles Ernest Chadsey + +Release Date: March 24, 2011 [EBook #35668] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + +</pre> + + + + +<p class="center"><span class="big">I</span></p> +<p class="center"><span class="big">THE STRUGGLE BETWEEN PRESIDENT JOHNSON AND<br />CONGRESS OVER RECONSTRUCTION</span></p> + + +<p> </p><p> </p> +<p class="center">STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW</p> +<p class="center"><small>EDITED BY<br /> +THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA<br /> +UNIVERSITY IN THE CITY OF NEW YORK.</small></p> +<p class="center"><span class="smcap">Volume VIII</span>]<span class="spacer2"> </span>[<span class="smcap">Number 1</span></p> +<p> </p> + +<p class="center"><span class="huge">THE STRUGGLE<br />BETWEEN<br /> +PRESIDENT JOHNSON AND CONGRESS<br />OVER RECONSTRUCTION</span></p> +<p> </p> +<p class="center">BY<br /><span class="big">CHARLES ERNEST CHADSEY, Ph.D.</span></p> +<p> </p> +<div class="figcenter"><img src="images/printer.jpg" alt="" /></div> +<p> </p> +<p class="center"><span class="smcap">New York</span><br />1896</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>CONTENTS</h2> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td> </td><td align="right">PAGE</td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_I">CHAPTER I.</a><br /><span class="smcap">Theories Prior To the Close of the War</span>.</td></tr> +<tr><td align="right">1.</td><td>The Problem</td><td align="right"><a href="#Page_7">7</a></td></tr> +<tr><td align="right">2.</td><td>Common Belief at Opening of Hostilities: The Crittenden Resolution</td><td align="right"><a href="#Page_8">8</a></td></tr> +<tr><td align="right">3.</td><td>The Democratic Theory</td><td align="right"><a href="#Page_10">10</a></td></tr> +<tr><td align="right">4.</td><td>Lincoln: The Development of his Theory</td><td align="right"><a href="#Page_14">14</a></td></tr> +<tr><td align="right">5.</td><td>The Congressional Policy</td><td align="right"><a href="#Page_18">18</a></td></tr> +<tr><td> </td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_II">CHAPTER II.</a><br /><span class="smcap">Johnson’s Theory: the Experiment and Its Results</span>.</td></tr> +<tr><td align="right">1.</td><td>Conditions at Accession of Johnson</td><td align="right"><a href="#Page_28">28</a></td></tr> +<tr><td align="right">2.</td><td>Lincoln <i>vs.</i> Johnson</td><td align="right"><a href="#Page_28">28</a></td></tr> +<tr><td align="right">3.</td><td>Johnson’s views before Accession</td><td align="right"><a href="#Page_29">29</a></td></tr> +<tr><td align="right">4.</td><td>Speeches in the Spring after his Accession</td><td align="right"><a href="#Page_30">30</a></td></tr> +<tr><td align="right">5.</td><td>Secret of his Attitude</td><td align="right"><a href="#Page_32">32</a></td></tr> +<tr><td align="right">6.</td><td>Development of his Theory</td><td align="right"><a href="#Page_34">34</a></td></tr> +<tr><td align="right">7.</td><td>Attitude towards Enfranchisement of the Negro</td><td align="right"><a href="#Page_41">41</a></td></tr> +<tr><td align="right">8.</td><td>Legislative Action in the South</td><td align="right"><a href="#Page_42">42</a></td></tr> +<tr><td align="right">9.</td><td>The Defense of the South</td><td align="right"><a href="#Page_46">46</a></td></tr> +<tr><td align="right">10.</td><td>Effect of the Attitude of the South upon the North</td><td align="right"><a href="#Page_47">47</a></td></tr> +<tr><td> </td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_III">CHAPTER III.</a><br /><span class="smcap">Attitude of Congress Towards the Experiment:<br /> +Development of the Congressional Theory</span>.</td></tr> +<tr><td align="right">1.</td><td>Attitude of Parties towards the Administration at Beginning of the Session</td><td align="right"><a href="#Page_49">49</a></td></tr> +<tr><td align="right">2.</td><td>Opening Scenes in Congress</td><td align="right"><a href="#Page_50">50</a></td></tr> +<tr><td align="right">3.</td><td>The Annual Message: Debate on Reconstruction</td><td align="right"><a href="#Page_55">55</a></td></tr> +<tr><td align="right">4.</td><td>The Freedmen’s Bureau</td><td align="right"><a href="#Page_59">59</a></td></tr> +<tr><td align="right">5.</td><td>Johnson’s Indiscreet Speeches in February, 1866</td><td align="right"><a href="#Page_65">65</a></td></tr> +<tr><td align="right">6.</td><td>Civil Rights; Other Bills</td><td align="right"><a href="#Page_68">68</a></td></tr> +<tr><td align="right">7.</td><td>Report of Committee on Reconstruction</td><td align="right"><a href="#Page_73">73</a></td></tr> +<tr><td align="right">8.</td><td>Authorized Measures of First Session</td><td align="right"><a href="#Page_80">80</a></td></tr> +<tr><td> </td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_IV">CHAPTER IV.</a><br /><span class="smcap">The Campaign of 1866</span>.</td></tr> +<tr><td align="right">1.</td><td>Crisis in the Cabinet</td><td align="right"><a href="#Page_87">87</a></td></tr> +<tr><td align="right">2.</td><td>The New Orleans Riots</td><td align="right"><a href="#Page_88">88</a></td></tr> +<tr><td align="right">3.</td><td>Administration Conventions</td><td align="right"><a href="#Page_91">91</a></td></tr> +<tr><td align="right">4.</td><td>Anti-Administration Conventions</td><td align="right"><a href="#Page_98">98</a></td></tr> +<tr><td align="right">5.</td><td>The Fall Elections</td><td align="right"><a href="#Page_103">103</a></td></tr> +<tr><td align="right">6.</td><td>Action on the XIV Amendment</td><td align="right"><a href="#Page_104">104</a></td></tr> +<tr><td> </td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_V">CHAPTER V.</a><br /><span class="smcap">The Congressional Theory Fully Developed</span>.</td></tr> +<tr><td align="right">1.</td><td>The Second Session Convenes; The Annual Message</td><td align="right"><a href="#Page_107">107</a></td></tr> +<tr><td align="right">2.</td><td>First Reconstruction Bill</td><td align="right"><a href="#Page_109">109</a></td></tr> +<tr><td align="right">3.</td><td>First Supplementary Bill</td><td align="right"><a href="#Page_117">117</a></td></tr> +<tr><td align="right">4.</td><td>Second Supplementary Bill</td><td align="right"><a href="#Page_122">122</a></td></tr> +<tr><td align="right">5.</td><td>State Conventions</td><td align="right"><a href="#Page_124">124</a></td></tr> +<tr><td align="right">6.</td><td>Third Supplementary Bill</td><td align="right"><a href="#Page_125">125</a></td></tr> +<tr><td align="right">7.</td><td>Ratification of Constitutions</td><td align="right"><a href="#Page_125">125</a></td></tr> +<tr><td align="right">8.</td><td>Acts Re-admitting States to Representation in Congress</td><td align="right"><a href="#Page_125">125</a></td></tr> +<tr><td> </td></tr> +<tr><td colspan="3" align="center"><a href="#CHAPTER_VI">CHAPTER VI.</a><br /><span class="smcap">The Impeachment of the President</span>.</td></tr> +<tr><td align="right">1.</td><td>Why Congress Wished to Impeach</td><td align="right"><a href="#Page_127">127</a></td></tr> +<tr><td align="right">2.</td><td>What is an Impeachable Offense</td><td align="right"><a href="#Page_128">128</a></td></tr> +<tr><td align="right">3.</td><td>The Opening Attack</td><td align="right"><a href="#Page_129">129</a></td></tr> +<tr><td align="right">4.</td><td>The Work of the Judiciary Committee</td><td align="right"><a href="#Page_131">131</a></td></tr> +<tr><td align="right">5.</td><td>The Attack Fails</td><td align="right"><a href="#Page_132">132</a></td></tr> +<tr><td align="right">6.</td><td>The Limitation of Presidential Powers</td><td align="right"><a href="#Page_133">133</a></td></tr> +<tr><td align="right">7.</td><td>The Tenure-of-Office Act</td><td align="right"><a href="#Page_134">134</a></td></tr> +<tr><td align="right">8.</td><td>Struggle with Secretary Stanton</td><td align="right"><a href="#Page_135">135</a></td></tr> +<tr><td align="right">9.</td><td>Articles of Impeachment</td><td align="right"><a href="#Page_138">138</a></td></tr> +<tr><td align="right">10.</td><td>Attitude of Conservative Republicans</td><td align="right"><a href="#Page_140">140</a></td></tr> +<tr><td align="right">11.</td><td>Conclusion</td><td align="right"><a href="#Page_141">141</a></td></tr></table> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span></p> +<h2>THE<br /><span class="smcap">Struggle Between President Johnson and Congress</span><br />OVER RECONSTRUCTION.</h2> + +<p> </p><p> </p> +<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I.</h2> +<h3>THEORIES OF RECONSTRUCTION PRIOR TO THE CLOSE OF THE WAR.</h3> + +<p><br />1. The war of the rebellion afforded opportunity for the people of the +United States to obtain a far clearer conception of the powers and +limitations of the federal constitution than had previously been possible, +and settled beyond possibility of further debate some of the most +important questions which had arisen since its interpretation as an +“instrument of evidence” had begun. Yet when General Johnston had +surrendered his army on April 26, 1865, virtually bringing the war to a +close, the country found that one great constitutional question, a +question of the highest practical importance, still remained unsolved; and +for several years the best energies of our statesmen were occupied with +its solution. Eleven of the States had for four years been in armed +insurrection, but now, through superior force, they lay helpless at the +feet of the Union. Under these <span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span>circumstances, what was their +constitutional relation to the federal government?</p> + +<p>Previous to the passage of the ordinance of secession by the convention of +South Carolina in 1860, the nation never had been called upon to determine +the status of a State which declared its relation to the federal +government severed. Certainly if a State could establish its independence +by war, the question, so far as such State was concerned, would have no +significance; but as such a conclusion of the difficulty could not be +considered for an instant, the status of the seceded State, both before +and after the cessation of hostilities, immediately became an important +subject of discussion. The gradual evolution of popular sentiment, from +the belief that the dignity of a State should not be tampered with, to the +belief that by an act of secession a State divested itself of all its +rights and privileges as a State, and reverted to the condition of a +Territory, forms an interesting chapter in the history of the unwritten +constitution of the United States.</p> + +<p>2. When the 37th Congress met on July 4, 1861, in pursuance of Lincoln’s +proclamation, the war had not been in progress long enough to show to the +country the extreme gravity of the situation and the wideness of the gap +which had arisen between the Southern States and the rest of the Union. +The common belief was that unprincipled agitators, who represented only a +small minority of the legal voters in the insurrectionary States, had +obtained temporary control over the governments of these States, and were +waging a war against the Union, in which they were unsupported by the +majority; and that the latter would joyfully resume control of their +governments as soon as the opportunity should be given them, which it was +confidently believed would soon happen. That is, the war was to be carried +on, not against the States which claimed to have seceded, but against a +certain element of the Southern population.</p> + +<p><span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span>The extreme solicitude felt by Congress for the proper preservation of the +sovereign privileges of these States is shown by the practical unanimity +with which a resolution submitted by Mr. Crittenden, on July 22, was +carried, there being only two dissenting voices.<a name="fna_1_1" id="fna_1_1"></a><a href="#fn1_1" class="fna">[1]</a> It declared the sense +of the House to be that<a name="fna_2_2" id="fna_2_2"></a><a href="#fn2_2" class="fna">[2]</a> “this war is not waged upon our part in any +spirit of oppression, nor for any purpose of conquest or subjugation, nor +purpose of overthrowing or interfering with the rights or established +institutions of those States, but to defend and maintain the supremacy of +the Constitution and to preserve the Union with all the dignity, equality +and rights of the several States unimpaired; and that as soon as these +objects are accomplished the war ought to cease.” Three days later, Andrew +Johnson, then a Senator from Tennessee, submitted the same resolution in +the Senate,<a name="fna_3_3" id="fna_3_3"></a><a href="#fn3_3" class="fna">[3]</a> where it was also carried with practical unanimity, +although the discussion indicated a confused idea as to its exact +significance.</p> + +<p>But few months passed by before this staunch confidence in the rights of +the States began to be shaken; a feeling of doubt had arisen which had not +as yet resolved itself into a definite change of attitude, yet which was +sufficient to prevent the re-endorsement of Mr. Crittenden’s resolution, +introduced by Mr. Holman, December 4, 1861, and tabled by a vote of 71 to +65.<a name="fna_4_4" id="fna_4_4"></a><a href="#fn4_4" class="fna">[4]</a></p> + +<p>A series of resolutions introduced in the Senate by Mr. Davis of Kentucky, +on February 13, 1862,<a name="fna_5_5" id="fna_5_5"></a><a href="#fn5_5" class="fna">[5]</a> while preserving +<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> in the main the principles then +in vogue, assumed a somewhat broader tone and expressed very clearly the +belief of a large element of the thoughtful classes. Affirming the +permanency of the privileges of the people of the United States, it denied +the criminality of the citizen who does not perform “his duties of loyalty +and obedience, when the government fails to give him protection and +security,” and declared that the powers of the nation and State in the +State are simply in suspension during a period of insurrection, and should +be resumed, unimpaired, when the insurrection ceases. Here also was +affirmed, in unmistakable terms, the inability of the State to secede, and +the consequent obligation of the United States to preserve in these States +republican forms of government. The guilty leaders should be punished, but +the masses should receive amnesty; and immediately following the important +admission was made that “if the people of any State cannot or will not +reconstruct their state government, and return to loyalty and duty, +Congress should provide a government for such State as a territory of the +United States, securing to the people thereof their appropriate +constitutional rights.”</p> + +<p>Here, in connection with the positive statement that a State cannot +secede, and the implication that the insurrectionary citizen may be upheld +in his actions, was a clear expression of so-called extra-constitutional +powers in treating incorrigible States as territories. It would be +interesting to know how these resolutions were viewed by the Senate, but +they were laid on the table and never taken up for discussion.</p> + +<p>3. During the opening days of the 3d Session of the 37th Congress, the +question of the right to interfere with the States as States, was brought +fairly before the House by a series of resolutions in which the policy of +the extreme wing<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> of the Democratic +party was expressed.<a name="fna_6_6" id="fna_6_6"></a><a href="#fn6_6" class="fna">[6]</a> In them it is +declared that “the Union <i>as it was</i>, must be restored and maintained, one +and indivisible.”<a name="fna_7_7" id="fna_7_7"></a><a href="#fn7_7" class="fna">[7]</a> When this declaration is examined, with the +President’s preliminary proclamation of emancipation in mind, the +significance of the three italicised words can be seen. The resolutions, +after quoting the substance of the Crittenden resolution, further declared +that “whoever shall pervert or attempt to pervert the same to a war of +conquest or subjugation, or for the overthrowing or interfering with the +rights or established institutions of any of the States, and to abolish +slavery therein, or for the purpose of destroying or impairing the +dignity, equality, or rights of any of the States, will be guilty of a +flagrant breach of public faith and of a high crime against the +Constitution and the Union.” The same guilt was declared to attach to all +who should “propose by federal authority, to extinguish any of the States +of the Union, or to declare any of them extinguished, and to establish +territorial governments within the same.”</p> + +<p>These resolutions, which were an open attack upon the presidential policy, +were tabled by a vote of 79 to 50, a party vote. This fact is of +significance as an evidence of the growing feeling in the House, that the +sovereign rights of the States might be too highly considered, and that +decided discipline of some kind might be found a measure of necessity. It +began to be doubted whether in some of these States there could be found a +sufficient number of loyal citizens to carry on the government without +modifications of the old constitution and laws. At the same time the small +majority by which the resolutions were tabled shows<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> that the old idea +still exercised a powerful influence in the House.</p> + +<p>On December 14, 1863, resolutions were introduced by Mr. Finck,<a name="fna_8_8" id="fna_8_8"></a><a href="#fn8_8" class="fna">[8]</a> and +others two days later by Mr. Rollins,<a name="fna_9_9" id="fna_9_9"></a><a href="#fn9_9" class="fna">[9]</a> which were very similar to the +Crittenden resolution, and were introduced merely as expressions of the +Democratic policy, since the Republican majority was too pronounced to +permit their adoption.</p> + +<p>From the beginning of the war, the policy of the Democratic party in the +North was to bring about some agreement between the North and the South, +by compromises and concessions, and should the issue finally be determined +in favor of the Union even by dint of superior strength, to restore the +Southern States to their former condition. In short, the theory held +almost unanimously by Congress at the opening of the 37th Congress, was +retained as the Democratic theory,<a name="fna_10_10" id="fna_10_10"></a><a href="#fn10_10" class="fna">[10]</a> while the Republicans gradually +modified their opinions, and with the progress of events developed a +theory different from both the Democratic and the presidential theory.</p> + +<p>Even after the proclamation of emancipation had come to be recognized as +one of the natural results of the war, the policy of the Democratic party +was unchanged except as necessarily modified by emancipation, and in the +House, on February 8, 1864, Jacob B. Blair submitted resolutions<a name="fna_11_11" id="fna_11_11"></a><a href="#fn11_11" class="fna">[11]</a> in +which it was stated that “every State which has ever been, is still a +State in the Union, and that when this rebellion shall have been put down, +each of the so-called seceding States will have the same rights, +privileges, and immunities under the Constitution as any one of the loyal +States, except so far as the holding of African slaves in bondage is +affected<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> by the President’s proclamation.” These resolutions also +repudiated “the doctrine advanced by some, that the so-called seceding +States have ceased to be States of and in the Union, and have become +territories thereof, or stand in the relation of foreign powers at war +therewith.”</p> + +<p>But besides political declarations, the Democratic theory found other ways +of expression in Congress. From the very commencement of the war, many of +the leaders of the party were confident that hostilities could be brought +to an end and peaceful relations restored by a convention of States, and +several attempts were made to induce Congress to consider favorably some +such plan.<a name="fna_12_12" id="fna_12_12"></a><a href="#fn12_12" class="fna">[12]</a> As early as July 15, 1861, only eleven days after the +convening of the extra session of Congress, Benjamin Wood introduced a +resolution in the House,<a name="fna_13_13" id="fna_13_13"></a><a href="#fn13_13" class="fna">[13]</a> which recommended that the governors of the +several States “convene their legislatures for the purpose of calling an +election to select two delegates from each Congressional district, to meet +in general convention at Louisville, in Kentucky, on the first Monday in +September next; the purpose of the said convention to be to devise +measures for the restoration of peace to our country.”</p> + +<p>Again at the opening of the second session on December 4, 1861, joint +resolutions were introduced by Mr. Saulsbury, in the Senate,<a name="fna_14_14" id="fna_14_14"></a><a href="#fn14_14" class="fna">[14]</a> to +appoint Millard Fillmore, Franklin Pierce, Roger B. Taney, Edward Everett, +Geo. M. Dallas, Thomas Ewing, Horace Binney, Reverdy Johnson, John J. +Crittenden, George E. Pugh, and R. W. Thompson, “commissioners on the part +of Congress, to confer with a like number of commissioners to be appointed +by the States” in rebellion,<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> “for the preservation of the Union and the +maintenance of the Constitution.” The resolutions also provided that when +the several States should have appointed their commissioners, hostilities +should cease, “and not be renewed unless said commission shall be unable +to agree,” or “agreement shall be rejected either by Congress or by the +aforesaid States.”</p> + +<p>One year later, December 2, 1862, a third attempt<a name="fna_15_15" id="fna_15_15"></a><a href="#fn15_15" class="fna">[15]</a> was made by Mr. +Davis, who submitted a joint resolution in the Senate (S. 104), proposing +a convention from all the States to devise means for the reconstruction of +the Union, and on May 30, 1864, Mr. Lazear submitted in the House, +resolutions which were to authorize the President to “adopt or agree upon +some plan upon which the decision of the great body of the people north +and south may be secured upon the question of calling a convention +composed of delegates from all the States, to which shall be referred the +settlement of all questions now dividing the southern States from the rest +of the Union, with a view to the restoration of the several States to the +places they were intended to occupy in the Union.”</p> + +<p>During the later years of the war, after hope of success had begun to die +out, some of the Southern States looked very favorably upon the plan; but +nothing approximating such a convention resulted.<a name="fna_16_16" id="fna_16_16"></a><a href="#fn16_16" class="fna">[16]</a></p> + +<p>4. At the beginning of his term of office, President Lincoln held the then +prevailing belief in the supremacy of the States in all matters not +directly under federal control, and as a matter of course believed that at +the cessation of hostilities each State should immediately resume its old +relations to the government, its local matters untouched by the central<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> +administration.<a name="fna_17_17" id="fna_17_17"></a><a href="#fn17_17" class="fna">[17]</a> But the ability of Lincoln to modify his own beliefs +on any subject as his experience widened was never better manifested than +on this very question, and had he lived to control the administration +through the period of reconstruction, it is not unreasonable to suppose +that his attitude would have undergone still greater change. As the +magnitude of the struggle became more apparent, he began to deliberate +upon the advisability of striking at the root of the evil, despite the +blow it struck at state liberty, and the two proclamations of September +22, 1862, and January 1, 1863,<a name="fna_18_18" id="fna_18_18"></a><a href="#fn18_18" class="fna">[18]</a> mark the basis of the executive plan of +reconstruction. The Pierpoint government of Virginia had been recognized +in 1861, but its recognition was in harmony with the early attitude of +Congress towards the States, and involved no questions which could show a +distinct executive policy.</p> + +<p>In 1862, after the capture of New Orleans, a military governor of +Louisiana was appointed, many persons in the vicinity of New Orleans were +enrolled as citizens of the United States, and two districts elected +representatives to Congress, under the provisions of the old state +constitution.<a name="fna_19_19" id="fna_19_19"></a><a href="#fn19_19" class="fna">[19]</a> In this case there was a distinct development of the +executive policy. Here was a military governor, appointed by the President +and so an instrument of the Executive, interfering with the civil +government of the State, controlling elections, deciding what districts +were entitled to elections, and fixing the date of election. This was very +different from simple restoration, with its theory that the national +government must in no way interfere with the State <span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span>governments. And when +the two members elect, Messrs. Flanders and Hahn, presented themselves for +admission into the House of Representatives, the Democrats, consistently +with their belief in restoration, which up to that time had met with no +serious opposition, opposed their admission strongly. In the discussion +which arose, Mr. Voorhees well expressed the difference in theory between +the Democratic view and that which was ultimately to be adopted. The +problem was stated by him as follows:<a name="fna_20_20" id="fna_20_20"></a><a href="#fn20_20" class="fna">[20]</a> “If the Southern Confederacy is +a foreign power, an independent nationality to-day, and you have conquered +back the territory of Louisiana, you may then substitute a new system of +laws in the place of the laws of that State. You may then supplant her +civil institutions by institutions made anew for her by the proper +authority of this <i>Government</i>—not by the executive, but by the +<i>legislative</i> branch of the Government, assisted by the Executive simply +to the extent of signing his name to the bills of legislation.” “But if +the theory we have been proceeding upon here, that this Union is unbroken; +that no States have sundered the bonds that bind us together; that no +successful disunion has yet taken place—if that theory is still to +prevail in these halls, then this can not be done. You are as much bound +to uphold the laws of Louisiana in all their extent and in all their +parts, as you are to uphold the laws of Pennsylvania or New York, or any +other State whose civil policy has not been disturbed.”</p> + +<p>The strong appeal to remain true to the theory first maintained by +Congress, did not succeed in shutting the Louisianians out, and for one +month, February to March, 1863, they were recognized as members. The later +refusal to admit members from insurrectionary States was due, not to a +supposed inconsistency with restoration proper, but to dislike of the +presidential policy.</p> + +<p><span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span>And now with emancipation still another element entered into the question, +and in the future reconstruction, Congress was of necessity forced to +follow to a certain extent a new path laid out by the President. A State +after January, 1863, in order to resume its former relations, must at +least make one change in its institutions, and perfect restoration could +no longer be considered. True, a large minority opposed the emancipation +policy of the President, and their discontent took expression in +resolutions such as Mr. Conway introduced into the House on December 15, +1862, in which he says that “the seceded States can only be put down, if +at all, by being regarded as out of constitutional relations with the +Union,” implying, of course, the inability of the President to extinguish +their local institutions. But such resolutions were never considered, +while resolutions endorsing the policy of the President were agreed +to.<a name="fna_21_21" id="fna_21_21"></a><a href="#fn21_21" class="fna">[21]</a></p> + +<p>The next step in the development of the President’s policy was the +formation of a definite program, which States wishing to be restored to +equal rights with the loyal States should follow. This plan of +reconstruction, called by him at a later period the “Louisiana plan,” was +officially announced by the proclamation of December 8, 1863, and the +annual message to Congress of the same date defended the stand taken.<a name="fna_22_22" id="fna_22_22"></a><a href="#fn22_22" class="fna">[22]</a> +This proclamation granted amnesty to all citizens (excepting certain +specified classes<a name="fna_23_23" id="fna_23_23"></a><a href="#fn23_23" class="fna">[23]</a>) who would +take an<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> oath to support the +Constitution, as well as all acts of Congress and proclamations of the +President relating to slaves; and declared that whenever one-tenth of the +voters of any insurrectionary State should take the oath, and re-establish +their state government, “which shall be republican, and in no wise +contravening said oath,” that government would be recognized as the true +government of the State and would receive the protection guaranteed to the +States. But all questions concerning admission to Congress would, in +accordance with the provisions of the Constitution, rest entirely with the +respective houses of Congress. The questions of negro suffrage and federal +supervision of the freedmen were not touched, and no provision was made to +ensure good faith in reconstruction, beyond the mere oath exacted, and the +general oversight of the President.</p> + +<p>5. Under the provisions of the proclamation, three States, Louisiana, +Arkansas, and Tennessee,<a name="fna_24_24" id="fna_24_24"></a><a href="#fn24_24" class="fna">[24]</a> set up new governments, which were recognized +by the President as true governments.<a name="fna_25_25" id="fna_25_25"></a><a href="#fn25_25" class="fna">[25]</a> Congress, however, was by no +means satisfied with this lenient way of treating the humbled States. The +feeling that the executive was encroaching upon the legislative power +added strength to the discontent. Many thought that if the presidential +policy, without modification, were carried out, the reconstructed States +would speedily revert to the control of the very element against whom the +war had been waged. The House, by a strict party vote,<a name="fna_26_26" id="fna_26_26"></a><a href="#fn26_26" class="fna">[26]</a> authorized the +appointment of a select committee<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> of nine, to consider that portion of +the President’s message relating to reconstruction, with authority to +report by bill or otherwise. Henry Winter Davis was appointed chairman. +Resolutions were submitted by Mr. Williams on March 14, 1864, which were +backed by a sentiment in Congress that was of great significance. Congress +began to feel its way towards a distinctive policy, which had heretofore +been supported by only a few, who were considered as holding extremely +wild and untenable views. These resolutions stated that although the local +laws were subverted, and the functions of the civil authorities suspended +in the States under armed occupation, “as soon as the rebellion is +suppressed in any of the revolting States,” the President should +communicate the fact to <i>Congress</i>, “in order that it may take the proper +measures for the reorganization of the civil governments and the +re-establishment of the civil functionaries therein, and prescribe such +terms as it may deem wise and proper and consistent with the public safety +for the readmission of those districts as States of this Union.” The +exclusive right of the legislative power “to say upon what terms those +territories shall be allowed to return to the Union,” was also asserted.</p> + +<p>The issue between Congress and the President took more definite form +through the Davis-Wade bill of 1864.<a name="fna_27_27" id="fna_27_27"></a><a href="#fn27_27" class="fna">[27]</a> This bill had been drafted during +the latter part of 1863 by the select committee of nine, but it did not +come before the House for consideration till March 22, 1864.</p> + +<p>The objections of those who supported this bill to the Presidential plan, +are clearly expressed in the speech of H. Winter Davis, in support of his +measure. He says<a name="fna_28_28" id="fna_28_28"></a><a href="#fn28_28" class="fna">[28]</a> +that<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> it (the Presidential plan), “proposed no +guardianship of the United States over the reorganization of the +governments, no law to prescribe who shall vote, no civil functionaries to +see that the law is faithfully executed, no supervising authority to +control and judge of the elections. But if, in any manner, by the +toleration of martial law lately proclaimed the fundamental law, under the +dictation of any military authority, or under the prescriptions of a +provost marshal, something in the form of a government shall be presented, +represented to rest on the votes of one-tenth of the population, the +President will recognize that, provided it does not <i>contravene</i> the +proclamation of freedom and the laws of Congress; and to secure that, an +oath is exacted.” This government “may be recognized by the military power +and may not be recognized by the civil power, so that it would have a +doubtful existence, half civil and half military, neither a temporary +government by law of Congress, nor a state government, something as +unknown to the Constitution as the rebel government that refuses to +recognize it.”</p> + +<p>In place of this method of organization, which Mr. Davis justly thought so +wretchedly loose, he proposed that the President should appoint +provisional governors over these States, whose first duty should be to +enroll the white citizens, through duly appointed United States marshals. +Then when a majority of these citizens should have taken the oath of +allegiance, they should be permitted to hold a State convention for the +purpose of forming a constitution under which the government might be +re-established. But all Confederate office-holders and those voluntarily +bearing arms against the United States were to be ineligible as delegates +to the convention. The bill further provided that the <span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span>constitution should +“repudiate the rebel debt, abolish slavery, and prohibit the higher +military and civil officers from voting for or serving as governors or +members of the legislature.” When these conditions should have been +fulfilled, and the assent of Congress to the recognition of the new +government obtained, the President should be notified, and should then +officially recognize the government by proclamation, after which senators +and representatives would be admitted to Congress.<a name="fna_29_29" id="fna_29_29"></a><a href="#fn29_29" class="fna">[29]</a></p> + +<p>In the speech mentioned above, Mr. Davis claimed that “the bill challenges +the support of all who consider slavery the cause of the rebellion, and +that in it the embers of rebellion will always smoulder; of those who +think that freedom and permanent peace are inseparable, and who are +determined, so far as their constitutional authority will allow them, to +secure these fruits by adequate legislation.”</p> + +<p>But in this plan there was no attempt to introduce negro suffrage. The +only question of importance seemed to be: “How can we ensure the +subservience of these States to the federal constitution?” The supporters +of the Davis plan insisted that “the rebel States must be governed by +Congress till they submit and form a state government under the +Constitution”; otherwise “Congress must recognize state governments which +do not recognize either Congress or the Constitution of the United States; +or there must be an entire absence of all government in the rebel States; +and that is anarchy.” It was absurd, the argument continued, to recognize +a government which did not recognize the Constitution; and “to accept the +alternative of anarchy as the constitutional condition of a State is to +assert the failure of the Constitution and the end of republican +government. Until, therefore, Congress recognize a state government, +organized under its auspices, there is no government in the rebel<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> States +except the authority of Congress.” From this it logically followed that in +the absence of all State government it was the duty of Congress to +“administer civil government until the people shall, under its guidance, +submit to the Constitution of the United States,” and reorganize +government under whatever conditions Congress might require.</p> + +<p>These arguments appealed to sentiments which were becoming very popular in +Congress. The theory that a State by seceding ceased to exist as a State +was gradually gaining ground, and the Davis plan, by which the central +government was to control the State as a territory, though for so limited +a time, rapidly gained supporters.</p> + +<p>Mr. Fernando Beaman, of Michigan, who also considered that the seceded +States had ceased to exist, said in an extended speech favoring the +adoption of this bill:<a name="fna_30_30" id="fna_30_30"></a><a href="#fn30_30" class="fna">[30]</a> “As a people without government or organization +are in a state of anarchy, their efforts to establish law and order must +be more or less impeded by caprice, by divided counsels, and by the want +of forms, regulations, and methods. The passage of this bill is the +establishment of incipient civil government, and provides at once rules, +regulations and system, with the proper officials to carry them into +execution.”</p> + +<p>Although the bill was avowedly drawn up to provide what the presidential +plan failed to provide, a method of reconstruction so thorough that those +elements which had produced the discord could no longer influence the +state governments, it itself furnished no means to prevent any of these +States from so amending their constitutions, after their senators and +representatives had received recognition, that the very conditions of +readmittance might be rendered nugatory.</p> + +<p>But the bill seemed to the majority in Congress to offer a<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> more practical +plan than any yet <ins class="correction" title="original: propsed">proposed</ins>, and it passed the House May 4, by a vote of 73 +to 59; the Senate, two months later, adopted it by a majority of four. But +it failed to become a law by the adjournment of Congress before it +received the President’s signature.<a name="fna_31_31" id="fna_31_31"></a><a href="#fn31_31" class="fna">[31]</a></p> + +<p>The President, in justification of his neglect to sign the bill, issued a +proclamation on July 8.<a name="fna_32_32" id="fna_32_32"></a><a href="#fn32_32" class="fna">[32]</a> This stated that while he was unprepared “to +be inflexibly committed to any single plan of restoration,” and also +“unprepared to declare that the free State constitutions and governments +already adopted and installed in Arkansas and Louisiana, shall be set +aside and held for naught, thereby repelling and discouraging the loyal +citizens who have set up the same as to further effort,” nevertheless he +was “fully satisfied with the system for restoration contained in the +bill, as one very proper plan for the loyal people of any State choosing +to adopt it,” and that in such case when the people “shall have +sufficiently returned to their obedience to the Constitution and laws of +the United States,” military governors would be appointed, “with +directions to proceed according to the bill.”</p> + +<p>This attempt to modify the presidential plan virtually ended for the time +the efforts of Congress towards the development of a distinctive theory, +and the war thus closed with no well defined plan in operation, except +that of President Lincoln, which was not well sustained by Congress. Only +one thing seemed to be definitely decided. That was, that the seceded +States, in whatever light they might be considered, were incapacitated +from participating in <span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span>presidential elections. A joint resolution to this +effect was passed in 1865,<a name="fna_33_33" id="fna_33_33"></a><a href="#fn33_33" class="fna">[33]</a> and in accordance with its provisions the +electoral vote of Louisiana was ruled out.</p> + +<p>Two men in the Republican party wielded the chief power in influencing +that party to adopt the theory of reconstruction which was finally to +prevail as the congressional theory.<a name="fna_34_34" id="fna_34_34"></a><a href="#fn34_34" class="fna">[34]</a> One was Thaddeus Stevens of +Pennsylvania, and the other Charles Sumner, of Massachusetts. The latter +was a recognized leader of the Senate, and his views concerning the mutual +relations of the States in rebellion and the federal government were +clearly expressed in a series of resolutions which he submitted February +11, 1862. These resolutions, although never brought forward for +consideration, were printed, and coming from so influential a man had +considerable influence in shaping the general attitude of Congress towards +the question, and affected to some extent its future policy. They<a name="fna_35_35" id="fna_35_35"></a><a href="#fn35_35" class="fna">[35]</a> were +nine in number, with a well-worded preamble which put forward as a premise +that “the extensive territory, thus usurped by these pretended +governments, and organized into a hostile confederacy, belongs to the +United States, as an inseparable part<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> thereof, under the sanction of the +Constitution, to be held in trust for the inhabitants in the present and +future generations, * * * The Constitution, which is the supreme law of +the land, cannot be displaced in its rightful operation within this +territory, but must ever continue the supreme law thereof.”</p> + +<p>The first resolution declares that a vote of secession is void as against +the Constitution, “and when sustained by force it becomes a practical +<i>abdication</i> by the State of all rights under the Constitution, while the +treason which it involves still further works an instant <i>forfeiture</i> of +all those functions and powers essential to the continued existence of the +State as a body politic, so that from that time forward, the territory +falls under the exclusive jurisdiction of Congress as other territory, and +the State being, according to the language of the law, <i>felo de se</i>, +ceases to exist.”</p> + +<p>The second resolution denies the constitutional existence of the +Confederate States. The third and fourth declare that the termination of a +State terminates its peculiar local institutions, therefore slavery ceases +to exist; and the fifth, sixth and seventh declare it necessary not to +recognize or tolerate slavery. The eighth declares the obligation of the +United States to protect all inhabitants, “without distinction of color or +class.” The ninth declares that Congress, in pursuance of the duties cast +upon it by the total extinction of the States and by the constitutional +obligation that the “United States shall guarantee to every State in this +Union a republican form of government,”<a name="fna_36_36" id="fna_36_36"></a><a href="#fn36_36" class="fna">[36]</a> “will assume complete +jurisdiction of such vacated territory where such unconstitutional and +illegal things have been attempted, and will <span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span>proceed to establish therein +republican forms of government under the Constitution; and in execution of +this trust will provide carefully for the protection of all the +inhabitants thereof, for the security of families, the organization of +labor, the encouragement of industry, and the welfare of society, and will +in every way discharge the duties of a just, merciful, and paternal +government.”</p> + +<p>Thaddeus Stevens, although recognized as one of the foremost men of the +Republican party, advocated from the very commencement of hostilities +views of so radical a nature, that he was looked upon by many as a +fanatic. His influence accordingly worked in a different way from +Sumner’s. At no time did he consolidate his views into a series of +resolutions, but upon every occasion where the subject could be touched +upon, no matter how indirectly the topic might refer to it, he would state +his theory of the relation of the seceded States to the Union. +Persistently and consistently he advocated it; and he took pleasure in +considering himself as in advance of his party, a prophet, pointing out +the only right road, confident that sooner or later his party would see +the wisdom of his policy and adopt it. Throughout those tempestuous years, +his undaunted faith in the infallibility of his plan served to keep it +constantly in mind, and attracted to him a constantly increasing number of +followers, until at the beginning of the 39th Congress he obtained +control, and became the recognized leader of his party in all matters +relating to the Southern States. Though the plan of reconstruction as +finally adopted contained many modifications, it was to a great extent the +logical outgrowth of the Stevens theory. His whole theory rested upon the +simple premise that wherever there is resistance to the Constitution, and +that resistance cannot be overthrown without appeal to violent methods, +there the Constitution is theoretically as well as practically suspended. +As long as such resistance continues, the <span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span><ins class="correction" title="original: Constution">Constitution</ins> remains suspended, +and only the law-making and war-making power is able to determine when +resistance has ceased. Consequently the federal government would have the +undisputed right to treat the South as a conquered territory until there +should be no question as to the safety of granting greater privileges. +Those States had ceased to be States, consequently the “guarantee clause” +had no application. Congress had unrestricted power over them, as simple +territories of the federal government. On May 2, 1864, during the +discussion of the bill to guarantee republican forms of government to the +rebellious States, he declared that the rebellious States “were entitled +to no rights under the Constitution and laws, which as to them were +abrogated; that they could invoke the aid of neither in their behalf; that +they could claim to be treated during the war as belligerents according to +the laws of war and the law of nations; that they could claim no other +rights than a foreign nation with whom we might be at war; and that they +were subject to all the liabilities of such foreign belligerent,” and that +“the property of the morally and politically guilty should be taken for +public use.”<a name="fna_37_37" id="fna_37_37"></a><a href="#fn37_37" class="fna">[37]</a></p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span></p> +<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II.</h2> +<h3>JOHNSON’S THEORY: THE EXPERIMENT, AND ITS RESULTS.</h3> + +<p><br />1. We have briefly reviewed the theories that obtained greater or less +consideration during the progress of the war, and have seen that plan had +been agreed upon by which the Southern States might resume their normal +relations with the rest of the Union. Two or three States had, it is true, +been nominally reconstructed under the provisions of the proclamation of +December 8, 1863, but their good faith was strongly suspected, and their +representatives were not able to secure recognition in Congress. The high +personal esteem in which President Lincoln was held had prevented general +demonstrations against his policy, but there was a wide-spread suspicion +that he was inclined to deal too leniently with a people who had brought +so much expense and misery upon the nation. The indignation of the North +had increased with the progress of the war, and the belief that the South +could be held in check only by the most stringent regulations and +requirements was held by many.</p> + +<p>2. So long as armed rebellion existed the question of reconstruction was a +minor one, the attention of all being chiefly directed to the problem: +“How can this rebellion be crushed out, and the South made thoroughly to +realize that resistance is useless?” But when Andrew Johnson took the oath +of office the rebellion was virtually a thing of the past, and the giant +problem for the nation to solve during his administration was: “How shall +we treat these conquered States<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> lying helpless, awaiting whatever fate +may be allotted them?” No other issue of importance served to offset it. +The whole nation was debating the question, and all were waiting to see in +what way the Executive would grapple with it.<a name="fna_38_38" id="fna_38_38"></a><a href="#fn38_38" class="fna">[38]</a></p> + +<p>3. Those who feared that Lincoln had lacked sufficient firmness and had +been too tender hearted, believed that in Johnson the nation had as its +Executive a man with correct convictions and a strength of character which +ensured both the proper treatment of the South and the stability of the +Union. Johnson had an excellent record as military governor of Tennessee, +where his fearlessness and vigorous administration had given him a +reputation which brought to him the nomination of vice-president. From his +severity to the rebels while governor of Tennessee it was reasoned that he +would still remain severe and unyielding in his treatment of them as +President of the United States. He himself was always fond of alluding to +his past record as indicating his future course. Thus, only six days after +he took the oath of office, he said while addressing a delegation of +citizens of Indiana:<a name="fna_39_39" id="fna_39_39"></a><a href="#fn39_39" class="fna">[39]</a> “In reference to what my administration will be, +while I occupy my present position, I must refer you to the past. You may +look back to it as evidence of what my course will be; * * * mine has been +but one straightforward and unswerving course, and I see no reason now why +I should depart from it. * * * My past is a better foreshadowing of my +future course than any other statement on paper that might be made.” +Moreover, an examination of the speeches made by him during the war shows +the grounds on which the people were justified in expecting a severe +policy. An extract from an address delivered in Nashville, June 9, 1864, +shows his views at that time as to who should carry on the<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> work of +reconstruction.<a name="fna_40_40" id="fna_40_40"></a><a href="#fn40_40" class="fna">[40]</a> “In calling a convention to restore the State, who +shall restore and re-establish it? Shall the man who gave his influence +and his means to destroy the government * * * participate in the great +work of reorganization? * * * Traitors should take a back seat in the work +of restoration. If there be but five thousand men in Tennessee loyal to +the Constitution, loyal to freedom, loyal to justice, these true and +faithful men should control the work of reorganization and reformation +absolutely.” Later on in the same speech he said, referring to the traitor +“born and reared among us:” “My judgment is that he should be subjected to +a severe ordeal before he is restored to citizenship. A fellow who takes +the oath merely to save his property, and denies the validity of the oath, +is a perjured man, and not to be trusted.”</p> + +<p>4. Emphatic statements such as these, often repeated, insisting that the +government of the States must be carefully kept in the hands of those +whose loyalty was above suspicion, and advocating severe ordeals for those +considered traitors, warranted the people of the nation in their faith in +his extreme devotion to a strong Union. Yet soon after his inauguration a +change in his attitude could be noticed. In his numerous speeches and +interviews he shifts his ground, very gradually at first, but soon meeting +the issue squarely, pledging himself to a policy which he faithfully +carried into execution, and which the candid student must recognize as +being thoroughly believed in by the President. Clemency towards the +masses, but severity towards the leaders of the rebellion, was his +attitude in his speech of April 21, above alluded to. He expressed his +views as follows:<a name="fna_41_41" id="fna_41_41"></a><a href="#fn41_41" class="fna">[41]</a> “It is not promulgating anything I have not +heretofore said, to say that traitors must be made odious, that treason +must be<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> made odious, that traitors must be punished and impoverished. +They must not only be punished, but their social power must be destroyed. +If not, they will still maintain an ascendency, and may again become +numerous and powerful; for, in the words of a former senator of the United +States, ‘when traitors become numerous enough, treason becomes +respectable.’ And I say that, after making treason odious, every Union man +and the Government should be remunerated out of the pockets of those who +have inflicted this great suffering upon the country. But do not +understand me as saying this in a spirit of anger, for, if I understand my +own heart, the reverse is the case; and while I say that the penalties of +the law, in a stern and inflexible manner, should be executed upon +conscious, intelligent and influential traitors—the leaders, who have +deceived thousands upon thousands of laboring men who have been drawn into +this rebellion—and while I say, as to the leaders, punishment, I also say +leniency, conciliation and amnesty to the thousands whom they have misled +and deceived.”</p> + +<p>As Johnson said, he promulgated nothing new in this statement of his +beliefs regarding the treatment of the South, save possibly a more +definite affirmation of clemency to the masses. In the Nashville speech of +June 9, 1864, he had still more emphatically urged extreme measures +towards the leaders.<a name="fna_42_42" id="fna_42_42"></a><a href="#fn42_42" class="fna">[42]</a> “Treason must be made odious, and traitors must +be punished and impoverished. Their great plantations must be seized and +divided into small farms, and sold to honest, industrious men. The day for +protecting the lands and negroes of these authors of the rebellion is +past.” Again on April 24, 1865, in an interview with a number of Virginia +refugees, he reiterated the necessity of severity. In this case, perhaps +owing to the nature of the interview, and the character of those to whom +he was speaking, he<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> makes no distinction between the leaders and their +followers, his definition of treason apparently including all soldiers and +their abettors. In it he says:<a name="fna_43_43" id="fna_43_43"></a><a href="#fn43_43" class="fna">[43]</a> “It is time that our people were taught +that treason is a crime, not a mere political difference, not a mere +contest between two parties, in which one succeeded and the other simply +failed. They must know it is treason; for if they had succeeded, the life +of the nation would have been reft from it, the Union would have been +destroyed. Surely the Constitution sufficiently defines treason. It +consists in levying war against the United States, and in giving their +enemies aid and comfort.”</p> + +<p>The great liberality with which, beginning with the following month, the +President used the pardoning power, and the extreme leniency with which +all the leaders were treated, were in striking contrast with these +sentiments. A situation was presented for Johnson to meet as President, +which necessitated modifications of views held by him as governor. His +attitude towards the leaders must be admitted to have undergone actual +modification, notwithstanding his claim a few months later that he simply +wished to make the leaders sue for pardon and realize the enormity of +their offence.</p> + +<p>5. The real secret of the apparently strange development of his policy, +which we are about to trace out, lies in the fact that although at this +time nominally a Republican, he was in reality a strict constructionist. +He had always been a Democrat, and still held Democratic views. Only when +secession began to be urged by the southern branch of the Democracy, did +he break loose from his old ties. Accustomed to interpret the Constitution +from a strict constructionist standpoint, accustomed to the belief that +the power of the State was restricted only by the specific limitations of +the Constitution, and that the federal government could exercise no power +beyond that expressly granted it,<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> he naturally treated the question of +reconstruction from the same standpoint. The surprising thing in Johnson’s +career is the fact that in spite of his strict construction views, he was +strongly opposed to secession. He was therefore not strictly logical. The +extreme strict constructionist claimed that the fact that the Constitution +did not forbid a State from seceding, made secession constitutional. But +Johnson’s love for the Union was too great to permit him to carry his +strict construction views to such an extreme. On the contrary, the fact +that the Constitution offered no way for a State to secede from the Union +proved to him that secession was unconstitutional, and he looked upon that +fact as one of the greatest safeguards for the protection of the +Commonwealth.<a name="fna_44_44" id="fna_44_44"></a><a href="#fn44_44" class="fna">[44]</a> To his mind it logically followed that because secession +was unconstitutional, it was absolutely impossible for a State to secede, +and therefore equally impossible for a State to commit treason. +Individuals might commit treason and be punished therefor, but States +never. However strongly at any time he may have urged the punishment of +traitors, he never argued for or believed in the abrogation of any of the +State’s privileges. His reputation for belief in severity was based +entirely upon severity on individuals. “Make treason odious” was his +favorite expression, but always used in a concrete sense.<a name="fna_45_45" id="fna_45_45"></a><a href="#fn45_45" class="fna">[45]</a></p> + +<p><span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span>6. After his accession to the Presidency, the only modification of his +policy was an increased clemency to the conquered rebel. This can be +accounted for easily as the natural result of actual contact with the +problem. Rhetorically to assert that all traitors must be punished is one +thing—to apply the punishment is another. Then Johnson’s most able +advisers approved his attitude and urged even greater moderation. Finally, +his firm faith in the success of his provisional governments persuaded him +to a still more liberal use of the pardoning power, while the growing +opposition of Congress added the element of stubbornness to the +complication. But, the true explanation of the change is to be found in +his general constitutional views.</p> + +<p>So early as April 21 he frankly states his position. In<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> his speech on +that day he says: “Provision” (in the Constitution) “is made for the +admission of new States; no provision is made for the secession of old +ones. * * * The Government is composed of parts, each essential to the +whole, and the whole essential to each part.”<a name="fna_46_46" id="fna_46_46"></a><a href="#fn46_46" class="fna">[46]</a> He emphatically urges +that the Constitution provides a panacea for rebellion. “The United States +(that is, the great integer) shall guarantee to each State (the integers +composing the whole) in this Union a republican form of government. Yes, +if rebellion has been rampant, and set aside the machinery of a State for +a time, there stands the great law to remove the paralysis and revitalize +it, and put it on its feet again.” He also harmonizes his strict +construction views with the fact of emancipation. “A State may be in the +Government with a peculiar institution, and by the operation of rebellion +lose that feature; but it was a State when it went into rebellion, and +when it comes out without the institution it is still a State.”</p> + +<p>President Johnson did not allow many days to pass by after his +installation, before he began to give practical evidence of his attitude +towards the conquered South.<a name="fna_47_47" id="fna_47_47"></a><a href="#fn47_47" class="fna">[47]</a> The first step which he made was an +order, issued April 29, <span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span>restoring partial commercial intercourse to that +portion of the Confederate States lying east of the Mississippi river and +within the lines of national military occupation. This removed at the +outset one of the chief burdens that had resulted from the insurrection, +and would he thought act powerfully in the restoration of peaceful +pursuits in that section. The following August another proclamation +removed all remaining restrictions on trade in those States, declaring +that all necessity for restriction had ceased.<a name="fna_48_48" id="fna_48_48"></a><a href="#fn48_48" class="fna">[48]</a></p> + +<p>On May 9, 1865, the order restoring the administration of the United +States in the State of Virginia was issued.<a name="fna_49_49" id="fna_49_49"></a><a href="#fn49_49" class="fna">[49]</a> It authorized the +Secretary of the Treasury to nominate assessors of taxes, collectors of +customs, and other officers of the Treasury Department, and further +provided that in making appointments the preference should be given to +“qualified loyal persons residing within the districts where their +respective duties are to be performed. But if suitable persons shall not +be found residents of the districts, then persons residing in other States +or districts shall be appointed.” Post offices and post routes were to be +established, and district judges empowered to hold courts, while “to carry +into effect the guarantee of the Federal Constitution of a republican form +of state government, * * * Francis H. Pierpiont, Governor of the State of +Virginia, will be aided by the Federal Government,” in his administration +of the state government, in whatever way might be necessary.</p> + +<p>The Amnesty Proclamation was issued on May 29, and was in effect a renewal +of the provisions of Lincoln’s proclamation of December 8, 1863, relating +to amnesty; but it increased the number of classes excepted from the +benefits of the proclamation, from seven to fourteen,<a name="fna_50_50" id="fna_50_50"></a><a href="#fn50_50" class="fna">[50]</a> and +provided<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> +that special application for pardon might be made by any of the excepted +classes, to the President, who would exercise liberal clemency. Inasmuch +as the excepted classes included all those whom less than three weeks +previously he had been denouncing as traitors to be punished and +impoverished, such great liberality, displayed in so short a time, was +somewhat surprising.<a name="fna_51_51" id="fna_51_51"></a><a href="#fn51_51" class="fna">[51]</a> The proclamation further empowered the Secretary +of State to make all needful regulations for the administration and +recording of the amnesty oath; and in accordance with this provision the +Secretary of State ordered that the oath might be taken before any +commissioned officer of the United States, or before any civil or military +officer of a loyal State or Territory, who was legally qualified to +administer oaths.</p> + +<p>On the same day that he issued the Amnesty Proclamation, President Johnson +appointed William W. Holden Provisional Governor of North Carolina.<a name="fna_52_52" id="fna_52_52"></a><a href="#fn52_52" class="fna">[52]</a> +This was his first radical step in the carrying out of his policy of +reconstruction. The order restoring the authority of the United States in +Virginia was not of so great importance, as the State had nominally been +under the Pierpiont government since near the beginning of the war, and the +mere restoration of certain United States officers in that State did not +involve to any extent the vital questions of the hour.<a name="fna_53_53" id="fna_53_53"></a><a href="#fn53_53" class="fna">[53]</a> But with the +appointment of Mr. Holden, and the instructions accompanying<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> the order of +appointment, President Johnson unfolded, in its entirety, his theory.</p> + +<p>The order declared that the rebellion, though now almost entirely +overcome, had deprived the people of North Carolina of all civil +government, and that accordingly the United States was constitutionally +bound to secure to them a republican form of government. Therefore for the +purpose of enabling the people to organize a government, he appointed +William W. Holden Provisional Governor of North Carolina, whose duty it +should be “at the earliest practicable period, to prescribe such rules and +regulations as may be necessary and proper for convening a convention, +composed of delegates to be chosen by that portion of the people of said +State who are loyal to the United States, and no others, for the purpose +of altering or amending the constitution thereof; and with authority to +exercise, within the limits of said state, all the powers necessary and +proper to enable such loyal people of the State of North Carolina to +restore said State to its constitutional relations to the Federal +government, and to present such a republican form of state government as +will entitle the State to the guarantee of the United States therefor, and +its people to protection by the United States against invasion, +insurrection, and domestic violence,” provided, however, that all electors +should have previously taken the oath of allegiance, and should be voters +according to the law of North Carolina in force previous to secession. The +order further directed that the Provisional Governor should be aided by +the military power in carrying out the proclamation. The other clauses +were similar to clauses in the order re-establishing the authority of the +United States in Virginia.</p> + +<p>Similar proclamations were issued as follows: June 13, for Mississippi; +June 17, for Georgia and Texas; June 21, for Alabama; June 30, for South +Carolina; July 13, for Florida.</p> + +<p><span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span>Within three months after his inauguration, accordingly, Johnson had set +the forces going throughout the South by which he hoped that peace and +tranquillity might be established, and the Union once more become an +undivided whole. In the execution of this most important work, he had not +asked for the co-operation or advice of Congress. Confident of the +correctness of his ideas, feeling sure that they were only the logical +results of a true interpretation of the Constitution, he pursued his +policy of reconstruction. In so doing he was also consistently following +the path marked out by his predecessor. His plan was essentially that +which Lincoln had advocated and attempted to carry into execution. But we +have seen that even under a man enjoying such universal confidence as did +Lincoln, the country viewed with distrust, and Congress openly resented, a +policy which seemed to commit to a recently insurrectionary people the +whole responsibility for proper reconstruction, requiring from them no +surety for sincerity save an oath which all knew would be regarded by the +majority as a mere form with little significance. The same policy when +adopted by Johnson was naturally looked upon with still more suspicion.</p> + +<p>Lincoln was a man of tact and judgment, who was capable of seeing and +confessing a mistake, whose sole object was to do that which, all things +being considered, should seem best for the Union.</p> + +<p>Johnson, on the contrary, from his natural arbitrariness and narrowness, +was a man who held most tenaciously to his views, had little consideration +for the views of others, and who was always determined that his own way +should be carried out. Under such circumstances it would have been little +short of marvelous, had he been able to carry out a policy in itself +disliked, without sooner or later coming into collision with those who +disapproved his theory.</p> + +<p>The provisional governors appointed were not slow in<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> carrying out the +provisions of the proclamations, and conventions met in the various states +as follows: Mississippi, August 14; Alabama, September 12; South Carolina, +September 13; North Carolina, October 2; Georgia, October 25; Florida, +October 25; and Texas in March, 1866. In all these conventions the +secession ordinances were repealed, annulled or declared null and +void,<a name="fna_54_54" id="fna_54_54"></a><a href="#fn54_54" class="fna">[54]</a> and slavery was declared abolished. All but Mississippi and +South Carolina repudiated the rebel debt, and all but Mississippi and +Texas ratified the 13th Amendment.</p> + +<p>Meanwhile Johnson made liberal use of the pardoning power, and large +numbers of the excepted classes were thus restored to all the privileges +of citizens of the United States. The reconstruction was very rapid; so +rapid, as Johnson himself said, that he could scarcely realize it; “it +appears like a dream.”</p> + +<p>The extreme similarity of this method of reconstruction to that advocated +by the Democracy could not escape attention, and Democrats freely asserted +that in his ideas the President was “going over to them.” This, while to a +certain extent true, for he was always a Democrat in principle, was +vigorously denied by Johnson in an interview with Geo. L. Stearns on +October 3, 1865. In it he claimed that the Democratic party, finding its +own views untenable, was gradually coming to adopt his principles, which +he reasserted in the following form: “The States are in the Union, which +is one and indivisible. Individuals tried to carry them out, but did not +succeed, as a man may try to cut his throat and be prevented by the +bystanders; and you can not say he cut his throat because he tried to do +it. * * * Now we want to reconstruct the state governments, and have the +power to do it. The state institutions are prostrated,<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> laid out on the +ground, and they must be taken up and adapted to the progress of events; +this cannot be done in a moment. * * * We must not be in too much of a +hurry; it is better to let them reconstruct themselves than to force them +to do it; for if they go wrong the power is in our hands, and we can check +them in any stage, to the end, and oblige them to correct their errors; we +must be patient with them. I did not expect to keep out all who were +excluded from the amnesty, or even a large number of them; but I intended +they should sue for pardon, and so realize the enormity of the crime they +had committed.”</p> + +<p>7. Johnson realized that the sentiment in favor of negro suffrage was +gaining great power in the North; and while feeling that pure manhood +suffrage was undesirable and totally impracticable, because of the danger +of thereby creating a “war of races,” which he seemed constantly to fear, +he determined to use his influence towards a gradual introduction of the +suffrage. He would give the suffrage to negroes who had served in the +army, to those who could read and write, and to those owning real estate +to the value of two hundred and fifty dollars. He made suggestions of this +nature in letters to Governor Starkey of Mississippi, and Governor Hahn of +Louisiana.<a name="fna_55_55" id="fna_55_55"></a><a href="#fn55_55" class="fna">[55]</a> By some such limited suffrage he hoped that the radical +element in the North would be satisfied, while there could result no +danger to those States in which the negro population predominated.</p> + +<p>He had long believed that the apportionment of Representatives should be +based on the number of qualified voters; while a member of the legislature +of Tennessee he had moved that the apportionment in that State be so made; +and in the interview with Mr. Stearns he said: “The apportionment is now +fixed until 1872; before that time we might change the basis of +representation from population to qualified voters,<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> North as well as +South, and, in due course of time, the States, <i>without regard</i> to color, +might extend the elective franchise to all who possessed certain mental, +moral or such other qualifications as might be determined by an +enlightened public judgment.”<a name="fna_56_56" id="fna_56_56"></a><a href="#fn56_56" class="fna">[56]</a></p> + +<p>But however desirable a limited suffrage might be, he insisted that the +only safety for the nation lay in leaving the whole subject to the +discretion of the individual State. The only approach which he would make +to national interference would be through constitutional amendment. In an +interview with Senator Dixon of Connecticut, on January 28, 1866, he +suggested that such an amendment might be worded in the following manner:</p> + +<p>“Representatives shall be apportioned among the several States which may +be included within this Union according to the number of qualified voters +in each State.</p> + +<p>“Direct taxes shall be apportioned among the several States which may be +included within this Union according to the value of all taxable property +in each State.”<a name="fna_57_57" id="fna_57_57"></a><a href="#fn57_57" class="fna">[57]</a></p> + +<p>The great advantage of an amendment of this kind, in President Johnson’s +opinion, was that Congress would thus shift all responsibility regarding +negro suffrage to the States. Each State would determine the +qualifications for voters, and its representation in Congress would depend +entirely upon the narrowness or broadness of the suffrage.</p> + +<p>In the same interview with Senator Dixon, he described the current +contention over negro suffrage as “ill-timed, uncalled for, and calculated +to do great harm.”</p> + +<p>8. While the President was expressing his belief in qualified +representation, and advising the States in process of reconstruction to +grant some form of limited suffrage, the States themselves manifested no +disposition to follow his advice. While he was describing them in October +as lying<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> helpless, they were busy framing laws which were aimed to +counteract, so far as possible, the force of the emancipation +proclamation.</p> + +<p>When Georgia declared slavery abolished she did so with the proviso that +“acquiescence in the action of the Government of the United States is not +intended to operate as a relinquishment, or waiver, or estoppel of such +claim for compensation of loss sustained by reason of the emancipation of +his slaves, as any citizen of Georgia may hereafter make upon the justice +and magnanimity of that Government.”<a name="fna_58_58" id="fna_58_58"></a><a href="#fn58_58" class="fna">[58]</a> Alabama, South Carolina, and +Florida in their ratifications of the 13th Amendment stated their +understanding to be that it did not confer upon Congress power to +legislate upon the political status of the freedman. The Alabama +legislature passed joint resolutions in which it was affirmed: “That +Alabama will not voluntarily consent to change the adjustment of political +power as fixed by the Constitution of the United States, and to constrain +her to do so, in her present prostrate and helpless condition, with no +voice in the councils of the nation, would be an unjustifiable breach of +faith.”<a name="fna_59_59" id="fna_59_59"></a><a href="#fn59_59" class="fna">[59]</a></p> + +<p>But most important of all was the legislation of these States respecting +the freedman. All were confronted by a host of emancipated blacks, whose +legal status had to be determined. The legislatures had before them work +of the most delicate nature, inasmuch as it not only vitally affected +every person in their own section, but also attracted the keenest interest +from the whole North. All realized that Johnson’s policy would here +undergo the crucial test. Would the legislators of these States, so soon +thrown upon their own responsibility, show due consideration for the new +order of things, or would they take advantage of their opportunity and +proceed to draw the color line as sharply as ever, discriminating against +the negro, and denying<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> him privileges which should be allowed him? Had +the South proved equal to the situation, the wisdom of Johnson’s policy +would have been sustained, and the bitterness characteristic of the 39th +and 40th Congresses would have been avoided.</p> + +<p>Mississippi was the first to adopt “black laws” obnoxious to the North. +Her vagrant act was passed November 24, 1865. This provided that freedmen +found with no lawful employment or business, or unlawfully assembling +together, should be deemed vagrants, and be fined and imprisoned at the +discretion of the court. A poll tax for a freedmen’s pauper fund was to be +levied on all freedmen, and should any fail or refuse to pay, he was to be +hired out by the sheriff to any one who would pay the tax and costs, +preference being given to his former master. Two days later a civil rights +act was passed. This allowed freedmen to sue and be sued, implead and be +impleaded, and to own personal property, but added the important proviso +that the section should not be construed “to allow any freedman, free +negro or mulatto to rent or lease any lands or tenements, except in +incorporated towns or cities,” where they should be controlled by the +corporate authorities. Intermarriage of a white with any freedman, free +negro or mulatto, should be punished by imprisonment in the state +penitentiary for life. A laborer quitting before expiration of term of +service without good cause, forfeited to his employer all wages for that +year up to the time of quitting. Any one was authorized to arrest and +return a deserting freedman, receiving therefor five dollars reward and +mileage, all costs to be paid from the wages of the deserter. Any one +persuading or attempting to persuade any freedman to desert his employer +before his term of service expired, was guilty of a misdemeanor, and +liable to a fine of not less than twenty-five and not more than two +hundred dollars, and if the offender attempted to persuade<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> the freedman +to desert, with a view of employing him without the limits of the State, +the fine was to be not less than fifty nor more than five hundred dollars. +While it was made lawful for a freedman to charge a white man with a +criminal offence against his person or property, and to make all needful +affidavits, a supplementary act passed December 2 provided that where +sufficient proof was made before a court or jury that the arrest and trial +had been falsely or maliciously caused, the freedman should be fined, and +charged with all costs, and on failure to pay should be hired out at +public outcry for the shortest time necessary to discharge the debt. An +act passed November 29, among other restrictions, forbade freedmen to +carry any fire arms, ammunition, dirk or bowie knife, under penalty, and +declared that a freedman exercising the functions of a minister of the +gospel, without a license from some regularly organized church, should be +guilty of a misdemeanor, and become liable to an imprisonment not +exceeding thirty days and to a fine not exceeding one hundred dollars.</p> + +<p>Similar laws were enacted in the other States, varying slightly in +severity of punishment. The labor contract act of Louisiana, passed in +December, is of especial interest as an evidence of the systematic way in +which the Southern legislators hoped to mould the unwieldy mass of +freedmen into a docile set of serfs. All agricultural laborers were +required by this act to make their contract for the ensuing year before +the tenth day of January; said contract to embrace the labor of the whole +family. After the contract had been agreed to, no laborer was to be +allowed to “leave his place of employment until the fulfillment of his +contract, unless by consent of his employer, or on account of harsh +treatment, or breach of contract on the part of employer,” under penalty +of forfeiture of all wages to the time of leaving. “Failing to obey +reasonable orders, neglect of duty, and<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> leaving home without permission, +will be deemed disobedience; impudence, swearing, or indecent language to +or in the presence of the employer, his family or agent, or quarreling or +fighting with one another, shall be deemed disobedience. For any +disobedience a fine of one dollar shall be imposed upon the offender. For +all lost time from work hours, unless in case of sickness, the laborer +shall be fined twenty-five cents per hour. For all absence from home +without leave the laborer will be fined at the rate of two dollars per +day.”<a name="fna_60_60" id="fna_60_60"></a><a href="#fn60_60" class="fna">[60]</a></p> + +<p>The cruelty and injustice possible in the administration of these acts is +even greater than their casual perusal would indicate. Many of these acts, +nominally applying to both races with equal severity, were in reality +intended to apply solely to the negro. The vagrants always proved to be +colored. The acts purporting to secure the protection of the freedmen were +cunningly hedged in by limitations which made them worthless. The employer +was made the sole judge of the acts of his employees—a privilege which +could not but be flagrantly abused. Laws that made it almost impossible +for the freedman to secure the just return for his labor, were followed by + +laws punishing him for his poverty. The fines for his so-called offences +were excessively severe, and the punishments were almost always such as to +reduce him to slavery for limited terms. The whole system, taken advantage +of as it could not fail to be where the dominant classes were almost +unanimously desirous to retain the negro in subjection, resulted in his +practical slavery during those seasons of the year in which his labor was +most needed, and in utter neglect and lack of support when his labor was +not in demand.</p> + +<p>9. Although the enactment of these stringent laws at this time was a +political mistake, and was fraught with most<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> serious consequences for the +South, it is proper to notice what was said in their justification. Many +of them did not differ materially from similar statutes in the Northern +States. Even some of the harshest laws, those which were received with +wide-spread indignation throughout the North, could almost be duplicated +by laws at that time in force in such States as Rhode Island and +Connecticut. Even the phraseology, the using of the words master, mistress +and servant, which was deemed objectionable and suggestive by Northern +Republicans, could be found in Northern statutes.</p> + +<p>The South felt confident that the negro was unable actively to assume the +duties of citizenship. The Southern people feared, and with reason, that +the immense mass of undeveloped humanity was liable to become turbulent +and unmanageable, unless stringent laws could be framed which would hold +it in check.<a name="fna_61_61" id="fna_61_61"></a><a href="#fn61_61" class="fna">[61]</a> They were sincere in their statements that they believed +that the interests of property, peace and good order demanded these laws. +Unfortunately, the humanitarian ideas of the North harmonized too well +with the political ideas of Congress. The enactment of the laws against +the negro seemed to strike at the one and make possible the success of the +other. The radical majority were quick to see their advantage, and did not +hesitate to make the most of the opportunity. They assumed that the South +deliberately intended to defy Northern sentiment, and ignored the +possibility that the legislation in question was sincerely believed to be +a necessary act of self-defense.</p> + +<p>10. To Stevens and his followers the South had proved its impenitent +condition, and had justified the most stringent measures of +reconstruction. They declared that Johnson’s policy had been fairly tested +and that the results of the experiment were apparent. They argued that the +South, <span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span>emboldened by the conciliatory conduct of the President, was +permitting the old rebel leaders to continue to wield the chief influence +in affairs of state. The exclusion of these leaders from participation in +the preliminary work of the reconstruction conventions was no check upon +their influence in the State, and with the completion of <ins class="correction" title="original: reconstructon">reconstruction</ins> +there was nothing to prevent them from occupying the chief state offices. +What the President in the previous April had feared, was coming to pass, +through his failure to do that which he had then said must be done—to +make treason and traitors odious. In proof of the ascendency of the old +elements, the highly questionable legislation of the South was cited, and +the conviction of the Republican party that sterner measures were +necessary was strengthened. As a natural result the doctrine of Thaddeus +Stevens that the South should be regarded and governed as a conquered +territory became practically the doctrine of the majority of Republicans, +and Stevens became the leader of the House of Representatives. The year +1865 had made plain the necessities of the hour, the condition of the +South, the attitude of the President, and in short had prepared the people +for the great struggle which was to follow in the 39th and 40th +Congresses.<a name="fna_62_62" id="fna_62_62"></a><a href="#fn62_62" class="fna">[62]</a></p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span></p> +<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III.</h2> +<h3>THE ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT:<br />DEVELOPMENT OF THE CONGRESSIONAL THEORY.</h3> + +<p><br />1. The Thirty-ninth Congress began its labors on December 4, 1865, well +aware that the President had separated himself from the Republican party +so far that it was improbable that the executive and legislative +departments would be able to work in harmony. The Democrats were beginning +to commend the administration, and had even gone so far in some instances +as to indicate, in resolutions passed in their state conventions, their +approval of Johnson’s plan of reconstruction. Republicans, on the other +hand, were becoming quite reserved in their expressions of approval, and +began to show a decided sentiment in favor of manhood suffrage as +involving less danger and more benefit to the Republic than any plan which +even partially excluded the negro from the franchise. The legislation of +the Southern States had convinced many that without the negro vote there +would be no way to keep the old insurrectionary element from completely +monopolizing their state governments.<a name="fna_63_63" id="fna_63_63"></a><a href="#fn63_63" class="fna">[63]</a></p> + +<p>Congress with its large Republican majorities<a name="fna_64_64" id="fna_64_64"></a><a href="#fn64_64" class="fna">[64]</a> in +both<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> houses was +expected to deal with the problem, correct the abuses which had arisen +from the too lenient policy of the President, and inaugurate a policy +which should bring about an equality of individual rights throughout the +Union.</p> + +<p>2. The calling of the roll by the clerk of the House, Edward McPherson, +marked the commencement of active opposition to the presidential policy. +All of the late insurrectionary States excepting Texas, whose convention +did not meet until the following March, had elected senators and +representatives. Their action in choosing <ins class="correction" title="original: or">for</ins> these and other high +official positions members of the Confederate Congress, and civil and +military officers of the Confederacy, was very unwise and did much to +strengthen opposition to the recognition of these States.<a name="fna_65_65" id="fna_65_65"></a><a href="#fn65_65" class="fna">[65]</a></p> + +<p><span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span>Louisiana, Arkansas and Tennessee, having been recognized by Lincoln as +reconstructed, stood upon a somewhat different footing from the others, +but in a caucus of the Republican members of the House, held previous to +the organization of Congress, it had been decided to omit the names of +their representatives from the rolls so as to reduce all to a common +level, that no embarrassing distinctions might exist to hamper Congress in +the adoption of whatever policy it chose.</p> + +<p>In accordance with the instructions of the caucus, the clerk refused to +call the names of these representatives elect. A lively discussion +immediately arose, in which emphatic protest was made against forcing in +this way a policy upon the House at a time when due deliberation could not +be had. It was boldly asserted<a name="fna_66_66" id="fna_66_66"></a><a href="#fn66_66" class="fna">[66]</a> that the clerk was acting merely as the +tool of the Republican party, and the claim was also made that the +resolutions about to be introduced by Mr. Stevens of Pennsylvania were +another part of the general plan to commit the House to a +quasi-condemnation of the President, and virtually nullify in advance the +recommendations which it was supposed he would make. But protest was +useless; the names were not placed on the rolls, and the first roll-call +gave evidence that active resistance to the President was determined upon.</p> + +<p>The Senate was almost equally prompt in making public its determination to +take the process of reconstruction out of the hands of the President. It +is the custom in Congress to refrain from the consideration of questions +of public importance until the President’s message has been received. At +the opening of this Congress no such courtesy was observed. Among the very +first proceedings of the Senate after its organization was the +introduction of three<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> +series of resolutions by Sumner.<a name="fna_67_67" id="fna_67_67"></a><a href="#fn67_67" class="fna">[67]</a> The first +series was in reference to the Thirteenth Amendment, declaring it to have +become a part of the Constitution without reference to the action of the +late so-called Confederate States. Such States, the resolutions affirmed, +should be required to ratify the Amendment as one of the conditions +precedent to restoration. The second series related to the guarantees +which should be required of the States prior to resuming their relations +to the Union. These guarantees were five in number. First: “The complete +re-establishment of loyalty, as shown by an honest recognition of the +unity of the Republic, and the duty of allegiance to it at all times, +without mental reservation or equivocation of any kind.” Second: “The +complete suppression of all oligarchical pretensions, and the complete +enfranchisement of all citizens;” impartial justice, and equality before +the law. Third: The repudiation of the rebel debt and the assumption of +the proper proportion of the national debts and obligations. Fourth: “The +organization of an educational system for the equal benefit of all, +without distinction of color or race.” Fifth: “The choice of citizens for +office, whether State or National, of constant and undoubted loyalty, +whose conduct and conversation shall give assurances of peace and +reconciliation.” The third series was declaratory of the duty of Congress +to the loyal citizens in the rebel States. They, especially those who had +served in the Union army and those excluded from the ballot at the time of +secession, should have control of the conventions to be called for +reorganizing the state governments. “No state law or state constitution +can be set up as an impediment to the national power” in the +reorganization of these States. No State recently in rebellion could be +considered to have a republican form of government<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> “where the elective +franchise and civil rights are denied to the Union soldier, his relatives, +or the colored race.”</p> + +<p>The submission of these resolutions was of significance merely as a formal +declaration that the President was to be ignored and an independent policy +formed. The plan of reconstruction, as here presented, embodied many +impracticabilities and impossibilities, but it indicated in broad outlines +the propositions to be discussed in the succeeding months.</p> + +<p>The House was still more active in its initiatory steps toward a policy. +The resolution for the establishment of a <ins class="correction" title="original: join tcommittee">joint committee</ins> on +reconstruction was introduced by Mr. Stevens at the first opportunity on +the opening day, and immediately adopted. This resolution, after having +been discussed in a Republican caucus,<a name="fna_68_68" id="fna_68_68"></a><a href="#fn68_68" class="fna">[68]</a> was taken up for consideration +in the Senate on December 12,<a name="fna_69_69" id="fna_69_69"></a><a href="#fn69_69" class="fna">[69]</a> was made a concurrent resolution, that +it might not need the approval of the President, and was passed with +amendments. The debate on this resolution is of especial importance as the +first formal test of the attitude of the individual Senators towards the +administration. It brought out the fact that Senators Cowan of +Pennsylvania, Dixon of Connecticut, and Doolittle of Wisconsin, would +support the administration and oppose the congressional policy. Senator +Norton, of Minnesota, soon joined their ranks, and Senator Lane<a name="fna_70_70" id="fna_70_70"></a><a href="#fn70_70" class="fna">[70]</a> of +Kansas, broke from the party on the Civil Rights bill. The remaining +Republican senators, while exhibiting natural differences of opinion, were +united in their hostility to the existing method of restoration.</p> + +<p><span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span>The resolution, as amended and concurred in by the House, provided for a +joint committee of fifteen, nine from the House and six from the Senate, +“who shall inquire into the condition of the States which formed the +so-called Confederate States of America, and report whether they or any of +them are entitled to be represented in either House of Congress, with +leave to report at any time by bill or otherwise.”<a name="fna_71_71" id="fna_71_71"></a><a href="#fn71_71" class="fna">[71]</a></p> + +<p>The appointment of this committee, with Thaddeus Stevens as a member, +although Senator Fessenden of Maine was chairman, marks an important epoch +in the history of reconstruction.<a name="fna_72_72" id="fna_72_72"></a><a href="#fn72_72" class="fna">[72]</a> Stevens, now the virtual leader of +the House, represented a policy to which Johnson was thoroughly +antagonistic, and from this time forth everything relating to the +reconstruction of the Southern States was to be referred to this +committee. In addition, the committee took large masses of testimony from +southerners, federal officers, and northerners travelling through the +Southern States, in order that an intelligent judgment might be reached +regarding the actual condition of these States. The bills in which they +embodied the results of their investigations constituted the basis of the +final reconstruction. The ill-defined<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> sentiment of the Republicans, that +the proper mode of dealing with the Southern States had not been found, +was to be replaced by a vigorous policy which looked primarily to the +proper protection of the freedman.</p> + +<p>3. The message of the President, which was read on the 5th of December, +had been eagerly awaited.<a name="fna_73_73" id="fna_73_73"></a><a href="#fn73_73" class="fna">[73]</a> It had been expected that it would contain a +decided statement of his exact views on reconstruction, and expectations +were fulfilled. It was a clearly written document, and outlined in extreme +simplicity his attitude. In it he says, referring to the rebel States: +“Whether the territory within the limits of those States should be held as +conquered territory, under military authority emanating from the President +as the head of the army, was the first question that presented itself for +decision.” His unhesitating answer to this question was that military rule +was extremely undesirable, especially from the greatly increased powers +which thereby would be held by the President. “The powers of patronage and +rule * * * I could never, unless on occasions of great emergency, consent +to exercise. * * * Besides, the policy of military rule over a conquered +territory would have implied that the States whose inhabitants may have +taken part in the rebellion, had, by the act of those inhabitants, ceased +to exist. But the true theory is, that all pretended acts of secession +were, from the beginning, null, and void. The States cannot commit +treason, nor screen the individual citizens who may have committed +treason, any more than they can make valid treaties or engage in lawful +commerce with any foreign power. The States attempting to secede placed +themselves in a condition where their vitality was impaired, but not +extinguished—their functions suspended, but not destroyed.” These +sentiments were but the repetition, in almost the same language, of +sentiments previously expressed in various<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> interviews and speeches. The +significance of the message was merely his recommitment to the policy he +was applying in practice. But the consideration of the message in +committee of the whole afforded a good opportunity for general discussions +of reconstruction, which were continued at intervals throughout the whole +session.</p> + +<p>The great debate was opened on December 18 by Mr. Stevens, who reasserted +his views, declaring that Congress has the sole power to receive back the +States, the Executive concurring.<a name="fna_74_74" id="fna_74_74"></a><a href="#fn74_74" class="fna">[74]</a> The States as States made war. “The +idea that the States could not and did not make war because the +Constitution forbids it, and that this must be treated as a war of +individuals, is a very injurious fallacy. Individuals cannot make war. +They may commit murder, but that is not war. Communities, societies, +states, make war.” He earnestly pleaded for negro suffrage both on grounds +of expediency and of right, closing his speech with the oft-quoted +sentence: “Sir, this doctrine of a white man’s government is as atrocious +as the infamous sentiment that damned the late Chief Justice to +everlasting fame, and I fear, to everlasting fire.”<a name="fna_75_75" id="fna_75_75"></a><a href="#fn75_75" class="fna">[75]</a> Mr. Beaman, on +February 24, after dwelling upon the horrors of the late war, said: “Those +were sad, dark days, whose tinge was deepened by the frowns and hostile +intrigues of foreign nations. But sadder still, and darker and more +gloomy, will be that day in which the rebel States shall assume the +control of our national government; when without guards or security for +future good conduct, without protection to the blacks and loyal whites who +have freely shed their blood in our defense, the seceded districts shall +be declared <span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span>reconstructed and restored States, and again launched upon +their career of oppression, tyranny and crime.”[76]</p> + +<p>On March 10, Mr. Stevens made a speech upholding the right of the federal +government to treat the conquered States in whatever manner was deemed +advisable. “I trust yet to see our confiscation laws fully executed; and +then the malefactors will learn that what Congress has seized as enemy’s +property and invested in the United States, cannot be divested and +returned to the conquered belligerent by the mere voice of the Executive. +I hope to see the property of the subdued enemy pay the damages done to +loyal men, North and South, and help to support the helpless, armless, +mutilated soldiers who have been made wretched by this unholy war. I do +not believe the action of the President is worth a farthing in releasing +the property conquered from the enemy, from the appropriation made of it +by Congress.”<a name="fna_76_76" id="fna_76_76"></a><a href="#fn76_76" class="fna">[76]</a></p> + +<p>Other speeches just as violent, condemning Johnson and his policy, were +made during these general discussions. Thus Mr. Dumont of Indiana said: +“Some gentlemen seem to be anxious to hear within this Hall the crack of +the plantation whip, and to have a manifestation of plantation manners as +in days of other years; and as sure as God lives they will be abundantly +gratified, if the policy of letting in the rebel States without guaranties +shall prevail.”<a name="fna_77_77" id="fna_77_77"></a><a href="#fn77_77" class="fna">[77]</a> And Mr. +Moulton, of<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> Illinois, a week later declared +that “Andy Johnson will go down to posterity, not only as the betrayer of +his party, but as an ingrate, infamous in all time to come to all +honorable men.”<a name="fna_78_78" id="fna_78_78"></a><a href="#fn78_78" class="fna">[78]</a> In the same speech he says: “No rights of the South +that were lost by the rebellion were revived or repossessed by traitors on +the cessation of hostilities. War destroys all rights but the rights of +war.”<a name="fna_79_79" id="fna_79_79"></a><a href="#fn79_79" class="fna">[79]</a> Mr. Baldwin, of Massachusetts, described the attitude of the +Southern States as follows: “It is undeniably the aim of the old +pro-slavery spirit to reduce them [the freedmen] to a condition as nearly +like that of slavery as circumstances will admit; a condition that would +yield all the advantages of slavery without any of its incumbrances. The +hatred which has declared the freedom of these people a calamity conspires +diligently to make it so; the government is angrily forbidden to interfere +with its operations; and if there be an epithet of contumely and reproach +that has not been hurled at those who would allow these people the +protection they need, it must be some blackguard epithet not yet +invented.”<a name="fna_81_81" id="fna_81_81"></a><a href="#fn81_81" class="fna">[81]</a></p> + +<p>But the policy of the President was not without its vigorous supporters, +although they generally were found among the Democrats. Thus Voorhees, on +January 9, eulogized<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> Johnson’s policy as having “cleared away the wreck +of a gigantic fraternal war, laid anew the foundation of government +throughout an extent of country more vast than the most powerful kingdoms +of Europe, revived confidence and hopes in the breasts of a despairing +people, and won for its author the respect and admiration of the civilized +nations of both hemispheres.”<a name="fna_82_82" id="fna_82_82"></a><a href="#fn82_82" class="fna">[82]</a> He also introduced a series of +resolutions endorsing the policy of the President, and expressing +confidence in him;<a name="fna_83_83" id="fna_83_83"></a><a href="#fn83_83" class="fna">[83]</a> but these, together with an amendment by Bingham, +expressing confidence that the President would co-operate with Congress, +were referred to the Committee on Reconstruction, from which they were +never reported.</p> + +<p>Mr. Thornton, of Illinois, thought that “if those States are ever to be +bound together in an equal and enduring union by us, we must rise to the +high dignity of true manhood and Christian charity, and bury forever the +feelings of distrust which now haunt the mind. The charge is constantly +made that the Southern people are perfidious; that they will keep no +pledges; that no oath will bind them. Can they accept your conditions +precedent tendered in such a spirit? Never!”<a name="fna_84_84" id="fna_84_84"></a><a href="#fn84_84" class="fna">[84]</a> Mr. Harding, of Kentucky, +declared that the Republican party “with the cry of liberty on its tongue, +is earnestly striving to subvert the foundations of republican government, +laboring to centralize, consolidate and build up a frightful Federal +despotism, under whose dark and deadly shadow self-government and all +state rights would utterly sink and perish.”<a name="fna_85_85" id="fna_85_85"></a><a href="#fn85_85" class="fna">[85]</a></p> + +<p>4. The objectionable “black laws” of the Southern States, and the many +tales of the oppression and cruel treatment of negroes, brought about a +strong sentiment in<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> favor of legislation by Congress giving additional +protection to the freedman.<a name="fna_86_86" id="fna_86_86"></a><a href="#fn86_86" class="fna">[86]</a> The Act of March 3, 1865, had established +in the War Department a “Bureau for the relief of Freedmen and Refugees,” +which was “to continue during the present war of rebellion, and for one +year thereafter.”<a name="fna_87_87" id="fna_87_87"></a><a href="#fn87_87" class="fna">[87]</a> This bureau was to assume control of all abandoned +or confiscated lands in the insurrectionary States, and to assign tracts +not to exceed forty acres each to freedmen and refugees at an annual rent +of not more than six per cent. of the value. The occupants were to be +allowed to purchase the land at any time within three years. The bureau +was also authorized to supervise all matters that might concern freedmen +and refugees from any of the rebel States or from districts occupied by +the army, and to furnish supplies to such as were in need.</p> + +<p>To extend the powers of this bureau and to continue it in operation until +affairs had resumed their normal course, appeared to be a practicable way +to protect the emancipated race. A bill to this effect was introduced in +the Senate by Mr. Trumbull on January 5, 1866,<a name="fna_88_88" id="fna_88_88"></a><a href="#fn88_88" class="fna">[88]</a> and the Senate +proceeded<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> to its consideration on the 12th. With certain amendments the +bill passed the Senate on the 25th by a vote of 37 to 10. The Select +Committee on Freedmen<a name="fna_89_89" id="fna_89_89"></a><a href="#fn89_89" class="fna">[89]</a> to which the Senate bill had been referred by +the House, reported on January 30 a substitute bill. This passed the House +on the 6th of February by a vote of 136 to 33; it was amended by the +Senate on the 7th, the House concurring on the 9th. It was vetoed by the +President on the 10th, and the Senate on the 10th attempted to pass the +bill over the veto. The result showed 30 votes in favor, 19 against, less +than a two-thirds majority, and the bill thus <ins class="correction" title="original: falied">failed</ins> to become a law.<a name="fna_90_90" id="fna_90_90"></a><a href="#fn90_90" class="fna">[90]</a></p> + +<p>The bill as presented to the President for his signature was entitled “An +Act to amend an act entitled ‘An act to establish a Bureau for the relief +of Freedmen and Refugees,’ and for other purposes.”<a name="fna_91_91" id="fna_91_91"></a><a href="#fn91_91" class="fna">[91]</a> It continued in +force the act of March 3, 1865, and extended the jurisdiction of the +bureau to freedmen and refugees in all parts of the United States. The +President was authorized to “divide the section of country containing such +refugees and freedmen into districts, each containing one or more States, +not to exceed twelve in number, and, by and with the consent of the +Senate, appoint an assistant commissioner for each of said districts;” or +in the discretion of the President “the bureau might be placed under<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> a +commissioner and assistant commissioner to be detailed from the army.” +Districts when necessary were divided into sub districts under agents. +Military jurisdiction and protection were to extend over all connected +with the bureau. Unoccupied public lands in the Southern States, not to +exceed three million acres, were to be set apart for freedmen. Military +protection was to be extended over all persons denied civil rights on +account of race, color or previous servitude, and punishment was provided +for those who deprived such parties of their civil rights.</p> + +<p>The debates on this bill, occurring as they did before the President’s +speech of February 22, which will hereafter be noticed, lacked the great +bitterness which was frequently manifested in the later days of the +session. The fact that the veto message was received before the 22d +accounts for the failure of the attempt to override it.<a name="fna_92_92" id="fna_92_92"></a><a href="#fn92_92" class="fna">[92]</a></p> + +<p>The bill itself was moderate, the freedmen obviously needed the +legislation, but the President considered the principles at stake of +sufficient importance to justify him in further antagonizing Congress. His +veto message cited a number of reasons for withholding the executive +approval.<a name="fna_93_93" id="fna_93_93"></a><a href="#fn93_93" class="fna">[93]</a> In the first place he claimed that there was no immediate +necessity for the measure. Then it also contained provisions which were +unconstitutional and unsuited to accomplish the desired end. His chief +objection, of course, was based upon the continuance of military +jurisdiction into a time of peace. This he declared clearly +unconstitutional, a violation of the right of <i>habeas corpus</i> and of trial +by jury; and he added that “for the sake of a more vigorous <span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span>interposition +in behalf of justice we are to take the risks of the many acts of +injustice that would necessarily follow from an almost countless number of +agents, * * * over whose decisions there is to be no supervision or +control by the federal courts. * * * The country has returned or is +returning to a state of peace and industry, and the rebellion is in fact +at an end. The measure, therefore, seems to be as inconsistent with the +actual conditions of the country as it is at variance with the +Constitution of the United States.” He considered the provisions which +proposed to take away land from its former owners without due process of +law, unconstitutional. Other more general objections were mentioned, such +as the immense patronage created and immense expense involved, the +dangerous concentration of power in the Executive, and the ethical +objection that legislation which implies that the freedmen “are not +expected to attain a self-sustaining condition must have a tendency +injurious alike to their character and their prospects.”<a name="fna_94_94" id="fna_94_94"></a><a href="#fn94_94" class="fna">[94]</a></p> + +<p>The unification of opposition to the President, which was accomplished +through his speech of February 22, afterwards impelled the friends of the +Freedmen’s Bureau bill to make another attempt to secure its passage, +believing that it then could be passed over the President’s veto.<a name="fna_95_95" id="fna_95_95"></a><a href="#fn95_95" class="fna">[95]</a> The +ball was again set rolling by Mr. Eliot, of Massachusetts, who on May 22 +introduced a bill designed to take the place of the defeated bill, yet +different enough to afford a plausible pretext for again bringing the +question forward. Slightly amended, it passed the House on May 29 by a +vote of 96 to 32. The bill, with amendments, reported from the Committee +on Military Affairs, of which Senator Wilson, of Massachusetts,<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> was +chairman, was taken up for consideration by the Senate on June 26, and +passed. The House non-concurring, a committee of conference was appointed, +which made some minor changes, to which the Senate on July 2, and the +House on July 3, agreed. A veto message of the President was received on +July 16, and the bill was passed over the veto on the same day.<a name="fna_96_96" id="fna_96_96"></a><a href="#fn96_96" class="fna">[96]</a></p> + +<p>To all intents and purposes this act differed but little from the first +vetoed bill. It continued the original Freedmen’s Bureau Act in force for +two years, and contained certain additional provisions for the education +of the freedmen, for the recognition of their civil rights, and for the +protection of such rights by military power.</p> + +<p>President Johnson, in his veto message, declared that a careful +examination had convinced him that the same reasons assigned in his veto +of February 19, applied also to this measure. Such legislation was +justifiable only under the war power, and should not extend to times of +peace. The now existing federal and state courts, he went on to say, were +amply sufficient for the protection of the freedmen, and the existence of +the prevalent disorders furnished no necessity for the extension of the +bureau system. The practical operation of the bureau showed that it was +becoming an instrument of fraud, corruption and oppression, while the +civil rights bill, needless as it was, provided methods of protection far +preferable to the military protection authorized by this bill. The +legislation regarding the disposal of land was discriminating, unsafe, and +unconstitutional, and in conclusion he urged upon Congress the dangers of +class legislation.</p> + +<p><span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span>5. The mere veto of the first Freedmen’s Bureau bill would not have been +of great significance had it been the only act of the President at this +time offensive to the rank and file of the Republican party. But on two +other occasions he acted very indiscreetly, February 7 and February 22, +the latter coming so shortly after the veto message on the first bill that +the antagonism of Congress was greatly intensified.</p> + +<p>On February 7, 1866, a delegation of colored representatives from fifteen +States and the District of Columbia called upon President Johnson in order +to present their wishes concerning the granting of suffrage to their race. +Geo. T. Downing and Frederick Douglass acted as spokesmen. In reply, +President Johnson described his sacrifices for the colored man, and went +on to express his indignation at being arraigned by incompetent persons. +Although he was willing to be the colored man’s Moses, he was not willing +“to adopt a policy which he believed would only result in the sacrifice of +his [the colored man’s] life and the shedding of his blood.” The war was +not waged for the suppression of slavery; “the abolition of slavery has +come as an incident to the suppression of a great rebellion—as an +incident, and as an incident we should give it the proper direction.” He +went on to state that the negro was unprepared for the ballot, and that +there was a danger of a race war. The States must decide for themselves on +the question of the franchise. “Each community is better prepared to +determine the depository of its political power than anybody else, and it +is for the legislature * * * to say who shall vote, and not for the +Congress of the United States.”<a name="fna_97_97" id="fna_97_97"></a><a href="#fn97_97" class="fna">[97]</a></p> + +<p>This plain statement of his opposition to negro suffrage greatly added to +Johnson’s unpopularity. This was not due to the fact that his views on +that subject had not been made<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> public before, for he never had tried to +conceal his attitude towards any of the questions before the people. But +the attitude of the people themselves had greatly changed since the ill +treatment of the freedmen and the objectionable legislation of the +Southern States had been placed vividly before the public through the +newspapers. The sentiment in favor of the extension of the franchise had +rapidly gained strength; and the attitude of the President, made +conspicuous anew by his almost harsh reply to so prominent a delegation +representing such a wide extent of territory, called forth much hostile +criticism, which, added to the vigorous letter published by the delegation +in reply to the President, aided in unifying the opposition to him.</p> + +<p>On February 22 he made a speech in which he not only attacked by name +certain leading politicians, but also criticised in terms the legislative +branch of the government. This speech marks a distinct epoch in the +history of the struggle between the President and Congress. Prior to it, +the latter, although conscious of the rapid divergence of the paths each +was following, and determined to render as nugatory as possible the +President’s policy, had not permitted the feeling of personal antagonism +to influence its actions to any great extent. But from this time forth the +lines were sharply drawn, culminating in the impeachment. Johnson bitterly +hated the Joint Committee on Reconstruction. The very manner in which it +had been authorized—through a concurrent resolution instead of a joint +resolution for the purpose of preventing executive action—had embittered +him; the principles which its majority represented and the <i>personnel</i> of +the committee were equally distasteful to him.</p> + +<p>In connection with the speech of February 22, it should be noticed that +Mr. Stevens had two days before introduced a concurrent resolution, which +passed the House, providing<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> that no senators or representatives were to +be admitted until Congress should declare the State entitled to +representation. Such a provision, the practical effect of which would be +to place the subject in the exclusive control of the Joint Committee on +Reconstruction, Congress, as we have seen, struck out of the resolution +authorizing that committee’s appointment.<a name="fna_98_98" id="fna_98_98"></a><a href="#fn98_98" class="fna">[98]</a> The President had good +reason to believe that Mr. Stevens’ resolution would pass the Senate, as +it did on the 2d of March, and he looked upon it as one more step in the +usurpation of power by an “irresponsible directory.” Sensitive to all +tendencies towards centralization, he saw in the power granted to the +committee, and the measures proposed by it, a tendency towards the +conditions against which he had spoken on April 21, 1865, when he said: +“While I have opposed dissolution and disintegration on the one hand, on +the other I am equally opposed to consolidation, or the centralization of +power in the hands of a few.”</p> + +<p>Public sentiment in Washington was very hostile to the Freedmen’s Bureau, +and on February 22 a mass-meeting was held to express popular approval of +the action of the President in vetoing the bill. Adjourning to the White +House, the crowd congratulated Johnson with tumultuous enthusiasm. A man +more cautious would have limited his reply to a temperate expression of +his views; but Johnson, ever eager to pose as the leader of the people, +was led by the enthusiasm of the moment to abandon himself entirely to his +prejudices, aggravated as they were by the circumstances above mentioned. +Thus, on the anniversary of Washington’s birthday, a day when he should +have particularly refrained from <span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span>partisan politics, he took occasion to +assail the committee violently, declaring that the end of one rebellion +was witnessing the beginning of a new rebellion; saying that “there is an +attempt now to concentrate all power in the hands of a few at the federal +head, and thereby bring about a consolidation of the Republic, which is +equally objectionable with its dissolution. * * * The substance of your +government may be taken away, while there is held out to you the form and +the shadow.” He described the Joint Committee as an “irresponsible central +directory,” which had assumed “nearly all the powers of Congress,” without +“even consulting the legislative and executive departments of the +Government. * * * Suppose I should name to you those whom I look upon as +being opposed to the fundamental principles of this Government, and as +laboring to destroy them. I say Thaddeus Stevens, of Pennsylvania; I say +Charles Sumner, of Massachusetts; I say Wendell Phillips, of +Massachusetts.”<a name="fna_99_99" id="fna_99_99"></a><a href="#fn99_99" class="fna">[99]</a></p> + +<p>6. After the President had thus publicly stigmatized the opponents of his +policy as instigators of a new rebellion, and classed Stevens, Sumner and +Wendell Phillips as traitors to be compared with Davis, there could be no +hope of reconciliation, and the Republican party grimly settled down to +fight for its principles. The first important measure to take effect was +the civil rights bill.<a name="fna_100_100" id="fna_100_100"></a><a href="#fn100_100" class="fna">[100]</a></p> + +<p>On the first day of the session Senator Wilson, of Massachusetts, had +introduced a bill looking to the personal protection of the freedmen. It +was aimed directly at the “black laws” of the Southern States, and +declared all laws, statutes, acts, etc., of any description whatsoever, +which caused any inequality of civil rights, in consequence of race or +color, to be void. In his speech of December 13, 1865, explaining his<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> +reasons for introducing the bill, Wilson said that, while honest +differences as to the expediency of negro suffrage might exist, he could +not comprehend “how any humane, just and Christian man can, for a moment, +permit the laws that are on the statute-books of the States in rebellion, +and the laws that are now pending before their legislatures, to be +executed upon men whom we have declared to be free. * * * To turn these +freedmen over to the tender mercies of men who hate them for their +fidelity to the country is a crime that will bring the judgment of heaven +upon us.”<a name="fna_101_101" id="fna_101_101"></a><a href="#fn101_101" class="fna">[101]</a></p> + +<p>This bill and a similar bill introduced by the same senator on December +21, and one introduced by Senator Sumner on the first day of the session, +never came to a vote, the last two being postponed indefinitely by the +Senate. In place of these bills, Senator Trumbull of Illinois, chairman of +the Committee on the Judiciary, on January 5, 1866, introduced a bill +which, slightly amended, became a law. This measure passed the Senate on +February 2, was amended and passed by the House on March 13, and the +amendments were concurred in by the Senate on the 15th. It was returned to +the Senate by the President, without his approval, March 27, and on April +6 the Senate passed the bill over the veto of the President by a vote of +33 to 15. Three days later the House passed the bill by a vote of 122 to +41, and the measure became a law.</p> + +<p>As passed it was entitled, “An Act to protect all persons in the United +States in their civil rights, and furnish the means of their vindication.” +It first declared “all persons born in the United States, and not subject +to any foreign power, excluding Indians not taxed,” to be citizens of the +United States. Such citizens, without regard to race, color, or previous +servitude, were declared to have the same rights in all the States and +Territories, as white citizens, to make<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> and enforce contracts; to “sue, +be parties, and give evidence; to inherit, purchase, lease, sell, hold, +and convey real and personal property;” to enjoy the equal benefit of all +laws for the security of person and property, and to be subject only to +the same punishments. The second section provided penalties for the +deprivation of equal rights. The third gave to the United States courts +exclusive cognizance of all causes involving the denial of the rights +secured by the first section. The remaining sections specified the powers +and duties of the district attorneys, marshals, deputy marshals and +special commissioners, in connection with the enforcement of the act, the +ninth section providing: “It shall be lawful for the President of the +United States, or such person as he may empower for that purpose, to +employ such part of the land or naval forces of the United States, or of +the militia, as shall be necessary to prevent the violation and enforce +the due execution of the Act.”<a name="fna_102_102" id="fna_102_102"></a><a href="#fn102_102" class="fna">[102]</a></p> + +<p>From this summary of the act its nature can be seen plainly. Up to this +time there had been no legislation affecting the <i>status</i> of the freedman. +This declared him to be a citizen of the United States, and thereby +entitled to all the privileges of citizenship. The war having resulted in +the anomalous condition of the several millions of freedmen, some such +legislation was necessary, especially in view of the fact that +discriminative legislation was being enacted in the South. The bill was +moderate in its terms, the most questionable portion being the section +empowering the President to enforce the act through the war department, +but even that in the then unsettled condition of the country had much to +justify it.</p> + +<p>The President’s veto message was a lengthy document and discussed in +detail the significance of the bill.<a name="fna_103_103" id="fna_103_103"></a><a href="#fn103_103" class="fna">[103]</a> +He<span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> questioned the policy of +conferring citizenship on four million blacks while eleven of the States +were unrepresented in Congress. He doubted whether the negroes possessed +the qualifications for citizenship, and thought that their proper +protection did not require that they be made citizens, as civil rights +were secured to them as they were, while the bill discriminated against +the intelligent foreigner. Naturally, he also declared that the securing +by federal law of equality of the races was an infringement upon state +jurisdiction. “Hitherto, every subject embraced in the enumeration of +rights contained in this bill has been considered as exclusively belonging +to the States.” The second section he thought to be of doubtful +constitutionality and unnecessary, “as adequate judicial remedies could be +adopted to secure the desired end, without invading the immunities of +legislators, * * * without assailing the independence of the judiciary, * +* * and without impairing the efficiency of ministerial officers. * * * +The legislative department of the United States thus takes from the +judicial department of the States the sacred and exclusive duty of +judicial decision, and converts the State judge into a mere ministerial +officer bound to decide according to the will of Congress.” The third +section he characterized as undoubtedly comprehending cases and +authorizing the “exercise of powers that are not by the Constitution +within the jurisdiction of the courts of the United States.” He also +considered the extraordinary powers of the numerous officials created by +the act as jeopardizing the liberties of the people, and the provisions in +regard to fees as liable to bring about persecution and fraud.</p> + +<p>In addition to these objections he argued that the bill frustrated the +natural adjustment between capital and labor<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> in a way potent to cause +discord. It was “an absorption and assumption of power by the General +Government which, if acquiesced in, must sap and destroy our federative +system of limited powers, and break down the barriers which preserve the +rights of the States. * * * The tendency of the bill must be to +resuscitate the spirit of rebellion, and to arrest the progress of those +influences which are more closely drawing around the States the bonds of +union and peace.”</p> + +<p>The next clash between the executive and legislative branches of the +government was over the Colorado bill.<a name="fna_104_104" id="fna_104_104"></a><a href="#fn104_104" class="fna">[104]</a> This bill provided for the +admission of Colorado into the Union, and was passed May 3, being vetoed +by the President on May 15, in accordance with the policy which he was +endeavoring to carry out.<a name="fna_105_105" id="fna_105_105"></a><a href="#fn105_105" class="fna">[105]</a> The nominal grounds, while strong in +themselves, had less weight in Johnson’s mind than the argument reserved +for the final sentence of the message. This referred to the fact that +eleven of the old States were unrepresented in Congress, and that it was +in the “common interest of all the States, as well those represented as +those unrepresented, that the integrity and harmony of the Union should be +restored as completely as possible, so that all those who are expected to +bear the burdens of the Federal Government shall be consulted concerning +the admission of new States; and that in the mean time no new State shall +be prematurely and unnecessarily admitted to a participation in the +political power which the Federal Government wields.” A second bill for +the admission of Colorado was vetoed on January 29, 1867.<a name="fna_106_106" id="fna_106_106"></a><a href="#fn106_106" class="fna">[106]</a> In the +message President<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> Johnson stated that he could change none of his +opinions expressed in the first veto, while he now saw many additional +objections. Neither bill was passed over the veto.</p> + +<p>Another measure of like nature was the Nebraska bill, which was passed on +July 27, the last day but one of the session. The President “pocketed” it. +Both bills were again introduced at the beginning of the second session by +Senator Wade, and the Nebraska bill was duly passed. It was vetoed January +30, 1867, but within ten days was passed over the veto by both houses, +Nebraska being able to present stronger arguments for receiving statehood +than Colorado, and consequently obtaining more support from the +conservative members of the Republican party. The principal objection +expressed in the veto message was the incongruities existing in the bill, +the first section admitting the State “upon an equal footing with the +original States in all respects whatsoever,” and the third section +providing that “there shall be no denial of the elective franchise, or of +any other right, to any person by reason of race or color, except Indians +not taxed.” This assertion of the right of Congress to regulate the +elective franchise the President declared clearly unconstitutional, +incompatible with an equal footing with the original States.<a name="fna_107_107" id="fna_107_107"></a><a href="#fn107_107" class="fna">[107]</a></p> + +<p>7. The central event, naturally, of the first session of the 39th Congress +was the report of the Joint Committee on Reconstruction. Although during +the session there was a great amount of discussion as to the theory and +method of reconstruction, and, as has been shown, two important measures +were passed over the President’s veto, the majority in the House still +felt uncommitted as to the policy they should favor, excepting so far as +the measures already reported from the committee had given shape to<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> their +plans. A definite platform had not been erected on which they could stand, +and they were not certain of the foundations on which to base constructive +legislation. It was quite evident from the resolutions and bills reported +from the committee to Congress, that the testimony taken before it had not +changed the views of the majority of the committee, and the general tenor +of the report was not a surprise to any one. Its constitutional importance +cannot be questioned, since the Republican party adopted its construction +of the Constitution, and proceeded to frame, on the lines marked out by +the report, the bills which changed decidedly the relations between the +States and the Federal Government, affording precedents for an extension +of federal power which previous to the close of the war few could have +been found to support.<a name="fna_108_108" id="fna_108_108"></a><a href="#fn108_108" class="fna">[108]</a></p> + +<p>No theory as to the <i>status</i> of the Southern States was agreed on by the +committee.<a name="fna_109_109" id="fna_109_109"></a><a href="#fn109_109" class="fna">[109]</a> Among those signing the majority report several distinct +views can be noted. The theory of Thaddeus Stevens, that the States were +now merely conquered territory, at the mercy of the conqueror, has already +been noticed. Mr. Boutwell, of Massachusetts, was one of those who +theoretically differed from Mr. Stevens, preferring to consider the States +as “dead States” within the Union. Mr. Bingham, of Ohio, was still less +radical, simply calling them “disorganized States.” But realizing the +futility of introducing distinctions which could not affect the main +question at issue, the majority dropped “the profitless abstraction,” and +agreed upon the general conclusions<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> and recommendations. The report was +finally presented to Congress on June 18, all the members signing +excepting Johnson, Rogers and Grider, who submitted a minority report four +days later.</p> + +<p>The first portion of the report is a general review of the steps which had +already been taken by the President, and of the powers of the executive +and legislative departments. It was declared that at the close of the war +the Confederate States were in a condition of utter exhaustion and +complete anarchy. Congress having failed to provide for the contingency, +the President had no power except to execute the national laws and +establish “such a system of government as might be provided for by +existing national statutes.” These States “by withdrawing their +representatives in Congress, by renouncing the privilege of +representation, by organizing a separate government, and by levying war +against the United States, destroyed their State constitutions in respect +to the vital principle which connected their respective States with the +Union and secured their federal relations; and nothing of these +constitutions was left of which the United States were bound to take +notice.” The President had two alternatives: either to “assemble Congress +and submit the whole matter to the law-making power,” or to continue +military supervision in his capacity as commander-in-chief of the army, +until the regular assembling. Choosing the latter course, he appointed +over the revolted States provisional governors who possessed military +authority, but who “had no power to organize civil governments nor to +exercise any authority except that which inhered in their own persons +under their commissions.” The President in his military capacity might +properly permit the people to form local governments, execute local laws +not inconsistent with national laws, and even withdraw military forces +altogether if he deemed it safe. But to Congress,<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> not to the President, +belonged the power “to decide upon the nature or effect of any system of +government which the people of these States might see fit to adopt,” and +to fix terms by which the States might be restored to all their rights and +privileges as States of the Union. “The loss of representation by the +people of the insurrectionary States was their own voluntary choice. They +might abandon their privileges, but they could not escape their +obligations,” and they could not complain.</p> + +<p>None of the revolted States, the report continued, excepting perhaps +Tennessee, were in a condition to resume their former political relations. +Their so-called “amended constitutions” had never been submitted to the +people for adoption, and when they were thus submitted there was nothing +to prevent their repudiation. If these States were without state +governments, they should be regularly organized, but in no case had the +proper preliminary steps been taken. The conventions assumed that the old +constitutions were still in force, and that only such amendments as the +federal government required, were needed. “In no instance was regard paid +to any other consideration than obtaining immediate admission to Congress, +under the barren form of an election in which no precautions were taken to +secure regularity of proceedings or the consent of the people.” Before +they were restored to their full rights “they should exhibit in their acts +something more than unwilling submission to an unavoidable necessity.” +Great stress was laid upon the headstrong action of the States since +Johnson’s proclamation of amnesty: the character of the men elevated to +the highest positions; the discriminating legislation; the arrogance of +the Southern press, and the opposition to the Freedmen’s Bureau. The +testimony of witnesses as to the general disposition to repudiate the +national debt, if such a thing should prove<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> possible, and as to the +natural reluctance to pay taxes, were perhaps too seriously taken, as was +also the “proof of a condition of feeling hostile to the Union and +dangerous to the government.”</p> + +<p>But, whether acting on exaggerated estimates or not, the majority of the +committee formulated their conclusions into three clauses, which were as +follows:</p> + +<p>1. “That the States lately in rebellion were at the close of the war +disorganized communities, without civil government, and without +constitutions or other forms by virtue of which political relations could +legally exist between them and the Federal Government.</p> + +<p>2. “That Congress cannot be expected to recognize as valid the election of +representatives from disorganized communities, which, from the very nature +of the case, were unable to present their claim to representation under +those established and recognized rules, the observance of which has been +hitherto required.</p> + +<p>3. “That Congress would not be justified in admitting such communities to +a participation in the government of the country without first providing +such constitutional or other guaranties as will tend to secure the civil +rights of all citizens of the Republic; a just <ins class="correction" title="original: eqality">equality</ins> of representation; +protection against claims founded in rebellion and crime; a temporary +restoration of the right of suffrage to those who have not actively +participated in the efforts to destroy the Union and overthrow the +government; and the exclusion from positions of public trust of at least a +portion of those whose crimes have proved them to be enemies to the Union, +and unworthy of public confidence.”</p> + +<p>In addition, the report contained an enumerated statement of “general +facts and principles” which it was claimed were “applicable to all the +States recently in rebellion.” In this statement it was asserted that from +the time war was declared<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> the great majority of the Southerners “became +and were insurgents, rebels, traitors; and all of them assumed the +political, legal, and practical relation of enemies of the United States.” +The States did not desist from war till “every vestige of State and +Confederate government” was obliterated, “their people reduced to the +condition of enemies conquered in war, entitled only by public law to such +rights, privileges and conditions as might be vouchsafed by the +conqueror.” They thus had “no right to complain of temporary exclusion +from Congress,” until they could “show that they are qualified to resume +federal relations. * * * They must prove that they have established <i>with +the consent of the people</i>, republican forms of government in harmony with +the Constitution and laws of the United States, that all hostile purposes +have ceased, and should give adequate guaranties against future treason +and rebellion—guaranties which shall prove satisfactory to the Government +against which they rebelled, and by whose arms they were subdued.” The +rebels “were conquered by the people of the United States acting through +all the co-ordinate branches of the Government, and not by the Executive +alone. * * * The authority to restore rebels to political power in the +Federal Government can be exercised only with the concurrence of all the +departments in which political power is vested,” and the proclamations of +the President could only be regarded as provisional permission “to do +certain acts, the effect and validity whereof is to be determined by the +constitutional government, and not solely by the executive power.” If the +President had the power to “qualify persons to appoint Senators and elect +Representatives, and empower others to appoint and elect them, he thereby +practically controls the organization of the legislative department and +destroys the constitutional form of government.”<a name="fna_110_110" id="fna_110_110"></a><a href="#fn110_110" class="fna">[110]</a></p> + +<p><span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span>The report of the dissenting members of the committee, Messrs. Johnson, +Rogers and Grider, was an ably prepared document embodying at length the +doctrines of the minority in Congress, composed of the Democrats and the +few Republicans who still sustained the President. As a matter of course +the argument was built upon the premise that the so-called Confederate +States were never legally separated from the Union, but were bound by all +the obligations and entitled to all the privileges of other States. “In +its nature the government is formed of and by States possessing equal +rights and powers.” A State cannot be held to have forfeited its rights. +“To concede that by the illegal conduct of her own citizens she can be +withdrawn from the Union, is virtually to concede the right of secession.”</p> + +<p>Were the States out of the Union, the minority continued, the submission +to them of the proposed constitutional amendment would be absurd; and such +submission virtually conceded that the condition of the States remained +unchanged. The constitutional power to suppress insurrection is for the +preservation, not the subjugation of the State. “The continuance of the +Union of all the States is necessary to the intended existence of the +Government,” and a different principle leads to disintegration. The war +power, as such, cannot be used to extinguish the States; the Government +only seeks to suppress the insurrection, achieving which all the States +resume their normal relations. The States now have organized governments, +republican in form, and the manner in which they were formed is no concern +of Congress. “Congress may admit new States, but a State once admitted +ceases to be within its control and can never again be brought within it.” +There is nothing in the political condition of these States justifying +their exclusion from representation in Congress. The proposed amendment +would degrade the Southern States, as it would compel them to<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> accept +either a lessened representation or negro suffrage. Further, it interfered +with the right of every State to regulate the franchise; and, by joining +several subjects and requiring them to be voted on as a whole, deprived +the people of the opportunity of passing on this important question +separately.</p> + +<p>8. The Joint Committee on Reconstruction had already reported two bills +and one joint resolution which in its report of June 18 were declared to +be the fruit of its labors. These were introduced in the House by Mr. +Stevens, April 30. The resolution proposed an amendment to the +Constitution, which, as finally amended, became the 14th Amendment.<a name="fna_111_111" id="fna_111_111"></a><a href="#fn111_111" class="fna">[111]</a> +The two accompanying bills were entitled respectively: (1) “A Bill to +provide for restoring the States lately in insurrection to their full +political rights.” (2) “A Bill declaring certain persons ineligible to +office under the Government of the United States.”</p> + +<p>The first of these bills prescribed the conditions on which a State lately +in insurrection might secure representation in Congress, as well as a ten +years’ postponement of the exaction of any unpaid part of the direct tax +of 1861. It provided that representation might be secured after the +proposed amendment should have become a part of the Constitution, and the +State seeking representation should have ratified such amendment. +Postponement of the tax might be secured by ratifying the amendment. This +bill served as a basis for general discussion of the best method of +restoring to the States their political rights; but, no action was taken +on it during this session, and it went over as unfinished business to the +following December.</p> + +<p>The second bill declared as ineligible to office: the President, +Vice-President, and foreign agents of the Confederate States; “heads of +departments of the United States, officers<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> of the army and navy of the +United States, and all persons educated at the Military or Naval Academy +of the United States,” federal judges and members of the 36th Congress, +who had given aid or comfort to the rebellion; Confederate officers above +the rank of colonel in the army or master in the navy; governors of the +Confederate States, and “those who have treated officers or soldiers or +sailors of the army or navy of the United States, captured during the late +war, otherwise than lawfully as prisoners of war.” This bill was less +fortunate than the first, since it failed even to receive consideration +during the session.</p> + +<p>The proposed constitutional amendment, however, fared better. It had been +well demonstrated by the discussions during the session that an amendment +to the Constitution would be submitted to the States, if a resolution +could be framed which would satisfy the heterogeneous elements of the +reconstruction party. But the framing of such a resolution had proved a +very difficult matter. Stevens, and those most influenced by him, were +especially radical in their doctrines, not hesitating to express their +desire for the confiscation of rebels’ property and for other extreme +measures. Some believed that there should be nothing short of complete +disfranchisement, for a term of years, of all who had aided the rebellion +in any way—they had acted deliberately, and they must suffer the +consequences. Others cared only for the disfranchisement of the more +prominent offenders, and for the establishment of negro suffrage. Still +another faction wished liberal terms to be offered to the +States—limitations, but no interference.</p> + +<p>The radicals recognized that their extreme ideas could not obtain +congressional sanction, and made no effort to embody them in the plans +submitted. From the beginning of the session various propositions were +under discussion. Among these, the most attention was attracted by the +various <span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span>propositions to modify the existing basis of apportionment of +representatives in Congress. Emancipation had rendered this necessary. The +“three-fifths clause” of the Constitution having become inoperative, the +increased representation resulting from the freeing of the slaves +necessitated a change. The first plan was “to apportion Representatives +according to the number of voters in the several States.”<a name="fna_112_112" id="fna_112_112"></a><a href="#fn112_112" class="fna">[112]</a> It was then +proposed to exclude from the basis of representation all whose political +rights were denied or abridged by any State on account of race or color. +This plan, supported by Blaine and Conkling,<a name="fna_113_113" id="fna_113_113"></a><a href="#fn113_113" class="fna">[113]</a> passed the House on +January 31, 1866,<a name="fna_114_114" id="fna_114_114"></a><a href="#fn114_114" class="fna">[114]</a> but was defeated in the Senate. Many felt that the +measure was too stringent. The object was virtually to force upon the +Southern States the enfranchisement of the negro.<a name="fna_115_115" id="fna_115_115"></a><a href="#fn115_115" class="fna">[115]</a></p> + +<p>The Committee on Reconstruction hesitated for over a month after the +defeat of this resolution in the Senate. It was finally decided that the +only way in which the submission of the desired amendment could be +effected, was to concede something to the conservative element of the +Senate. Accordingly the draft of April 30 was presented as the +recommendation of the committee. This passed the House without +difficulty,<a name="fna_116_116" id="fna_116_116"></a><a href="#fn116_116" class="fna">[116]</a> but encountered fierce opposition in the Senate. The +House resolution contained a provision which would have summarily and +unconditionally excluded from the franchise all participating in the +rebellion, until July 4,<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> 1870. This was virtually a complete +disfranchisement of the Southern people, and although only temporary, it +was felt to be contrary to the spirit of our institutions and too +indiscriminate a punishment. It was accordingly stricken out by a +unanimous vote.<a name="fna_117_117" id="fna_117_117"></a><a href="#fn117_117" class="fna">[117]</a> In its place Senator Howard proposed a clause which +forms section 3 of the 14th Amendment as it now stands. This clause, while +it withheld certain privileges of citizenship from participants in the +rebellion who had previously held civil or military office and had taken +an oath to support the Constitution of the United States, did not affect +the vast majority of Southerners; and it provided that Congress might, by +a two-thirds vote of each house, remove the disability of those who were +excepted from the restoration of privileges. Moreover, in place of the +plan supported by Blaine and Conkling for reducing the basis of +representation, the Committee on Reconstruction presented a proposition +which better satisfied the conservative element, and which stands to-day +as section 2 of the 14th Amendment. It provided that in case the right of +any male inhabitant of a State to vote was denied or abridged for any +reason “except for participation in rebellion or other crime, the basis of +representation therein shall be reduced in the proportion which the number +of such male citizens shall bear to the whole number of male citizens +twenty-one years of age in such state.” It was argued that in this way +fairness was assured, as a State could have no right to claim +representation for that portion of her population which was denied the +franchise.</p> + +<p>On June 8, 1866, the final touches were put on the resolution. Five days +later the House concurred in the Senate’s revision, and the 14th Amendment +was ready for the ratification of the States.</p> + +<p>Johnson’s followers and the Democrats bitterly opposed<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> the submission of +this amendment. The more extreme of them asserted that the Republican +majority acted from purely partisan motives. Fearful for the continuance +of its supremacy, it desired to place before the States a measure so +distasteful to the South as to ensure its rejection. In that way there +would be an excuse for additional legislation to prevent the States from +obtaining representation, and to preserve Republican control.<a name="fna_118_118" id="fna_118_118"></a><a href="#fn118_118" class="fna">[118]</a> The +composite character of the amendment provoked severe criticism. It was +claimed that the sections should be submitted to the States as separate +articles, to give opportunity for the rejection of some and the +ratification of others. Senator Doolittle moved an amendment to this +effect,<a name="fna_119_119" id="fna_119_119"></a><a href="#fn119_119" class="fna">[119]</a> but the solid reconstruction majority could not be shaken, +and the five sections were submitted to the States to stand or fall +together. Technical objections were deemed unworthy of consideration when +it was supposed to be necessary for the safety of the Union that all the +sections should be ratified.</p> + +<p>The inadvisability of submitting a constitutional amendment while eleven +of the States were not permitted a voice in legislation was strongly urged +by the opposition. The President reiterated the protest in his message of +June 22, affirming that the submission of the proposed amendment to the +States through the executive department was a purely ministerial duty, in +no way committing the department to an approval of the action. The first +section of the amendment was condemned as a subtle plan eventually to +force negro suffrage upon the people as an incident of negro citizenship. +It was claimed that the second discriminated too severely against the +Southern States with their large preponderance of colored population, and +that the third virtually forced them to insult their most respected +citizens—a humiliation<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> which would drive them to renewed insurrection. +The validity of some of the objections was proved by subsequent history; +some have proved groundless; others still remain among the unsettled +questions.</p> + +<p>The reconstruction legislation of the first session of the 39th Congress +closed with the restoration of Tennessee to the Union. Other measures were +under consideration, but were not acted upon until the following session. +The attitude of Tennessee, since her re-organization under the provisions +of the proclamation of 1863, had been the most consistent of any of the +Southern States.<a name="fna_120_120" id="fna_120_120"></a><a href="#fn120_120" class="fna">[120]</a> From March 3, 1862, until March 3, 1865, Johnson, as +military governor, had preserved law and order to a great extent. The +formal reorganization of the State was undertaken by a convention of the +loyal citizens convened January 8, 1865, acting upon the recommendation +and personal approval of Johnson. This convention proposed the amendments +to the constitution of the State, made necessary by the changes brought +about by the war, and they were adopted by the loyal voters of the State +on February 22. On March 4 a governor and legislature were elected, who +assumed their duties on April 3. The work of the legislature was +characterized by an apparent eagerness to do all that should be done by a +State loyal to the Union.</p> + +<p>The popular ratification of the amendments to the Constitution +distinguished the action of Tennessee from that of the other Southern +States, and this fact, united to her uniformly consistent attitude, formed +the ground for the recommendation of the Committee on Reconstruction that +this State should be restored to her former rights and privileges. This +recommendation, in the form of a joint resolution, was reported from the +committee by Mr. Bingham on March<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> +5,<a name="fna_121_121" id="fna_121_121"></a><a href="#fn121_121" class="fna">[121]</a> but no action was taken until +July 20. Tennessee’s prompt action in ratifying the 14th Amendment<a name="fna_122_122" id="fna_122_122"></a><a href="#fn122_122" class="fna">[122]</a> +was taken as good evidence that her government was thoroughly +reconstructed, and the State entitled to representation. Accordingly a +substitute resolution, noting these facts, was introduced and passed, the +Senate amending and passing it three days later. This declared Tennessee +to be restored to her former relations to the Union, and entitled to +representation in Congress,<a name="fna_123_123" id="fna_123_123"></a><a href="#fn123_123" class="fna">[123]</a> but the preamble was used as a vehicle +for the assertion of the sole power of Congress to restore State +governments. President Johnson, while approving the resolution, explained +in his message that his approval was “not to be construed as an +acknowledgment of the right of Congress to pass laws preliminary to the +admission of duly qualified representatives from any of the States,” nor +as committing him “to all the statements made in the preamble.”</p> + +<p>The session had proved far from fruitless, although nothing but the +preliminary steps had been taken. The Freedmen’s Bureau and civil rights +bills constituted a temporary protection to the freedmen; the right of +<i>habeas corpus</i> still remained suspended and military authority prevailed +throughout the conquered region. The 14th Amendment was before the people, +to be a rallying point for the autumn campaign. The lines between the +presidential and congressional parties were now closely drawn. Each knew +the strong and the weak points of its opponent. The issue must now be +turned over to the people as final judges of its merits. The congressional +elections of the fall would decide the issue, and also the future method +of reconstruction.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span></p> +<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV.</h2> +<h3>THE CAMPAIGN OF 1866.</h3> + +<p><br />1. The four months following the adjournment of the first session of the +39th Congress were full of excitement. The public was thoroughly aroused, +and all incidents were considered in the light they threw upon the +question of the hour. The President’s uncompromising hostility to the 14th +Amendment brought about a crisis in the Cabinet.<a name="fna_124_124" id="fna_124_124"></a><a href="#fn124_124" class="fna">[124]</a> William Dennison, +Postmaster-General, was the first to declare the impossibility of +maintaining cabinet relations with the President. He resigned on July 11, +and A. W. Randall, of Wisconsin, First Assistant Postmaster-General, was +appointed in his place. Mr. Randall was a devoted adherent of the +administration, and president of the National Union Club which called the +convention of August 14. The second resignation was that of James Speed, +Attorney-General, on July 18. Coming from Kentucky, Mr. Speed had had the +reputation of being quite conservative in his views regarding +reconstruction, and his formal notice of separation from the President +created no little excitement. His intimate connection with the +administration gave unusual force to his denunciation of its policy, made +at the time of taking the chair as permanent president of the convention +of Southern loyalists. Henry Stanbery of Ohio was appointed as his +successor, and retained his position until he resigned to assist in the +defense of the President in the impeachment trial. A few days after Mr. +Speed’s withdrawal, the Secretary of the<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> Interior, James Harlan, tendered +his resignation, and O. H. Browning, of Illinois, was appointed to fill +the vacancy.</p> + +<p>It is altogether probable that these resignations would have been made +earlier than they were, had it not been feared that the control of these +important administrative departments would fall into the hands of those +who would use their powers in opposition to Congress. But the time had +come when the incumbents considered that by the retention of the offices +they were being forced to share the odium attached to the President, and +deemed total separation from him as the best method of justification.</p> + +<p>The laws discriminating against the colored man, and the numerous +instances of cruelty which had been reported to the North, were an +important factor in creating and sustaining the common feeling of +hostility to the administration. But the New Orleans riots, occurring on +July 30, did more to rouse the people of the North, and convince them that +stern measures were necessary, than all that had preceded. The massacre +stood out vividly against the background of “black laws,” and furnished an +argument of the most effective kind to be used in the campaign.</p> + +<p>2. The riots were of a peculiarly exasperating character. The +constitutional convention of 1864, summoned by the proclamation of Major +General Banks, had passed resolutions giving the president of the +convention power “to reconvoke the convention for any cause.” A majority +of the members came to the conclusion, in the spring of 1866, that the +State constitution should be amended, to place it in harmony with the +congressional policy.<a name="fna_125_125" id="fna_125_125"></a><a href="#fn125_125" class="fna">[125]</a> They determined to have the convention +reconvoked for this purpose. The president,<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> Judge E. H. Durell, declined +to take advantage of his prerogative, but the delegates, not to be +thwarted in this way, proceeded to elect a president <i>pro tem.</i> who was +willing to issue the desired proclamation. The governor of the State, J. +M. Wells, concurred in this rather questionable procedure, and issued a +proclamation for an election to fill existing vacancies.</p> + +<p>It being well understood that negro suffrage was one of the ultimate +objects desired by the supporters of the proposed constitutional +convention, active hostility to the movement rapidly developed. The +proclamation of the president <i>pro tem.</i> called for the assembling of the +delegates on July 30; and though the only object of this meeting was to +determine officially the existing vacancies to be filled in the fall +elections, the enemies to the enfranchisement of the freedmen determined +to crush the movement in its incipient stage. It is an easy matter to stir +up the passions and prejudices of the people, and the indiscreet speeches +of certain of the delegates only added to the popular excitement. A negro +procession organized in honor of the convention was attacked by a mob in +front of Mechanics’ Hall, where the convention was in session. The attack +was soon extended to the hall itself, the police of the city joining hands +with the assailants. When the riot was over nearly two hundred persons +were found to have been killed or wounded, the greatest sufferers being +the negroes, who were shot down in front of the hall without mercy.</p> + +<p>The flagrancy of the act, the connivance of the city authorities, and the +fact that, while legal steps were taken against the delegates and innocent +spectators, the actual murderers were in no way molested, furnished to the +people of the incensed North ample proof of the inability of the South to +maintain local government, and of the advisability of refusing to restore +these States to their former position in the Union.<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> New Orleans was taken +as a fair example of what might happen at any place in the South. There +was no satisfactory justification for these acts of violence, and there +was little inclination in the North to consider the legal technicalities +involved in the attempt to amend the constitution of Louisiana. They +simply took cognizance of the fact that about fifty loyal citizens had +been murdered in cold blood, with the city authorities silently +acquiescing. In the face of such a fact, the solicitude of the President +to preserve the “inherent rights of the States” did not appeal to the +masses, and Johnson was forced to begin his campaign badly handicapped.</p> + +<p>But, in addition to the blow given to the theory of the administration, +Johnson was forced to labor against a certain amount of personal censure, +brought about by his supposed attitude before the riots and his known +attitude after them. It was freely charged that he was in full sympathy +with the determination of the Mayor of New Orleans, and the +Lieutenant-Governor and Attorney-General of Louisiana, to prevent the +convention from accomplishing its plans. In support of the charge, his +answer to the inquiry as to whether the military power would interfere +with the attempt to arrest the members of the convention upon criminal +process was cited. His reply was as follows:<a name="fna_126_126" id="fna_126_126"></a><a href="#fn126_126" class="fna">[126]</a> “The military will be +expected to sustain, and not to obstruct or interfere with the proceedings +of the court.” While this may have indicated too great confidence in the +civil authorities of Louisiana, it certainly did not imply any connivance +in or sympathy with the summary proceeding of July 30. Possibly the +well-known opposition of Johnson to negro suffrage may have stimulated the +rioters to bolder defiance of Northern sentiment, but censure of him can +extend<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> no farther. But, in his +political canvass in the fall,<a name="fna_127_127" id="fna_127_127"></a><a href="#fn127_127" class="fna">[127]</a> while +endeavoring in every way to discredit the 39th Congress in the eyes of the +people, he committed a grave error by an indirect defense of the rioters, +attacking the members of the convention as traitors who incited the negro +population to rioting, and throwing the responsibility of the whole affair +back upon Congress as having originated and fostered the plan to force +negro suffrage upon Louisiana.<a name="fna_128_128" id="fna_128_128"></a><a href="#fn128_128" class="fna">[128]</a></p> + +<p>3. The fall campaign was formally opened by the supporters of the +presidential policy, who had immediately accepted the report of the +Committee on Reconstruction as the platform of the Republican +anti-administration faction, and had determined to appeal on that issue to +the people. Their hope was that the conservative element of the +population, thoroughly worn out by the struggle, would uphold the speedy +restoration of the Southern States, and that thereby a coalition might be +made between the Democrats and the administration Republicans strong +enough to unseat many of the radical members, reverse the majority, and so +give the administration control in the 40th Congress.</p> + +<p>The first steps were promptly taken. The executive committee of the +National Union Club, a political organization established in Washington by +supporters of the administration, issued on June 25, just one week after +the submission of the report of the Committee on Reconstruction, a call +for a national convention to be held in Philadelphia on August 14.<a name="fna_129_129" id="fna_129_129"></a><a href="#fn129_129" class="fna">[129]</a> +Delegates to this convention were to be chosen by those supporting the +administration and agreeing to certain “fundamental propositions” which +formed the <span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span>platform of the conservatives. These propositions maintained +the absolute indissolubility of the Union, the universal supremacy of the +Constitution and acts of Congress in pursuance thereof, the constitutional +guarantee to maintain the rights, dignity and equality of the States, and +the right of each State to prescribe the qualifications of electors, +without any federal interference. They declared that the usurpation and +centralization of powers infringing upon the rights of the States “would +be a revolution, dangerous to republican government, and destructive of +liberty;” that the exclusion of loyal senators and representatives, +properly chosen and qualified under the Constitution and laws, was unjust +and revolutionary; that as the war was at an end, “war measures should +also cease, and should be followed by measures of peaceful +administration;” and that the restoration of the rights and privileges of +the States was necessary for the prosperity of the Union. This formal call +was approved, and its principles endorsed by the Democratic congressmen, +who issued an address to the “People of the United States” on July 4, +urging them to act promptly in the selection of delegates to the +convention.</p> + +<p>In accordance with the call, every State and Territory was represented in +the convention. A glance at the list of delegates shows that they included +many of the prominent Democrats of the country, re-enforced by a number of +the prominent Republicans<a name="fna_130_130" id="fna_130_130"></a><a href="#fn130_130" class="fna">[130]</a> who were in sympathy with the +administration. The enthusiastic manner in which the summons was answered +seemed to the friends of the administration to indicate an unquestionable +overthrow of the radicals. They thought that harmony was soon to reign +over all portions of the Union, which was once more being drawn closely +together by the watchword “National Union.”</p> + +<p><span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span>Reverdy Johnson, who had submitted in the Senate the minority report of +the Committee on Reconstruction, was chosen chairman, and Senator Cowan, +of Pennsylvania, chairman of the committee on resolutions. The <ins class="correction" title="original: resolulutions">resolutions</ins> +were reported on August 17, and unanimously adopted by the convention. +They re-affirmed the fundamental principles set forth in the call of June +25, and appealed to the people of the United States to elect none to +Congress but those who “will receive to seats therein loyal +representatives from every State in allegiance to the United States.” They +reiterated the claim that in the ratification of constitutional amendments +all the States “have an equal and an indefeasible right to a voice and +vote thereon.” In concession to Northern sentiment, they declared that the +South had no desire to re-establish slavery; that the civil rights of the +freedmen were to be respected, the rebel debt repudiated, the national +debt declared sacred and inviolable, and the duty of the government to +recognize the services of the federal soldiers and sailors admitted. A +final resolution commended the President in the highest terms, as worthy +of the nation, “having faith unassailable in the people and in the +principles of free government.”<a name="fna_131_131" id="fna_131_131"></a><a href="#fn131_131" class="fna">[131]</a></p> + +<p>These views were fully elaborated in an address prepared by Henry J. +Raymond, and read before the convention. Little attempt was made to +qualify or render less offensive the argument that the Southern States +must be allowed their representation in Congress, whether or not such +action was for the best interest of the Union. Referring to this the +address declared that “we have no right, for such reasons, to deny to any +portion of the States or people rights expressly conferred upon them by +the Constitution of the United States.” We should trust to the ability of +our people<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> “to protect and defend, under all contingencies and by +whatever means may be required, its honor and welfare.”<a name="fna_132_132" id="fna_132_132"></a><a href="#fn132_132" class="fna">[132]</a></p> + +<p>A committee of the convention hastened formally to present its proceedings +to President Johnson, who had taken the keenest interest in the plans of +the National Union party. In his remarks to the committee he feelingly +referred to the somewhat theatrical entrance of the delegates of South +Carolina and Massachusetts, “arm in arm, marching into that vast +assemblage, and thus giving evidence that the two extremes had come +together again, and that for the future they were united, as they had been +in the past, for the preservation of the Union.” Speaking to a sympathetic +audience, who applauded him to the echo, and believing that the people +were now endorsing his opposition to Congress, he saw no necessity for +tempering his statements, and cast aside his discretion. His +characterization of Congress was as follows: “We have witnessed, in one +department of the government, every endeavor to prevent the restoration of +peace, harmony and union. We have seen hanging upon the verge of the +Government, as it were, a body called, or which assumes to be, the +Congress of the United States, while in fact it is a Congress of only a +part of the States. We have seen this Congress pretend to be for the +Union, when its every step and act tended to perpetuate disunion and make +a disruption of the States inevitable. Instead of promoting reconciliation +and harmony, its legislation has partaken of the character of penalties, +retaliation and revenge. This has been the course and policy of one +portion of the Government.”<a name="fna_133_133" id="fna_133_133"></a><a href="#fn133_133" class="fna">[133]</a> Again, to show the disinterestedness of +his own course, he said: “If I had wanted authority, or if I had wished to +perpetuate my own power, how easily could I have held and wielded that +power which<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> was placed in my hands by the measure called the Freedmen’s +Bureau bill (laughter and applause). With an army, which it placed at my +discretion, I could have remained at the capital of the nation, and with +fifty or sixty millions of appropriations at my disposal, with the +machinery to be unlocked by my own hands, with my satraps and dependents +in every town and village, with the Civil Rights bill following as an +auxiliary (laughter), and with the patronage and other appliances of the +Government, I could have proclaimed myself dictator.” (“That’s true!” and +applause.)<a name="fna_134_134" id="fna_134_134"></a><a href="#fn134_134" class="fna">[134]</a></p> + +<p>But his indiscretions did not end with speeches before his sympathizers. +Two weeks later he started on a trip, nominally to assist in the ceremony +of laying the cornerstone of the Douglas monument in Chicago.<a name="fna_135_135" id="fna_135_135"></a><a href="#fn135_135" class="fna">[135]</a> As a +matter of fact, however, he was merely taking advantage of an opportunity +to defend his policy publicly. Johnson was of too impassioned a nature to +be able to judge as to how far the President of the United States could +afford to adopt the methods of the stump speaker. All constraint was +thrown away, and he acted at many times the part most natural to him, that +of a popular orator addressing the masses. His speeches at no time lacked +clearness. All could see where he stood, and nothing was left for +speculation.</p> + +<p>His first important effort while on his journey was at New York on August +29, where he responded to a toast proposed by the mayor of the city. In +this speech he defined the issue as follows: “The rebellion has been +suppressed, and in the suppression of the rebellion it [the government] +has * * * established the great fact that these States have not the power, +and it denied their right, by forcible or peaceable<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> means, to separate +themselves from the Union. (Cheers, ‘Good!’) That having been determined +and settled by the Government of the United States in the field and in one +of the departments of the government—the executive department of the +government—there is an open issue; there is another department of your +government which has declared by its official acts, and by the position of +the Government, notwithstanding the rebellion was suppressed for the +purpose of preserving the Union of the States and establishing the +doctrine that the States could not secede, yet they have practically +assumed and declared and carried up to the present point, that the +Government was dissolved and the States were out of the Union. (Cheers.) +We who contended for the opposite doctrine years ago contended that even +the States had not the right to peaceably secede; and one of the means and +modes of possible secession was that the States of the Union might +withdraw their representatives from the Congress of the United States, and +that would be practical dissolution. We denied that they had any such +right. (Cheers.) And now, when the doctrine is established that they have +no right to withdraw, and the rebellion is at an end * * * we find that in +violation of the Constitution, in express terms as well as in spirit, that +these States of the Union have been and still are denied their +representation in the Senate and in the House of Representatives.”<a name="fna_136_136" id="fna_136_136"></a><a href="#fn136_136" class="fna">[136]</a> +Then, speaking of the people of the South: “* * Do we want to humiliate +them and degrade them and drag them in the dust? (‘No, no!’ Cheers.) I say +this, and I repeat it here to-night, I do not want them to come back to +this Union a degraded and debased people. (Loud cheers.) They are not fit +to be a part of this great American family if they are degraded and +treated with ignominy and contempt. I want them when they come<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> back to +become a part of this great country, an honored portion of the American +people.”<a name="fna_137_137" id="fna_137_137"></a><a href="#fn137_137" class="fna">[137]</a></p> + +<p>Another representative speech was the one which he made in Cleveland on +September 3: “I tell you, my countrymen, I have been fighting the South, +and they have been whipped and crushed, and they acknowledge their defeat +and accept the terms of the Constitution; and now, as I go around the +circle, having fought traitors at the South, I am prepared to fight +traitors at the North. (Cheers.) God willing, with your help we will do +it. (Cries of ‘We won’t.’) It will be crushed North and South, and this +glorious Union of ours will be preserved. (Cheers.) I do not come here as +the Chief Magistrate of twenty-five States out of thirty-six. (Cheers.) I +came here to-night with the flag of my country and the Constitution of +thirty-six States untarnished. Are you for dividing this country? (Cries +of ‘No.’) Then I am President, and I am President of the whole United +States. (Cheers.)”<a name="fna_138_138" id="fna_138_138"></a><a href="#fn138_138" class="fna">[138]</a></p> + +<p>Speeches of this nature, coming at a time when the <span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span>outrages in the South +had so greatly incensed the North, had a most depressing influence upon +the fortunes of the National Union party, and failed utterly in the object +for which they were intended. The trip proved to be a grave political +mistake. The undignified spectacle of a President receiving coarse +personal abuse and retorting in scarcely less coarse expressions was +quickly taken advantage of by his opponents; and the phrase “swinging +around the circle” has assumed historic dignity as a description of his +journey.</p> + +<p>4. The “off year” national convention plan adopted by the National Union +Club was immediately accepted by the congressional party, which was no +less active in preparations for the struggle. On July 4, the same day on +which the Democratic congressmen issued their address to the people, +representative Southern Unionists,<a name="fna_139_139" id="fna_139_139"></a><a href="#fn139_139" class="fna">[139]</a> supporters of Congress, issued a +call to “the Loyal Unionists of the South,” for a convention to be held in +Philadelphia on September 3.<a name="fna_140_140" id="fna_140_140"></a><a href="#fn140_140" class="fna">[140]</a> The call stated that the convention was +“for the purpose of bringing the loyal Unionists of the South” into +conjunction with the true friends of republican government in the North. +“* * The time has come when the restructure of Southern State government +must be laid on constitutional principles. * * * We maintain that no +State, either by its organic law or legislation, can make transgression on +the rights of the citizen legitimate. * * * Under the doctrine of ‘State +sovereignty,’ with rebels in the foreground, controlling Southern +legislatures, and embittered by disappointment in their schemes to destroy +the Union, there will be no safety for the loyal element of the South. Our +reliance for protection is now on Congress, and the great Union party that +has stood and is standing by our nationality, by the constitutional<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> +rights of the citizen, and by the beneficent principles of the +government.”</p> + +<p>The convention met at the time appointed, with representatives present +from all the lately insurrectionary States.<a name="fna_141_141" id="fna_141_141"></a><a href="#fn141_141" class="fna">[141]</a> James Speed of Kentucky, +Attorney-General until July 18, was elected permanent chairman. For +purposes of co-operation, the Northern States had been invited to send +delegations, and all responded. Thus the convention was as truly national +as the “National Union” convention of August 14 had been. It was decided, +however, that for the purpose of rendering the declaration of the Southern +Unionists more significant, the Northern and Southern Unionists should +hold their sessions separately, and Governor Curtin of Pennsylvania was +accordingly elected chairman of the Northern section.</p> + +<p>The resolutions of the Southern section were reported by Governor Hamilton +of Texas, chairman of the committee on resolutions, and they naturally +endorsed the action of Congress in its entirety.<a name="fna_142_142" id="fna_142_142"></a><a href="#fn142_142" class="fna">[142]</a> While demanding the +restoration of the States, they declared Johnson’s policy to be “unjust, +oppressive, and intolerable,” and that restoration under his “inadequate +conditions” would only magnify “the perils and sorrows of our condition.” +They agreed to support Congress and to endeavor to secure the ratification +of the 14th Amendment. Congress alone had power to determine the political +status of the States and the rights of the people, “to the exclusion of +the independent action of any and every other department of the +Government.” “The organizations of the unrepresented States, assuming to +be state governments, not having been legally established,” were declared +“not legitimate governments until reorganized by Congress.” In addition to +these resolutions, an address “from the loyal<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> men of the South to their +fellow-citizens of the United States,” was prepared and adopted after the +formal adjournment of the convention.<a name="fna_143_143" id="fna_143_143"></a><a href="#fn143_143" class="fna">[143]</a> This reaffirmed, in far +stronger terms, the condemnation of President Johnson, specifying many +ways in which he had wrought injury to them, and closing with the +following significant and powerful declaration: “We affirm that the +loyalists of the South look to Congress with affectionate gratitude and +confidence, as the only means to save us from persecution, exile and death +itself; and we also declare that there can be no security for us or our +children, there can be no safety for the country against the fell spirit +of slavery, now organized in the form of serfdom, unless the Government, +by national and appropriate legislation, enforced by national authority, +shall confer on every citizen in the States we represent the American +birthright of impartial suffrage and equality before the law. This is the +one all-sufficient remedy. This is our great need and pressing +necessity.”<a name="fna_144_144" id="fna_144_144"></a><a href="#fn144_144" class="fna">[144]</a></p> + +<p>A third convention of the year was the Cleveland convention of soldiers +and sailors,<a name="fna_145_145" id="fna_145_145"></a><a href="#fn145_145" class="fna">[145]</a> organized on September 17, with General Wood of the +regular army as chairman. This convention was composed of supporters of +the administration, and, like the National Union convention, contained a +considerable proportion of Democrats. The resolutions endorsed those of +the National Union convention, and declared that “our object in taking up +arms to suppress the late rebellion was to defend and maintain the +supremacy of the Constitution, and to preserve the Union with all the +dignity, equality, and rights of the States unimpaired.”</p> + +<p>The great mass of the soldiers, however, were earnest <span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span>supporters of +Congress, and the results of the Cleveland convention were disappointing +to its originators; its principal effect was to create great enthusiasm +over the anti-administration convention of soldiers and sailors, which met +in Pittsburg on September 25 and 26.<a name="fna_146_146" id="fna_146_146"></a><a href="#fn146_146" class="fna">[146]</a> This demonstration was intended +to offset whatever influence the Cleveland convention might have had over +the people, and it proved wonderfully effective. It was estimated that at +least twenty-five thousand old soldiers were in the city at the time. The +cause for this enthusiastic support is not difficult to find. The policy +of the administration appealed to the moderates—those who wished as rapid +a restoration to former conditions as possible, and those who were most +influenced by the appeal to so-called justice. The majority of the +soldiers, on the contrary, those who had made the greatest sacrifices for +their country, were the most sensitive concerning the results of their +sacrifices. Thoroughly accustomed to the thought of their great +accomplishments, the manumission of the slaves and the preservation of the +integrity of national power, they were keen to resent any steps which they +thought tended toward the annulling of these results. With this natural +bias, the arguments which the congressional party brought to bear upon +them were accepted with enthusiasm; and many of the leaders went into the +political campaign to be followed by the same soldiers who had followed +them through their military campaigns. The convention, however, was in no +sense a convention of officers. While the permanent president, Jacob D. +Cox, of Ohio,<a name="fna_147_147" id="fna_147_147"></a><a href="#fn147_147" class="fna">[147]</a> had been a general of volunteers, the temporary +chairman, L. E. Dudley, had been a private, and the majority of the +offices of the convention were filled by men below the rank of +lieutenant.</p> + +<p><span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span>As was to be expected from the nature of the convention, the feeling +against the administration was stronger and declared in more impassioned +tones than in the previous anti-administration convention. Its influence +upon the country was correspondingly greater. The army, recognized at this +time as the great preserver of the commonwealth, had great influence over +all classes of citizens. The anti-administration conventions, the New +Orleans massacre, and the violent attacks on Congress by the President +while “swinging around the circle,” assured the triumph of the +congressional party.</p> + +<p>The resolutions adopted at Pittsburgh were presented by General +Butler.<a name="fna_148_148" id="fna_148_148"></a><a href="#fn148_148" class="fna">[148]</a> They were emphatic in tone, commencing with the declaration +that “the action of the present Congress in passing the pending +constitutional amendment is wise, prudent, and just,” and that it was +unfortunate that it was not received in the proper spirit, the terms being +the mildest “ever granted to subdued rebels.” The President’s policy was +declared to be “as dangerous as it is unwise,” and “if consummated it +would render the sacrifices of the nation useless.” The power “to pass all +acts of legislation that are necessary for the complete restoration of the +Union” was declared to rest in Congress. The declaration of the President +to the committee of the National Union convention, that he could have made +himself dictator through the Freedmen’s Bureau, aided by the army and +navy, was characterized as an insult to “every soldier and sailor in the +Republic.” The obligation of the soldiers and sailors to the loyal men of +the South was acknowledged; and it was added: “We will stand by and +protect with our lives, if necessary, those brave men who remain true to +us when all around are false and faithless.”</p> + +<p>This, the most successful of the four conventions, <span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span>completed the +remarkable series of national gatherings organized for effect on the State +elections. They were all characterized by frankness of statement, and by +clear recognition of the points at issue. But, as frequently happens in +political campaigns, the most important incidents were those which were +not designed to affect national issues. The riot at New Orleans was +intended, by its participants, to affect only Louisiana politics, yet all +the Southern States were compelled to share the responsibility. The same +thing was true of all other incidents through which the South manifested, +during these critical months, an unwillingness to accept the political +results of the war.</p> + +<p>5. The fall elections resulted in a decisive victory for the congressional +policy, which secured a two-thirds majority in both houses. The protests +of the President were shown to lack popular support, and his vetoes in the +coming sessions were to be considered as merely one necessary step in the +legislative formality of passing a bill. The country had decreed that +Johnson could not have a voice in legislation. The campaign had been in +all respects disastrous to the President. The support which he had +received was mainly drawn from the Democratic party, and was of a +half-hearted nature; for, however nearly they agreed in theory, the fact +still remained that he was nominally a Republican President, and that +almost all of his patronage was bestowed upon Republicans. He had thrown +out decided hints that he would reverse his policy. For example, in St. +Louis, on September 8, he said: “I believe in the good old doctrine +advocated by Washington, Jefferson and Madison—of rotation in office. +These people who have been enjoying these offices seem to have lost sight +of this doctrine. I believe that one set of men have enjoyed the +emoluments of office long enough. They should let another portion of the +people have a chance. * * * Congress says he [the President]<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> shall not +turn them out, and they are trying to pass laws to prevent it being done. +Well, let me say to you, if you will stand by me in this action (cheers), +if you will stand by me in trying to give the people a fair +chance—soldiers and citizens—to participate in these offices, God being +willing I will kick them out. * * * God willing, with your help, I will +veto their measures whenever any of them come to me.”<a name="fna_149_149" id="fna_149_149"></a><a href="#fn149_149" class="fna">[149]</a> But all this +failed to give him that which he prided himself so much on having, the +support of the people; and, so far as reconstruction was concerned, his +influence was ended by the fall elections of 1866.</p> + +<p>6. While such was the general result of the campaign, the South voted to +sustain the President’s policy. The fact that Johnson had taken direct +issue with Congress, and was actively supporting Democratic principles, +had a wonderful influence upon the South. The papers enthusiastically +prophesied the complete overthrow of the Republican party. They reasoned +that the enormous patronage of the President would ensure him a following +so powerful that its coalition with Democracy could not but result in +victory. Then, they reasoned, it would only be necessary to wait until the +convening of the 40th Congress, when the obnoxious amendment would be +discredited and the States readmitted to the possession of all their +rights and privileges without further delay or conditions. They utterly +failed to realize the injury which their discriminative legislation, the +New Orleans riots, the widely spread reports of cruelty and oppression, +and the defiant attitude of their press, had inflicted on their cause. +They only saw that the administration and Congress were estranged, and +believed that to be a sure indication of final success.</p> + +<p>In this frame of mind they came to the polls, and in all the Southern +States overwhelming Democratic majorities<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> evidenced the popular sentiment +among the dominant classes. Accordingly, when the State legislatures +convened, the 14th amendment was rejected almost unanimously in all except +Tennessee, which had ratified it in July. Delaware, Maryland and Kentucky, +the border Union States, also rejected the amendment, allying themselves +with the Southern cause. Twenty-one of the remaining twenty-four States +ratified the amendment, endorsing thereby the action of Congress.<a name="fna_150_150" id="fna_150_150"></a><a href="#fn150_150" class="fna">[150]</a> +Iowa, Nebraska and California did not act upon the amendment at this time.</p> + +<p>Had Thaddeus Stevens and Charles Sumner been able to persuade Congress to +adopt their theory of the status of the Southern States, the amendment +would have been assumed to be a part of the Constitution, as twenty-one +States were more than three-quarters of twenty-seven, the total number of +States represented in Congress. But the majority of congressmen were never +able to adopt, in its entirety, the theory that the rebellion had utterly +destroyed the States and left them mere territory. It preferred to +accomplish the same result by less violent means. The legislation enacted +as a result of the attitude of the South towards the amendment practically +treated the States as conquered territory, yet they were counted in +determining the ratification of both the 13th and the 14th amendment.</p> + +<p>The defiant attitude taken by the Southern legislatures was a grave +mistake. The most of them did not convene until Congress was again in +session, after the defeat of the administration, and when they should have +been able to see that their only hope was in submission. But the South, +ever too ready to act first and consider the consequences afterwards, only +saw in the proposed amendment an insult to the white race and an injustice +to their leaders. That they should be asked deliberately to inflict upon +themselves<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> this punishment, seemed a humiliation which self-respect could +permit them only to spurn. They did not stop to realize that the rejection +of these terms would cause measures still more severe to be enacted.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span></p> +<h2><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V.</h2> +<h3>THE CONGRESSIONAL THEORY FULLY DEVELOPED.</h3> + +<p><br />1. The second session of the 39th Congress opened with its members in a +far different frame of mind from that in which they had assembled in 1865. +Then they had approached their work with hesitation; their plans were not +formulated; they could not know how far the country would sustain them in +their opposition to the President. Now, in the flush of victory, their +policy sustained, the President discredited, with their two-thirds +majority in both houses unbroken, they were prepared to proceed to enact +legislation which not only should secure that which had been accomplished +already, but also should settle finally the problem of reconstruction, and +place the President in a position where he could do no harm.<a name="fna_151_151" id="fna_151_151"></a><a href="#fn151_151" class="fna">[151]</a></p> + +<p>Much curiosity had been felt as to the attitude which Johnson would take +in his annual message. He believed thoroughly in the righteousness of his +cause, and had such implicit confidence in the unerring judgment of the +people that he had deemed it impossible that his policy would be +repudiated. The results of the election were a great disappointment to +him, and some had believed that he would introduce into the message the +abuse which he had so unsparingly inflicted upon Congress during the +campaign. The message, however, contained nothing approaching virulence, +but on the contrary was a document eminently<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> creditable to the +President.<a name="fna_152_152" id="fna_152_152"></a><a href="#fn152_152" class="fna">[152]</a> It restated in a powerful way the constitutional position +of the administration, and defended its actions in a dignified yet +spirited manner. The fearlessness of his attitude was characteristic; the +argumentative brilliancy of its presentation was unsurpassed. Unmindful of +the fact that Congress had assembled to complete the overthrow of his +policy of reconstruction, he reminded Congress that “the Constitution of +the United States makes it the duty of the President to recommend to the +consideration of Congress” such measures as he shall judge necessary or +expedient. “* * * I know,” he said, “of no measure more imperatively +demanded by every consideration of national interest, sound policy, and +equal justice, than the admission of loyal members from the now +unrepresented States. * * * The interests of the nation are best to be +promoted by the revival of fraternal relations, the complete obliteration +of our past differences, and the re-inauguration of all pursuits of +peace.”<a name="fna_153_153" id="fna_153_153"></a><a href="#fn153_153" class="fna">[153]</a> The message closed with the request: “Let us endeavor to +preserve harmony between the co-ordinate departments of the Government, +that each in its proper sphere may cordially co-operate with the other in +securing the maintenance of the Constitution, the preservation of the +Union, and the perpetuity of our free institutions.”</p> + +<p>Unfortunately for the country, there could be no harmony “between the +co-ordinate departments of the Government,” where there was such +fundamental disagreement. Neither side proposed to retreat an inch from +the stand taken, and the message served no other purpose than to leave a +very excellent state paper as a memento of the session.</p> + +<p><span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span>The Joint Committee on +Reconstruction<a name="fna_154_154" id="fna_154_154"></a><a href="#fn154_154" class="fna">[154]</a> was immediately re-appointed by +a concurrent resolution. Only one change was necessary—Mr. Grider, of +Kentucky, one of the minority members, had died during the recess of +Congress, and in his place Mr. Hise, of the same State, was appointed. The +committee immediately resumed its labors, and proceeded to frame a bill +“for the more efficient government of the rebel States.” The developments +of the last three months had created a sentiment favorable to more +stringent conditions of re-admission, and the action of the various +Southern legislatures, who were rejecting the 14th amendment during this +period, served as a further stimulus to vigorous action.</p> + +<p>2. Several weeks elapsed before the committee was willing to adopt any +definite plan. Finally, on February 4, 1867, Mr. Williams reported from +the committee, a bill to the Senate;<a name="fna_155_155" id="fna_155_155"></a><a href="#fn155_155" class="fna">[155]</a> it was referred back to the +committee, and was formally reported to the House by Mr. Stevens on the +6th.<a name="fna_156_156" id="fna_156_156"></a><a href="#fn156_156" class="fna">[156]</a></p> + +<p>The preamble to the bill declared that in the absence of legal State +governments there was no adequate protection for person and property, and +that therefore it was necessary to enforce peace and good order until +loyal State governments could be established. To this end “the so-called +States shall be divided into military districts,” five in number, Virginia +to constitute the first, North Carolina and South Carolina the second, +Georgia, Alabama, and Florida the third, Mississippi and Arkansas the +fourth, and Louisiana and Texas the fifth. The General of the Army was “to +assign to the command of each of said districts an officer of the regular +army not below the rank of brigadier-general, and to detail a sufficient<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> +force to enable such officer to enforce his authority.” The officer in +command of a district was to have complete authority to protect the civil +rights of all, suppress insurrection and preserve order. To assist him he +could employ civil or military tribunals at his discretion, but no capital +punishment, imposed by a military tribunal, should be executed without the +approval of the officer in charge of the district. Writs of <i>habeas +corpus</i> should not be issued by federal courts or judicial officers except +on endorsement of some commissioned officer in the district.</p> + +<p>The discussion of the bill began on the day following its introduction. +Mr. Stevens, with his usual impetuosity, wished for an immediate vote. The +bill seemed more moderate to him than the South deserved, and with the +large Republican majority intent upon some such legislation, he could see +no reason for delay. The bill was clearly worded and all could understand +it perfectly. But there was an influential element that preferred to make +haste slowly, and many hours were given up to debate before the final +passage of the bill by the House, on February 20.</p> + +<p>The measure certainly was exceedingly radical as it was reported from the +committee. As Mr. Le Blond, of Ohio, said: “It strikes at the civil +governments in those States. It ignores State lines. It destroys their +civil governments. It breaks down the judicial system in those +States.”<a name="fna_157_157" id="fna_157_157"></a><a href="#fn157_157" class="fna">[157]</a> The distrust of the President was evidenced by empowering +General Grant to appoint the commanders of the military districts, +ignoring the President as commander-in-chief of the army. Most important +of all, the bill as it stood was the action of a conquering power over +conquered territory. It provided for an indefinite military control over +the territory, and specified no mode in which a State might free herself<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> +from the onerous conditions. It was not a measure of reconstruction; it +was a measure of subjugation.</p> + +<p>Of course none of its supporters had the slightest idea of its being more +than a temporary measure, but even temporary measures must be considered +in all their aspects. Their idea was that expressed by Mr. Brandegee of +Connecticut when he said: “It holds those revolted communities in the +grasp of war until the rebellion shall have laid down its spirit, as two +years ago it formally laid down its arms.”<a name="fna_158_158" id="fna_158_158"></a><a href="#fn158_158" class="fna">[158]</a></p> + +<p>Mr. Bingham took an active part in the opposition to the adoption of the +bill as it stood. Representing the more conservative branch of the +anti-administration party, he suggested on the opening day of the +discussion amendments which would make the bill more desirable. On +February 12 he submitted an amendment, the essential features of which +were finally adopted, but which encountered the fiercest opposition and +was only carried when compromise between the House and the Senate was +found to be impossible. His amendment provided as conditions for +re-admitting a State to representation in Congress: Ratification of the +14th amendment; such modification of State constitution and laws as would +make them conform to that amendment; a constitutional provision for negro +suffrage; and the approval of the constitution by Congress as republican +in form and consistent with the Constitution and laws of the United +States.</p> + +<p>Mr. Blaine proposed an amendment similar in its aim to that of Mr. +Bingham, who accepted it as a substitute. But the House was opposed to +providing any loop-holes by which the States could escape the provisions +of the act. The feeling that the South had been weighed in the balance and +found wanting, that its whole attitude was that of defiance, and that it +would endeavor to undo all that had<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> been done as soon as it could obtain +an opportunity, was sufficiently strong to defeat an attempt to refer the +bill to the Judiciary Committee with instructions to incorporate the +amendment. Instead, a substitute measure, introduced by Mr. Stevens, which +differed but little from the original bill, passed the House on February +13.<a name="fna_159_159" id="fna_159_159"></a><a href="#fn159_159" class="fna">[159]</a></p> + +<p>The great struggle now began in the Senate, where the Blaine amendment was +moved by Mr. Johnson of Maryland, on February 15. There was an influential +element which feared that its adoption would utterly nullify the object of +the bill—to govern the States until they could be re-admitted with +safety. Their objections were based on the same principles that had proved +fatal to the amendment in the House. “I see,” said Senator Howard, “in +this amendment a fatal snare by which we shall be deceived in the end, by +which we are to be deluded into a premature re-admission of the rebel +States in such a manner as to make us ultimately repent of our folly and +rashness. * * * It is a snare by which increased representation from the +rebel States may come into Congress, * * while we have no security at all +that the extended elective franchise will be continued in the rebel States +to the black population. They can disfranchise them whenever they see fit +after having secured increased representation.”<a name="fna_160_160" id="fna_160_160"></a><a href="#fn160_160" class="fna">[160]</a></p> + +<p>The Senate, more conservative than the House, could not muster such a +strong opposition to the amendment. It was rejected, but rejected in order +to open the way for another amendment in the form of a substitute bill, +which was moved by Senator Sherman.<a name="fna_161_161" id="fna_161_161"></a><a href="#fn161_161" class="fna">[161]</a> The substitute had been agreed +upon in a Republican caucus, and was accordingly carried. Its first four +sections contained nearly all the features<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> of the original bill; it +substituted “President” for “General,” in the second section, and, in +place of the provision against writs of <i>habeas corpus</i>, the fourth +section simply enacted that “all persons put under military arrest by +virtue of this act shall be tried without unnecessary delay, and no cruel +or unusual punishment shall be inflicted.” The fifth section contained the +features proposed in the Bingham and Blaine amendments, amplified in a +manner satisfactory to the majority of the Senatorial caucus. The +conditions of readmission were as follows: The adoption of a constitution +in conformity with the Constitution of the United States, and the +ratification of the 14th amendment. The constitution, which must be +examined and approved by Congress, must be framed by a convention of +delegates chosen by “the male citizens of said State twenty-one years of +age and upwards, of whatever race, color, or previous condition, who have +been resident in the State for one year previous to the day of such +election, except such as may be disfranchised for participation in the +rebellion, or for felony at common law;” must give the elective franchise +to all qualified as electors for the delegates; and must be ratified by a +majority of the persons voting on ratification, and qualified as such +electors. To this the proviso was added that no person disqualified by the +14th amendment from holding office should be chosen as a delegate to the +convention or vote for members of it. One more amendment to the bill was +made on motion of Senator Doolittle. This added as a proviso to the fourth +section: “That no sentence of death under the provisions of this act shall +be carried into effect without the approval of the President.”</p> + +<p>The bill was returned to the House in this form, the Senate having passed +it at six o’clock Sunday morning, February 17. The margin of time that +could be used without permitting the bill to be killed by a “pocket veto” +was now very<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> limited, but the House refused to concur in the amendment +and called for a committee of conference, February 19. The Senate insisted +on its amendment and the bill was again returned to the House, which on +the following day concurred in the Senate amendment, but added an +amendment of its own proposed by Mr. Wilson, of Iowa, and amended on +motion of Mr. Shellabarger.<a name="fna_162_162" id="fna_162_162"></a><a href="#fn162_162" class="fna">[162]</a> This amendment, constituting the sixth +section of the bill, was speedily concurred in by the Senate, and on +February 20, 1867, the bill was finally passed and ready for the +President’s veto.</p> + +<p>The sixth section, so hurriedly tacked on to the bill, was of no slight +importance, as it declared in legal form the <i>status</i> of the Southern +governments, and clinched the qualifications for the elective franchise. +It provided that “until the people of said rebel States shall be by law +admitted to representation in the Congress of the United States, any civil +governments which may exist therein shall be deemed provisional only, and +in all respects subject to the paramount authority of the United States at +any time to abolish, modify, control, or supersede the same; and in all +elections to any office under such provisional governments all persons +shall be entitled to vote, and none others, who are entitled to vote under +the provisions of the fifth section of this act; and no person shall be +eligible to any office under any such provisional governments who would be +disqualified from holding office under the provisions of the third article +of said constitutional amendment.”<a name="fna_163_163" id="fna_163_163"></a><a href="#fn163_163" class="fna">[163]</a></p> + +<p>As had been expected, Johnson withheld his veto as long as it was possible +for him to do so without permitting the bill to become a law, not +returning the bill until March 2.<a name="fna_164_164" id="fna_164_164"></a><a href="#fn164_164" class="fna">[164]</a> This was done in the hope that the +minority, by dilatory<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> proceedings, might prevent action on the veto +before the adjournment, on March 4, and so prevent the bill from becoming +a law. But the plan failed, and the bill was immediately passed, “the +objections of the President to the contrary notwithstanding.”</p> + +<p>The veto message embodied an exhaustive review of the bill, a criticism of +its “cruelty,” and an attack upon its constitutionality. It denied the +statement in the preamble that “no legal State governments or adequate +protection for life or property,” existed in these ten States, and +declared that “the establishment of peace and good order is not its real +object. * * * The military rule which it establishes is plainly to be +used, not for any purpose of order or for the prevention of crime, but +solely as a means of coercing the people into the adoption of principles +and measures to which it is known that they are opposed, and upon which +they have an undeniable right to exercise their own judgment.” The +despotic authority given to the commander of a district was vigorously +denounced, and all the humane provisions of the bill were declared to +depend upon the will of the commander, who could nullify them and oppress +the people without limitations of any kind. “It reduces the whole +population of the ten States—all persons, of every color, sex and +condition, and every stranger within their limits—to the most abject and +degrading slavery.”</p> + +<p>But aside from its injustice, Johnson went on to argue, the measure was +unconstitutional and could not legally be carried into execution. In a +time of peace martial law could not be established, in proof of which +statement he quoted from the decision of the Supreme Court, in <i>Ex parte</i> +Milligan, defining military jurisdiction. The denial of the right of trial +by jury and of the privilege of the writ of <i>habeas corpus</i> was not +counterbalanced by the poor privilege of trial “without unnecessary +delay.” In defiance of the constitutional prohibition<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> of bills of +attainder, “here is a bill of attainder against nine millions of people at +once”—a legislative enactment “based upon an accusation so vague as to be +scarcely intelligible, and found to be true upon no credible evidence.” +The primary purpose of the bill, to compel these States “by force to the +adoption of organic laws and regulations which they are unwilling to +accept if left to themselves,” was in itself unconstitutional. “The +Federal Government has no jurisdiction, authority, or power to regulate +such subjects for any State.”</p> + +<p>Respecting the legality of the state governments, the important point was +made that if they were illegal, their ratification of the 13th amendment +could not have been legal. The message closed with an appeal for +restoration “by simple compliance with the plain requirements of the +Constitution.”</p> + +<p>Taken as a whole, the message unquestionably contained many strong +arguments against the bill, and was virtually a summary of the arguments +advanced by the minority in Congress. But the struggle had passed beyond +the province of unbiased debate, and each side was equally determined not +to yield any point. A measure open to the most serious suspicions +regarding its constitutionality, was passed by an inflexible majority, +settled in the belief that the condition of the South required the +measure, and that the Constitution must accordingly be stretched to cover +the case.</p> + +<p>Those supporters of the bill who were recognized as the most careful in +their judgments confidently asserted that that portion of it establishing +the military districts contained nothing that could not have been carried +out legally by the government as a military measure, without the formality +of enacting the bill. The insurrectionary States would legally remain in a +condition of insurrection until Congress should formally declare the +insurrection to be at end. <span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span>Consequently martial law could +constitutionally prevail, trial by jury and the writ of <i>habeas corpus</i> be +suspended, and civil government utilized as an aid to military rule, to +any extent that might seem advisable to the general in charge. The claim +that the measure amounted to an enormous bill of attainder was immediately +dismissed as absurd, as no corruption of blood or forfeiture of estates +was involved, and the whole measure was avowedly temporary, to cease as +soon as the State should comply with the conditions of reconstruction.</p> + +<p>Congress felt justified in passing the bill over the veto, and accordingly +the general process of reconstruction was established with conditions far +more onerous than had been intended in the first session of the 39th +Congress. The provisions of the act immediately went into force, and the +commanders of the districts were appointed on March eleventh.</p> + +<p>3. The bill was conceded by all its supporters to be incomplete. It +provided for the establishment of districts and the governing of these +districts by military law, and it was hoped that the immediate crying need +of a strong government to enforce order and prevent the continuance of the +oppression of the freedmen was satisfied. This done, they could proceed +more deliberately to the enactment of measures which would provide the +mechanism for carrying out the provisions of the fifth section. The +adjournment of the 39th Congress at noon of March 4 prevented any action +until the next Congress; but preparation had been made for such an +emergency by an act which provided that in future each Congress should +convene upon the adjournment of its predecessor.<a name="fna_165_165" id="fna_165_165"></a><a href="#fn165_165" class="fna">[165]</a></p> + +<p>The 40th Congress at once settled down to work upon the problem. Chief +Justice Chase prepared a bill which was used as a basis for the +discussion. Senator Wilson and<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> others modified the bill to some extent, +and introduced it in the Senate on March 7.<a name="fna_166_166" id="fna_166_166"></a><a href="#fn166_166" class="fna">[166]</a> The same bill, slightly +modified, was introduced in the House.<a name="fna_167_167" id="fna_167_167"></a><a href="#fn167_167" class="fna">[167]</a> Considerable trouble was +experienced in agreeing upon the details of the bill, but on March 19 both +houses finally adopted a compromise proposed by a committee of conference. +The veto message of the President was received four days later; the bill +was immediately passed over the veto and became a law.<a name="fna_168_168" id="fna_168_168"></a><a href="#fn168_168" class="fna">[168]</a></p> + +<p>As finally passed, the bill was entitled: “An Act supplementary to an Act +entitled, ‘An Act to provide for the more efficient government of the +rebel States,’ passed March second, eighteen hundred and sixty-seven, and +to facilitate restoration.” It enacted that the commanding general in each +district should cause a registration to be made before September 1, 1867, +of those entitled to vote under the original act, and should require all +registering to take the following oath: “I, —— do solemnly swear (or +affirm) in the presence of Almighty God, that I am a citizen of the State +of ——; that I have resided in said State for —— months next preceding +this day, and now reside in the county of ——, or the parish of ——, in +said State (as the case may be); that I am twenty-one years old; that I +have not been disfranchised for participation in any rebellion or civil +war against the United States, nor for felony committed against the laws +of any State or of the United States; that I have never been a member of +any State legislature, nor held any executive or judicial office in any +State and afterwards engaged in insurrection or rebellion against the +United States, or given aid or comfort<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> to the enemies thereof; that I +have never taken an oath as a member of Congress of the United States, or +as an officer of the United States, or as a member of any State +legislature, or as an executive or judicial officer of any State, to +support the Constitution of the United States, and afterwards engaged in +insurrection or rebellion against the United States or given aid or +comfort to the enemies thereof; that I will faithfully support the +Constitution and obey the laws of the United States, and will, to the best +of my ability, encourage others so to do, so help me God.”<a name="fna_169_169" id="fna_169_169"></a><a href="#fn169_169" class="fna">[169]</a> After the +completion of the registration in any State, it was provided that there +should be held, after at least thirty days’ public notice by the +commanding general, an election of delegates “to a convention for the +purpose of establishing a constitution and civil government for such State +loyal to the Union.” This convention was to consist of the same number of +members as the most numerous branch of the State legislature in 1860.<a name="fna_170_170" id="fna_170_170"></a><a href="#fn170_170" class="fna">[170]</a> +Those voting at the election of delegates were also to vote for or against +the holding of the convention, and it was not to be held if a majority of +the ballots was cast against it, or if a majority of the registered voters +failed to vote on the question. Boards were to be appointed by the +commanding general to superintend the registration and election, and make +returns to him of the results of the election. The convention was required +to assemble at a place and time appointed by the commanding general, by a +notice to be given by him within sixty days from the date of election; and +to frame a constitution according to the provisions of the original and +the present act. The constitution so framed was then to be submitted to +the registered voters at<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> an election conducted by officials who were to +be appointed by the commanding general, and who were to make returns to +him. In case the constitution was ratified “by a majority of the votes of +the registered electors qualified as herein specified, cast at said +election (at least one-half of all the registered voters voting upon the +question of such ratification),” it was provided that the president of the +convention should “transmit a copy of the same, duly certified, to the +President of the United States, who shall forthwith transmit the same to +Congress,” and that, if Congress should be satisfied that all the +provisions of the acts were carried out, and that no force or fraud was +used, and should approve the constitution, the State should “be declared +entitled to representation, and senators and representatives shall be +admitted therefrom as therein provided.” It was further provided that all +elections in the States mentioned in the original act should, during the +operation of that act, be by ballot; that the officials in charge of the +registration and elections must take the “iron-clad” oath of July 2, +1862<a name="fna_171_171" id="fna_171_171"></a><a href="#fn171_171" class="fna">[171]</a> that the expenses incurred by the commanding generals in +carrying out the act should be paid out of the treasury, but<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> that the +state conventions should provide for the levying of taxes to pay other +expenses.<a name="fna_172_172" id="fna_172_172"></a><a href="#fn172_172" class="fna">[172]</a></p> + +<p>The veto message on this bill was much shorter than that on the original +reconstruction measure. The President said: “No consideration could induce +me to give my approval to such an election law for any purpose, and +especially for the great purpose of framing the constitution of a State. +If ever the American citizen should be left to the free exercise of his +own judgment, it is when he is engaged in the work of forming the +fundamental law under which he is to live.” He animadverted upon the +extreme looseness of the provisions in regard to the registration boards, +and upon the great powers vested in them. The main objections to the bill +were of course those which he had stated in the veto of March 2.</p> + +<p>The passage of the supplementary reconstruction act, and of a joint +resolution providing for the expenses involved in carrying out the +provisions of the act, completed the work of this session of the 40th +Congress. It was hoped that no further congressional action would be +needed until the constitutions of the States should be submitted for +examination and approval, preparatory to granting representation. But the +importance of the measures and the avowed hostility of the President +caused hesitation on the part of Congress as to adjourning till the +regular December session. It was realized that if any loop-hole could be +found by which the intention of the act could be evaded, Johnson would +have no hesitation in taking advantage of it. To provide for such a +contingency Congress passed a concurrent resolution which provided for a +recess until July 3, and authorized the President of the Senate and the +Speaker of the House to adjourn Congress until the first Monday in +December if a quorum did not appear on July 3. In case<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span> everything +appeared to be progressing with little friction, the members would not +assemble; but if there should be any unfavorable developments, Congress +could assemble independently of the President and enact legislation to +remedy the difficulty.</p> + +<p>4. July 3 found a quorum in both houses. The Attorney-General had rendered +an opinion upon the act of March 2 which greatly hampered the work of the +commanders of the districts. He advised the President that the act should +be construed strictly, that the commanders should be allowed no powers +beyond those specifically bestowed upon them. This prevented them from +removing state officers, from making new laws for the government of the +people, or from suspending the action of the state courts; and with state +officers hostile to the federal authorities, and using every means to +impede their work, the commanders found it impossible properly to +discharge the duties assigned to them by the act.<a name="fna_173_173" id="fna_173_173"></a><a href="#fn173_173" class="fna">[173]</a> The intent of the +reconstruction acts obviously was to make the commanders of the districts +commanders <i>de facto</i> as well as <i>de jure</i>. Consequently remedial +legislation was deemed necessary, and Congress convened for the purpose of +framing additional acts defining more precisely the intention of the +preceding acts and the powers of the commanders.</p> + +<p>A few days’ debate sufficed to bring Congress to an agreement as to the +form of a second supplementary act. The bill passed both Houses on July +13, was vetoed on the 19th, and was immediately passed over the veto.<a name="fna_174_174" id="fna_174_174"></a><a href="#fn174_174" class="fna">[174]</a> +It declared<a name="fna_175_175" id="fna_175_175"></a><a href="#fn175_175" class="fna">[175]</a> the true intent and meaning of the previous +reconstruction acts to be that the governments then existing in the ten +States specified in the acts were illegal, and that such governments, “if<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> +continued, were to be continued subject in all respects to the military +commanders of the respective districts, and to the paramount authority of +Congress.” It therefore provided that the district commanders should have +the power to suspend or remove all incumbents of offices of “any so-called +State or the government thereof,” and to fill all vacancies in such +offices, however caused. The same powers were granted to the General of +the Army, who was also empowered to disapprove the appointments or +removals made by the district commanders. The previous appointments by the +district commanders were confirmed and made subject to the provisions of +the act, and it was declared to be the duty of these commanders to remove +from office all who were disloyal to the United States, or who opposed in +any way the administration of the reconstruction acts. The registration +boards were empowered and required “before allowing the registration of +any person to ascertain, upon such facts or information as they can +obtain, whether such person is entitled to be registered.”<a name="fna_176_176" id="fna_176_176"></a><a href="#fn176_176" class="fna">[176]</a> No person +was to be disqualified as a member of any board of registration by reason +of race or color. The true intent and meaning of the oath prescribed in +the supplementary act was fully explained, the most important portion of +the explanation being that the words “executive or judicial office in any +State” should be construed to “include all civil offices created by law +for the administration of any general law of a State, or for the +administration of justice.” The time of registration under the +supplementary act was extended to October 1, 1867, in the discretion of +the commander and it was provided that<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> “the boards of registration shall +have power, and it shall be their duty, commencing fourteen days prior to +any election under said act, and upon reasonable notice of the time and +place thereof, to revise, for a period of five days, the registration +lists,” by striking out the names of those found to be disqualified, and +adding the names of those qualified for registration. Executive pardon or +amnesty should not qualify any one for registration who without it would +be disqualified. District commanders were empowered “to remove any member +of a board of registration, and to appoint another in his stead, and to +fill any vacancy in such board.” The iron-clad oath was to be required of +all registration boards, and of all persons elected or appointed to office +in the military districts. Further possibility of unfavorable construction +by the Attorney-General was prevented by the provision that “no district +commander or member of the board of registration, or any of the officers +or appointees acting under them, shall be bound in his action by any +opinion of any civil officer of the United States.” The closing section, +taken in connection with this, was fully as significant: “All the +provisions of this act and of the acts to which this is supplementary +shall be construed liberally, to the end that all the intents thereof may +be fully and perfectly carried out.”</p> + +<p>5. Reconstruction under the provisions of these three acts was rapidly +accomplished in most of the States.<a name="fna_177_177" id="fna_177_177"></a><a href="#fn177_177" class="fna">[177]</a> In some of the districts the +commanders probably were too severe upon the whites, but in the main the +intent of the acts was carried out with as little harshness as could well +be expected. Those qualified were registered, conventions were held, and +constitutions were framed and submitted to the people for their +ratification according to the provisions of the acts. Alabama was the +first State to vote upon a new <span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span>constitution, and the Democrats, or +Conservatives, as they styled themselves, took advantage of the fifth +section of the act of March 23, which required at least one-half of the +registered voters to vote on the question of ratification, as a condition +of the validity of the election. Non-action seemed to be the easiest +method of defeating the constitution, and they accordingly absented +themselves from the polls, only 70,812, out of 165,812 registered voters, +casting their ballots.<a name="fna_178_178" id="fna_178_178"></a><a href="#fn178_178" class="fna">[178]</a></p> + +<p>6. There had been a strong minority in Congress opposed to the insertion +of this section, who had foreseen this very outcome; and the action of +Alabama converted the minority into a majority. A third supplementary bill +was accordingly passed. Johnson neither signed nor vetoed it; and it +became a law without his signature on March 11, 1868. It provided that in +future all elections authorized by the act of March 23, 1867, “should be +decided by a majority of the votes actually cast,” thus preventing any +repetition of the Alabama experiment.<a name="fna_179_179" id="fna_179_179"></a><a href="#fn179_179" class="fna">[179]</a></p> + +<p>7. The constitution submitted in Mississippi was rejected. Constitutions +were not submitted in Texas and Virginia until a later date. The other +States ratified their constitutions by large majorities, and on June 22 +the act “to admit the State of Arkansas to representation in Congress” +became a law.</p> + +<p>8. Three days later the act admitting North Carolina, South Carolina, +Louisiana, Georgia, Alabama and Florida to representation, became a law. +Both bills were passed over the President’s vetoes, Johnson to the last +refusing to recognize even in the most indirect way the constitutionality +of the congressional plan.</p> + +<p>Eight of the eleven States were now nominally reconstructed, but in fact +they were only entering upon that most trying period of their history, the +era of “carpet-bag<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> government.” The whole period of reconstruction is +marked by blindness and prejudice on both sides. The spirit of compromise +could find no place in either’s plans. “What might have been” is always a +fruitless subject of discussion; but any student of the three tumultuous +years following the war cannot but see that the attitude of both the North +and the South prevented the adoption of the plan of reconstruction which +would with the least trouble and delay, have remoulded the unwieldy mass +of liberated blacks into an orderly, progressive class of citizens. At the +same time he can see that the divergence of views was inevitable and that +it is impossible to say to one side “You were right,” and to the other +“You were wrong.”</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span></p> +<h2><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI.</h2> +<h3>THE IMPEACHMENT OF THE PRESIDENT.</h3> + +<p><br />1. In the preceding chapters we have traced step by step the development +of the theory of reconstruction and the formulation of the reconstruction +acts of the 39th and 40th Congresses. We have noticed the wide divergence +between the ideas of Johnson and those of the Republican party, and have +seen that the whole program was carried over the vetoes of the President +by the overwhelming Republican majority. But the contest between the +President and Congress, which had been embittered by so many personalities +on both sides, did not come to an end with the passage of legislation +which fully embodied the congressional theory, but continued until it +culminated in a desperate effort of the Republican party to remove Johnson +from the presidential chair.</p> + +<p>The very conditions under which he assumed the presidential office +rendered his position difficult, and made estrangement of the executive +and legislative departments an easy matter. On the particular issue of +reconstruction Lincoln and Congress were at variance; but the tragic +nature of Lincoln’s death caused this matter to be forgotten in the +overwhelming sense of the loss of the man who had safely guided the +government through the most trying years of its history. But, for a +Congress so extremely Northern and Republican, with antagonisms and +prejudices which only fratricidal wars can create, to be compelled to work +with a man not only a Southerner, but practically a Democrat, must of +necessity bring about a crisis.</p> + +<p><span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span>Moreover, the flourishing condition of the spoils system served to +aggravate the antagonism between the two departments. History shows that, +while selfish motives are always indignantly repudiated by politicians, +they account for many of the more important political movements of the +century. With the immense federal patronage at his disposal, Johnson +realized that he had a powerful instrument of revenge at hand, and he did +not hesitate to use it. At a time when every congressman was under the +strongest pressure from his home constituency, inability to gratify the +demands of the voracious office-seeker was indeed a cause for bitterness.</p> + +<p>We can thus easily distinguish three causes which, working together upon a +strongly Republican Congress, resulted in the attempted removal of the +President. First, the antagonism arising from different fundamental +political ideas, the strained conditions of the times, and the woeful +tactlessness of Johnson; second, the almost morbid yet natural fears of +the Republican party regarding the sometime seceded States; third, the +anger aroused by the use of federal patronage to further the interests of +the President.</p> + +<p>2. Impeachment, however, was too serious a matter for Congress to enter +upon lightly. Art. II, sec. iv, of the Constitution provides for +impeachment as follows: “The President, Vice-President and all civil +officers of the United States shall be removed from office on impeachment +for, and conviction of, treason, bribery, or other high crimes and +misdemeanors.” Obviously the President had not committed and would not +commit anything that could legally be called treason or bribery: Had he +done or would he do anything which could be construed as a high crime or +misdemeanor? The answer largely depended upon the person’s point of view. +The extreme radical held that Johnson’s whole career as President could be +considered as an attempt treasonably to reinstate the Southern States in a +position of power. The<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span> more moderate Republicans could not be made to +acquiesce in this view, and it soon became evident that Johnson would +never be brought to trial on impeachment, unless he could be made to +violate some clearly defined law. The radical element, however, did not +easily accept this situation. By every means possible they tried to force +the moderates into line. The whole past career of the President was +critically studied, and every act which could by any possible means be +construed as a breach of presidential duty was put in the list of offences +for which he should be tried. But all to no purpose. Something more +tangible must be produced, or the trial would never occur.</p> + +<p>3. Notwithstanding the evident indisposition on the part of many to +proceed to extreme measures, the radicals determined to force matters to +an issue, if possible. Under Mr. James M. Ashley of Ohio as leader, the +attack was begun shortly after the opening of the second session of the +Thirty-ninth Congress. On December 17, 1866, Mr. Ashley moved to suspend +the rules so as to permit him to report a resolution from the Committee on +Territories. His motion was not agreed to, and the first step towards +impeachment was therefore a failure. The motion is of interest, however, +as evidencing the deliberate intention of the radicals to discover some +act which would justify impeachment. The resolution provided for a select +committee who were to inquire “whether any acts have been done by any +officer of the Government of the United States which in contemplation of +the Constitution are high crimes or misdemeanors, and whether said acts +were designed or calculated to overthrow, subvert or corrupt the +Government of the United States, or any department thereof.”</p> + +<p>Again on January 7 resolutions looking to impeachment were offered by Mr. +Ashley and two other persons. Mr. Ashley’s resolution was adopted, while +the others were <span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span>referred to the Committee on Reconstruction and the +Committee on the Judiciary. The resolutions which were referred gave as a +reason for impeachment, “the purpose of securing the fruits of the +victories gained on the part of the republic during the late war, waged by +rebels and traitors against the life of the nation”—a decidedly strong +statement to make, in view of the predominance of the Republican party at +the time, and its ability to render nugatory any attempt of the President +to take away from the republic “the fruits of the victories gained.” +Exaggerated expressions of this sort show how far the contest had +degenerated from a conflict of opinions as to the constitutional position +of the revolted States, into a personal warfare. Another significant +reason for impeachment given in these resolutions was, that it was +necessary in order to give “effect to the will of the people as expressed +at the polls during the recent elections by a majority numbering in the +aggregate more than four hundred thousand votes.” It has already been +shown how disastrously the campaign resulted for Johnson, and how it +furnished popular sanction for the radical reconstruction legislation +which was passed over the presidential vetoes. But, to assume that a +popular expression of disapproval of the President’s political program +made impeachment a moral necessity, was to assume a novel position. It was +also declared in these resolutions that the President was to be impeached +for the high crimes and misdemeanors “of which he is manifestly and +notoriously guilty, and which render it unsafe longer to permit him to +exercise the powers he has unlawfully assumed.”</p> + +<p>These expressions seeming to be too indefinite, the specific charges +submitted by Mr. Ashley met with more favor, and were accordingly adopted. +These charges centered about an alleged “usurpation of power and violation +of law” which was to be found in corrupt uses of the appointing, +pardoning,<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> and veto powers, improper disposition of public offices and +corrupt interference in elections. These were clinched again by the +general charge that the President had “committed acts which, in +contemplation of the Constitution, are high crimes and misdemeanors,”—a +charge obviously introduced to include any points which might in the +future be made against him.</p> + +<p>4. As the event proved, the attempt to bring matters to a successful issue +in the 39th Congress was a failure. The Committee on the Judiciary went to +work vigorously, calling many witnesses and collecting as much material as +possible; but on the 28th of February it reported, with only one +dissenting, voice, that in spite of all its efforts not enough testimony +had been gathered to warrant any report beyond a recommendation that the +investigation be continued. The ninth member of the committee, Mr. Rogers +of New Jersey, reported emphatically that a careful examination of the +subject had convinced him that “there is not a particle of evidence to +sustain any of the charges,” and that “the case is wholly without a +particle of evidence upon which an impeachment could be founded.” He +further declared that but little of the testimony taken would be admitted +in the courts, and that the whole matter should be dropped, as it would +certainly end “in a complete vindication of the President.” Logically, the +standpoint of Mr. Rogers was a correct one. From a strictly legal view of +the case, there was very serious doubt as to the advisability of +attempting impeachment; but the opponents of the President counted upon +their large majority to force the matter, and the line of action +recommended by the majority of the committee was adopted.</p> + +<p>As has been seen, the 40th Congress assembled immediately upon the +adjournment of the 39th; and on March 7, 1867, the new Judiciary Committee +was authorized to<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span> proceed with the investigation, and to continue it +during any recess the House might take. By another resolution agreed to +March 29, the committee was requested to report immediately upon the +reassembling of Congress, which was to be in the following July, if +political conditions seemed to require it.<a name="fna_180_180" id="fna_180_180"></a><a href="#fn180_180" class="fna">[180]</a></p> + +<p>The committee accordingly continued its investigations, but, though the +radicals felt sure that it was composed of men who would favor +impeachment, it at first reported by a majority of five to four against +impeachment. A recommitment resulted in the conversion of one member of +the committee<a name="fna_181_181" id="fna_181_181"></a><a href="#fn181_181" class="fna">[181]</a> to impeachment views; and on November 25 Mr. Boutwell, +of Massachusetts, reported from the committee a resolution impeaching the +President for high crimes and misdemeanors.</p> + +<p>5. The debate on this resolution was entered upon in December, 1867, and +was marked by the effort on the part of the radicals to support a most +indefinite and general charge. In spite of the thoroughness of the +investigation of the Judiciary Committee, in which neither time nor +expense had been spared, the attitude of the moderates was justified. +Nothing had been unearthed which from the legal standpoint could be +considered a high crime or misdemeanor. Failing in this, Mr. Boutwell +assumed the ground that the evidence showed that President Johnson had +been deliberately using his office to bring back, so far as possible, the +Democratic party into power, and that his efforts to restore the +insurrectionary States to their former power had been in the interest of +the rebellion.</p> + +<p>Although most Republicans at this time could not believe that the +inhabitants of the Southern States were sincere in<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> their protestations of +a desire to lay aside all differences and once more become loyal citizens, +there were many who could not agree to Mr. Boutwell’s definition of high +crimes and misdemeanors; and these moderate Republicans, aided by the +Democrats, defeated the resolution by a vote of one hundred and eight to +fifty-seven.<a name="fna_182_182" id="fna_182_182"></a><a href="#fn182_182" class="fna">[182]</a> The attempt to impeach without definite legal charges +had failed.</p> + +<p>But the President soon gave the House the very opportunity it desired. +While the direct attack upon the President was being carried on by means +of the effort to impeach him, an indirect attack was made by the +legislative limitation of his powers. One of the cries of alarmists had +been that there was danger that the President might in some way take +advantage of his constitutional position as commander-in-chief of the army +and navy, so as to injure the government and advance his own interests. +Some went even farther and declared that he designed with the aid of the +army to overthrow the government, and place the United States in the power +of the rebels. Such charges, viewed from the standpoint of history, seem +too absurd for consideration, but during the reconstruction period the +feverish condition of the country made possible the acceptance of almost +any startling rumor.</p> + +<p>6. But even those who did not apprehend that Johnson would use the army +for any improper purpose, were willing to limit his power and prestige by +depriving him of his military authority; and this was accordingly done by +a section introduced into the army appropriation bill.<a name="fna_183_183" id="fna_183_183"></a><a href="#fn183_183" class="fna">[183]</a> This section +required all orders to the army to be made through the General of the +Army, thus practically making his approval of them necessary. It also +prevented the President or the Secretary of War from removing, suspending +or relieving from command the General of the Army, and even forbade<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> his +being assigned for duty away from headquarters, except at his own request. +This had the effect of taking away from the President all his +constitutional powers as commander-in-chief. As the section was put as a +rider on an appropriation bill and a veto must cover the whole bill, +Johnson contented himself with a simple protest and returned the act with +his signature.<a name="fna_184_184" id="fna_184_184"></a><a href="#fn184_184" class="fna">[184]</a></p> + +<p>7. The attack upon the civil powers of the President was made through the +Tenure-of-Office Act.<a name="fna_185_185" id="fna_185_185"></a><a href="#fn185_185" class="fna">[185]</a> As the violation of this act was the ground of +the most serious charge in the impeachment trial, a somewhat detailed +study of its provisions, and of the views expressed by the President in +his veto of it, is advisable. The bill provided that “every person holding +any civil office to which he has been appointed by and with the advice and +consent of the Senate,” and every person so appointed in the future, +should be entitled to hold such office until a successor should have been +appointed in like manner, that is to say, <i>with the advice and consent of +the Senate</i>. The only liberty of action allowed the President was during +the recess of the Senate, when he was permitted to suspend an officer +until the next meeting of the Senate, and appoint a <i>pro tempore</i> +official. Within twenty days after the meeting of the Senate, however, he +was required to give his reasons for the suspension. If the Senate +approved of the removal, a permanent appointment was to be made; if they +refused to concur, the suspended officer was immediately to resume his +duties. Any violation of this act by the President was made an impeachable +offense, by the declaration that “every removal, appointment, or +employment made, had, or exercised, contrary to the provisions of this act +* * * are hereby declared to be high misdemeanors.”<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> The other provisions +were of minor importance, and do not require notice here.</p> + +<p>The veto message of the President was a calm, dignified and judicial +discussion of the constitutionality of the bill, and was in every way a +creditable document, sustaining fully the high character of his previous +vetoes. He called attention to the fact that the whole question of the +authority of the President in cases of removal from office had been +discussed thoroughly in Congress as early as 1789, and decided in favor of +the President. He quoted Madison’s argument to prove that all executive +power, except what is specifically excepted, is vested in the President, +and that as no exception was made as to the power of removal, it must be +vested in him. He also cited many possible cases, in which it would be +absolutely necessary for the President to possess the power of +removal.<a name="fna_186_186" id="fna_186_186"></a><a href="#fn186_186" class="fna">[186]</a> A decision +of the Supreme Court was referred to,<a name="fna_187_187" id="fna_187_187"></a><a href="#fn187_187" class="fna">[187]</a> in +which it was observed that both the legislative and the executive +department had assumed in practice that the power of removal was vested in +the President alone. When, for instance, the Departments of State, War and +the Treasury were created in 1789, provision was made for a subordinate +who should take charge of the office “when the head of the Department +should be removed <i>by the President of the United States</i>.” Story, Kent +and Webster were all quoted as affirming the same legislative construction +of the Constitution. The great practical value of the power during the +Civil War was noticed, and its present and future necessity strongly +urged; and the message closed with an earnest appeal to Congress not to +violate the original spirit of the Constitution.</p> + +<p>8. The passage of the bill over the veto placed Johnson<span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span> in a situation in +which a collision was almost sure to come. As the chief executive of the +country he was charged with the duty of carrying out the provisions of the +reconstruction acts, notwithstanding his strong personal repugnance to +them. Under the advice of Attorney-General Stanbery he had construed the +acts literally, and he had thus frustrated in part the object of the +legislation. But the co-operation of the army was necessary, and +unfortunately for President Johnson, the Secretary of War, Mr. Stanton, +strongly opposed his views, and conducted himself as far as possible in +accordance with the wishes of the congressional majority. The continued +friction between the President and the Secretary of War seemed to +President Johnson to necessitate Stanton’s retirement, but repeated hints +to that effect were not recognized by the latter. Finally, on August 5, +1867, the President informed him that “public considerations of a high +character constrained” him to say that his resignation would be accepted. +The Secretary’s prompt reply was that “public considerations of a high +character” constrained him not to resign until the next session of +Congress. A week later, August 12, the President formally suspended him +and appointed General Grant Secretary <i>ad interim</i>.<a name="fna_188_188" id="fna_188_188"></a><a href="#fn188_188" class="fna">[188]</a> Stanton then +submitted “under protest to superior force.”</p> + +<p>When Congress met in December the President reported his suspension of +Stanton, and after long discussion the Senate, on January 13, 1868, +refused to concur.<a name="fna_189_189" id="fna_189_189"></a><a href="#fn189_189" class="fna">[189]</a> When informed of this action of the Senate, +General Grant immediately turned over the Secretary’s office to Stanton, +thus definitely committing himself to the congressional interpretation of +the law. Grant’s action was a sore disappointment to the President. +Johnson had refused to accept the Tenure-of-Office Act as constitutional, +and had purposed to make this a test case. In the correspondence which +passed <span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span>between him and General Grant after the latter’s acquiescence in +the action of the Senate, Johnson claimed that it was understood that +Grant was either to refuse to give up the office to Stanton, or, if he +should be unwilling to take so prominent a part in the contest, to resign +and permit the office to be filled with some one whose views agreed with +the President’s, so that Stanton, if he sought to regain the office, might +be compelled to resort to the courts. In this way the constitutionality of +the act could be tested. Johnson’s statements as to the understanding with +Grant were substantially endorsed by the Cabinet, on the strength of a +conversation between Johnson and Grant at a cabinet meeting. Grant, +however, firmly denied that there was any such agreement or +understanding.<a name="fna_190_190" id="fna_190_190"></a><a href="#fn190_190" class="fna">[190]</a></p> + +<p>A few days after Stanton had resumed his duties as Secretary of War, the +President sought to put in operation a plan for rendering his possession +of the office ineffective. On January 19, he ordered General Grant, in +charge of the army, to disregard all of Stanton’s orders unless he knew +directly from the President that they were the latter’s orders.<a name="fna_191_191" id="fna_191_191"></a><a href="#fn191_191" class="fna">[191]</a> The +order was repeated in writing at Grant’s request on January 29. On the +following day, Grant refused to carry it out, declaring that an order from +Secretary Stanton would be considered satisfactory evidence that it was +authorized by the Executive.<a name="fna_192_192" id="fna_192_192"></a><a href="#fn192_192" class="fna">[192]</a> This correspondence between Johnson and +Grant was subsequently called for by Congress, and an attempt was made to +frame articles of impeachment on the ground that the President was +instructing Grant to disobey the orders of his superior. Careful +examination of the legal bearings of the question convinced a majority of +the Reconstruction Committee that nothing would be gained by inserting +charges<span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span> based on this correspondence. The President had shrewdly worded +his communication so as not to violate any legal technicalities.<a name="fna_193_193" id="fna_193_193"></a><a href="#fn193_193" class="fna">[193]</a></p> + +<p>Having failed in his first two attacks upon Stanton, Johnson finally +resorted to a still stronger measure. Completely ignoring the +Tenure-of-Office Act, he addressed a letter to Stanton, February 21, +removing him from office, and directing him to transfer all the property +of the War Department to Adjutant General Lorenzo Thomas. Thomas, having +received his appointment as secretary <i>ad interim</i>, proceeded to the +office and formally demanded possession. Stanton avoided giving a direct +answer to the demand, and on the following morning Gen. Thomas was +arrested for violation of the Tenure-of-Office Act. After bail had been +procured he renewed his demand, but Stanton ignored his appointment. +Several plans were devised by the President and Thomas’ lawyers to make +the contest center around Thomas, but the congressional managers decided +to drop the matter, and concentrate their energies upon a presidential +impeachment.<a name="fna_194_194" id="fna_194_194"></a><a href="#fn194_194" class="fna">[194]</a></p> + +<p>The last step of the President opened the way for immediate action. +Violation of the Tenure-of-Office Act was explicitly declared an +impeachable offense, and as to the flagrancy of its violation by the order +of February 21 there could be no question. Many of the wavering +Republicans now had their doubts of the expediency of impeachment cleared +away, and on February 24 the resolution formally impeaching the President +of “high crimes and misdemeanors in office” was passed.<a name="fna_195_195" id="fna_195_195"></a><a href="#fn195_195" class="fna">[195]</a></p> + +<p>9. On March 2, the first nine articles of impeachment<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> were adopted; two +additional articles were added on the 3d; and on the 4th they were +presented to the Senate. On March 30, the trial began. The articles +charged the President with high crimes and misdemeanors in respect of the +order for the removal of Stanton, the appointment of Thomas as Secretary +of War <i>ad interim</i>, the attempt to hinder Stanton in the exercise of his +lawful duties, the wilful violation of the Tenure-of-Office Act, the +attempt to seize the properties of the War Department, the attempt +unlawfully to disburse moneys through the appointment of Thomas, an +attempt to make General Emory violate the Tenure-of-Office Act, the +attempt to injure the good reputation of the legislative department by +speeches delivered at various specified places, and his determined +opposition to the reconstruction policy as outlined in the various acts of +Congress.<a name="fna_196_196" id="fna_196_196"></a><a href="#fn196_196" class="fna">[196]</a></p> + +<p>These articles were very sweeping, and were designed as a sort of drag-net +to include all of the complaints which could possibly be brought against +the President. Yet the House of Representatives, previous to the attempted +removal of Secretary Stanton, after the most searching examination into +the President’s record, had failed to find sufficient ground on which to +base an impeachment. Therefore the only charges that deserved really +serious attention were those growing out of the violation of the +Tenure-of-Office Act. In the President’s reply to the charges he explains +his attitude on this matter. In his opinion the Tenure-of-Office Act was +unconstitutional. The very fact that he as Executive was legally held +responsible for the acts of the Secretary of War made it necessary for him +to exercise the power of removal or of indefinite suspension. He had at +first complied with the letter of the act in order to avoid a further +struggle with Congress; but, having<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> been frustrated by Congress in his +design, the only alternative that remained to him, in view of his strained +relations with the Secretary of War, was the latter’s unconditional +removal.</p> + +<p>10. The President’s case, as to the constitutionality of his action and +the unconstitutionality of the Tenure-of-Office Act, was strong, and was +presented with great ability by the President’s counsel. But, from the +very beginning, it was obvious that the case would be determined mainly on +political lines.</p> + +<p>If the Republican party could hold all the Republican Senators to the +decision of the majority, a verdict of guilty was assured. Consequently, +the strongest efforts were made to bring all into line. But some proved +recalcitrant. The prospect that the President of the United States was to +be forced out of his office as a punishment for his opposition to the +Legislative Department was not edifying. Hitherto the presidential office +had possessed great dignity. To be sure, Johnson’s conduct had gone far +towards the destruction of that dignity, but a conviction on impeachment +charges would drag down the office immeasurably. Some of the Senators also +realized that the tendency of Congress during the whole struggle had been +towards an encroachment upon the executive powers, and that there was +serious danger that the balance of the governmental system might be +destroyed. While, therefore, they strongly disapproved of Johnson’s +conduct, they felt unwilling to expose the government to the shock which +would accompany his removal from the presidential chair. The trial +proceeded slowly and the case was ably contested by counsel on both sides; +but the prosecution was practically brought to a close on May 16, by the +vote which was taken on the eleventh article of impeachment. This article +was chosen for the first test of strength, because it embodied those +charges which had caused the most feeling,<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span> and which were best calculated +to cause Senators to cast aside judicial restraints and vote according to +their prejudices. But, seven Republicans refused to line themselves with +the radical majority. They and the twelve Democratic Senators voted for +acquittal. Thirty-five Republicans voted “guilty,” but this lacked one of +the needful two-thirds majority. Ten days later another vote was taken on +the second and third articles, with the same result. The fight was then +given up, and the court of impeachment was declared adjourned.</p> + +<p>11. It was a fortunate thing for the country that the attempt failed. The +convulsions of the Civil War had unsettled most seriously our conceptions +of the relations of the three co-ordinate departments of the government. +Lincoln had not hesitated to assume powers totally outside the ordinary +functions of the Executive. The country had sustained him in this; but, +with the return of peace, and with Johnson in the presidential chair, +Congress had determined to resume its powers. Again the country responded, +but the violence of the reaction caused the pendulum to swing too far in +the opposite direction; and our institutions were placed in greater danger +than the were in before. But, just as the Civil War had settled the +question as to the indissolubility of the Union, so no less emphatically +did the failure of the impeachment trial confirm the equality of the three +departments of our government.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span></p> +<h2>AUTHORITIES.</h2> + +<div class="note"> +<p class="hang">Blaine, James G. Twenty Years of Congress. Norwich, 1884.</p> + +<p class="hang">Congressional Globe. 37th-40th Congresses. Washington, 1861-1868.</p> + +<p class="hang">Cooper, T. V., and Fenton, H. T. American Politics. Boston, 1890.</p> + +<p class="hang">Cox, S. S. Three Decades of Federal Legislation. Providence, 1888.</p> + +<p class="hang">Dunning, Wm. A. Articles on Civil War and Reconstruction, in Political +Science Quarterly, vols. i. and ii., and on The Impeachment, in Papers Am. +Hist. Assoc., vol. iv.</p> + +<p class="hang">Gillet, R. H. Democracy in the United States. New York, 1868.</p> + +<p class="hang">Herbert, Hilary A. Editor. Why the Solid South? Baltimore, 1890.</p> + +<p class="hang">House Journal. 37th-40th Congresses. Washington, 1861-1868.</p> + +<p class="hang">House Reports. Vol. ii., 1865-66. Washington, 1866.</p> + +<p class="hang">House Reports. Vol. ii., 1866-67. Washington, 1867.</p> + +<p class="hang">Hurd, J. C. Theory of our National Existence. Boston, 1881.</p> + +<p class="hang">Johnston, Alexander. History of the United States. New York, 1891.</p> + +<p class="hang">Johnston, Alexander. Representative American Orations. New York and London.</p> + +<p class="hang">Johnston, Alexander. Reconstruction, Emancipation Proclamation, Freedmen’s +Bureau, etc., Lalor, Cyclopedia of Polit. Science. 3 vols. New York, 1890.</p> + +<p class="hang">Lowell. J. R. Political Essays, in “Works.” Vol. V. Boston and New York, 1891.</p> + +<p class="hang">McPherson, Edward. History of the Reconstruction. Washington, 1880.</p> + +<p class="hang">Moore, Frank. Speeches of Andrew Johnson. Boston, 1866.</p> + +<p class="hang">Patton, J. H. The Democratic Party. New York, 1888.</p> + +<p class="hang">Pollard, E. A. The Lost Cause Regained. New York, 1868.</p> + +<p class="hang">Poore, Ben: Perley. Veto Messages of the Presidents of the United States. Washington, 1886.</p> + +<p class="hang">Ridpath. History of the United States. New York and Cincinnati.</p> + +<p class="hang">Savage, J. Life and Public Services of Andrew Johnson. New York, 1866.</p> + +<p class="hang">Scott, E. G. Reconstruction during the Civil War. Boston and New York, 1895.</p> + +<p class="hang">Stanwood, E. History of Presidential Elections. Boston and New York.</p> + +<p class="hang">Senate Journal. 37th-40th Congresses. Washington, 1861-1868.</p> + +<p class="hang">Sterne, Simon. Constitutional History and Political Development of the +United States. New York and London, 1888.</p> + +<p class="hang">Stephens, Alexander H. The War between the States. Philadelphia.</p> + +<p class="hang">Taylor, Richard. Destruction and Reconstruction. New York, 1879.</p> + +<p class="hang">Williams, G. W. History of the Negro Race in America. New York, 1883.</p> + +<p class="hang">Wilson, Henry. Rise and Fall of the Slave Power in America. New York.</p> + +<p class="hang">Wilson, Henry. History of the Reconstruction Measures. Hartford, 1868.</p></div> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><strong>Footnotes:</strong></p> + +<p><a name="fn1_1" id="fn1_1"></a><a href="#fna_1_1">[1]</a> Scott, <i>Reconstruction during the Civil War</i>, 245 ff.</p> + +<p><a name="fn2_2" id="fn2_2"></a><a href="#fna_2_2">[2]</a> <i>House Journal</i>, 1st Session, 37th Congress, pp. 123-5.</p> + +<p><a name="fn3_3" id="fn3_3"></a><a href="#fna_3_3">[3]</a> Alexander H. Stephens, in <i>The War between the States</i>, uses +this fact as a basis for the charge that Johnson was inconsistent in +refusing to ratify the Sherman-Johnston Convention.</p> + +<p><a name="fn4_4" id="fn4_4"></a><a href="#fna_4_4">[4]</a> <i>House Journal</i>, 2d Session, 37th Congress, p. 33.</p> + +<p><a name="fn5_5" id="fn5_5"></a><a href="#fna_5_5">[5]</a> <i>Senate Journal</i>, 2d Session, 37th Congress, pp. 202-4.</p> + +<p><a name="fn6_6" id="fn6_6"></a><a href="#fna_6_6">[6]</a> <i>House Journal</i>, 37th Congress, 3d Session, p. 43. Introduced +December 5, 1862, by C. L. Vallandigham, whose subsequent career is well +known. See Cox <i>Three Decades of Federal Legislation</i>, pp. 80-85.</p> + +<p><a name="fn7_7" id="fn7_7"></a><a href="#fna_7_7">[7]</a> The italics are mine.</p> + +<p><a name="fn8_8" id="fn8_8"></a><a href="#fna_8_8">[8]</a> <i>House Journal</i>, 1st Session, 38th Congress, p. 48.</p> + +<p><a name="fn9_9" id="fn9_9"></a><a href="#fna_9_9">[9]</a> <i>Ibid.</i>, pp. 65-6.</p> + +<p><a name="fn10_10" id="fn10_10"></a><a href="#fna_10_10">[10]</a> See Cox, <i>Three Decades of Federal Legislation</i>, 123.</p> + +<p><a name="fn11_11" id="fn11_11"></a><a href="#fna_11_11">[11]</a> <i>House Journal</i>, 1st Session, 38th Congress, pp. 238-9.</p> + +<p><a name="fn12_12" id="fn12_12"></a><a href="#fna_12_12">[12]</a> For a very able discussion of the “Efforts at Compromise, +1860-61,” see Frederic Bancroft’s article in <i>Political Science Quarterly</i>, vi, pp. 401-423.</p> + +<p><a name="fn13_13" id="fn13_13"></a><a href="#fna_13_13">[13]</a> <i>Congressional Globe</i>, 1st Session, 37th Congress, p. 129.</p> + +<p><a name="fn14_14" id="fn14_14"></a><a href="#fna_14_14">[14]</a> <i>Ibid.</i>, 2d Session, 37th Congress, part i, p. 8.</p> + +<p><a name="fn15_15" id="fn15_15"></a><a href="#fna_15_15">[15]</a> <i>Senate Journal</i>, 3d Session, 37th Congress, p. 24.</p> + +<p><a name="fn16_16" id="fn16_16"></a><a href="#fna_16_16">[16]</a> See Pollard’s <i>Lost Cause Regained</i>, pp. 44-57, for a +discussion of the growth of Southern sentiment favoring measures of +peace.</p> + +<p><a name="fn17_17" id="fn17_17"></a><a href="#fna_17_17">[17]</a> It is improbable that he ever modified his views as to the +continued existence of the States—views which were essentially those of +his successor, though less dogmatically asserted. See Hurd, <i>Theory of Our +National Existence</i>, 36 and <i>Index</i>; Pollard, <i>Lost Cause Regained</i>, 65.</p> + +<p><a name="fn18_18" id="fn18_18"></a><a href="#fna_18_18">[18]</a> Cooper, <i>American Politics</i>, pp. 141-3.</p> + +<p><a name="fn19_19" id="fn19_19"></a><a href="#fna_19_19">[19]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 36.</p> + +<p><a name="fn20_20" id="fn20_20"></a><a href="#fna_20_20">[20]</a> <i>Congressional Globe</i>, 3d Session, 37th Congress, part i, p. +834.</p> + +<p><a name="fn21_21" id="fn21_21"></a><a href="#fna_21_21">[21]</a> <i>House Journal</i>, 3d Session, 37th Congress, pp. 69, 70.</p> + +<p><a name="fn22_22" id="fn22_22"></a><a href="#fna_22_22">[22]</a> Cooper, <i>American Politics</i>, bk. i, pp. 141-3. On Lincoln’s +plan of Reconstruction, <i>Cf.</i> Gillet, <i>Democracy in the United States</i>, +pp. 297-9; Pollard, <i>Lost Cause Regained</i>, 65, which claims that Lincoln +could have successfully carried out his policy had he lived, but does not +sustain the statement; Cox, <i>Three Decades</i>, etc., pp. 336-345; Wilson, +<i>Rise and Fall of the Slave Power</i>, iii, 519-20; Scott, <i>Reconstruction +during the Civil War</i>, 267 ff.</p> + +<p><a name="fn23_23" id="fn23_23"></a><a href="#fna_23_23">[23]</a> These excepted classes were: (1) Confederate civil and +diplomatic officers; (2) Confederates who had left U. S. judicial +positions; (3) officers above colonel in army and lieutenant in navy; (4) +those who had formerly been U. S. Congressmen and had aided the rebellion; +(5) those who left U. S. Army and Navy to aid the rebellion; (6) those who +had treated negroes captured while in U. S. military or naval service +otherwise than as prisoners of war.</p> + +<p><a name="fn24_24" id="fn24_24"></a><a href="#fna_24_24">[24]</a> Wilson, <i>Rise and Fall of the Slave Power in America</i>, iii, +531-41; <i>Cf.</i> Gillet, <i>Democracy in the United States</i>, pp. 304-7.</p> + +<p><a name="fn25_25" id="fn25_25"></a><a href="#fna_25_25">[25]</a> For results of this reorganization in Tennessee, see chap. +iii.</p> + +<p><a name="fn26_26" id="fn26_26"></a><a href="#fna_26_26">[26]</a> With one exception—a Republican, Whaley, of West Virginia, +voted with the negative.</p> + +<p><a name="fn27_27" id="fn27_27"></a><a href="#fna_27_27">[27]</a> So called from the chairmen of the House and Senate +committees reporting the bill.</p> + +<p><a name="fn28_28" id="fn28_28"></a><a href="#fna_28_28">[28]</a> <i>Congressional Globe</i>, appendix, 1st Session, 38th Congress, +p. 84. See also <i>Lalor</i>, iii, 546; Cox, <i>Three Decades</i>, etc., 339-341; +Wilson, <i>Rise and Fall of the Slave Power in America</i>, iii, 520-28; +Johnson’s <i>American Orations</i>, iii, 242-260; Scott, <i>Reconstruction during +the Civil War</i>, 274 ff.</p> + +<p><a name="fn29_29" id="fn29_29"></a><a href="#fna_29_29">[29]</a> Cooper, <i>American Politics</i>, bk. i, p. 169.</p> + +<p><a name="fn30_30" id="fn30_30"></a><a href="#fna_30_30">[30]</a> <i>Congressional Globe</i>, part ii, 38th Congress, 1st Session, +p. 1246.</p> + +<p><a name="fn31_31" id="fn31_31"></a><a href="#fna_31_31">[31]</a> <i>Congressional Globe</i>, iii, p. 2106, 1st Session, 38th +Congress.</p> + +<p><a name="fn32_32" id="fn32_32"></a><a href="#fna_32_32">[32]</a> Cooper, <i>American Politics</i>, bk. i, 169-70. The President’s +action caused much dissatisfaction, Davis and Wade publishing a protest +which impugned Lincoln’s motives, declaring that he had committed an +outrage on American legislation. See Johnson, in <i>Lalor</i>, iii. 5 and 6; +Cox, <i>Three Decades</i>, etc., 341.</p> + +<p><a name="fn33_33" id="fn33_33"></a><a href="#fna_33_33">[33]</a> <i>Senate Journal</i>, 2d Session, 38th Congress, Feb. 8. Blaine +(<i>Twenty Years of Congress</i>, ii, 46) explains that this joint resolution +was intended as a rebuke to the President by the refusal of Congress to +accept the proclamation of December 8, 1863, as a basis for the +restoration of the States fulfilling its requirements. He then points out +how Lincoln, with his usual tact, overthrows what triumph may have accrued +to the leaders of the opposition by explaining that he “signed the joint +resolution in deference to the view of Congress implied in its passage and +presentation.” His (Lincoln’s) own opinion was that as a matter of course +Congress had complete power to accept or reject electoral votes, and that +the Executive had no right to interpose with a veto, whatever his own +opinions might be. Blaine says that “his triumph was complete, both in the +estimation of Congress and of the people.”</p> + +<p><a name="fn34_34" id="fn34_34"></a><a href="#fna_34_34">[34]</a> See Cox, <i>Three Decades of Federal Legislation</i>, 123; +Johnston, in <i>Lalor</i>, iii, 54; Wilson (Woodrow), <i>Division and Reunion</i>, 261-2.</p> + +<p><a name="fn35_35" id="fn35_35"></a><a href="#fna_35_35">[35]</a> <i>Senate Journal</i>, 2d Session, 37th Congress, pp. 194-6.</p> + +<p><a name="fn36_36" id="fn36_36"></a><a href="#fna_36_36">[36]</a> The inconsistency in declaring a State to be extinct, and at +the same time acknowledging the obligation to guarantee to it a republican +form of government, is due to careless phraseology. Obviously Sumner uses +the word “State,” in these resolutions, where he means state governments.</p> + +<p><a name="fn37_37" id="fn37_37"></a><a href="#fna_37_37">[37]</a> <i>Congressional Globe</i>, 1st Session, 38th Congress, part ii, +p. 2041. See also his remarks on the Confiscation bill. Cox’s <i>Three +Decades of Federal Legislation</i>, pp. 365-374, contains a chapter on the +policy of Stevens.</p> + +<p><a name="fn38_38" id="fn38_38"></a><a href="#fna_38_38">[38]</a> See Wilson, <i>Rise and Fall of the Slave Power in America</i>, +iii, 531-541.</p> + +<p><a name="fn39_39" id="fn39_39"></a><a href="#fna_39_39">[39]</a> McPherson, <i>Reconstruction</i>, pp. 44 f. Cf. Wilson, <i>Rise and +Fall of the Slave Power in America</i>, iii, 592.</p> + +<p><a name="fn40_40" id="fn40_40"></a><a href="#fna_40_40">[40]</a> McPherson, pp. 46-7.</p> + +<p><a name="fn41_41" id="fn41_41"></a><a href="#fna_41_41">[41]</a> McPherson, 44 ff; Moore, <i>Life and Speeches of Andrew +Johnson</i>, 481 ff.</p> + +<p><a name="fn42_42" id="fn42_42"></a><a href="#fna_42_42">[42]</a> McPherson, p. 47.</p> + +<p><a name="fn43_43" id="fn43_43"></a><a href="#fna_43_43">[43]</a> McPherson, pp. 47-8.</p> + +<p><a name="fn44_44" id="fn44_44"></a><a href="#fna_44_44">[44]</a> See Gillett, <i>Democ. in the U. S.</i>, pp. 333-337, for a +discussion of Johnson’s policy and mistakes from the Democratic +standpoint.</p> + +<p><a name="fn45_45" id="fn45_45"></a><a href="#fna_45_45">[45]</a> Mr. Blaine in his <i>Twenty Years of Congress</i>, vol. ii, pp. +63-70, ascribes the apparently great modification of Johnson’s attitude +towards the South to two causes: First, the personal influence of Seward; +second, the flattery of Southern leaders. He assumes Johnson to have been +thoroughly determined to carry out a harsh policy of reconstruction, and +points out that of the six members of the Cabinet, excluding Mr. Seward, +three were radical and three conservative in their views, offsetting each +other in their influence upon Johnson. He then calls attention to the fact +that Mr. Seward’s most conspicuous faculty was the power to convince +listeners against their will through his personal conversation with them. +With this remarkable faculty he believes Mr. Seward to have deliberately +settled down to the task of reversing the President’s views as to +reconstruction. “Equipped with these rare endowments,” he says, “it is not +strange that Mr. Seward made a deep impression upon the mind of the +President. In conflicts of opinion the superior mind, the subtle address, +the fixed purpose, the gentle yet strong will, must in the end prevail.” +Mr. Seward’s fervent pleadings, Blaine thinks, caused a marked change in +Johnson’s beliefs, and inclined him to look favorably upon the glory of a +merciful, lenient administration. The leaders in the South, quickly +noticing the change in Johnson’s attitude, took advantage of the +opportunity, and by judicious flattery completed the work which Seward had +begun, and placed Johnson before the world as the ardent champion of +immediate restoration. The theory impresses one with its apparent +reasonableness, but as Mr. Blaine produces no evidence beyond his own +authority, one is inclined to look upon it as an ingenious explanation +based upon the environment of Johnson. Doubtless Seward presented his view +on the situation with his accustomed ability, and probably it influenced +Johnson’s view to a certain extent. The second part of the supposition can +also readily be granted—that the vanity of Johnson was played upon by +those whose flattery was most pleasing to one who had sprung from the +ranks of those accustomed to be dictated to and spurned by these same men. +Yet to ascribe the adoption of so important a policy, affecting all the +fundamental principles upon which strict and loose constructionists are +divided, to these influences, appears to be a superficial judgment based +upon opinions formed in the heat of the struggle, when extraneous +influences are always given undue prominence by the participants. The +whole career of Johnson proves the logical exactness with which he +followed strict construction dogma in all points excepting the doctrine of +secession.</p> + +<p><a name="fn46_46" id="fn46_46"></a><a href="#fna_46_46">[46]</a> McPherson, <i>Hist. of Recon.</i>, 45, 46</p> + +<p><a name="fn47_47" id="fn47_47"></a><a href="#fna_47_47">[47]</a> The repudiation of the Sherman-Johnston agreement of April +18th was of a negative character, and did not commit the administration to +any policy. Coming, as it did, so shortly after his inauguration, it was +taken by those expecting harsh measures from the President as an +indication of such a policy. An examination of the circumstances, however, +shows that Johnson was merely following the policy supposed to have been +adopted by Lincoln, and evidenced by instructions sent to Grant on March 3 +in regard to a proposed conference with Lee. Stephens’ charge (<i>War +between the States</i>, ii, 632), that Johnson was bound to ratify the +agreement as consistent with the Crittenden Resolution of 1861, is +inadmissible. Generals in the field manifestly have no right to decide +momentous political questions. For a copy of the Sherman-Johnston +agreement, and the official dispatch giving particulars of its +disapproval, see McPherson, <i>Hist. of Recon.</i>, 121-2.</p> + +<p><a name="fn48_48" id="fn48_48"></a><a href="#fna_48_48">[48]</a> McPherson, p. 13-14.</p> + +<p><a name="fn49_49" id="fn49_49"></a><a href="#fna_49_49">[49]</a> McPherson, p. 8.</p> + +<p><a name="fn50_50" id="fn50_50"></a><a href="#fna_50_50">[50]</a> See Appendix; Savage, <i>Life and Public Services of Andrew +Johnson</i>, 370-373.</p> + +<p><a name="fn51_51" id="fn51_51"></a><a href="#fna_51_51">[51]</a> Blaine, ii, 70-76, ascribes this amnesty proclamation to the +personal influence of Mr. Seward, who favored all but the 13th excepted +class (property holders above $20,000). This certainly offers a good +explanation of the promptness of his action, and is not inconsistent with +the theory of Johnson’s attitude as outlined above.</p> + +<p><a name="fn52_52" id="fn52_52"></a><a href="#fna_52_52">[52]</a> McPherson, p. 11; Blaine, ii, 77, 78.</p> + +<p><a name="fn53_53" id="fn53_53"></a><a href="#fna_53_53">[53]</a> Tennessee, of course, having been reorganized during +Lincoln’s administration, under the direction of Military Governor +Johnson, cannot be considered in connection with Johnson’s policy as +President. Louisiana and Arkansas also retained their reorganized +governments until the reconstruction acts took effect. See Blaine, ii, 79, +80.</p> + +<p><a name="fn54_54" id="fn54_54"></a><a href="#fna_54_54">[54]</a> The phraseology differed in the different States, depending +upon the sensitiveness and pride of the legislature.</p> + +<p><a name="fn55_55" id="fn55_55"></a><a href="#fna_55_55">[55]</a> McPherson, <i>Reconst.</i>, 7, 8.</p> + +<p><a name="fn56_56" id="fn56_56"></a><a href="#fna_56_56">[56]</a> McPherson, <i>Reconst.</i>, 49.</p> + +<p><a name="fn57_57" id="fn57_57"></a><a href="#fna_57_57">[57]</a> <i>Ibid.</i>, 51-2.</p> + +<p><a name="fn58_58" id="fn58_58"></a><a href="#fna_58_58">[58]</a> McPherson, 20.</p> + +<p><a name="fn59_59" id="fn59_59"></a><a href="#fna_59_59">[59]</a> <i>Ibid.</i>, 21-2.</p> + +<p><a name="fn60_60" id="fn60_60"></a><a href="#fna_60_60">[60]</a> McPherson, 43; Blaine, ii, 102-3.</p> + +<p><a name="fn61_61" id="fn61_61"></a><a href="#fna_61_61">[61]</a> See <i>Why the Solid South</i>, edited by Hilary A. Herbert, for +a detailed presentation of the Southern view.</p> + +<p><a name="fn62_62" id="fn62_62"></a><a href="#fna_62_62">[62]</a> The report of the Joint Committee on Reconstruction, June +18th (<i>House Reports</i>, No. 30, 1st Session, 39th Congress; McPherson, +84-93), gives a spirited summary of the action of the Southern States +since the appointment of the provisional governors. See also Blaine, +<i>Twenty Years of Congress</i>, ii, 84-107.</p> + +<p><a name="fn63_63" id="fn63_63"></a><a href="#fna_63_63">[63]</a> Lalor, iii, 546.</p> + +<p><a name="fn64_64" id="fn64_64"></a><a href="#fna_64_64">[64]</a> Senate: Republicans, 40; Democrats, 11; House: Republicans, +145; Democrats, 40. The work before Congress was well expressed by +Schuyler Colfax in his speech made upon taking the Speaker’s chair. +Speaking of Congress he said: “Representing, in its two branches, the +States and the people, its first and highest obligation is to guarantee to +every State a republican form of government. The rebellion having +overthrown constitutional State governments in many States, it is yours to +mature and enact legislation which, with the concurrence of the Executive, +shall establish them anew on such a basis of enduring justice as will +guarantee all the necessary safeguards to the people, and afford what our +Magna Charta, the Declaration of Independence, proclaims is the chief +object of government—protection to all men in their inalienable rights. * +* * * Then we may hope to see the vacant and once abandoned seats around +us gradually filling up, until this hall shall contain representatives +from every State and district; their hearts devoted to the Union for which +they are to legislate, jealous of its honor, proud of its glory, watchful +of its rights, and hostile to its enemies.” <i>Congressional Globe</i>, 39th +Congress, 1st Session, p. 5. See Blaine, <i>Twenty Years of Congress</i>, ii, +111, 112.</p> + +<p><a name="fn65_65" id="fn65_65"></a><a href="#fna_65_65">[65]</a> Among the Senators elected were Alexander H. Stephens, +Vice-President of the Confederacy, and H. V. Johnson, a Senator in the +rebel Congress, both from Georgia; from North Carolina, W. A. Graham, +Senator in the rebel Congress; from South Carolina, B. F. Perry, a +Confederate States judge, and J. I. Manning, volunteer aid to General +Beauregard at Fort Sumter and Manassas (McPherson, 106-7). Among the +Representatives chosen were: from Alabama, Cullen A. Battle, a Confederate +general, and T. J. Foster, a Representative in the rebel Congress; from +Georgia, Philip Cook and W. T. Wofford, generals in the Confederate army; +from Mississippi, A. E. Reynolds and R. A. Pinson, rebel colonels, and J. +T. Harrison, in rebel provisional Congress; from North Carolina, Josiah +Turner was a rebel colonel, and a member of the rebel Congress, and T. C. +Fuller a rebel Congressman; from South Carolina, J. D. Kennedy was a +colonel, and Samuel McGowan a general in the rebel army, and James Farrow, +a rebel Congressman.</p> + +<p><a name="fn66_66" id="fn66_66"></a><a href="#fna_66_66">[66]</a> By Mr. Brooks, of New York. <i>Congressional Globe</i>, 39th +Congress, 1st Session, pp. 3, 4.</p> + +<p><a name="fn67_67" id="fn67_67"></a><a href="#fna_67_67">[67]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress, p. 2; +Blaine, <i>Twenty Years of Congress</i>, ii, 113-115.</p> + +<p><a name="fn68_68" id="fn68_68"></a><a href="#fna_68_68">[68]</a> Wilson, <i>History of Reconstruction</i>, 16 ff.</p> + +<p><a name="fn69_69" id="fn69_69"></a><a href="#fna_69_69">[69]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, pp. +24-30.</p> + +<p><a name="fn70_70" id="fn70_70"></a><a href="#fna_70_70">[70]</a> Senator Lane committed suicide on July 11, 1866. +Mortification caused by abuse, as the result of his action, is supposed to +have unbalanced him mentally. <i>Cf.</i>, Blaine, ii, 185.</p> + +<p><a name="fn71_71" id="fn71_71"></a><a href="#fna_71_71">[71]</a> The resolution as adopted by the House on the 4th contained +in addition: “and until such report shall have been made, and finally +acted upon by Congress, no member shall be received into either House from +any of the so-called Confederate States, and all papers relating to the +representation of the said States shall be referred to the said committee +without debate.” The Senate, however, considered such provisions to affect +powers granted to each House separately, and which should not be entrusted +to a joint committee. Therefore they were struck out, but on December 14 +the House of Representatives passed resolutions binding itself to be +governed by similar principles.</p> + +<p><a name="fn72_72" id="fn72_72"></a><a href="#fna_72_72">[72]</a> The other members of the committee were: on the part of the +Senate, Howard of Michigan, Grimes of Iowa, Harris of New York, Williams +of Oregon, and Johnson of Maryland; on the part of the House, Washburne of +Illinois, Morrill of Vermont, Grider of Kentucky, Bingham of Ohio, +Conkling of New York, Boutwell of Massachusetts, Blow of Missouri, and +Rogers of New Jersey.</p> + +<p><a name="fn73_73" id="fn73_73"></a><a href="#fna_73_73">[73]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 115.</p> + +<p><a name="fn74_74" id="fn74_74"></a><a href="#fna_74_74">[74]</a> Wilson, <i>History of the Reconstruction Measures</i>, 42-105, +contains a summary of the debates on reconstruction; see also Blaine, +<i>Twenty Years of Congress</i>, ii, 128 ff.</p> + +<p><a name="fn75_75" id="fn75_75"></a><a href="#fna_75_75">[75]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, pp. +72-5.</p> + +<p><a name="fn76_76" id="fn76_76"></a><a href="#fna_76_76">[76]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress, p. 1019.</p> + +<p><a name="fn77_77" id="fn77_77"></a><a href="#fna_77_77">[77]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress, p. 1309. +These strong statements of the advisability of confiscation alarmed the +Southern States greatly, and caused them to hate and fear Thaddeus +Stevens. See Lalor, iii, 546 ff. The following extract from General +Taylor’s <i>Destruction and Reconstruction</i> (pp. 243-4), is characteristic +of the Southern estimate of the man. General Taylor had occasion to call +upon Stevens while endeavoring to get permission to visit Jefferson Davis, +then in confinement at Fortress Monroe. He goes on to say: “Thaddeus +Stevens received me with as much civility as he was capable of. Deformed +in body and temper like Caliban, this was the Lord Hategood of the fair; +but he was frankness itself. He wanted no restoration of the Union under +the Constitution, which he called a worthless bit of old parchment. The +white people of the South ought never again to be trusted with power, for +they would inevitably unite with the Northern ‘Copperheads’ and control +the government. The only sound policy was to confiscate the lands and +divide them among the negroes, to whom, sooner or later, suffrage must be +given. Touching the matter in hand, Johnson was a fool to have captured +Davis, whom it would have been wiser to assist in escaping. Nothing would +be done with him, as the Executive had only pluck enough to hang poor +devils, such as Wirz and Mrs. Surratt. Had the leading traitors been +promptly strung up, well; but the time for that had passed. (Here, I +thought, he looked lovingly at my neck, as Petit André was wont to do at +those of his merry-go-rounds.)”</p> + +<p><a name="fn78_78" id="fn78_78"></a><a href="#fna_78_78">[78]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. 1476.</p> + +<p><a name="fn79_79" id="fn79_79"></a><a href="#fna_79_79">[79]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. 1616.</p> + +<p>[80] <i>Ibid.</i>, p. 1617.</p> + +<p><a name="fn81_81" id="fn81_81"></a><a href="#fna_81_81">[81]</a> <i>Ibid.</i>, p. 1828.</p> + +<p><a name="fn82_82" id="fn82_82"></a><a href="#fna_82_82">[82]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. 155.</p> + +<p><a name="fn83_83" id="fn83_83"></a><a href="#fna_83_83">[83]</a> <i>Ibid.</i>, p. 150.</p> + +<p><a name="fn84_84" id="fn84_84"></a><a href="#fna_84_84">[84]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. 1169.</p> + +<p><a name="fn85_85" id="fn85_85"></a><a href="#fna_85_85">[85]</a> <i>Ibid.</i>, p. 2256.</p> + +<p><a name="fn86_86" id="fn86_86"></a><a href="#fna_86_86">[86]</a> Gillet’s <i>Democracy in the United States</i>, pp. 309-13, +discusses the Freedmen’s Bureau from the Northern Democratic standpoint.</p> + +<p><a name="fn87_87" id="fn87_87"></a><a href="#fna_87_87">[87]</a> The first bill creating a Freedmen’s Bureau was introduced +in the House during the 37th Congress by Mr. Eliot, of Massachusetts, who +during the 39th Congress was chairman of the Select Committee on Freedmen. +It was not reported, but the same bill was presented in the first session +of the 38th Congress, and passed the House by a vote of 69 to 67. It was +returned from the Senate on June 30, 1864, amended so as to attach the +Bureau to the Treasury Department. A committee of conference agreed upon a +new bill creating a department of freedmen’s affairs, reporting to the +President. This passed the House, but failed in the Senate. The next +attempt succeeded. <i>Congressional Globe</i>, 2d Session, 38th Congress, p. +1307. See Cox’s <i>Three Decades of Federal Legislation</i> for an account of +the Freedmen’s Bureau; also Wilson, <i>Rise and Fall of the Slave Power in +America</i>, iii, 472-485; Wilson (Woodrow), <i>Division and Reunion</i>, 263.</p> + +<p><a name="fn88_88" id="fn88_88"></a><a href="#fna_88_88">[88]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. 1299. +Mr. Doolittle on the 19th of December, 1865, had introduced a bill +relative to the Bureau of Freedmen, but when reported from the Committee +on Military Affairs, to which it had been referred, it was indefinitely +postponed.</p> + +<p><a name="fn89_89" id="fn89_89"></a><a href="#fna_89_89">[89]</a> This committee had been established by a resolution +introduced by Mr. Eliot, of Massachusetts, on December 6, 1865. So much of +the President’s message as related to freedmen, and all papers relating to +the same subject, were to be referred to it. The following were appointed +members of the committee: T. D. Eliot of Massachusetts, W. D. Kelley of +Pennsylvania, G. S. Orth of Indiana, J. A. Bingham of Ohio, Nelson Taylor +of New York, B. F. Loan of Missouri, J. B. Grinnell of Iowa, H. E. Paine +of Wisconsin, and S. S. Marshall of Illinois.</p> + +<p><a name="fn90_90" id="fn90_90"></a><a href="#fna_90_90">[90]</a> Cox confuses this act with the act passed over the veto on +July 16, declaring that it was passed over the veto on February 21. <i>Three +Decades of Federal Legislation</i>, p. 444.</p> + +<p><a name="fn91_91" id="fn91_91"></a><a href="#fna_91_91">[91]</a> See Wilson (Henry), <i>Rise and Fall of the Slave Power in +America</i>, iii, 490-97; Wilson, <i>History of Reconstruction</i>, 148-184; +Blaine, <i>Twenty Years of Congress</i>, ii, 164-170; Wilson (Woodrow), +<i>Division and Reunion</i>, 264.</p> + +<p><a name="fn92_92" id="fn92_92"></a><a href="#fna_92_92">[92]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress. +McPherson, <i>History of the Reconstruction</i>, pp. 73-4.</p> + +<p><a name="fn93_93" id="fn93_93"></a><a href="#fna_93_93">[93]</a> The veto messages of the Presidents of the United States, +from Washington to Cleveland, inclusive, have been compiled by Ben: Perley +Poore by order of the Senate.</p> + +<p><a name="fn94_94" id="fn94_94"></a><a href="#fna_94_94">[94]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, pp. +915-917; McPherson, <i>History of Reconstruction</i>, pp. 68-72.</p> + +<p><a name="fn95_95" id="fn95_95"></a><a href="#fna_95_95">[95]</a> See Wilson, <i>Rise and Fall of the Slave Power in America</i>, +iii, 497-99; Wilson, <i>History of the Reconstruction</i>, 184-195; Blaine, +<i>Twenty Years of Congress</i>, ii, 171-2.</p> + +<p><a name="fn96_96" id="fn96_96"></a><a href="#fna_96_96">[96]</a> The votes were: House, 104 to 33; Senate, 33 to 12. For the +text of the bill, see <i>Congressional Globe</i>, 1st Session, 39th Congress; +McPherson, <i>History of the Reconstruction</i>, pp. 149-50. Blaine, <i>Twenty +Years of Congress</i>, ii, 172, states that the bill was far less popular +than the measure vetoed on February 19. “It required potent persuasion, +re-enforced by the severest exercise of party discipline, to prevent a +serious break in both Houses against the bill.”</p> + +<p><a name="fn97_97" id="fn97_97"></a><a href="#fna_97_97">[97]</a> McPherson, <i>History of the Reconstruction</i>, 52-56.</p> + +<p><a name="fn98_98" id="fn98_98"></a><a href="#fna_98_98">[98]</a> <i>House journal</i>, 39th Congress, 1st Session, 300, 315. The +resolution was carried particularly to silence the Tennessee claimants for +recognition. The somewhat anomalous position of that State gave grounds +for the argument that it should be classed in the same category with the +other Southern States. Thus Mr. Stevens was able to get the power for the +joint committee which he had originally claimed.</p> + +<p><a name="fn99_99" id="fn99_99"></a><a href="#fna_99_99">[99]</a> McPherson, <i>History of the Reconstruction</i>, pp. 58-63.</p> + +<p><a name="fn100_100" id="fn100_100"></a><a href="#fna_100_100">[100]</a> See Wilson, <i>Rise and Fall of the Slave Power in America</i>, +iii, 684-692; <i>History of Reconstruction</i>, 117-149; Blaine, <i>Twenty Years +of Congress</i>, ii, 172-79.</p> + +<p><a name="fn101_101" id="fn101_101"></a><a href="#fna_101_101">[101]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress, pp. 39, +40.</p> + +<p><a name="fn102_102" id="fn102_102"></a><a href="#fna_102_102">[102]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session; +McPherson, <i>History of the Reconstruction</i>, pp. 75-8.</p> + +<p><a name="fn103_103" id="fn103_103"></a><a href="#fna_103_103">[103]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, pp. +1679-81; McPherson, <i>History of Reconstruction</i>, pp. 75-8.</p> + +<p><a name="fn104_104" id="fn104_104"></a><a href="#fna_104_104">[104]</a> <i>Senate Journal</i>, 39th Congress, 1st Session, pp. 431-2; +McPherson, <i>History of the Reconstruction</i>, pp. 82-3; Blaine, <i>Twenty +Years of Congress</i>, ii, 275-80.</p> + +<p><a name="fn105_105" id="fn105_105"></a><a href="#fna_105_105">[105]</a> McPherson, <i>History of the Reconstruction</i>, 81-2; +<i>Congressional Globe</i>, 39th Congress, 1st Session, 2609.</p> + +<p><a name="fn106_106" id="fn106_106"></a><a href="#fna_106_106">[106]</a> McPherson, 160-164.</p> + +<p><a name="fn107_107" id="fn107_107"></a><a href="#fna_107_107">[107]</a> McPherson, <i>History of the Reconstruction</i>, pp. 164-6; +<i>Congressional Globe</i>, 39th Congress, 1st Session.</p> + +<p><a name="fn108_108" id="fn108_108"></a><a href="#fna_108_108">[108]</a> Hurd, in his <i>Theory of our National Existence</i>, p. 42, +says that this report of the Joint Committee on Reconstruction “as being +the most authoritative declaration of principles supposed to have been +afterwards carried out in political action, is a document which, either +for good or evil, will probably be regarded as one of the most important +in the history of this country.”</p> + +<p><a name="fn109_109" id="fn109_109"></a><a href="#fna_109_109">[109]</a> For an extended discussion of the constitutional views of +the members of the committee, see Hurd’s <i>Theory</i>, etc., pp. 224 ff.</p> + +<p><a name="fn110_110" id="fn110_110"></a><a href="#fna_110_110">[110]</a> <i>House Reports</i>, No. 30, 39th Congress, 1st Session. +McPherson, <i>History of Reconstruction</i>, pp. 84-93.</p> + +<p><a name="fn111_111" id="fn111_111"></a><a href="#fna_111_111">[111]</a> Gillet, <i>Democracy in the United States</i>, pp. 318-20.</p> + +<p><a name="fn112_112" id="fn112_112"></a><a href="#fna_112_112">[112]</a> <i>Congressional Globe</i>, 1st Session, 39th Congress, pp. 9, +10, 351.</p> + +<p><a name="fn113_113" id="fn113_113"></a><a href="#fna_113_113">[113]</a> <i>Ibid.</i>, 141-2, 232. For general discussions and summaries +of the debates on the 14th Amendment, see Wilson, <i>Rise and Fall of the +Slave Power in America</i>, iii, 647-660; Wilson, <i>History of +Reconstruction</i>, 218-266; Blaine, <i>Twenty Years of Congress</i>, ii, +193-214.</p> + +<p><a name="fn114_114" id="fn114_114"></a><a href="#fna_114_114">[114]</a> The vote was: yeas, 120; nays, 46.</p> + +<p><a name="fn115_115" id="fn115_115"></a><a href="#fna_115_115">[115]</a> <i>Congressional Globe</i>, 39th Congress, 1st Session, p. +2459.</p> + +<p><a name="fn116_116" id="fn116_116"></a><a href="#fna_116_116">[116]</a> Yeas, 128, nays, 37.</p> + +<p><a name="fn117_117" id="fn117_117"></a><a href="#fna_117_117">[117]</a> On May 29, <i>Congressional Globe</i>, 39th Congress, 1st +Session, p. 2869.</p> + +<p><a name="fn118_118" id="fn118_118"></a><a href="#fna_118_118">[118]</a> See Pollard’s <i>Lost Cause Regained</i>, p. 74.</p> + +<p><a name="fn119_119" id="fn119_119"></a><a href="#fna_119_119">[119]</a> <i>Senate Journal</i>, 39th Congress, 1st Session, p. 502.</p> + +<p><a name="fn120_120" id="fn120_120"></a><a href="#fna_120_120">[120]</a> On the reorganization of Tennessee, see Blaine, <i>Twenty +Years of Congress</i>, ii, 50-52, 214-17; Cox, <i>Three Decades of Federal +Legislation</i>.</p> + +<p><a name="fn121_121" id="fn121_121"></a><a href="#fna_121_121">[121]</a> <i>House Reports</i>, No. 30, pt. 1; McPherson, <i>History of the +Reconstruction</i>, pp. 105-6.</p> + +<p><a name="fn122_122" id="fn122_122"></a><a href="#fna_122_122">[122]</a> Ratified by the Senate July 11, yeas, 15, nays, 6; by the +House July 12, yeas, 43, nays, 11. Tennessee was the third State to ratify +the amendment, Connecticut and New Hampshire being the first two.</p> + +<p><a name="fn123_123" id="fn123_123"></a><a href="#fna_123_123">[123]</a> McPherson, <i>History of the Reconstruction</i>, pp. 151-4.</p> + +<p><a name="fn124_124" id="fn124_124"></a><a href="#fna_124_124">[124]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 219-220.</p> + +<p><a name="fn125_125" id="fn125_125"></a><a href="#fna_125_125">[125]</a> The Congressional committee of investigation, appointed at +the beginning of the 2d session, in December, submitted a detailed report +of the riots. See <i>House Reports</i>, No. 16, 2d Session, 39th Congress. See +also Blaine, <i>Twenty Years of Congress</i>, ii, 233-237.</p> + +<p><a name="fn126_126" id="fn126_126"></a><a href="#fna_126_126">[126]</a> <i>House Reports</i>, No. 16, 39th Congress, 2d Session, p. 26.</p> + +<p><a name="fn127_127" id="fn127_127"></a><a href="#fna_127_127">[127]</a> See below for an account of this canvass.</p> + +<p><a name="fn128_128" id="fn128_128"></a><a href="#fna_128_128">[128]</a> <i>House Reports</i>, No. 16, 39th Congress, 2d Session, pp. +24-27; McPherson, <i>History of the Reconstruction</i>, 137.</p> + +<p><a name="fn129_129" id="fn129_129"></a><a href="#fna_129_129">[129]</a> McPherson, <i>History of the Reconstruction</i>, 118, 119; +Blaine, <i>Twenty Years of Congress</i>, ii, 220-223.</p> + +<p><a name="fn130_130" id="fn130_130"></a><a href="#fna_130_130">[130]</a> Among these Republicans were Thurlow Weed, Edgar Cowan, +James R. Doolittle, A. W. Randall, O. H. Browning, James Dixon, Henry J. +Raymond, R. S. Hale, J. A. Dix, Marshall O. Roberts and Montgomery Blair.</p> + +<p><a name="fn131_131" id="fn131_131"></a><a href="#fna_131_131">[131]</a> McPherson, <i>History of the Reconstruction</i>, 240-1.</p> + +<p><a name="fn132_132" id="fn132_132"></a><a href="#fna_132_132">[132]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 222.</p> + +<p><a name="fn133_133" id="fn133_133"></a><a href="#fna_133_133">[133]</a> McPherson, <i>History of the Reconstruction</i>, 127.</p> + +<p><a name="fn134_134" id="fn134_134"></a><a href="#fna_134_134">[134]</a> McPherson, <i>History of the Reconstruction</i>, 129. This +manner of indicating his disinterestedness caused great offense in some +quarters. See the account below of the Pittsburg convention of soldiers +and sailors of September 26.</p> + +<p><a name="fn135_135" id="fn135_135"></a><a href="#fna_135_135">[135]</a> See Blaine, <i>Twenty Years of Congress</i>, ii, 237-239.</p> + +<p><a name="fn136_136" id="fn136_136"></a><a href="#fna_136_136">[136]</a> McPherson, <i>History of the Reconstruction</i>, 130.</p> + +<p><a name="fn137_137" id="fn137_137"></a><a href="#fna_137_137">[137]</a> McPherson, <i>History of the Reconstruction</i>, 131, 132.</p> + +<p><a name="fn138_138" id="fn138_138"></a><a href="#fna_138_138">[138]</a> McPherson, 135. The following is a good example of the +manner in which Johnson lowered himself to the level of the disorderly +element, who made a bedlam out of some of the meetings he attended. The +extract is from the Cleveland speech: “Who can come and place his finger +on one pledge I ever violated, or one principle I ever proved false to? (A +voice, ‘How about New Orleans?’ Another voice, ‘Hang Jeff Davis.’) Hang +Jeff Davis, he says. (Cries of ‘No’ and ‘Down with him!’) Hang Jeff Davis, +he says. (A voice, ‘Hang Thad. Stevens and Wendell Phillips.’) Hang Jeff +Davis. Why don’t you hang him? (Cries of ‘Give us the opportunity.’) Have +you not got the court? Have not you got the Attorney General? (A voice, +‘Who is your Chief Justice who has refused to sit upon the trial?’ +Cheers.) I am not the Chief Justice. I am not the prosecuting attorney. +(Cheers.) I am not the jury.</p> + +<p>“I will tell you what I did do. I called upon your Congress that is trying +to break up the government. (Cries, ‘You be d—d!’ and cheers mingled with +hisses. Great confusion. ‘Don’t get mad, Andy.’) Well, I will tell you who +is mad. ‘Whom the gods wish to destroy, they first make mad.’ Did your +Congress order them to be tried? (‘Three cheers for Congress’),” etc.</p> + +<p><a name="fn139_139" id="fn139_139"></a><a href="#fna_139_139">[139]</a> Tennessee, Texas, Georgia, Missouri, Virginia, North +Carolina and Alabama were represented among the signers to the call.</p> + +<p><a name="fn140_140" id="fn140_140"></a><a href="#fna_140_140">[140]</a> McPherson, <i>History of the Reconstruction</i>, 124.</p> + +<p><a name="fn141_141" id="fn141_141"></a><a href="#fna_141_141">[141]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 224-228.</p> + +<p><a name="fn142_142" id="fn142_142"></a><a href="#fna_142_142">[142]</a> McPherson, <i>History of the Reconstruction</i>, 241, 242.</p> + +<p><a name="fn143_143" id="fn143_143"></a><a href="#fna_143_143">[143]</a> McPherson, <i>History of the Reconstruction</i>, 242.</p> + +<p><a name="fn144_144" id="fn144_144"></a><a href="#fna_144_144">[144]</a> The address was prepared by Senator Creswell, of Maryland. +See Blaine, <i>Twenty Years of Congress</i>, ii, 223-228.</p> + +<p><a name="fn145_145" id="fn145_145"></a><a href="#fna_145_145">[145]</a> McPherson, <i>History of the Reconstruction</i>, 243; Blaine, +<i>Twenty Years of Congress</i>, ii, 228-230.</p> + +<p><a name="fn146_146" id="fn146_146"></a><a href="#fna_146_146">[146]</a> Blaine, <i>Twenty Years of Congress</i>, ii, 230-233.</p> + +<p><a name="fn147_147" id="fn147_147"></a><a href="#fna_147_147">[147]</a> General John A. Logan was first chosen president, but was +unable to attend.</p> + +<p><a name="fn148_148" id="fn148_148"></a><a href="#fna_148_148">[148]</a> McPherson, <i>History of the Reconstruction</i>, 242, 243.</p> + +<p><a name="fn149_149" id="fn149_149"></a><a href="#fna_149_149">[149]</a> McPherson, <i>History of the Reconstruction</i>, 140.</p> + +<p><a name="fn150_150" id="fn150_150"></a><a href="#fna_150_150">[150]</a> McPherson, <i>History of the Reconstruction</i>, 194.</p> + +<p><a name="fn151_151" id="fn151_151"></a><a href="#fna_151_151">[151]</a> Scott, <i>Reconstruction during the Civil War</i>, 290 ff.</p> + +<p><a name="fn152_152" id="fn152_152"></a><a href="#fna_152_152">[152]</a> <i>House Journal</i>, 2d Session, 39th Congress, 12-23; +McPherson, <i>History of the Reconstruction</i>, 143-147.</p> + +<p><a name="fn153_153" id="fn153_153"></a><a href="#fna_153_153">[153]</a> <i>House Journal</i>, 2d Session, 39th Congress, 15.</p> + +<p><a name="fn154_154" id="fn154_154"></a><a href="#fna_154_154">[154]</a> The resolution passed the House on December 4, and the +Senate on December 5. <i>House Journal</i>, 2d Session, 39th Congress, 30; +<i>Senate Journal</i>, 2d Session, 39th Congress, 22.</p> + +<p><a name="fn155_155" id="fn155_155"></a><a href="#fna_155_155">[155]</a> <i>Senate Journal</i>, 2d Session, 39th Congress, 202.</p> + +<p><a name="fn156_156" id="fn156_156"></a><a href="#fna_156_156">[156]</a> <i>House Journal</i>, 2d Session, 39th Congress, 345.</p> + +<p><a name="fn157_157" id="fn157_157"></a><a href="#fna_157_157">[157]</a> <i>Congressional Globe</i>, 2d Session, 39th Congress, 1074.</p> + +<p><a name="fn158_158" id="fn158_158"></a><a href="#fna_158_158">[158]</a> <i>Congressional Globe</i>, 2d Session, 39th Congress, 1076.</p> + +<p><a name="fn159_159" id="fn159_159"></a><a href="#fna_159_159">[159]</a> <i>Congressional Globe</i>, 2d Session, 39th Congress, 1360.</p> + +<p><a name="fn160_160" id="fn160_160"></a><a href="#fna_160_160">[160]</a> <i>Ibid.</i>, 1381-2.</p> + +<p><a name="fn161_161" id="fn161_161"></a><a href="#fna_161_161">[161]</a> <i>Ibid.</i>, 1360.</p> + +<p><a name="fn162_162" id="fn162_162"></a><a href="#fna_162_162">[162]</a> <i>Congressional Globe</i>, 2d Session, 39th Congress, 1399.</p> + +<p><a name="fn163_163" id="fn163_163"></a><a href="#fna_163_163">[163]</a> McPherson, <i>History of the Reconstruction</i>, 192.</p> + +<p><a name="fn164_164" id="fn164_164"></a><a href="#fna_164_164">[164]</a> <i>House Journal</i>, 2d Session, 39th Congress, 563-572.</p> + +<p><a name="fn165_165" id="fn165_165"></a><a href="#fna_165_165">[165]</a> Act of January 22, 1867.</p> + +<p><a name="fn166_166" id="fn166_166"></a><a href="#fna_166_166">[166]</a> <i>Congressional Globe</i>, 1st Session, 40th Congress, 13.</p> + +<p><a name="fn167_167" id="fn167_167"></a><a href="#fna_167_167">[167]</a> The Committee on the Judiciary was instructed on March 7 to +report a supplementary bill (<i>Congressional Globe</i>, 17), and the Wilson +bill was accordingly reported by it.</p> + +<p><a name="fn168_168" id="fn168_168"></a><a href="#fna_168_168">[168]</a> <i>Congressional Globe</i>, 1st Session, 40th Congress, 302-3; +313-14.</p> + +<p><a name="fn169_169" id="fn169_169"></a><a href="#fna_169_169">[169]</a> <i>Congressional Globe</i>, appendix, 1st Session, 40th +Congress, 39; McPherson, <i>History of the Reconstruction</i>, 192.</p> + +<p><a name="fn170_170" id="fn170_170"></a><a href="#fna_170_170">[170]</a> Except in Virginia, where the number was modified in +proportion to the change made by the separation of West Virginia.</p> + +<p><a name="fn171_171" id="fn171_171"></a><a href="#fna_171_171">[171]</a> By the act of that date all persons elected or appointed to +any office under the government of the United States were required to take +the following oath previous to entering upon the duties of such office: +“I, A. B., do solemnly swear (or affirm) that I have never voluntarily +borne arms against the United States since I have been a citizen thereof; +that I have voluntarily given no aid, countenance, counsel, or +encouragement to persons engaged in armed hostility thereto; that I have +neither sought nor accepted nor attempted to exercise the functions of any +office whatever, under any authority or pretended authority in hostility +to the United States; that I have not yielded a voluntary support to any +pretended government, authority, power or constitution within the United +States, hostile or inimical thereto. And I do further swear (or affirm) +that, to the best of my knowledge and ability, I will support and defend +the Constitution of the United States against all enemies, foreign and +domestic; that I will bear true faith and allegiance to the same; that I +take this obligation freely, without any mental reservation or purpose of +evasion, and that I will well and faithfully discharge the duties of the +office on which I am about to enter, so help me God.”</p> + +<p><a name="fn172_172" id="fn172_172"></a><a href="#fna_172_172">[172]</a> Appendix, <i>Congressional Globe</i>, 1st Session, 40th +Congress, 39, 40.</p> + +<p><a name="fn173_173" id="fn173_173"></a><a href="#fna_173_173">[173]</a> Johnson, <i>Reconstruction</i>, in Lalor, iii, 552; Cox, <i>Three +Decades of Federal Legislation</i>, 378.</p> + +<p><a name="fn174_174" id="fn174_174"></a><a href="#fna_174_174">[174]</a> <i>Congressional Globe</i>, appendix, 1st Session, 39th +Congress, 43-4.</p> + +<p><a name="fn175_175" id="fn175_175"></a><a href="#fna_175_175">[175]</a> McPherson, <i>History of the Reconstruction</i>, 335-6.</p> + +<p><a name="fn176_176" id="fn176_176"></a><a href="#fna_176_176">[176]</a> Stanbery had ruled that the willingness of an applicant to +take the oath must be regarded as final evidence of his qualification to +register. Thus those notoriously incapacitated from taking the oath +honestly, could not be prevented from registering. This additional power +virtually enabled the boards of registration to exercise their own +discretion as to whom they should enroll.</p> + +<p><a name="fn177_177" id="fn177_177"></a><a href="#fna_177_177">[177]</a> Scott, <i>Reconstruction during the Civil War</i>, 317 ff.</p> + +<p><a name="fn178_178" id="fn178_178"></a><a href="#fna_178_178">[178]</a> Cox, <i>Three Decades of Federal Legislation</i>, 512-14.</p> + +<p><a name="fn179_179" id="fn179_179"></a><a href="#fna_179_179">[179]</a> McPherson, <i>History of the Reconstruction</i>, 336-7.</p> + +<p><a name="fn180_180" id="fn180_180"></a><a href="#fna_180_180">[180]</a> McPherson, 190.</p> + +<p><a name="fn181_181" id="fn181_181"></a><a href="#fna_181_181">[181]</a> Dunning, in <i>Papers of the American Historical +Association</i>, iv, 473; <i>Congressional Globe</i>, 1st Session, 40th Congress, +p. 565.</p> + +<p><a name="fn182_182" id="fn182_182"></a><a href="#fna_182_182">[182]</a> McPherson, 264.</p> + +<p><a name="fn183_183" id="fn183_183"></a><a href="#fna_183_183">[183]</a> <i>Ibid.</i>, 178.</p> + +<p><a name="fn184_184" id="fn184_184"></a><a href="#fna_184_184">[184]</a> McPherson, 178.</p> + +<p><a name="fn185_185" id="fn185_185"></a><a href="#fna_185_185">[185]</a> Vetoed March 2, 1867, and repassed by both houses on the +same day. For copy of the act, see McPherson, 176 ff.</p> + +<p><a name="fn186_186" id="fn186_186"></a><a href="#fna_186_186">[186]</a> His argument here, however, is weak, as the power of +suspension would easily have covered all such cases.</p> + +<p><a name="fn187_187" id="fn187_187"></a><a href="#fna_187_187">[187]</a> <i>Ex parte</i> Hennen, January, 1839, 13 Peters, 139.</p> + +<p><a name="fn188_188" id="fn188_188"></a><a href="#fna_188_188">[188]</a> McPherson, 261.</p> + +<p><a name="fn189_189" id="fn189_189"></a><a href="#fna_189_189">[189]</a> <i>Ibid.</i>, 262.</p> + +<p><a name="fn190_190" id="fn190_190"></a><a href="#fna_190_190">[190]</a> The text of the correspondence between Grant and Johnson +may be found in McPherson, <i>History of the Reconstruction</i>, p. 282 ff.</p> + +<p><a name="fn191_191" id="fn191_191"></a><a href="#fna_191_191">[191]</a> McPherson, p. 283.</p> + +<p><a name="fn192_192" id="fn192_192"></a><a href="#fna_192_192">[192]</a> <i>Ibid.</i>, p. 284.</p> + +<p><a name="fn193_193" id="fn193_193"></a><a href="#fna_193_193">[193]</a> McPherson, 265. The fact also that Grant had refused to be +governed by Johnson’s instructions made the attempt still less serious.</p> + +<p><a name="fn194_194" id="fn194_194"></a><a href="#fna_194_194">[194]</a> See Dunning, <i>Papers American Historical Association</i>, +1890, p. 481.</p> + +<p><a name="fn195_195" id="fn195_195"></a><a href="#fna_195_195">[195]</a> McPherson, 266. The vote was 128 to 47, divided strictly on +party lines.</p> + +<p><a name="fn196_196" id="fn196_196"></a><a href="#fna_196_196">[196]</a> For the full text of the eleven articles, see McPherson, +266 ff. For a critical discussion of the legal points involved in the +trial, see Dunning, in <i>Papers American Historical Association</i>, iv, 483 +ff.</p> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><strong>Transcriber’s Notes:</strong></p> + +<p>Foonote 80 appears on page <a href="#Page_58">58</a> of the text, but there is no corresponding marker on the page.</p> + +<p>Punctuation has been corrected without note.</p> + +<p>Other than the corrections noted by hover information, inconsistencies in +spelling and hyphenation have been retained from the original.</p> + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of The Struggle between President Johnson +and Congress over Reconstruction, by Charles Ernest Chadsey + +*** END OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + +***** This file should be named 35668-h.htm or 35668-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/5/6/6/35668/ + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Struggle between President Johnson and Congress over Reconstruction + +Author: Charles Ernest Chadsey + +Release Date: March 24, 2011 [EBook #35668] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + + + + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + + + + + + + + + I + + THE STRUGGLE BETWEEN PRESIDENT JOHNSON + AND CONGRESS OVER RECONSTRUCTION + + + + + _STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW_ + + EDITED BY + THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA + UNIVERSITY IN THE CITY OF NEW YORK. + + Volume VIII] [Number 1 + + + THE STRUGGLE + BETWEEN + PRESIDENT JOHNSON AND CONGRESS + OVER RECONSTRUCTION + + + BY CHARLES ERNEST CHADSEY, Ph.D. + + + NEW YORK + 1896 + + + + +CONTENTS + + + PAGE + + CHAPTER I. THEORIES PRIOR TO THE CLOSE OF THE WAR. + + 1. The Problem 7 + + 2. Common Belief at Opening of Hostilities: The Crittenden + Resolution 8 + + 3. The Democratic Theory 10 + + 4. Lincoln: The Development of his Theory 14 + + 5. The Congressional Policy 18 + + CHAPTER II. JOHNSON'S THEORY: THE EXPERIMENT AND ITS RESULTS. + + 1. Conditions at Accession of Johnson 28 + + 2. Lincoln _vs._ Johnson 28 + + 3. Johnson's views before Accession 29 + + 4. Speeches in the Spring after his Accession 30 + + 5. Secret of his Attitude 32 + + 6. Development of his Theory 34 + + 7. Attitude towards Enfranchisement of the Negro 41 + + 8. Legislative Action in the South 42 + + 9. The Defense of the South 46 + + 10. Effect of the Attitude of the South upon the North 47 + + CHAPTER III. ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT: + DEVELOPMENT OF THE CONGRESSIONAL THEORY. + + 1. Attitude of Parties towards the Administration at + Beginning of the Session 49 + + 2. Opening Scenes in Congress 50 + + 3. The Annual Message: Debate on Reconstruction 55 + + 4. The Freedmen's Bureau 59 + + 5. Johnson's Indiscreet Speeches in February, 1866 65 + + 6. Civil Rights; Other Bills 68 + + 7. Report of Committee on Reconstruction 73 + + 8. Authorized Measures of First Session 80 + + CHAPTER IV. THE CAMPAIGN OF 1866. + + 1. Crisis in the Cabinet 87 + + 2. The New Orleans Riots 88 + + 3. Administration Conventions 91 + + 4. Anti-Administration Conventions 98 + + 5. The Fall Elections 103 + + 6. Action on the XIV Amendment 104 + + CHAPTER V. THE CONGRESSIONAL THEORY FULLY DEVELOPED. + + 1. The Second Session Convenes; The Annual Message 107 + + 2. First Reconstruction Bill 109 + + 3. First Supplementary Bill 117 + + 4. Second Supplementary Bill 122 + + 5. State Conventions 124 + + 6. Third Supplementary Bill 125 + + 7. Ratification of Constitutions 125 + + 8. Acts Re-admitting States to Representation in Congress 125 + + CHAPTER VI. THE IMPEACHMENT OF THE PRESIDENT. + + 1. Why Congress Wished to Impeach 127 + + 2. What is an Impeachable Offense 128 + + 3. The Opening Attack 129 + + 4. The Work of the Judiciary Committee 131 + + 5. The Attack Fails 132 + + 6. The Limitation of Presidential Powers 133 + + 7. The Tenure-of-Office Act 134 + + 8. Struggle with Secretary Stanton 135 + + 9. Articles of Impeachment 138 + + 10. Attitude of Conservative Republicans 140 + + 11. Conclusion 141 + + + + +THE STRUGGLE BETWEEN PRESIDENT JOHNSON AND CONGRESS OVER RECONSTRUCTION. + + + + +CHAPTER I. + +THEORIES OF RECONSTRUCTION PRIOR TO THE CLOSE OF THE WAR. + + +1. The war of the rebellion afforded opportunity for the people of the +United States to obtain a far clearer conception of the powers and +limitations of the federal constitution than had previously been possible, +and settled beyond possibility of further debate some of the most +important questions which had arisen since its interpretation as an +"instrument of evidence" had begun. Yet when General Johnston had +surrendered his army on April 26, 1865, virtually bringing the war to a +close, the country found that one great constitutional question, a +question of the highest practical importance, still remained unsolved; and +for several years the best energies of our statesmen were occupied with +its solution. Eleven of the States had for four years been in armed +insurrection, but now, through superior force, they lay helpless at the +feet of the Union. Under these circumstances, what was their +constitutional relation to the federal government? + +Previous to the passage of the ordinance of secession by the convention of +South Carolina in 1860, the nation never had been called upon to determine +the status of a State which declared its relation to the federal +government severed. Certainly if a State could establish its independence +by war, the question, so far as such State was concerned, would have no +significance; but as such a conclusion of the difficulty could not be +considered for an instant, the status of the seceded State, both before +and after the cessation of hostilities, immediately became an important +subject of discussion. The gradual evolution of popular sentiment, from +the belief that the dignity of a State should not be tampered with, to the +belief that by an act of secession a State divested itself of all its +rights and privileges as a State, and reverted to the condition of a +Territory, forms an interesting chapter in the history of the unwritten +constitution of the United States. + +2. When the 37th Congress met on July 4, 1861, in pursuance of Lincoln's +proclamation, the war had not been in progress long enough to show to the +country the extreme gravity of the situation and the wideness of the gap +which had arisen between the Southern States and the rest of the Union. +The common belief was that unprincipled agitators, who represented only a +small minority of the legal voters in the insurrectionary States, had +obtained temporary control over the governments of these States, and were +waging a war against the Union, in which they were unsupported by the +majority; and that the latter would joyfully resume control of their +governments as soon as the opportunity should be given them, which it was +confidently believed would soon happen. That is, the war was to be carried +on, not against the States which claimed to have seceded, but against a +certain element of the Southern population. + +The extreme solicitude felt by Congress for the proper preservation of the +sovereign privileges of these States is shown by the practical unanimity +with which a resolution submitted by Mr. Crittenden, on July 22, was +carried, there being only two dissenting voices.[1] It declared the sense +of the House to be that[2] "this war is not waged upon our part in any +spirit of oppression, nor for any purpose of conquest or subjugation, nor +purpose of overthrowing or interfering with the rights or established +institutions of those States, but to defend and maintain the supremacy of +the Constitution and to preserve the Union with all the dignity, equality +and rights of the several States unimpaired; and that as soon as these +objects are accomplished the war ought to cease." Three days later, Andrew +Johnson, then a Senator from Tennessee, submitted the same resolution in +the Senate,[3] where it was also carried with practical unanimity, +although the discussion indicated a confused idea as to its exact +significance. + +But few months passed by before this staunch confidence in the rights of +the States began to be shaken; a feeling of doubt had arisen which had not +as yet resolved itself into a definite change of attitude, yet which was +sufficient to prevent the re-endorsement of Mr. Crittenden's resolution, +introduced by Mr. Holman, December 4, 1861, and tabled by a vote of 71 to +65.[4] + +A series of resolutions introduced in the Senate by Mr. Davis of Kentucky, +on February 13, 1862,[5] while preserving in the main the principles then +in vogue, assumed a somewhat broader tone and expressed very clearly the +belief of a large element of the thoughtful classes. Affirming the +permanency of the privileges of the people of the United States, it denied +the criminality of the citizen who does not perform "his duties of loyalty +and obedience, when the government fails to give him protection and +security," and declared that the powers of the nation and State in the +State are simply in suspension during a period of insurrection, and should +be resumed, unimpaired, when the insurrection ceases. Here also was +affirmed, in unmistakable terms, the inability of the State to secede, and +the consequent obligation of the United States to preserve in these States +republican forms of government. The guilty leaders should be punished, but +the masses should receive amnesty; and immediately following the important +admission was made that "if the people of any State cannot or will not +reconstruct their state government, and return to loyalty and duty, +Congress should provide a government for such State as a territory of the +United States, securing to the people thereof their appropriate +constitutional rights." + +Here, in connection with the positive statement that a State cannot +secede, and the implication that the insurrectionary citizen may be upheld +in his actions, was a clear expression of so-called extra-constitutional +powers in treating incorrigible States as territories. It would be +interesting to know how these resolutions were viewed by the Senate, but +they were laid on the table and never taken up for discussion. + +3. During the opening days of the 3d Session of the 37th Congress, the +question of the right to interfere with the States as States, was brought +fairly before the House by a series of resolutions in which the policy of +the extreme wing of the Democratic party was expressed.[6] In them it is +declared that "the Union _as it was_, must be restored and maintained, one +and indivisible."[7] When this declaration is examined, with the +President's preliminary proclamation of emancipation in mind, the +significance of the three italicised words can be seen. The resolutions, +after quoting the substance of the Crittenden resolution, further declared +that "whoever shall pervert or attempt to pervert the same to a war of +conquest or subjugation, or for the overthrowing or interfering with the +rights or established institutions of any of the States, and to abolish +slavery therein, or for the purpose of destroying or impairing the +dignity, equality, or rights of any of the States, will be guilty of a +flagrant breach of public faith and of a high crime against the +Constitution and the Union." The same guilt was declared to attach to all +who should "propose by federal authority, to extinguish any of the States +of the Union, or to declare any of them extinguished, and to establish +territorial governments within the same." + +These resolutions, which were an open attack upon the presidential policy, +were tabled by a vote of 79 to 50, a party vote. This fact is of +significance as an evidence of the growing feeling in the House, that the +sovereign rights of the States might be too highly considered, and that +decided discipline of some kind might be found a measure of necessity. It +began to be doubted whether in some of these States there could be found a +sufficient number of loyal citizens to carry on the government without +modifications of the old constitution and laws. At the same time the small +majority by which the resolutions were tabled shows that the old idea +still exercised a powerful influence in the House. + +On December 14, 1863, resolutions were introduced by Mr. Finck,[8] and +others two days later by Mr. Rollins,[9] which were very similar to the +Crittenden resolution, and were introduced merely as expressions of the +Democratic policy, since the Republican majority was too pronounced to +permit their adoption. + +From the beginning of the war, the policy of the Democratic party in the +North was to bring about some agreement between the North and the South, +by compromises and concessions, and should the issue finally be determined +in favor of the Union even by dint of superior strength, to restore the +Southern States to their former condition. In short, the theory held +almost unanimously by Congress at the opening of the 37th Congress, was +retained as the Democratic theory,[10] while the Republicans gradually +modified their opinions, and with the progress of events developed a +theory different from both the Democratic and the presidential theory. + +Even after the proclamation of emancipation had come to be recognized as +one of the natural results of the war, the policy of the Democratic party +was unchanged except as necessarily modified by emancipation, and in the +House, on February 8, 1864, Jacob B. Blair submitted resolutions[11] in +which it was stated that "every State which has ever been, is still a +State in the Union, and that when this rebellion shall have been put down, +each of the so-called seceding States will have the same rights, +privileges, and immunities under the Constitution as any one of the loyal +States, except so far as the holding of African slaves in bondage is +affected by the President's proclamation." These resolutions also +repudiated "the doctrine advanced by some, that the so-called seceding +States have ceased to be States of and in the Union, and have become +territories thereof, or stand in the relation of foreign powers at war +therewith." + +But besides political declarations, the Democratic theory found other ways +of expression in Congress. From the very commencement of the war, many of +the leaders of the party were confident that hostilities could be brought +to an end and peaceful relations restored by a convention of States, and +several attempts were made to induce Congress to consider favorably some +such plan.[12] As early as July 15, 1861, only eleven days after the +convening of the extra session of Congress, Benjamin Wood introduced a +resolution in the House,[13] which recommended that the governors of the +several States "convene their legislatures for the purpose of calling an +election to select two delegates from each Congressional district, to meet +in general convention at Louisville, in Kentucky, on the first Monday in +September next; the purpose of the said convention to be to devise +measures for the restoration of peace to our country." + +Again at the opening of the second session on December 4, 1861, joint +resolutions were introduced by Mr. Saulsbury, in the Senate,[14] to +appoint Millard Fillmore, Franklin Pierce, Roger B. Taney, Edward Everett, +Geo. M. Dallas, Thomas Ewing, Horace Binney, Reverdy Johnson, John J. +Crittenden, George E. Pugh, and R. W. Thompson, "commissioners on the part +of Congress, to confer with a like number of commissioners to be appointed +by the States" in rebellion, "for the preservation of the Union and the +maintenance of the Constitution." The resolutions also provided that when +the several States should have appointed their commissioners, hostilities +should cease, "and not be renewed unless said commission shall be unable +to agree," or "agreement shall be rejected either by Congress or by the +aforesaid States." + +One year later, December 2, 1862, a third attempt[15] was made by Mr. +Davis, who submitted a joint resolution in the Senate (S. 104), proposing +a convention from all the States to devise means for the reconstruction of +the Union, and on May 30, 1864, Mr. Lazear submitted in the House, +resolutions which were to authorize the President to "adopt or agree upon +some plan upon which the decision of the great body of the people north +and south may be secured upon the question of calling a convention +composed of delegates from all the States, to which shall be referred the +settlement of all questions now dividing the southern States from the rest +of the Union, with a view to the restoration of the several States to the +places they were intended to occupy in the Union." + +During the later years of the war, after hope of success had begun to die +out, some of the Southern States looked very favorably upon the plan; but +nothing approximating such a convention resulted.[16] + +4. At the beginning of his term of office, President Lincoln held the then +prevailing belief in the supremacy of the States in all matters not +directly under federal control, and as a matter of course believed that at +the cessation of hostilities each State should immediately resume its old +relations to the government, its local matters untouched by the central +administration.[17] But the ability of Lincoln to modify his own beliefs +on any subject as his experience widened was never better manifested than +on this very question, and had he lived to control the administration +through the period of reconstruction, it is not unreasonable to suppose +that his attitude would have undergone still greater change. As the +magnitude of the struggle became more apparent, he began to deliberate +upon the advisability of striking at the root of the evil, despite the +blow it struck at state liberty, and the two proclamations of September +22, 1862, and January 1, 1863,[18] mark the basis of the executive plan of +reconstruction. The Pierpoint government of Virginia had been recognized +in 1861, but its recognition was in harmony with the early attitude of +Congress towards the States, and involved no questions which could show a +distinct executive policy. + +In 1862, after the capture of New Orleans, a military governor of +Louisiana was appointed, many persons in the vicinity of New Orleans were +enrolled as citizens of the United States, and two districts elected +representatives to Congress, under the provisions of the old state +constitution.[19] In this case there was a distinct development of the +executive policy. Here was a military governor, appointed by the President +and so an instrument of the Executive, interfering with the civil +government of the State, controlling elections, deciding what districts +were entitled to elections, and fixing the date of election. This was very +different from simple restoration, with its theory that the national +government must in no way interfere with the State governments. And when +the two members elect, Messrs. Flanders and Hahn, presented themselves for +admission into the House of Representatives, the Democrats, consistently +with their belief in restoration, which up to that time had met with no +serious opposition, opposed their admission strongly. In the discussion +which arose, Mr. Voorhees well expressed the difference in theory between +the Democratic view and that which was ultimately to be adopted. The +problem was stated by him as follows:[20] "If the Southern Confederacy is +a foreign power, an independent nationality to-day, and you have conquered +back the territory of Louisiana, you may then substitute a new system of +laws in the place of the laws of that State. You may then supplant her +civil institutions by institutions made anew for her by the proper +authority of this _Government_--not by the executive, but by the +_legislative_ branch of the Government, assisted by the Executive simply +to the extent of signing his name to the bills of legislation." "But if +the theory we have been proceeding upon here, that this Union is unbroken; +that no States have sundered the bonds that bind us together; that no +successful disunion has yet taken place--if that theory is still to +prevail in these halls, then this can not be done. You are as much bound +to uphold the laws of Louisiana in all their extent and in all their +parts, as you are to uphold the laws of Pennsylvania or New York, or any +other State whose civil policy has not been disturbed." + +The strong appeal to remain true to the theory first maintained by +Congress, did not succeed in shutting the Louisianians out, and for one +month, February to March, 1863, they were recognized as members. The later +refusal to admit members from insurrectionary States was due, not to a +supposed inconsistency with restoration proper, but to dislike of the +presidential policy. + +And now with emancipation still another element entered into the question, +and in the future reconstruction, Congress was of necessity forced to +follow to a certain extent a new path laid out by the President. A State +after January, 1863, in order to resume its former relations, must at +least make one change in its institutions, and perfect restoration could +no longer be considered. True, a large minority opposed the emancipation +policy of the President, and their discontent took expression in +resolutions such as Mr. Conway introduced into the House on December 15, +1862, in which he says that "the seceded States can only be put down, if +at all, by being regarded as out of constitutional relations with the +Union," implying, of course, the inability of the President to extinguish +their local institutions. But such resolutions were never considered, +while resolutions endorsing the policy of the President were agreed +to.[21] + +The next step in the development of the President's policy was the +formation of a definite program, which States wishing to be restored to +equal rights with the loyal States should follow. This plan of +reconstruction, called by him at a later period the "Louisiana plan," was +officially announced by the proclamation of December 8, 1863, and the +annual message to Congress of the same date defended the stand taken.[22] +This proclamation granted amnesty to all citizens (excepting certain +specified classes[23]) who would take an oath to support the +Constitution, as well as all acts of Congress and proclamations of the +President relating to slaves; and declared that whenever one-tenth of the +voters of any insurrectionary State should take the oath, and re-establish +their state government, "which shall be republican, and in no wise +contravening said oath," that government would be recognized as the true +government of the State and would receive the protection guaranteed to the +States. But all questions concerning admission to Congress would, in +accordance with the provisions of the Constitution, rest entirely with the +respective houses of Congress. The questions of negro suffrage and federal +supervision of the freedmen were not touched, and no provision was made to +ensure good faith in reconstruction, beyond the mere oath exacted, and the +general oversight of the President. + +5. Under the provisions of the proclamation, three States, Louisiana, +Arkansas, and Tennessee,[24] set up new governments, which were recognized +by the President as true governments.[25] Congress, however, was by no +means satisfied with this lenient way of treating the humbled States. The +feeling that the executive was encroaching upon the legislative power +added strength to the discontent. Many thought that if the presidential +policy, without modification, were carried out, the reconstructed States +would speedily revert to the control of the very element against whom the +war had been waged. The House, by a strict party vote,[26] authorized the +appointment of a select committee of nine, to consider that portion of +the President's message relating to reconstruction, with authority to +report by bill or otherwise. Henry Winter Davis was appointed chairman. +Resolutions were submitted by Mr. Williams on March 14, 1864, which were +backed by a sentiment in Congress that was of great significance. Congress +began to feel its way towards a distinctive policy, which had heretofore +been supported by only a few, who were considered as holding extremely +wild and untenable views. These resolutions stated that although the local +laws were subverted, and the functions of the civil authorities suspended +in the States under armed occupation, "as soon as the rebellion is +suppressed in any of the revolting States," the President should +communicate the fact to _Congress_, "in order that it may take the proper +measures for the reorganization of the civil governments and the +re-establishment of the civil functionaries therein, and prescribe such +terms as it may deem wise and proper and consistent with the public safety +for the readmission of those districts as States of this Union." The +exclusive right of the legislative power "to say upon what terms those +territories shall be allowed to return to the Union," was also asserted. + +The issue between Congress and the President took more definite form +through the Davis-Wade bill of 1864.[27] This bill had been drafted during +the latter part of 1863 by the select committee of nine, but it did not +come before the House for consideration till March 22, 1864. + +The objections of those who supported this bill to the Presidential plan, +are clearly expressed in the speech of H. Winter Davis, in support of his +measure. He says[28] that it (the Presidential plan), "proposed no +guardianship of the United States over the reorganization of the +governments, no law to prescribe who shall vote, no civil functionaries to +see that the law is faithfully executed, no supervising authority to +control and judge of the elections. But if, in any manner, by the +toleration of martial law lately proclaimed the fundamental law, under the +dictation of any military authority, or under the prescriptions of a +provost marshal, something in the form of a government shall be presented, +represented to rest on the votes of one-tenth of the population, the +President will recognize that, provided it does not _contravene_ the +proclamation of freedom and the laws of Congress; and to secure that, an +oath is exacted." This government "may be recognized by the military power +and may not be recognized by the civil power, so that it would have a +doubtful existence, half civil and half military, neither a temporary +government by law of Congress, nor a state government, something as +unknown to the Constitution as the rebel government that refuses to +recognize it." + +In place of this method of organization, which Mr. Davis justly thought so +wretchedly loose, he proposed that the President should appoint +provisional governors over these States, whose first duty should be to +enroll the white citizens, through duly appointed United States marshals. +Then when a majority of these citizens should have taken the oath of +allegiance, they should be permitted to hold a State convention for the +purpose of forming a constitution under which the government might be +re-established. But all Confederate office-holders and those voluntarily +bearing arms against the United States were to be ineligible as delegates +to the convention. The bill further provided that the constitution should +"repudiate the rebel debt, abolish slavery, and prohibit the higher +military and civil officers from voting for or serving as governors or +members of the legislature." When these conditions should have been +fulfilled, and the assent of Congress to the recognition of the new +government obtained, the President should be notified, and should then +officially recognize the government by proclamation, after which senators +and representatives would be admitted to Congress.[29] + +In the speech mentioned above, Mr. Davis claimed that "the bill challenges +the support of all who consider slavery the cause of the rebellion, and +that in it the embers of rebellion will always smoulder; of those who +think that freedom and permanent peace are inseparable, and who are +determined, so far as their constitutional authority will allow them, to +secure these fruits by adequate legislation." + +But in this plan there was no attempt to introduce negro suffrage. The +only question of importance seemed to be: "How can we ensure the +subservience of these States to the federal constitution?" The supporters +of the Davis plan insisted that "the rebel States must be governed by +Congress till they submit and form a state government under the +Constitution"; otherwise "Congress must recognize state governments which +do not recognize either Congress or the Constitution of the United States; +or there must be an entire absence of all government in the rebel States; +and that is anarchy." It was absurd, the argument continued, to recognize +a government which did not recognize the Constitution; and "to accept the +alternative of anarchy as the constitutional condition of a State is to +assert the failure of the Constitution and the end of republican +government. Until, therefore, Congress recognize a state government, +organized under its auspices, there is no government in the rebel States +except the authority of Congress." From this it logically followed that in +the absence of all State government it was the duty of Congress to +"administer civil government until the people shall, under its guidance, +submit to the Constitution of the United States," and reorganize +government under whatever conditions Congress might require. + +These arguments appealed to sentiments which were becoming very popular in +Congress. The theory that a State by seceding ceased to exist as a State +was gradually gaining ground, and the Davis plan, by which the central +government was to control the State as a territory, though for so limited +a time, rapidly gained supporters. + +Mr. Fernando Beaman, of Michigan, who also considered that the seceded +States had ceased to exist, said in an extended speech favoring the +adoption of this bill:[30] "As a people without government or organization +are in a state of anarchy, their efforts to establish law and order must +be more or less impeded by caprice, by divided counsels, and by the want +of forms, regulations, and methods. The passage of this bill is the +establishment of incipient civil government, and provides at once rules, +regulations and system, with the proper officials to carry them into +execution." + +Although the bill was avowedly drawn up to provide what the presidential +plan failed to provide, a method of reconstruction so thorough that those +elements which had produced the discord could no longer influence the +state governments, it itself furnished no means to prevent any of these +States from so amending their constitutions, after their senators and +representatives had received recognition, that the very conditions of +readmittance might be rendered nugatory. + +But the bill seemed to the majority in Congress to offer a more practical +plan than any yet proposed, and it passed the House May 4, by a vote of 73 +to 59; the Senate, two months later, adopted it by a majority of four. But +it failed to become a law by the adjournment of Congress before it +received the President's signature.[31] + +The President, in justification of his neglect to sign the bill, issued a +proclamation on July 8.[32] This stated that while he was unprepared "to +be inflexibly committed to any single plan of restoration," and also +"unprepared to declare that the free State constitutions and governments +already adopted and installed in Arkansas and Louisiana, shall be set +aside and held for naught, thereby repelling and discouraging the loyal +citizens who have set up the same as to further effort," nevertheless he +was "fully satisfied with the system for restoration contained in the +bill, as one very proper plan for the loyal people of any State choosing +to adopt it," and that in such case when the people "shall have +sufficiently returned to their obedience to the Constitution and laws of +the United States," military governors would be appointed, "with +directions to proceed according to the bill." + +This attempt to modify the presidential plan virtually ended for the time +the efforts of Congress towards the development of a distinctive theory, +and the war thus closed with no well defined plan in operation, except +that of President Lincoln, which was not well sustained by Congress. Only +one thing seemed to be definitely decided. That was, that the seceded +States, in whatever light they might be considered, were incapacitated +from participating in presidential elections. A joint resolution to this +effect was passed in 1865,[33] and in accordance with its provisions the +electoral vote of Louisiana was ruled out. + +Two men in the Republican party wielded the chief power in influencing +that party to adopt the theory of reconstruction which was finally to +prevail as the congressional theory.[34] One was Thaddeus Stevens of +Pennsylvania, and the other Charles Sumner, of Massachusetts. The latter +was a recognized leader of the Senate, and his views concerning the mutual +relations of the States in rebellion and the federal government were +clearly expressed in a series of resolutions which he submitted February +11, 1862. These resolutions, although never brought forward for +consideration, were printed, and coming from so influential a man had +considerable influence in shaping the general attitude of Congress towards +the question, and affected to some extent its future policy. They[35] were +nine in number, with a well-worded preamble which put forward as a premise +that "the extensive territory, thus usurped by these pretended +governments, and organized into a hostile confederacy, belongs to the +United States, as an inseparable part thereof, under the sanction of the +Constitution, to be held in trust for the inhabitants in the present and +future generations, * * * The Constitution, which is the supreme law of +the land, cannot be displaced in its rightful operation within this +territory, but must ever continue the supreme law thereof." + +The first resolution declares that a vote of secession is void as against +the Constitution, "and when sustained by force it becomes a practical +_abdication_ by the State of all rights under the Constitution, while the +treason which it involves still further works an instant _forfeiture_ of +all those functions and powers essential to the continued existence of the +State as a body politic, so that from that time forward, the territory +falls under the exclusive jurisdiction of Congress as other territory, and +the State being, according to the language of the law, _felo de se_, +ceases to exist." + +The second resolution denies the constitutional existence of the +Confederate States. The third and fourth declare that the termination of a +State terminates its peculiar local institutions, therefore slavery ceases +to exist; and the fifth, sixth and seventh declare it necessary not to +recognize or tolerate slavery. The eighth declares the obligation of the +United States to protect all inhabitants, "without distinction of color or +class." The ninth declares that Congress, in pursuance of the duties cast +upon it by the total extinction of the States and by the constitutional +obligation that the "United States shall guarantee to every State in this +Union a republican form of government,"[36] "will assume complete +jurisdiction of such vacated territory where such unconstitutional and +illegal things have been attempted, and will proceed to establish therein +republican forms of government under the Constitution; and in execution of +this trust will provide carefully for the protection of all the +inhabitants thereof, for the security of families, the organization of +labor, the encouragement of industry, and the welfare of society, and will +in every way discharge the duties of a just, merciful, and paternal +government." + +Thaddeus Stevens, although recognized as one of the foremost men of the +Republican party, advocated from the very commencement of hostilities +views of so radical a nature, that he was looked upon by many as a +fanatic. His influence accordingly worked in a different way from +Sumner's. At no time did he consolidate his views into a series of +resolutions, but upon every occasion where the subject could be touched +upon, no matter how indirectly the topic might refer to it, he would state +his theory of the relation of the seceded States to the Union. +Persistently and consistently he advocated it; and he took pleasure in +considering himself as in advance of his party, a prophet, pointing out +the only right road, confident that sooner or later his party would see +the wisdom of his policy and adopt it. Throughout those tempestuous years, +his undaunted faith in the infallibility of his plan served to keep it +constantly in mind, and attracted to him a constantly increasing number of +followers, until at the beginning of the 39th Congress he obtained +control, and became the recognized leader of his party in all matters +relating to the Southern States. Though the plan of reconstruction as +finally adopted contained many modifications, it was to a great extent the +logical outgrowth of the Stevens theory. His whole theory rested upon the +simple premise that wherever there is resistance to the Constitution, and +that resistance cannot be overthrown without appeal to violent methods, +there the Constitution is theoretically as well as practically suspended. +As long as such resistance continues, the Constitution remains suspended, +and only the law-making and war-making power is able to determine when +resistance has ceased. Consequently the federal government would have the +undisputed right to treat the South as a conquered territory until there +should be no question as to the safety of granting greater privileges. +Those States had ceased to be States, consequently the "guarantee clause" +had no application. Congress had unrestricted power over them, as simple +territories of the federal government. On May 2, 1864, during the +discussion of the bill to guarantee republican forms of government to the +rebellious States, he declared that the rebellious States "were entitled +to no rights under the Constitution and laws, which as to them were +abrogated; that they could invoke the aid of neither in their behalf; that +they could claim to be treated during the war as belligerents according to +the laws of war and the law of nations; that they could claim no other +rights than a foreign nation with whom we might be at war; and that they +were subject to all the liabilities of such foreign belligerent," and that +"the property of the morally and politically guilty should be taken for +public use."[37] + + + + +CHAPTER II. + +JOHNSON'S THEORY: THE EXPERIMENT, AND ITS RESULTS. + + +1. We have briefly reviewed the theories that obtained greater or less +consideration during the progress of the war, and have seen that plan had +been agreed upon by which the Southern States might resume their normal +relations with the rest of the Union. Two or three States had, it is true, +been nominally reconstructed under the provisions of the proclamation of +December 8, 1863, but their good faith was strongly suspected, and their +representatives were not able to secure recognition in Congress. The high +personal esteem in which President Lincoln was held had prevented general +demonstrations against his policy, but there was a wide-spread suspicion +that he was inclined to deal too leniently with a people who had brought +so much expense and misery upon the nation. The indignation of the North +had increased with the progress of the war, and the belief that the South +could be held in check only by the most stringent regulations and +requirements was held by many. + +2. So long as armed rebellion existed the question of reconstruction was a +minor one, the attention of all being chiefly directed to the problem: +"How can this rebellion be crushed out, and the South made thoroughly to +realize that resistance is useless?" But when Andrew Johnson took the oath +of office the rebellion was virtually a thing of the past, and the giant +problem for the nation to solve during his administration was: "How shall +we treat these conquered States lying helpless, awaiting whatever fate +may be allotted them?" No other issue of importance served to offset it. +The whole nation was debating the question, and all were waiting to see in +what way the Executive would grapple with it.[38] + +3. Those who feared that Lincoln had lacked sufficient firmness and had +been too tender hearted, believed that in Johnson the nation had as its +Executive a man with correct convictions and a strength of character which +ensured both the proper treatment of the South and the stability of the +Union. Johnson had an excellent record as military governor of Tennessee, +where his fearlessness and vigorous administration had given him a +reputation which brought to him the nomination of vice-president. From his +severity to the rebels while governor of Tennessee it was reasoned that he +would still remain severe and unyielding in his treatment of them as +President of the United States. He himself was always fond of alluding to +his past record as indicating his future course. Thus, only six days after +he took the oath of office, he said while addressing a delegation of +citizens of Indiana:[39] "In reference to what my administration will be, +while I occupy my present position, I must refer you to the past. You may +look back to it as evidence of what my course will be; * * * mine has been +but one straightforward and unswerving course, and I see no reason now why +I should depart from it. * * * My past is a better foreshadowing of my +future course than any other statement on paper that might be made." +Moreover, an examination of the speeches made by him during the war shows +the grounds on which the people were justified in expecting a severe +policy. An extract from an address delivered in Nashville, June 9, 1864, +shows his views at that time as to who should carry on the work of +reconstruction.[40] "In calling a convention to restore the State, who +shall restore and re-establish it? Shall the man who gave his influence +and his means to destroy the government * * * participate in the great +work of reorganization? * * * Traitors should take a back seat in the work +of restoration. If there be but five thousand men in Tennessee loyal to +the Constitution, loyal to freedom, loyal to justice, these true and +faithful men should control the work of reorganization and reformation +absolutely." Later on in the same speech he said, referring to the traitor +"born and reared among us:" "My judgment is that he should be subjected to +a severe ordeal before he is restored to citizenship. A fellow who takes +the oath merely to save his property, and denies the validity of the oath, +is a perjured man, and not to be trusted." + +4. Emphatic statements such as these, often repeated, insisting that the +government of the States must be carefully kept in the hands of those +whose loyalty was above suspicion, and advocating severe ordeals for those +considered traitors, warranted the people of the nation in their faith in +his extreme devotion to a strong Union. Yet soon after his inauguration a +change in his attitude could be noticed. In his numerous speeches and +interviews he shifts his ground, very gradually at first, but soon meeting +the issue squarely, pledging himself to a policy which he faithfully +carried into execution, and which the candid student must recognize as +being thoroughly believed in by the President. Clemency towards the +masses, but severity towards the leaders of the rebellion, was his +attitude in his speech of April 21, above alluded to. He expressed his +views as follows:[41] "It is not promulgating anything I have not +heretofore said, to say that traitors must be made odious, that treason +must be made odious, that traitors must be punished and impoverished. +They must not only be punished, but their social power must be destroyed. +If not, they will still maintain an ascendency, and may again become +numerous and powerful; for, in the words of a former senator of the United +States, 'when traitors become numerous enough, treason becomes +respectable.' And I say that, after making treason odious, every Union man +and the Government should be remunerated out of the pockets of those who +have inflicted this great suffering upon the country. But do not +understand me as saying this in a spirit of anger, for, if I understand my +own heart, the reverse is the case; and while I say that the penalties of +the law, in a stern and inflexible manner, should be executed upon +conscious, intelligent and influential traitors--the leaders, who have +deceived thousands upon thousands of laboring men who have been drawn into +this rebellion--and while I say, as to the leaders, punishment, I also say +leniency, conciliation and amnesty to the thousands whom they have misled +and deceived." + +As Johnson said, he promulgated nothing new in this statement of his +beliefs regarding the treatment of the South, save possibly a more +definite affirmation of clemency to the masses. In the Nashville speech of +June 9, 1864, he had still more emphatically urged extreme measures +towards the leaders.[42] "Treason must be made odious, and traitors must +be punished and impoverished. Their great plantations must be seized and +divided into small farms, and sold to honest, industrious men. The day for +protecting the lands and negroes of these authors of the rebellion is +past." Again on April 24, 1865, in an interview with a number of Virginia +refugees, he reiterated the necessity of severity. In this case, perhaps +owing to the nature of the interview, and the character of those to whom +he was speaking, he makes no distinction between the leaders and their +followers, his definition of treason apparently including all soldiers and +their abettors. In it he says:[43] "It is time that our people were taught +that treason is a crime, not a mere political difference, not a mere +contest between two parties, in which one succeeded and the other simply +failed. They must know it is treason; for if they had succeeded, the life +of the nation would have been reft from it, the Union would have been +destroyed. Surely the Constitution sufficiently defines treason. It +consists in levying war against the United States, and in giving their +enemies aid and comfort." + +The great liberality with which, beginning with the following month, the +President used the pardoning power, and the extreme leniency with which +all the leaders were treated, were in striking contrast with these +sentiments. A situation was presented for Johnson to meet as President, +which necessitated modifications of views held by him as governor. His +attitude towards the leaders must be admitted to have undergone actual +modification, notwithstanding his claim a few months later that he simply +wished to make the leaders sue for pardon and realize the enormity of +their offence. + +5. The real secret of the apparently strange development of his policy, +which we are about to trace out, lies in the fact that although at this +time nominally a Republican, he was in reality a strict constructionist. +He had always been a Democrat, and still held Democratic views. Only when +secession began to be urged by the southern branch of the Democracy, did +he break loose from his old ties. Accustomed to interpret the Constitution +from a strict constructionist standpoint, accustomed to the belief that +the power of the State was restricted only by the specific limitations of +the Constitution, and that the federal government could exercise no power +beyond that expressly granted it, he naturally treated the question of +reconstruction from the same standpoint. The surprising thing in Johnson's +career is the fact that in spite of his strict construction views, he was +strongly opposed to secession. He was therefore not strictly logical. The +extreme strict constructionist claimed that the fact that the Constitution +did not forbid a State from seceding, made secession constitutional. But +Johnson's love for the Union was too great to permit him to carry his +strict construction views to such an extreme. On the contrary, the fact +that the Constitution offered no way for a State to secede from the Union +proved to him that secession was unconstitutional, and he looked upon that +fact as one of the greatest safeguards for the protection of the +Commonwealth.[44] To his mind it logically followed that because secession +was unconstitutional, it was absolutely impossible for a State to secede, +and therefore equally impossible for a State to commit treason. +Individuals might commit treason and be punished therefor, but States +never. However strongly at any time he may have urged the punishment of +traitors, he never argued for or believed in the abrogation of any of the +State's privileges. His reputation for belief in severity was based +entirely upon severity on individuals. "Make treason odious" was his +favorite expression, but always used in a concrete sense.[45] + +6. After his accession to the Presidency, the only modification of his +policy was an increased clemency to the conquered rebel. This can be +accounted for easily as the natural result of actual contact with the +problem. Rhetorically to assert that all traitors must be punished is one +thing--to apply the punishment is another. Then Johnson's most able +advisers approved his attitude and urged even greater moderation. Finally, +his firm faith in the success of his provisional governments persuaded him +to a still more liberal use of the pardoning power, while the growing +opposition of Congress added the element of stubbornness to the +complication. But, the true explanation of the change is to be found in +his general constitutional views. + +So early as April 21 he frankly states his position. In his speech on +that day he says: "Provision" (in the Constitution) "is made for the +admission of new States; no provision is made for the secession of old +ones. * * * The Government is composed of parts, each essential to the +whole, and the whole essential to each part."[46] He emphatically urges +that the Constitution provides a panacea for rebellion. "The United States +(that is, the great integer) shall guarantee to each State (the integers +composing the whole) in this Union a republican form of government. Yes, +if rebellion has been rampant, and set aside the machinery of a State for +a time, there stands the great law to remove the paralysis and revitalize +it, and put it on its feet again." He also harmonizes his strict +construction views with the fact of emancipation. "A State may be in the +Government with a peculiar institution, and by the operation of rebellion +lose that feature; but it was a State when it went into rebellion, and +when it comes out without the institution it is still a State." + +President Johnson did not allow many days to pass by after his +installation, before he began to give practical evidence of his attitude +towards the conquered South.[47] The first step which he made was an +order, issued April 29, restoring partial commercial intercourse to that +portion of the Confederate States lying east of the Mississippi river and +within the lines of national military occupation. This removed at the +outset one of the chief burdens that had resulted from the insurrection, +and would he thought act powerfully in the restoration of peaceful +pursuits in that section. The following August another proclamation +removed all remaining restrictions on trade in those States, declaring +that all necessity for restriction had ceased.[48] + +On May 9, 1865, the order restoring the administration of the United +States in the State of Virginia was issued.[49] It authorized the +Secretary of the Treasury to nominate assessors of taxes, collectors of +customs, and other officers of the Treasury Department, and further +provided that in making appointments the preference should be given to +"qualified loyal persons residing within the districts where their +respective duties are to be performed. But if suitable persons shall not +be found residents of the districts, then persons residing in other States +or districts shall be appointed." Post offices and post routes were to be +established, and district judges empowered to hold courts, while "to carry +into effect the guarantee of the Federal Constitution of a republican form +of state government, * * * Francis H. Pierpiont, Governor of the State of +Virginia, will be aided by the Federal Government," in his administration +of the state government, in whatever way might be necessary. + +The Amnesty Proclamation was issued on May 29, and was in effect a renewal +of the provisions of Lincoln's proclamation of December 8, 1863, relating +to amnesty; but it increased the number of classes excepted from the +benefits of the proclamation, from seven to fourteen,[50] and provided +that special application for pardon might be made by any of the excepted +classes, to the President, who would exercise liberal clemency. Inasmuch +as the excepted classes included all those whom less than three weeks +previously he had been denouncing as traitors to be punished and +impoverished, such great liberality, displayed in so short a time, was +somewhat surprising.[51] The proclamation further empowered the Secretary +of State to make all needful regulations for the administration and +recording of the amnesty oath; and in accordance with this provision the +Secretary of State ordered that the oath might be taken before any +commissioned officer of the United States, or before any civil or military +officer of a loyal State or Territory, who was legally qualified to +administer oaths. + +On the same day that he issued the Amnesty Proclamation, President Johnson +appointed William W. Holden Provisional Governor of North Carolina.[52] +This was his first radical step in the carrying out of his policy of +reconstruction. The order restoring the authority of the United States in +Virginia was not of so great importance, as the State had nominally been +under the Pierpiont government since near the beginning of the war, and the +mere restoration of certain United States officers in that State did not +involve to any extent the vital questions of the hour.[53] But with the +appointment of Mr. Holden, and the instructions accompanying the order of +appointment, President Johnson unfolded, in its entirety, his theory. + +The order declared that the rebellion, though now almost entirely +overcome, had deprived the people of North Carolina of all civil +government, and that accordingly the United States was constitutionally +bound to secure to them a republican form of government. Therefore for the +purpose of enabling the people to organize a government, he appointed +William W. Holden Provisional Governor of North Carolina, whose duty it +should be "at the earliest practicable period, to prescribe such rules and +regulations as may be necessary and proper for convening a convention, +composed of delegates to be chosen by that portion of the people of said +State who are loyal to the United States, and no others, for the purpose +of altering or amending the constitution thereof; and with authority to +exercise, within the limits of said state, all the powers necessary and +proper to enable such loyal people of the State of North Carolina to +restore said State to its constitutional relations to the Federal +government, and to present such a republican form of state government as +will entitle the State to the guarantee of the United States therefor, and +its people to protection by the United States against invasion, +insurrection, and domestic violence," provided, however, that all electors +should have previously taken the oath of allegiance, and should be voters +according to the law of North Carolina in force previous to secession. The +order further directed that the Provisional Governor should be aided by +the military power in carrying out the proclamation. The other clauses +were similar to clauses in the order re-establishing the authority of the +United States in Virginia. + +Similar proclamations were issued as follows: June 13, for Mississippi; +June 17, for Georgia and Texas; June 21, for Alabama; June 30, for South +Carolina; July 13, for Florida. + +Within three months after his inauguration, accordingly, Johnson had set +the forces going throughout the South by which he hoped that peace and +tranquillity might be established, and the Union once more become an +undivided whole. In the execution of this most important work, he had not +asked for the co-operation or advice of Congress. Confident of the +correctness of his ideas, feeling sure that they were only the logical +results of a true interpretation of the Constitution, he pursued his +policy of reconstruction. In so doing he was also consistently following +the path marked out by his predecessor. His plan was essentially that +which Lincoln had advocated and attempted to carry into execution. But we +have seen that even under a man enjoying such universal confidence as did +Lincoln, the country viewed with distrust, and Congress openly resented, a +policy which seemed to commit to a recently insurrectionary people the +whole responsibility for proper reconstruction, requiring from them no +surety for sincerity save an oath which all knew would be regarded by the +majority as a mere form with little significance. The same policy when +adopted by Johnson was naturally looked upon with still more suspicion. + +Lincoln was a man of tact and judgment, who was capable of seeing and +confessing a mistake, whose sole object was to do that which, all things +being considered, should seem best for the Union. + +Johnson, on the contrary, from his natural arbitrariness and narrowness, +was a man who held most tenaciously to his views, had little consideration +for the views of others, and who was always determined that his own way +should be carried out. Under such circumstances it would have been little +short of marvelous, had he been able to carry out a policy in itself +disliked, without sooner or later coming into collision with those who +disapproved his theory. + +The provisional governors appointed were not slow in carrying out the +provisions of the proclamations, and conventions met in the various states +as follows: Mississippi, August 14; Alabama, September 12; South Carolina, +September 13; North Carolina, October 2; Georgia, October 25; Florida, +October 25; and Texas in March, 1866. In all these conventions the +secession ordinances were repealed, annulled or declared null and +void,[54] and slavery was declared abolished. All but Mississippi and +South Carolina repudiated the rebel debt, and all but Mississippi and +Texas ratified the 13th Amendment. + +Meanwhile Johnson made liberal use of the pardoning power, and large +numbers of the excepted classes were thus restored to all the privileges +of citizens of the United States. The reconstruction was very rapid; so +rapid, as Johnson himself said, that he could scarcely realize it; "it +appears like a dream." + +The extreme similarity of this method of reconstruction to that advocated +by the Democracy could not escape attention, and Democrats freely asserted +that in his ideas the President was "going over to them." This, while to a +certain extent true, for he was always a Democrat in principle, was +vigorously denied by Johnson in an interview with Geo. L. Stearns on +October 3, 1865. In it he claimed that the Democratic party, finding its +own views untenable, was gradually coming to adopt his principles, which +he reasserted in the following form: "The States are in the Union, which +is one and indivisible. Individuals tried to carry them out, but did not +succeed, as a man may try to cut his throat and be prevented by the +bystanders; and you can not say he cut his throat because he tried to do +it. * * * Now we want to reconstruct the state governments, and have the +power to do it. The state institutions are prostrated, laid out on the +ground, and they must be taken up and adapted to the progress of events; +this cannot be done in a moment. * * * We must not be in too much of a +hurry; it is better to let them reconstruct themselves than to force them +to do it; for if they go wrong the power is in our hands, and we can check +them in any stage, to the end, and oblige them to correct their errors; we +must be patient with them. I did not expect to keep out all who were +excluded from the amnesty, or even a large number of them; but I intended +they should sue for pardon, and so realize the enormity of the crime they +had committed." + +7. Johnson realized that the sentiment in favor of negro suffrage was +gaining great power in the North; and while feeling that pure manhood +suffrage was undesirable and totally impracticable, because of the danger +of thereby creating a "war of races," which he seemed constantly to fear, +he determined to use his influence towards a gradual introduction of the +suffrage. He would give the suffrage to negroes who had served in the +army, to those who could read and write, and to those owning real estate +to the value of two hundred and fifty dollars. He made suggestions of this +nature in letters to Governor Starkey of Mississippi, and Governor Hahn of +Louisiana.[55] By some such limited suffrage he hoped that the radical +element in the North would be satisfied, while there could result no +danger to those States in which the negro population predominated. + +He had long believed that the apportionment of Representatives should be +based on the number of qualified voters; while a member of the legislature +of Tennessee he had moved that the apportionment in that State be so made; +and in the interview with Mr. Stearns he said: "The apportionment is now +fixed until 1872; before that time we might change the basis of +representation from population to qualified voters, North as well as +South, and, in due course of time, the States, _without regard_ to color, +might extend the elective franchise to all who possessed certain mental, +moral or such other qualifications as might be determined by an +enlightened public judgment."[56] + +But however desirable a limited suffrage might be, he insisted that the +only safety for the nation lay in leaving the whole subject to the +discretion of the individual State. The only approach which he would make +to national interference would be through constitutional amendment. In an +interview with Senator Dixon of Connecticut, on January 28, 1866, he +suggested that such an amendment might be worded in the following manner: + +"Representatives shall be apportioned among the several States which may +be included within this Union according to the number of qualified voters +in each State. + +"Direct taxes shall be apportioned among the several States which may be +included within this Union according to the value of all taxable property +in each State."[57] + +The great advantage of an amendment of this kind, in President Johnson's +opinion, was that Congress would thus shift all responsibility regarding +negro suffrage to the States. Each State would determine the +qualifications for voters, and its representation in Congress would depend +entirely upon the narrowness or broadness of the suffrage. + +In the same interview with Senator Dixon, he described the current +contention over negro suffrage as "ill-timed, uncalled for, and calculated +to do great harm." + +8. While the President was expressing his belief in qualified +representation, and advising the States in process of reconstruction to +grant some form of limited suffrage, the States themselves manifested no +disposition to follow his advice. While he was describing them in October +as lying helpless, they were busy framing laws which were aimed to +counteract, so far as possible, the force of the emancipation +proclamation. + +When Georgia declared slavery abolished she did so with the proviso that +"acquiescence in the action of the Government of the United States is not +intended to operate as a relinquishment, or waiver, or estoppel of such +claim for compensation of loss sustained by reason of the emancipation of +his slaves, as any citizen of Georgia may hereafter make upon the justice +and magnanimity of that Government."[58] Alabama, South Carolina, and +Florida in their ratifications of the 13th Amendment stated their +understanding to be that it did not confer upon Congress power to +legislate upon the political status of the freedman. The Alabama +legislature passed joint resolutions in which it was affirmed: "That +Alabama will not voluntarily consent to change the adjustment of political +power as fixed by the Constitution of the United States, and to constrain +her to do so, in her present prostrate and helpless condition, with no +voice in the councils of the nation, would be an unjustifiable breach of +faith."[59] + +But most important of all was the legislation of these States respecting +the freedman. All were confronted by a host of emancipated blacks, whose +legal status had to be determined. The legislatures had before them work +of the most delicate nature, inasmuch as it not only vitally affected +every person in their own section, but also attracted the keenest interest +from the whole North. All realized that Johnson's policy would here +undergo the crucial test. Would the legislators of these States, so soon +thrown upon their own responsibility, show due consideration for the new +order of things, or would they take advantage of their opportunity and +proceed to draw the color line as sharply as ever, discriminating against +the negro, and denying him privileges which should be allowed him? Had +the South proved equal to the situation, the wisdom of Johnson's policy +would have been sustained, and the bitterness characteristic of the 39th +and 40th Congresses would have been avoided. + +Mississippi was the first to adopt "black laws" obnoxious to the North. +Her vagrant act was passed November 24, 1865. This provided that freedmen +found with no lawful employment or business, or unlawfully assembling +together, should be deemed vagrants, and be fined and imprisoned at the +discretion of the court. A poll tax for a freedmen's pauper fund was to be +levied on all freedmen, and should any fail or refuse to pay, he was to be +hired out by the sheriff to any one who would pay the tax and costs, +preference being given to his former master. Two days later a civil rights +act was passed. This allowed freedmen to sue and be sued, implead and be +impleaded, and to own personal property, but added the important proviso +that the section should not be construed "to allow any freedman, free +negro or mulatto to rent or lease any lands or tenements, except in +incorporated towns or cities," where they should be controlled by the +corporate authorities. Intermarriage of a white with any freedman, free +negro or mulatto, should be punished by imprisonment in the state +penitentiary for life. A laborer quitting before expiration of term of +service without good cause, forfeited to his employer all wages for that +year up to the time of quitting. Any one was authorized to arrest and +return a deserting freedman, receiving therefor five dollars reward and +mileage, all costs to be paid from the wages of the deserter. Any one +persuading or attempting to persuade any freedman to desert his employer +before his term of service expired, was guilty of a misdemeanor, and +liable to a fine of not less than twenty-five and not more than two +hundred dollars, and if the offender attempted to persuade the freedman +to desert, with a view of employing him without the limits of the State, +the fine was to be not less than fifty nor more than five hundred dollars. +While it was made lawful for a freedman to charge a white man with a +criminal offence against his person or property, and to make all needful +affidavits, a supplementary act passed December 2 provided that where +sufficient proof was made before a court or jury that the arrest and trial +had been falsely or maliciously caused, the freedman should be fined, and +charged with all costs, and on failure to pay should be hired out at +public outcry for the shortest time necessary to discharge the debt. An +act passed November 29, among other restrictions, forbade freedmen to +carry any fire arms, ammunition, dirk or bowie knife, under penalty, and +declared that a freedman exercising the functions of a minister of the +gospel, without a license from some regularly organized church, should be +guilty of a misdemeanor, and become liable to an imprisonment not +exceeding thirty days and to a fine not exceeding one hundred dollars. + +Similar laws were enacted in the other States, varying slightly in +severity of punishment. The labor contract act of Louisiana, passed in +December, is of especial interest as an evidence of the systematic way in +which the Southern legislators hoped to mould the unwieldy mass of +freedmen into a docile set of serfs. All agricultural laborers were +required by this act to make their contract for the ensuing year before +the tenth day of January; said contract to embrace the labor of the whole +family. After the contract had been agreed to, no laborer was to be +allowed to "leave his place of employment until the fulfillment of his +contract, unless by consent of his employer, or on account of harsh +treatment, or breach of contract on the part of employer," under penalty +of forfeiture of all wages to the time of leaving. "Failing to obey +reasonable orders, neglect of duty, and leaving home without permission, +will be deemed disobedience; impudence, swearing, or indecent language to +or in the presence of the employer, his family or agent, or quarreling or +fighting with one another, shall be deemed disobedience. For any +disobedience a fine of one dollar shall be imposed upon the offender. For +all lost time from work hours, unless in case of sickness, the laborer +shall be fined twenty-five cents per hour. For all absence from home +without leave the laborer will be fined at the rate of two dollars per +day."[60] + +The cruelty and injustice possible in the administration of these acts is +even greater than their casual perusal would indicate. Many of these acts, +nominally applying to both races with equal severity, were in reality +intended to apply solely to the negro. The vagrants always proved to be +colored. The acts purporting to secure the protection of the freedmen were +cunningly hedged in by limitations which made them worthless. The employer +was made the sole judge of the acts of his employees--a privilege which +could not but be flagrantly abused. Laws that made it almost impossible +for the freedman to secure the just return for his labor, were followed by +laws punishing him for his poverty. The fines for his so-called offences +were excessively severe, and the punishments were almost always such as to +reduce him to slavery for limited terms. The whole system, taken advantage +of as it could not fail to be where the dominant classes were almost +unanimously desirous to retain the negro in subjection, resulted in his +practical slavery during those seasons of the year in which his labor was +most needed, and in utter neglect and lack of support when his labor was +not in demand. + +9. Although the enactment of these stringent laws at this time was a +political mistake, and was fraught with most serious consequences for the +South, it is proper to notice what was said in their justification. Many +of them did not differ materially from similar statutes in the Northern +States. Even some of the harshest laws, those which were received with +wide-spread indignation throughout the North, could almost be duplicated +by laws at that time in force in such States as Rhode Island and +Connecticut. Even the phraseology, the using of the words master, mistress +and servant, which was deemed objectionable and suggestive by Northern +Republicans, could be found in Northern statutes. + +The South felt confident that the negro was unable actively to assume the +duties of citizenship. The Southern people feared, and with reason, that +the immense mass of undeveloped humanity was liable to become turbulent +and unmanageable, unless stringent laws could be framed which would hold +it in check.[61] They were sincere in their statements that they believed +that the interests of property, peace and good order demanded these laws. +Unfortunately, the humanitarian ideas of the North harmonized too well +with the political ideas of Congress. The enactment of the laws against +the negro seemed to strike at the one and make possible the success of the +other. The radical majority were quick to see their advantage, and did not +hesitate to make the most of the opportunity. They assumed that the South +deliberately intended to defy Northern sentiment, and ignored the +possibility that the legislation in question was sincerely believed to be +a necessary act of self-defense. + +10. To Stevens and his followers the South had proved its impenitent +condition, and had justified the most stringent measures of +reconstruction. They declared that Johnson's policy had been fairly tested +and that the results of the experiment were apparent. They argued that the +South, emboldened by the conciliatory conduct of the President, was +permitting the old rebel leaders to continue to wield the chief influence +in affairs of state. The exclusion of these leaders from participation in +the preliminary work of the reconstruction conventions was no check upon +their influence in the State, and with the completion of reconstruction +there was nothing to prevent them from occupying the chief state offices. +What the President in the previous April had feared, was coming to pass, +through his failure to do that which he had then said must be done--to +make treason and traitors odious. In proof of the ascendency of the old +elements, the highly questionable legislation of the South was cited, and +the conviction of the Republican party that sterner measures were +necessary was strengthened. As a natural result the doctrine of Thaddeus +Stevens that the South should be regarded and governed as a conquered +territory became practically the doctrine of the majority of Republicans, +and Stevens became the leader of the House of Representatives. The year +1865 had made plain the necessities of the hour, the condition of the +South, the attitude of the President, and in short had prepared the people +for the great struggle which was to follow in the 39th and 40th +Congresses.[62] + + + + +CHAPTER III. + +THE ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT: DEVELOPMENT OF THE +CONGRESSIONAL THEORY. + + +1. The Thirty-ninth Congress began its labors on December 4, 1865, well +aware that the President had separated himself from the Republican party +so far that it was improbable that the executive and legislative +departments would be able to work in harmony. The Democrats were beginning +to commend the administration, and had even gone so far in some instances +as to indicate, in resolutions passed in their state conventions, their +approval of Johnson's plan of reconstruction. Republicans, on the other +hand, were becoming quite reserved in their expressions of approval, and +began to show a decided sentiment in favor of manhood suffrage as +involving less danger and more benefit to the Republic than any plan which +even partially excluded the negro from the franchise. The legislation of +the Southern States had convinced many that without the negro vote there +would be no way to keep the old insurrectionary element from completely +monopolizing their state governments.[63] + +Congress with its large Republican majorities[64] in both houses was +expected to deal with the problem, correct the abuses which had arisen +from the too lenient policy of the President, and inaugurate a policy +which should bring about an equality of individual rights throughout the +Union. + +2. The calling of the roll by the clerk of the House, Edward McPherson, +marked the commencement of active opposition to the presidential policy. +All of the late insurrectionary States excepting Texas, whose convention +did not meet until the following March, had elected senators and +representatives. Their action in choosing for these and other high +official positions members of the Confederate Congress, and civil and +military officers of the Confederacy, was very unwise and did much to +strengthen opposition to the recognition of these States.[65] + +Louisiana, Arkansas and Tennessee, having been recognized by Lincoln as +reconstructed, stood upon a somewhat different footing from the others, +but in a caucus of the Republican members of the House, held previous to +the organization of Congress, it had been decided to omit the names of +their representatives from the rolls so as to reduce all to a common +level, that no embarrassing distinctions might exist to hamper Congress in +the adoption of whatever policy it chose. + +In accordance with the instructions of the caucus, the clerk refused to +call the names of these representatives elect. A lively discussion +immediately arose, in which emphatic protest was made against forcing in +this way a policy upon the House at a time when due deliberation could not +be had. It was boldly asserted[66] that the clerk was acting merely as the +tool of the Republican party, and the claim was also made that the +resolutions about to be introduced by Mr. Stevens of Pennsylvania were +another part of the general plan to commit the House to a +quasi-condemnation of the President, and virtually nullify in advance the +recommendations which it was supposed he would make. But protest was +useless; the names were not placed on the rolls, and the first roll-call +gave evidence that active resistance to the President was determined upon. + +The Senate was almost equally prompt in making public its determination to +take the process of reconstruction out of the hands of the President. It +is the custom in Congress to refrain from the consideration of questions +of public importance until the President's message has been received. At +the opening of this Congress no such courtesy was observed. Among the very +first proceedings of the Senate after its organization was the +introduction of three series of resolutions by Sumner.[67] The first +series was in reference to the Thirteenth Amendment, declaring it to have +become a part of the Constitution without reference to the action of the +late so-called Confederate States. Such States, the resolutions affirmed, +should be required to ratify the Amendment as one of the conditions +precedent to restoration. The second series related to the guarantees +which should be required of the States prior to resuming their relations +to the Union. These guarantees were five in number. First: "The complete +re-establishment of loyalty, as shown by an honest recognition of the +unity of the Republic, and the duty of allegiance to it at all times, +without mental reservation or equivocation of any kind." Second: "The +complete suppression of all oligarchical pretensions, and the complete +enfranchisement of all citizens;" impartial justice, and equality before +the law. Third: The repudiation of the rebel debt and the assumption of +the proper proportion of the national debts and obligations. Fourth: "The +organization of an educational system for the equal benefit of all, +without distinction of color or race." Fifth: "The choice of citizens for +office, whether State or National, of constant and undoubted loyalty, +whose conduct and conversation shall give assurances of peace and +reconciliation." The third series was declaratory of the duty of Congress +to the loyal citizens in the rebel States. They, especially those who had +served in the Union army and those excluded from the ballot at the time of +secession, should have control of the conventions to be called for +reorganizing the state governments. "No state law or state constitution +can be set up as an impediment to the national power" in the +reorganization of these States. No State recently in rebellion could be +considered to have a republican form of government "where the elective +franchise and civil rights are denied to the Union soldier, his relatives, +or the colored race." + +The submission of these resolutions was of significance merely as a formal +declaration that the President was to be ignored and an independent policy +formed. The plan of reconstruction, as here presented, embodied many +impracticabilities and impossibilities, but it indicated in broad outlines +the propositions to be discussed in the succeeding months. + +The House was still more active in its initiatory steps toward a policy. +The resolution for the establishment of a joint committee on +reconstruction was introduced by Mr. Stevens at the first opportunity on +the opening day, and immediately adopted. This resolution, after having +been discussed in a Republican caucus,[68] was taken up for consideration +in the Senate on December 12,[69] was made a concurrent resolution, that +it might not need the approval of the President, and was passed with +amendments. The debate on this resolution is of especial importance as the +first formal test of the attitude of the individual Senators towards the +administration. It brought out the fact that Senators Cowan of +Pennsylvania, Dixon of Connecticut, and Doolittle of Wisconsin, would +support the administration and oppose the congressional policy. Senator +Norton, of Minnesota, soon joined their ranks, and Senator Lane[70] of +Kansas, broke from the party on the Civil Rights bill. The remaining +Republican senators, while exhibiting natural differences of opinion, were +united in their hostility to the existing method of restoration. + +The resolution, as amended and concurred in by the House, provided for a +joint committee of fifteen, nine from the House and six from the Senate, +"who shall inquire into the condition of the States which formed the +so-called Confederate States of America, and report whether they or any of +them are entitled to be represented in either House of Congress, with +leave to report at any time by bill or otherwise."[71] + +The appointment of this committee, with Thaddeus Stevens as a member, +although Senator Fessenden of Maine was chairman, marks an important epoch +in the history of reconstruction.[72] Stevens, now the virtual leader of +the House, represented a policy to which Johnson was thoroughly +antagonistic, and from this time forth everything relating to the +reconstruction of the Southern States was to be referred to this +committee. In addition, the committee took large masses of testimony from +southerners, federal officers, and northerners travelling through the +Southern States, in order that an intelligent judgment might be reached +regarding the actual condition of these States. The bills in which they +embodied the results of their investigations constituted the basis of the +final reconstruction. The ill-defined sentiment of the Republicans, that +the proper mode of dealing with the Southern States had not been found, +was to be replaced by a vigorous policy which looked primarily to the +proper protection of the freedman. + +3. The message of the President, which was read on the 5th of December, +had been eagerly awaited.[73] It had been expected that it would contain a +decided statement of his exact views on reconstruction, and expectations +were fulfilled. It was a clearly written document, and outlined in extreme +simplicity his attitude. In it he says, referring to the rebel States: +"Whether the territory within the limits of those States should be held as +conquered territory, under military authority emanating from the President +as the head of the army, was the first question that presented itself for +decision." His unhesitating answer to this question was that military rule +was extremely undesirable, especially from the greatly increased powers +which thereby would be held by the President. "The powers of patronage and +rule * * * I could never, unless on occasions of great emergency, consent +to exercise. * * * Besides, the policy of military rule over a conquered +territory would have implied that the States whose inhabitants may have +taken part in the rebellion, had, by the act of those inhabitants, ceased +to exist. But the true theory is, that all pretended acts of secession +were, from the beginning, null, and void. The States cannot commit +treason, nor screen the individual citizens who may have committed +treason, any more than they can make valid treaties or engage in lawful +commerce with any foreign power. The States attempting to secede placed +themselves in a condition where their vitality was impaired, but not +extinguished--their functions suspended, but not destroyed." These +sentiments were but the repetition, in almost the same language, of +sentiments previously expressed in various interviews and speeches. The +significance of the message was merely his recommitment to the policy he +was applying in practice. But the consideration of the message in +committee of the whole afforded a good opportunity for general discussions +of reconstruction, which were continued at intervals throughout the whole +session. + +The great debate was opened on December 18 by Mr. Stevens, who reasserted +his views, declaring that Congress has the sole power to receive back the +States, the Executive concurring.[74] The States as States made war. "The +idea that the States could not and did not make war because the +Constitution forbids it, and that this must be treated as a war of +individuals, is a very injurious fallacy. Individuals cannot make war. +They may commit murder, but that is not war. Communities, societies, +states, make war." He earnestly pleaded for negro suffrage both on grounds +of expediency and of right, closing his speech with the oft-quoted +sentence: "Sir, this doctrine of a white man's government is as atrocious +as the infamous sentiment that damned the late Chief Justice to +everlasting fame, and I fear, to everlasting fire."[75] Mr. Beaman, on +February 24, after dwelling upon the horrors of the late war, said: "Those +were sad, dark days, whose tinge was deepened by the frowns and hostile +intrigues of foreign nations. But sadder still, and darker and more +gloomy, will be that day in which the rebel States shall assume the +control of our national government; when without guards or security for +future good conduct, without protection to the blacks and loyal whites who +have freely shed their blood in our defense, the seceded districts shall +be declared reconstructed and restored States, and again launched upon +their career of oppression, tyranny and crime."[76] + +On March 10, Mr. Stevens made a speech upholding the right of the federal +government to treat the conquered States in whatever manner was deemed +advisable. "I trust yet to see our confiscation laws fully executed; and +then the malefactors will learn that what Congress has seized as enemy's +property and invested in the United States, cannot be divested and +returned to the conquered belligerent by the mere voice of the Executive. +I hope to see the property of the subdued enemy pay the damages done to +loyal men, North and South, and help to support the helpless, armless, +mutilated soldiers who have been made wretched by this unholy war. I do +not believe the action of the President is worth a farthing in releasing +the property conquered from the enemy, from the appropriation made of it +by Congress."[76] + +Other speeches just as violent, condemning Johnson and his policy, were +made during these general discussions. Thus Mr. Dumont of Indiana said: +"Some gentlemen seem to be anxious to hear within this Hall the crack of +the plantation whip, and to have a manifestation of plantation manners as +in days of other years; and as sure as God lives they will be abundantly +gratified, if the policy of letting in the rebel States without guaranties +shall prevail."[77] And Mr. Moulton, of Illinois, a week later declared +that "Andy Johnson will go down to posterity, not only as the betrayer of +his party, but as an ingrate, infamous in all time to come to all +honorable men."[78] In the same speech he says: "No rights of the South +that were lost by the rebellion were revived or repossessed by traitors on +the cessation of hostilities. War destroys all rights but the rights of +war."[79] Mr. Baldwin, of Massachusetts, described the attitude of the +Southern States as follows: "It is undeniably the aim of the old +pro-slavery spirit to reduce them [the freedmen] to a condition as nearly +like that of slavery as circumstances will admit; a condition that would +yield all the advantages of slavery without any of its incumbrances. The +hatred which has declared the freedom of these people a calamity conspires +diligently to make it so; the government is angrily forbidden to interfere +with its operations; and if there be an epithet of contumely and reproach +that has not been hurled at those who would allow these people the +protection they need, it must be some blackguard epithet not yet +invented."[81] + +But the policy of the President was not without its vigorous supporters, +although they generally were found among the Democrats. Thus Voorhees, on +January 9, eulogized Johnson's policy as having "cleared away the wreck +of a gigantic fraternal war, laid anew the foundation of government +throughout an extent of country more vast than the most powerful kingdoms +of Europe, revived confidence and hopes in the breasts of a despairing +people, and won for its author the respect and admiration of the civilized +nations of both hemispheres."[82] He also introduced a series of +resolutions endorsing the policy of the President, and expressing +confidence in him;[83] but these, together with an amendment by Bingham, +expressing confidence that the President would co-operate with Congress, +were referred to the Committee on Reconstruction, from which they were +never reported. + +Mr. Thornton, of Illinois, thought that "if those States are ever to be +bound together in an equal and enduring union by us, we must rise to the +high dignity of true manhood and Christian charity, and bury forever the +feelings of distrust which now haunt the mind. The charge is constantly +made that the Southern people are perfidious; that they will keep no +pledges; that no oath will bind them. Can they accept your conditions +precedent tendered in such a spirit? Never!"[84] Mr. Harding, of Kentucky, +declared that the Republican party "with the cry of liberty on its tongue, +is earnestly striving to subvert the foundations of republican government, +laboring to centralize, consolidate and build up a frightful Federal +despotism, under whose dark and deadly shadow self-government and all +state rights would utterly sink and perish."[85] + +4. The objectionable "black laws" of the Southern States, and the many +tales of the oppression and cruel treatment of negroes, brought about a +strong sentiment in favor of legislation by Congress giving additional +protection to the freedman.[86] The Act of March 3, 1865, had established +in the War Department a "Bureau for the relief of Freedmen and Refugees," +which was "to continue during the present war of rebellion, and for one +year thereafter."[87] This bureau was to assume control of all abandoned +or confiscated lands in the insurrectionary States, and to assign tracts +not to exceed forty acres each to freedmen and refugees at an annual rent +of not more than six per cent. of the value. The occupants were to be +allowed to purchase the land at any time within three years. The bureau +was also authorized to supervise all matters that might concern freedmen +and refugees from any of the rebel States or from districts occupied by +the army, and to furnish supplies to such as were in need. + +To extend the powers of this bureau and to continue it in operation until +affairs had resumed their normal course, appeared to be a practicable way +to protect the emancipated race. A bill to this effect was introduced in +the Senate by Mr. Trumbull on January 5, 1866,[88] and the Senate +proceeded to its consideration on the 12th. With certain amendments the +bill passed the Senate on the 25th by a vote of 37 to 10. The Select +Committee on Freedmen[89] to which the Senate bill had been referred by +the House, reported on January 30 a substitute bill. This passed the House +on the 6th of February by a vote of 136 to 33; it was amended by the +Senate on the 7th, the House concurring on the 9th. It was vetoed by the +President on the 10th, and the Senate on the 10th attempted to pass the +bill over the veto. The result showed 30 votes in favor, 19 against, less +than a two-thirds majority, and the bill thus failed to become a law.[90] + +The bill as presented to the President for his signature was entitled "An +Act to amend an act entitled 'An act to establish a Bureau for the relief +of Freedmen and Refugees,' and for other purposes."[91] It continued in +force the act of March 3, 1865, and extended the jurisdiction of the +bureau to freedmen and refugees in all parts of the United States. The +President was authorized to "divide the section of country containing such +refugees and freedmen into districts, each containing one or more States, +not to exceed twelve in number, and, by and with the consent of the +Senate, appoint an assistant commissioner for each of said districts;" or +in the discretion of the President "the bureau might be placed under a +commissioner and assistant commissioner to be detailed from the army." +Districts when necessary were divided into sub districts under agents. +Military jurisdiction and protection were to extend over all connected +with the bureau. Unoccupied public lands in the Southern States, not to +exceed three million acres, were to be set apart for freedmen. Military +protection was to be extended over all persons denied civil rights on +account of race, color or previous servitude, and punishment was provided +for those who deprived such parties of their civil rights. + +The debates on this bill, occurring as they did before the President's +speech of February 22, which will hereafter be noticed, lacked the great +bitterness which was frequently manifested in the later days of the +session. The fact that the veto message was received before the 22d +accounts for the failure of the attempt to override it.[92] + +The bill itself was moderate, the freedmen obviously needed the +legislation, but the President considered the principles at stake of +sufficient importance to justify him in further antagonizing Congress. His +veto message cited a number of reasons for withholding the executive +approval.[93] In the first place he claimed that there was no immediate +necessity for the measure. Then it also contained provisions which were +unconstitutional and unsuited to accomplish the desired end. His chief +objection, of course, was based upon the continuance of military +jurisdiction into a time of peace. This he declared clearly +unconstitutional, a violation of the right of _habeas corpus_ and of trial +by jury; and he added that "for the sake of a more vigorous interposition +in behalf of justice we are to take the risks of the many acts of +injustice that would necessarily follow from an almost countless number of +agents, * * * over whose decisions there is to be no supervision or +control by the federal courts. * * * The country has returned or is +returning to a state of peace and industry, and the rebellion is in fact +at an end. The measure, therefore, seems to be as inconsistent with the +actual conditions of the country as it is at variance with the +Constitution of the United States." He considered the provisions which +proposed to take away land from its former owners without due process of +law, unconstitutional. Other more general objections were mentioned, such +as the immense patronage created and immense expense involved, the +dangerous concentration of power in the Executive, and the ethical +objection that legislation which implies that the freedmen "are not +expected to attain a self-sustaining condition must have a tendency +injurious alike to their character and their prospects."[94] + +The unification of opposition to the President, which was accomplished +through his speech of February 22, afterwards impelled the friends of the +Freedmen's Bureau bill to make another attempt to secure its passage, +believing that it then could be passed over the President's veto.[95] The +ball was again set rolling by Mr. Eliot, of Massachusetts, who on May 22 +introduced a bill designed to take the place of the defeated bill, yet +different enough to afford a plausible pretext for again bringing the +question forward. Slightly amended, it passed the House on May 29 by a +vote of 96 to 32. The bill, with amendments, reported from the Committee +on Military Affairs, of which Senator Wilson, of Massachusetts, was +chairman, was taken up for consideration by the Senate on June 26, and +passed. The House non-concurring, a committee of conference was appointed, +which made some minor changes, to which the Senate on July 2, and the +House on July 3, agreed. A veto message of the President was received on +July 16, and the bill was passed over the veto on the same day.[96] + +To all intents and purposes this act differed but little from the first +vetoed bill. It continued the original Freedmen's Bureau Act in force for +two years, and contained certain additional provisions for the education +of the freedmen, for the recognition of their civil rights, and for the +protection of such rights by military power. + +President Johnson, in his veto message, declared that a careful +examination had convinced him that the same reasons assigned in his veto +of February 19, applied also to this measure. Such legislation was +justifiable only under the war power, and should not extend to times of +peace. The now existing federal and state courts, he went on to say, were +amply sufficient for the protection of the freedmen, and the existence of +the prevalent disorders furnished no necessity for the extension of the +bureau system. The practical operation of the bureau showed that it was +becoming an instrument of fraud, corruption and oppression, while the +civil rights bill, needless as it was, provided methods of protection far +preferable to the military protection authorized by this bill. The +legislation regarding the disposal of land was discriminating, unsafe, and +unconstitutional, and in conclusion he urged upon Congress the dangers of +class legislation. + +5. The mere veto of the first Freedmen's Bureau bill would not have been +of great significance had it been the only act of the President at this +time offensive to the rank and file of the Republican party. But on two +other occasions he acted very indiscreetly, February 7 and February 22, +the latter coming so shortly after the veto message on the first bill that +the antagonism of Congress was greatly intensified. + +On February 7, 1866, a delegation of colored representatives from fifteen +States and the District of Columbia called upon President Johnson in order +to present their wishes concerning the granting of suffrage to their race. +Geo. T. Downing and Frederick Douglass acted as spokesmen. In reply, +President Johnson described his sacrifices for the colored man, and went +on to express his indignation at being arraigned by incompetent persons. +Although he was willing to be the colored man's Moses, he was not willing +"to adopt a policy which he believed would only result in the sacrifice of +his [the colored man's] life and the shedding of his blood." The war was +not waged for the suppression of slavery; "the abolition of slavery has +come as an incident to the suppression of a great rebellion--as an +incident, and as an incident we should give it the proper direction." He +went on to state that the negro was unprepared for the ballot, and that +there was a danger of a race war. The States must decide for themselves on +the question of the franchise. "Each community is better prepared to +determine the depository of its political power than anybody else, and it +is for the legislature * * * to say who shall vote, and not for the +Congress of the United States."[97] + +This plain statement of his opposition to negro suffrage greatly added to +Johnson's unpopularity. This was not due to the fact that his views on +that subject had not been made public before, for he never had tried to +conceal his attitude towards any of the questions before the people. But +the attitude of the people themselves had greatly changed since the ill +treatment of the freedmen and the objectionable legislation of the +Southern States had been placed vividly before the public through the +newspapers. The sentiment in favor of the extension of the franchise had +rapidly gained strength; and the attitude of the President, made +conspicuous anew by his almost harsh reply to so prominent a delegation +representing such a wide extent of territory, called forth much hostile +criticism, which, added to the vigorous letter published by the delegation +in reply to the President, aided in unifying the opposition to him. + +On February 22 he made a speech in which he not only attacked by name +certain leading politicians, but also criticised in terms the legislative +branch of the government. This speech marks a distinct epoch in the +history of the struggle between the President and Congress. Prior to it, +the latter, although conscious of the rapid divergence of the paths each +was following, and determined to render as nugatory as possible the +President's policy, had not permitted the feeling of personal antagonism +to influence its actions to any great extent. But from this time forth the +lines were sharply drawn, culminating in the impeachment. Johnson bitterly +hated the Joint Committee on Reconstruction. The very manner in which it +had been authorized--through a concurrent resolution instead of a joint +resolution for the purpose of preventing executive action--had embittered +him; the principles which its majority represented and the _personnel_ of +the committee were equally distasteful to him. + +In connection with the speech of February 22, it should be noticed that +Mr. Stevens had two days before introduced a concurrent resolution, which +passed the House, providing that no senators or representatives were to +be admitted until Congress should declare the State entitled to +representation. Such a provision, the practical effect of which would be +to place the subject in the exclusive control of the Joint Committee on +Reconstruction, Congress, as we have seen, struck out of the resolution +authorizing that committee's appointment.[98] The President had good +reason to believe that Mr. Stevens' resolution would pass the Senate, as +it did on the 2d of March, and he looked upon it as one more step in the +usurpation of power by an "irresponsible directory." Sensitive to all +tendencies towards centralization, he saw in the power granted to the +committee, and the measures proposed by it, a tendency towards the +conditions against which he had spoken on April 21, 1865, when he said: +"While I have opposed dissolution and disintegration on the one hand, on +the other I am equally opposed to consolidation, or the centralization of +power in the hands of a few." + +Public sentiment in Washington was very hostile to the Freedmen's Bureau, +and on February 22 a mass-meeting was held to express popular approval of +the action of the President in vetoing the bill. Adjourning to the White +House, the crowd congratulated Johnson with tumultuous enthusiasm. A man +more cautious would have limited his reply to a temperate expression of +his views; but Johnson, ever eager to pose as the leader of the people, +was led by the enthusiasm of the moment to abandon himself entirely to his +prejudices, aggravated as they were by the circumstances above mentioned. +Thus, on the anniversary of Washington's birthday, a day when he should +have particularly refrained from partisan politics, he took occasion to +assail the committee violently, declaring that the end of one rebellion +was witnessing the beginning of a new rebellion; saying that "there is an +attempt now to concentrate all power in the hands of a few at the federal +head, and thereby bring about a consolidation of the Republic, which is +equally objectionable with its dissolution. * * * The substance of your +government may be taken away, while there is held out to you the form and +the shadow." He described the Joint Committee as an "irresponsible central +directory," which had assumed "nearly all the powers of Congress," without +"even consulting the legislative and executive departments of the +Government. * * * Suppose I should name to you those whom I look upon as +being opposed to the fundamental principles of this Government, and as +laboring to destroy them. I say Thaddeus Stevens, of Pennsylvania; I say +Charles Sumner, of Massachusetts; I say Wendell Phillips, of +Massachusetts."[99] + +6. After the President had thus publicly stigmatized the opponents of his +policy as instigators of a new rebellion, and classed Stevens, Sumner and +Wendell Phillips as traitors to be compared with Davis, there could be no +hope of reconciliation, and the Republican party grimly settled down to +fight for its principles. The first important measure to take effect was +the civil rights bill.[100] + +On the first day of the session Senator Wilson, of Massachusetts, had +introduced a bill looking to the personal protection of the freedmen. It +was aimed directly at the "black laws" of the Southern States, and +declared all laws, statutes, acts, etc., of any description whatsoever, +which caused any inequality of civil rights, in consequence of race or +color, to be void. In his speech of December 13, 1865, explaining his +reasons for introducing the bill, Wilson said that, while honest +differences as to the expediency of negro suffrage might exist, he could +not comprehend "how any humane, just and Christian man can, for a moment, +permit the laws that are on the statute-books of the States in rebellion, +and the laws that are now pending before their legislatures, to be +executed upon men whom we have declared to be free. * * * To turn these +freedmen over to the tender mercies of men who hate them for their +fidelity to the country is a crime that will bring the judgment of heaven +upon us."[101] + +This bill and a similar bill introduced by the same senator on December +21, and one introduced by Senator Sumner on the first day of the session, +never came to a vote, the last two being postponed indefinitely by the +Senate. In place of these bills, Senator Trumbull of Illinois, chairman of +the Committee on the Judiciary, on January 5, 1866, introduced a bill +which, slightly amended, became a law. This measure passed the Senate on +February 2, was amended and passed by the House on March 13, and the +amendments were concurred in by the Senate on the 15th. It was returned to +the Senate by the President, without his approval, March 27, and on April +6 the Senate passed the bill over the veto of the President by a vote of +33 to 15. Three days later the House passed the bill by a vote of 122 to +41, and the measure became a law. + +As passed it was entitled, "An Act to protect all persons in the United +States in their civil rights, and furnish the means of their vindication." +It first declared "all persons born in the United States, and not subject +to any foreign power, excluding Indians not taxed," to be citizens of the +United States. Such citizens, without regard to race, color, or previous +servitude, were declared to have the same rights in all the States and +Territories, as white citizens, to make and enforce contracts; to "sue, +be parties, and give evidence; to inherit, purchase, lease, sell, hold, +and convey real and personal property;" to enjoy the equal benefit of all +laws for the security of person and property, and to be subject only to +the same punishments. The second section provided penalties for the +deprivation of equal rights. The third gave to the United States courts +exclusive cognizance of all causes involving the denial of the rights +secured by the first section. The remaining sections specified the powers +and duties of the district attorneys, marshals, deputy marshals and +special commissioners, in connection with the enforcement of the act, the +ninth section providing: "It shall be lawful for the President of the +United States, or such person as he may empower for that purpose, to +employ such part of the land or naval forces of the United States, or of +the militia, as shall be necessary to prevent the violation and enforce +the due execution of the Act."[102] + +From this summary of the act its nature can be seen plainly. Up to this +time there had been no legislation affecting the _status_ of the freedman. +This declared him to be a citizen of the United States, and thereby +entitled to all the privileges of citizenship. The war having resulted in +the anomalous condition of the several millions of freedmen, some such +legislation was necessary, especially in view of the fact that +discriminative legislation was being enacted in the South. The bill was +moderate in its terms, the most questionable portion being the section +empowering the President to enforce the act through the war department, +but even that in the then unsettled condition of the country had much to +justify it. + +The President's veto message was a lengthy document and discussed in +detail the significance of the bill.[103] He questioned the policy of +conferring citizenship on four million blacks while eleven of the States +were unrepresented in Congress. He doubted whether the negroes possessed +the qualifications for citizenship, and thought that their proper +protection did not require that they be made citizens, as civil rights +were secured to them as they were, while the bill discriminated against +the intelligent foreigner. Naturally, he also declared that the securing +by federal law of equality of the races was an infringement upon state +jurisdiction. "Hitherto, every subject embraced in the enumeration of +rights contained in this bill has been considered as exclusively belonging +to the States." The second section he thought to be of doubtful +constitutionality and unnecessary, "as adequate judicial remedies could be +adopted to secure the desired end, without invading the immunities of +legislators, * * * without assailing the independence of the judiciary, * +* * and without impairing the efficiency of ministerial officers. * * * +The legislative department of the United States thus takes from the +judicial department of the States the sacred and exclusive duty of +judicial decision, and converts the State judge into a mere ministerial +officer bound to decide according to the will of Congress." The third +section he characterized as undoubtedly comprehending cases and +authorizing the "exercise of powers that are not by the Constitution +within the jurisdiction of the courts of the United States." He also +considered the extraordinary powers of the numerous officials created by +the act as jeopardizing the liberties of the people, and the provisions in +regard to fees as liable to bring about persecution and fraud. + +In addition to these objections he argued that the bill frustrated the +natural adjustment between capital and labor in a way potent to cause +discord. It was "an absorption and assumption of power by the General +Government which, if acquiesced in, must sap and destroy our federative +system of limited powers, and break down the barriers which preserve the +rights of the States. * * * The tendency of the bill must be to +resuscitate the spirit of rebellion, and to arrest the progress of those +influences which are more closely drawing around the States the bonds of +union and peace." + +The next clash between the executive and legislative branches of the +government was over the Colorado bill.[104] This bill provided for the +admission of Colorado into the Union, and was passed May 3, being vetoed +by the President on May 15, in accordance with the policy which he was +endeavoring to carry out.[105] The nominal grounds, while strong in +themselves, had less weight in Johnson's mind than the argument reserved +for the final sentence of the message. This referred to the fact that +eleven of the old States were unrepresented in Congress, and that it was +in the "common interest of all the States, as well those represented as +those unrepresented, that the integrity and harmony of the Union should be +restored as completely as possible, so that all those who are expected to +bear the burdens of the Federal Government shall be consulted concerning +the admission of new States; and that in the mean time no new State shall +be prematurely and unnecessarily admitted to a participation in the +political power which the Federal Government wields." A second bill for +the admission of Colorado was vetoed on January 29, 1867.[106] In the +message President Johnson stated that he could change none of his +opinions expressed in the first veto, while he now saw many additional +objections. Neither bill was passed over the veto. + +Another measure of like nature was the Nebraska bill, which was passed on +July 27, the last day but one of the session. The President "pocketed" it. +Both bills were again introduced at the beginning of the second session by +Senator Wade, and the Nebraska bill was duly passed. It was vetoed January +30, 1867, but within ten days was passed over the veto by both houses, +Nebraska being able to present stronger arguments for receiving statehood +than Colorado, and consequently obtaining more support from the +conservative members of the Republican party. The principal objection +expressed in the veto message was the incongruities existing in the bill, +the first section admitting the State "upon an equal footing with the +original States in all respects whatsoever," and the third section +providing that "there shall be no denial of the elective franchise, or of +any other right, to any person by reason of race or color, except Indians +not taxed." This assertion of the right of Congress to regulate the +elective franchise the President declared clearly unconstitutional, +incompatible with an equal footing with the original States.[107] + +7. The central event, naturally, of the first session of the 39th Congress +was the report of the Joint Committee on Reconstruction. Although during +the session there was a great amount of discussion as to the theory and +method of reconstruction, and, as has been shown, two important measures +were passed over the President's veto, the majority in the House still +felt uncommitted as to the policy they should favor, excepting so far as +the measures already reported from the committee had given shape to their +plans. A definite platform had not been erected on which they could stand, +and they were not certain of the foundations on which to base constructive +legislation. It was quite evident from the resolutions and bills reported +from the committee to Congress, that the testimony taken before it had not +changed the views of the majority of the committee, and the general tenor +of the report was not a surprise to any one. Its constitutional importance +cannot be questioned, since the Republican party adopted its construction +of the Constitution, and proceeded to frame, on the lines marked out by +the report, the bills which changed decidedly the relations between the +States and the Federal Government, affording precedents for an extension +of federal power which previous to the close of the war few could have +been found to support.[108] + +No theory as to the _status_ of the Southern States was agreed on by the +committee.[109] Among those signing the majority report several distinct +views can be noted. The theory of Thaddeus Stevens, that the States were +now merely conquered territory, at the mercy of the conqueror, has already +been noticed. Mr. Boutwell, of Massachusetts, was one of those who +theoretically differed from Mr. Stevens, preferring to consider the States +as "dead States" within the Union. Mr. Bingham, of Ohio, was still less +radical, simply calling them "disorganized States." But realizing the +futility of introducing distinctions which could not affect the main +question at issue, the majority dropped "the profitless abstraction," and +agreed upon the general conclusions and recommendations. The report was +finally presented to Congress on June 18, all the members signing +excepting Johnson, Rogers and Grider, who submitted a minority report four +days later. + +The first portion of the report is a general review of the steps which had +already been taken by the President, and of the powers of the executive +and legislative departments. It was declared that at the close of the war +the Confederate States were in a condition of utter exhaustion and +complete anarchy. Congress having failed to provide for the contingency, +the President had no power except to execute the national laws and +establish "such a system of government as might be provided for by +existing national statutes." These States "by withdrawing their +representatives in Congress, by renouncing the privilege of +representation, by organizing a separate government, and by levying war +against the United States, destroyed their State constitutions in respect +to the vital principle which connected their respective States with the +Union and secured their federal relations; and nothing of these +constitutions was left of which the United States were bound to take +notice." The President had two alternatives: either to "assemble Congress +and submit the whole matter to the law-making power," or to continue +military supervision in his capacity as commander-in-chief of the army, +until the regular assembling. Choosing the latter course, he appointed +over the revolted States provisional governors who possessed military +authority, but who "had no power to organize civil governments nor to +exercise any authority except that which inhered in their own persons +under their commissions." The President in his military capacity might +properly permit the people to form local governments, execute local laws +not inconsistent with national laws, and even withdraw military forces +altogether if he deemed it safe. But to Congress, not to the President, +belonged the power "to decide upon the nature or effect of any system of +government which the people of these States might see fit to adopt," and +to fix terms by which the States might be restored to all their rights and +privileges as States of the Union. "The loss of representation by the +people of the insurrectionary States was their own voluntary choice. They +might abandon their privileges, but they could not escape their +obligations," and they could not complain. + +None of the revolted States, the report continued, excepting perhaps +Tennessee, were in a condition to resume their former political relations. +Their so-called "amended constitutions" had never been submitted to the +people for adoption, and when they were thus submitted there was nothing +to prevent their repudiation. If these States were without state +governments, they should be regularly organized, but in no case had the +proper preliminary steps been taken. The conventions assumed that the old +constitutions were still in force, and that only such amendments as the +federal government required, were needed. "In no instance was regard paid +to any other consideration than obtaining immediate admission to Congress, +under the barren form of an election in which no precautions were taken to +secure regularity of proceedings or the consent of the people." Before +they were restored to their full rights "they should exhibit in their acts +something more than unwilling submission to an unavoidable necessity." +Great stress was laid upon the headstrong action of the States since +Johnson's proclamation of amnesty: the character of the men elevated to +the highest positions; the discriminating legislation; the arrogance of +the Southern press, and the opposition to the Freedmen's Bureau. The +testimony of witnesses as to the general disposition to repudiate the +national debt, if such a thing should prove possible, and as to the +natural reluctance to pay taxes, were perhaps too seriously taken, as was +also the "proof of a condition of feeling hostile to the Union and +dangerous to the government." + +But, whether acting on exaggerated estimates or not, the majority of the +committee formulated their conclusions into three clauses, which were as +follows: + +1. "That the States lately in rebellion were at the close of the war +disorganized communities, without civil government, and without +constitutions or other forms by virtue of which political relations could +legally exist between them and the Federal Government. + +2. "That Congress cannot be expected to recognize as valid the election of +representatives from disorganized communities, which, from the very nature +of the case, were unable to present their claim to representation under +those established and recognized rules, the observance of which has been +hitherto required. + +3. "That Congress would not be justified in admitting such communities to +a participation in the government of the country without first providing +such constitutional or other guaranties as will tend to secure the civil +rights of all citizens of the Republic; a just equality of representation; +protection against claims founded in rebellion and crime; a temporary +restoration of the right of suffrage to those who have not actively +participated in the efforts to destroy the Union and overthrow the +government; and the exclusion from positions of public trust of at least a +portion of those whose crimes have proved them to be enemies to the Union, +and unworthy of public confidence." + +In addition, the report contained an enumerated statement of "general +facts and principles" which it was claimed were "applicable to all the +States recently in rebellion." In this statement it was asserted that from +the time war was declared the great majority of the Southerners "became +and were insurgents, rebels, traitors; and all of them assumed the +political, legal, and practical relation of enemies of the United States." +The States did not desist from war till "every vestige of State and +Confederate government" was obliterated, "their people reduced to the +condition of enemies conquered in war, entitled only by public law to such +rights, privileges and conditions as might be vouchsafed by the +conqueror." They thus had "no right to complain of temporary exclusion +from Congress," until they could "show that they are qualified to resume +federal relations. * * * They must prove that they have established _with +the consent of the people_, republican forms of government in harmony with +the Constitution and laws of the United States, that all hostile purposes +have ceased, and should give adequate guaranties against future treason +and rebellion--guaranties which shall prove satisfactory to the Government +against which they rebelled, and by whose arms they were subdued." The +rebels "were conquered by the people of the United States acting through +all the co-ordinate branches of the Government, and not by the Executive +alone. * * * The authority to restore rebels to political power in the +Federal Government can be exercised only with the concurrence of all the +departments in which political power is vested," and the proclamations of +the President could only be regarded as provisional permission "to do +certain acts, the effect and validity whereof is to be determined by the +constitutional government, and not solely by the executive power." If the +President had the power to "qualify persons to appoint Senators and elect +Representatives, and empower others to appoint and elect them, he thereby +practically controls the organization of the legislative department and +destroys the constitutional form of government."[110] + +The report of the dissenting members of the committee, Messrs. Johnson, +Rogers and Grider, was an ably prepared document embodying at length the +doctrines of the minority in Congress, composed of the Democrats and the +few Republicans who still sustained the President. As a matter of course +the argument was built upon the premise that the so-called Confederate +States were never legally separated from the Union, but were bound by all +the obligations and entitled to all the privileges of other States. "In +its nature the government is formed of and by States possessing equal +rights and powers." A State cannot be held to have forfeited its rights. +"To concede that by the illegal conduct of her own citizens she can be +withdrawn from the Union, is virtually to concede the right of secession." + +Were the States out of the Union, the minority continued, the submission +to them of the proposed constitutional amendment would be absurd; and such +submission virtually conceded that the condition of the States remained +unchanged. The constitutional power to suppress insurrection is for the +preservation, not the subjugation of the State. "The continuance of the +Union of all the States is necessary to the intended existence of the +Government," and a different principle leads to disintegration. The war +power, as such, cannot be used to extinguish the States; the Government +only seeks to suppress the insurrection, achieving which all the States +resume their normal relations. The States now have organized governments, +republican in form, and the manner in which they were formed is no concern +of Congress. "Congress may admit new States, but a State once admitted +ceases to be within its control and can never again be brought within it." +There is nothing in the political condition of these States justifying +their exclusion from representation in Congress. The proposed amendment +would degrade the Southern States, as it would compel them to accept +either a lessened representation or negro suffrage. Further, it interfered +with the right of every State to regulate the franchise; and, by joining +several subjects and requiring them to be voted on as a whole, deprived +the people of the opportunity of passing on this important question +separately. + +8. The Joint Committee on Reconstruction had already reported two bills +and one joint resolution which in its report of June 18 were declared to +be the fruit of its labors. These were introduced in the House by Mr. +Stevens, April 30. The resolution proposed an amendment to the +Constitution, which, as finally amended, became the 14th Amendment.[111] +The two accompanying bills were entitled respectively: (1) "A Bill to +provide for restoring the States lately in insurrection to their full +political rights." (2) "A Bill declaring certain persons ineligible to +office under the Government of the United States." + +The first of these bills prescribed the conditions on which a State lately +in insurrection might secure representation in Congress, as well as a ten +years' postponement of the exaction of any unpaid part of the direct tax +of 1861. It provided that representation might be secured after the +proposed amendment should have become a part of the Constitution, and the +State seeking representation should have ratified such amendment. +Postponement of the tax might be secured by ratifying the amendment. This +bill served as a basis for general discussion of the best method of +restoring to the States their political rights; but, no action was taken +on it during this session, and it went over as unfinished business to the +following December. + +The second bill declared as ineligible to office: the President, +Vice-President, and foreign agents of the Confederate States; "heads of +departments of the United States, officers of the army and navy of the +United States, and all persons educated at the Military or Naval Academy +of the United States," federal judges and members of the 36th Congress, +who had given aid or comfort to the rebellion; Confederate officers above +the rank of colonel in the army or master in the navy; governors of the +Confederate States, and "those who have treated officers or soldiers or +sailors of the army or navy of the United States, captured during the late +war, otherwise than lawfully as prisoners of war." This bill was less +fortunate than the first, since it failed even to receive consideration +during the session. + +The proposed constitutional amendment, however, fared better. It had been +well demonstrated by the discussions during the session that an amendment +to the Constitution would be submitted to the States, if a resolution +could be framed which would satisfy the heterogeneous elements of the +reconstruction party. But the framing of such a resolution had proved a +very difficult matter. Stevens, and those most influenced by him, were +especially radical in their doctrines, not hesitating to express their +desire for the confiscation of rebels' property and for other extreme +measures. Some believed that there should be nothing short of complete +disfranchisement, for a term of years, of all who had aided the rebellion +in any way--they had acted deliberately, and they must suffer the +consequences. Others cared only for the disfranchisement of the more +prominent offenders, and for the establishment of negro suffrage. Still +another faction wished liberal terms to be offered to the +States--limitations, but no interference. + +The radicals recognized that their extreme ideas could not obtain +congressional sanction, and made no effort to embody them in the plans +submitted. From the beginning of the session various propositions were +under discussion. Among these, the most attention was attracted by the +various propositions to modify the existing basis of apportionment of +representatives in Congress. Emancipation had rendered this necessary. The +"three-fifths clause" of the Constitution having become inoperative, the +increased representation resulting from the freeing of the slaves +necessitated a change. The first plan was "to apportion Representatives +according to the number of voters in the several States."[112] It was then +proposed to exclude from the basis of representation all whose political +rights were denied or abridged by any State on account of race or color. +This plan, supported by Blaine and Conkling,[113] passed the House on +January 31, 1866,[114] but was defeated in the Senate. Many felt that the +measure was too stringent. The object was virtually to force upon the +Southern States the enfranchisement of the negro.[115] + +The Committee on Reconstruction hesitated for over a month after the +defeat of this resolution in the Senate. It was finally decided that the +only way in which the submission of the desired amendment could be +effected, was to concede something to the conservative element of the +Senate. Accordingly the draft of April 30 was presented as the +recommendation of the committee. This passed the House without +difficulty,[116] but encountered fierce opposition in the Senate. The +House resolution contained a provision which would have summarily and +unconditionally excluded from the franchise all participating in the +rebellion, until July 4, 1870. This was virtually a complete +disfranchisement of the Southern people, and although only temporary, it +was felt to be contrary to the spirit of our institutions and too +indiscriminate a punishment. It was accordingly stricken out by a +unanimous vote.[117] In its place Senator Howard proposed a clause which +forms section 3 of the 14th Amendment as it now stands. This clause, while +it withheld certain privileges of citizenship from participants in the +rebellion who had previously held civil or military office and had taken +an oath to support the Constitution of the United States, did not affect +the vast majority of Southerners; and it provided that Congress might, by +a two-thirds vote of each house, remove the disability of those who were +excepted from the restoration of privileges. Moreover, in place of the +plan supported by Blaine and Conkling for reducing the basis of +representation, the Committee on Reconstruction presented a proposition +which better satisfied the conservative element, and which stands to-day +as section 2 of the 14th Amendment. It provided that in case the right of +any male inhabitant of a State to vote was denied or abridged for any +reason "except for participation in rebellion or other crime, the basis of +representation therein shall be reduced in the proportion which the number +of such male citizens shall bear to the whole number of male citizens +twenty-one years of age in such state." It was argued that in this way +fairness was assured, as a State could have no right to claim +representation for that portion of her population which was denied the +franchise. + +On June 8, 1866, the final touches were put on the resolution. Five days +later the House concurred in the Senate's revision, and the 14th Amendment +was ready for the ratification of the States. + +Johnson's followers and the Democrats bitterly opposed the submission of +this amendment. The more extreme of them asserted that the Republican +majority acted from purely partisan motives. Fearful for the continuance +of its supremacy, it desired to place before the States a measure so +distasteful to the South as to ensure its rejection. In that way there +would be an excuse for additional legislation to prevent the States from +obtaining representation, and to preserve Republican control.[118] The +composite character of the amendment provoked severe criticism. It was +claimed that the sections should be submitted to the States as separate +articles, to give opportunity for the rejection of some and the +ratification of others. Senator Doolittle moved an amendment to this +effect,[119] but the solid reconstruction majority could not be shaken, +and the five sections were submitted to the States to stand or fall +together. Technical objections were deemed unworthy of consideration when +it was supposed to be necessary for the safety of the Union that all the +sections should be ratified. + +The inadvisability of submitting a constitutional amendment while eleven +of the States were not permitted a voice in legislation was strongly urged +by the opposition. The President reiterated the protest in his message of +June 22, affirming that the submission of the proposed amendment to the +States through the executive department was a purely ministerial duty, in +no way committing the department to an approval of the action. The first +section of the amendment was condemned as a subtle plan eventually to +force negro suffrage upon the people as an incident of negro citizenship. +It was claimed that the second discriminated too severely against the +Southern States with their large preponderance of colored population, and +that the third virtually forced them to insult their most respected +citizens--a humiliation which would drive them to renewed insurrection. +The validity of some of the objections was proved by subsequent history; +some have proved groundless; others still remain among the unsettled +questions. + +The reconstruction legislation of the first session of the 39th Congress +closed with the restoration of Tennessee to the Union. Other measures were +under consideration, but were not acted upon until the following session. +The attitude of Tennessee, since her re-organization under the provisions +of the proclamation of 1863, had been the most consistent of any of the +Southern States.[120] From March 3, 1862, until March 3, 1865, Johnson, as +military governor, had preserved law and order to a great extent. The +formal reorganization of the State was undertaken by a convention of the +loyal citizens convened January 8, 1865, acting upon the recommendation +and personal approval of Johnson. This convention proposed the amendments +to the constitution of the State, made necessary by the changes brought +about by the war, and they were adopted by the loyal voters of the State +on February 22. On March 4 a governor and legislature were elected, who +assumed their duties on April 3. The work of the legislature was +characterized by an apparent eagerness to do all that should be done by a +State loyal to the Union. + +The popular ratification of the amendments to the Constitution +distinguished the action of Tennessee from that of the other Southern +States, and this fact, united to her uniformly consistent attitude, formed +the ground for the recommendation of the Committee on Reconstruction that +this State should be restored to her former rights and privileges. This +recommendation, in the form of a joint resolution, was reported from the +committee by Mr. Bingham on March 5,[121] but no action was taken until +July 20. Tennessee's prompt action in ratifying the 14th Amendment[122] +was taken as good evidence that her government was thoroughly +reconstructed, and the State entitled to representation. Accordingly a +substitute resolution, noting these facts, was introduced and passed, the +Senate amending and passing it three days later. This declared Tennessee +to be restored to her former relations to the Union, and entitled to +representation in Congress,[123] but the preamble was used as a vehicle +for the assertion of the sole power of Congress to restore State +governments. President Johnson, while approving the resolution, explained +in his message that his approval was "not to be construed as an +acknowledgment of the right of Congress to pass laws preliminary to the +admission of duly qualified representatives from any of the States," nor +as committing him "to all the statements made in the preamble." + +The session had proved far from fruitless, although nothing but the +preliminary steps had been taken. The Freedmen's Bureau and civil rights +bills constituted a temporary protection to the freedmen; the right of +_habeas corpus_ still remained suspended and military authority prevailed +throughout the conquered region. The 14th Amendment was before the people, +to be a rallying point for the autumn campaign. The lines between the +presidential and congressional parties were now closely drawn. Each knew +the strong and the weak points of its opponent. The issue must now be +turned over to the people as final judges of its merits. The congressional +elections of the fall would decide the issue, and also the future method +of reconstruction. + + + + +CHAPTER IV. + +THE CAMPAIGN OF 1866. + + +1. The four months following the adjournment of the first session of the +39th Congress were full of excitement. The public was thoroughly aroused, +and all incidents were considered in the light they threw upon the +question of the hour. The President's uncompromising hostility to the 14th +Amendment brought about a crisis in the Cabinet.[124] William Dennison, +Postmaster-General, was the first to declare the impossibility of +maintaining cabinet relations with the President. He resigned on July 11, +and A. W. Randall, of Wisconsin, First Assistant Postmaster-General, was +appointed in his place. Mr. Randall was a devoted adherent of the +administration, and president of the National Union Club which called the +convention of August 14. The second resignation was that of James Speed, +Attorney-General, on July 18. Coming from Kentucky, Mr. Speed had had the +reputation of being quite conservative in his views regarding +reconstruction, and his formal notice of separation from the President +created no little excitement. His intimate connection with the +administration gave unusual force to his denunciation of its policy, made +at the time of taking the chair as permanent president of the convention +of Southern loyalists. Henry Stanbery of Ohio was appointed as his +successor, and retained his position until he resigned to assist in the +defense of the President in the impeachment trial. A few days after Mr. +Speed's withdrawal, the Secretary of the Interior, James Harlan, tendered +his resignation, and O. H. Browning, of Illinois, was appointed to fill +the vacancy. + +It is altogether probable that these resignations would have been made +earlier than they were, had it not been feared that the control of these +important administrative departments would fall into the hands of those +who would use their powers in opposition to Congress. But the time had +come when the incumbents considered that by the retention of the offices +they were being forced to share the odium attached to the President, and +deemed total separation from him as the best method of justification. + +The laws discriminating against the colored man, and the numerous +instances of cruelty which had been reported to the North, were an +important factor in creating and sustaining the common feeling of +hostility to the administration. But the New Orleans riots, occurring on +July 30, did more to rouse the people of the North, and convince them that +stern measures were necessary, than all that had preceded. The massacre +stood out vividly against the background of "black laws," and furnished an +argument of the most effective kind to be used in the campaign. + +2. The riots were of a peculiarly exasperating character. The +constitutional convention of 1864, summoned by the proclamation of Major +General Banks, had passed resolutions giving the president of the +convention power "to reconvoke the convention for any cause." A majority +of the members came to the conclusion, in the spring of 1866, that the +State constitution should be amended, to place it in harmony with the +congressional policy.[125] They determined to have the convention +reconvoked for this purpose. The president, Judge E. H. Durell, declined +to take advantage of his prerogative, but the delegates, not to be +thwarted in this way, proceeded to elect a president _pro tem._ who was +willing to issue the desired proclamation. The governor of the State, J. +M. Wells, concurred in this rather questionable procedure, and issued a +proclamation for an election to fill existing vacancies. + +It being well understood that negro suffrage was one of the ultimate +objects desired by the supporters of the proposed constitutional +convention, active hostility to the movement rapidly developed. The +proclamation of the president _pro tem._ called for the assembling of the +delegates on July 30; and though the only object of this meeting was to +determine officially the existing vacancies to be filled in the fall +elections, the enemies to the enfranchisement of the freedmen determined +to crush the movement in its incipient stage. It is an easy matter to stir +up the passions and prejudices of the people, and the indiscreet speeches +of certain of the delegates only added to the popular excitement. A negro +procession organized in honor of the convention was attacked by a mob in +front of Mechanics' Hall, where the convention was in session. The attack +was soon extended to the hall itself, the police of the city joining hands +with the assailants. When the riot was over nearly two hundred persons +were found to have been killed or wounded, the greatest sufferers being +the negroes, who were shot down in front of the hall without mercy. + +The flagrancy of the act, the connivance of the city authorities, and the +fact that, while legal steps were taken against the delegates and innocent +spectators, the actual murderers were in no way molested, furnished to the +people of the incensed North ample proof of the inability of the South to +maintain local government, and of the advisability of refusing to restore +these States to their former position in the Union. New Orleans was taken +as a fair example of what might happen at any place in the South. There +was no satisfactory justification for these acts of violence, and there +was little inclination in the North to consider the legal technicalities +involved in the attempt to amend the constitution of Louisiana. They +simply took cognizance of the fact that about fifty loyal citizens had +been murdered in cold blood, with the city authorities silently +acquiescing. In the face of such a fact, the solicitude of the President +to preserve the "inherent rights of the States" did not appeal to the +masses, and Johnson was forced to begin his campaign badly handicapped. + +But, in addition to the blow given to the theory of the administration, +Johnson was forced to labor against a certain amount of personal censure, +brought about by his supposed attitude before the riots and his known +attitude after them. It was freely charged that he was in full sympathy +with the determination of the Mayor of New Orleans, and the +Lieutenant-Governor and Attorney-General of Louisiana, to prevent the +convention from accomplishing its plans. In support of the charge, his +answer to the inquiry as to whether the military power would interfere +with the attempt to arrest the members of the convention upon criminal +process was cited. His reply was as follows:[126] "The military will be +expected to sustain, and not to obstruct or interfere with the proceedings +of the court." While this may have indicated too great confidence in the +civil authorities of Louisiana, it certainly did not imply any connivance +in or sympathy with the summary proceeding of July 30. Possibly the +well-known opposition of Johnson to negro suffrage may have stimulated the +rioters to bolder defiance of Northern sentiment, but censure of him can +extend no farther. But, in his political canvass in the fall,[127] while +endeavoring in every way to discredit the 39th Congress in the eyes of the +people, he committed a grave error by an indirect defense of the rioters, +attacking the members of the convention as traitors who incited the negro +population to rioting, and throwing the responsibility of the whole affair +back upon Congress as having originated and fostered the plan to force +negro suffrage upon Louisiana.[128] + +3. The fall campaign was formally opened by the supporters of the +presidential policy, who had immediately accepted the report of the +Committee on Reconstruction as the platform of the Republican +anti-administration faction, and had determined to appeal on that issue to +the people. Their hope was that the conservative element of the +population, thoroughly worn out by the struggle, would uphold the speedy +restoration of the Southern States, and that thereby a coalition might be +made between the Democrats and the administration Republicans strong +enough to unseat many of the radical members, reverse the majority, and so +give the administration control in the 40th Congress. + +The first steps were promptly taken. The executive committee of the +National Union Club, a political organization established in Washington by +supporters of the administration, issued on June 25, just one week after +the submission of the report of the Committee on Reconstruction, a call +for a national convention to be held in Philadelphia on August 14.[129] +Delegates to this convention were to be chosen by those supporting the +administration and agreeing to certain "fundamental propositions" which +formed the platform of the conservatives. These propositions maintained +the absolute indissolubility of the Union, the universal supremacy of the +Constitution and acts of Congress in pursuance thereof, the constitutional +guarantee to maintain the rights, dignity and equality of the States, and +the right of each State to prescribe the qualifications of electors, +without any federal interference. They declared that the usurpation and +centralization of powers infringing upon the rights of the States "would +be a revolution, dangerous to republican government, and destructive of +liberty;" that the exclusion of loyal senators and representatives, +properly chosen and qualified under the Constitution and laws, was unjust +and revolutionary; that as the war was at an end, "war measures should +also cease, and should be followed by measures of peaceful +administration;" and that the restoration of the rights and privileges of +the States was necessary for the prosperity of the Union. This formal call +was approved, and its principles endorsed by the Democratic congressmen, +who issued an address to the "People of the United States" on July 4, +urging them to act promptly in the selection of delegates to the +convention. + +In accordance with the call, every State and Territory was represented in +the convention. A glance at the list of delegates shows that they included +many of the prominent Democrats of the country, re-enforced by a number of +the prominent Republicans[130] who were in sympathy with the +administration. The enthusiastic manner in which the summons was answered +seemed to the friends of the administration to indicate an unquestionable +overthrow of the radicals. They thought that harmony was soon to reign +over all portions of the Union, which was once more being drawn closely +together by the watchword "National Union." + +Reverdy Johnson, who had submitted in the Senate the minority report of +the Committee on Reconstruction, was chosen chairman, and Senator Cowan, +of Pennsylvania, chairman of the committee on resolutions. The resolutions +were reported on August 17, and unanimously adopted by the convention. +They re-affirmed the fundamental principles set forth in the call of June +25, and appealed to the people of the United States to elect none to +Congress but those who "will receive to seats therein loyal +representatives from every State in allegiance to the United States." They +reiterated the claim that in the ratification of constitutional amendments +all the States "have an equal and an indefeasible right to a voice and +vote thereon." In concession to Northern sentiment, they declared that the +South had no desire to re-establish slavery; that the civil rights of the +freedmen were to be respected, the rebel debt repudiated, the national +debt declared sacred and inviolable, and the duty of the government to +recognize the services of the federal soldiers and sailors admitted. A +final resolution commended the President in the highest terms, as worthy +of the nation, "having faith unassailable in the people and in the +principles of free government."[131] + +These views were fully elaborated in an address prepared by Henry J. +Raymond, and read before the convention. Little attempt was made to +qualify or render less offensive the argument that the Southern States +must be allowed their representation in Congress, whether or not such +action was for the best interest of the Union. Referring to this the +address declared that "we have no right, for such reasons, to deny to any +portion of the States or people rights expressly conferred upon them by +the Constitution of the United States." We should trust to the ability of +our people "to protect and defend, under all contingencies and by +whatever means may be required, its honor and welfare."[132] + +A committee of the convention hastened formally to present its proceedings +to President Johnson, who had taken the keenest interest in the plans of +the National Union party. In his remarks to the committee he feelingly +referred to the somewhat theatrical entrance of the delegates of South +Carolina and Massachusetts, "arm in arm, marching into that vast +assemblage, and thus giving evidence that the two extremes had come +together again, and that for the future they were united, as they had been +in the past, for the preservation of the Union." Speaking to a sympathetic +audience, who applauded him to the echo, and believing that the people +were now endorsing his opposition to Congress, he saw no necessity for +tempering his statements, and cast aside his discretion. His +characterization of Congress was as follows: "We have witnessed, in one +department of the government, every endeavor to prevent the restoration of +peace, harmony and union. We have seen hanging upon the verge of the +Government, as it were, a body called, or which assumes to be, the +Congress of the United States, while in fact it is a Congress of only a +part of the States. We have seen this Congress pretend to be for the +Union, when its every step and act tended to perpetuate disunion and make +a disruption of the States inevitable. Instead of promoting reconciliation +and harmony, its legislation has partaken of the character of penalties, +retaliation and revenge. This has been the course and policy of one +portion of the Government."[133] Again, to show the disinterestedness of +his own course, he said: "If I had wanted authority, or if I had wished to +perpetuate my own power, how easily could I have held and wielded that +power which was placed in my hands by the measure called the Freedmen's +Bureau bill (laughter and applause). With an army, which it placed at my +discretion, I could have remained at the capital of the nation, and with +fifty or sixty millions of appropriations at my disposal, with the +machinery to be unlocked by my own hands, with my satraps and dependents +in every town and village, with the Civil Rights bill following as an +auxiliary (laughter), and with the patronage and other appliances of the +Government, I could have proclaimed myself dictator." ("That's true!" and +applause.)[134] + +But his indiscretions did not end with speeches before his sympathizers. +Two weeks later he started on a trip, nominally to assist in the ceremony +of laying the cornerstone of the Douglas monument in Chicago.[135] As a +matter of fact, however, he was merely taking advantage of an opportunity +to defend his policy publicly. Johnson was of too impassioned a nature to +be able to judge as to how far the President of the United States could +afford to adopt the methods of the stump speaker. All constraint was +thrown away, and he acted at many times the part most natural to him, that +of a popular orator addressing the masses. His speeches at no time lacked +clearness. All could see where he stood, and nothing was left for +speculation. + +His first important effort while on his journey was at New York on August +29, where he responded to a toast proposed by the mayor of the city. In +this speech he defined the issue as follows: "The rebellion has been +suppressed, and in the suppression of the rebellion it [the government] +has * * * established the great fact that these States have not the power, +and it denied their right, by forcible or peaceable means, to separate +themselves from the Union. (Cheers, 'Good!') That having been determined +and settled by the Government of the United States in the field and in one +of the departments of the government--the executive department of the +government--there is an open issue; there is another department of your +government which has declared by its official acts, and by the position of +the Government, notwithstanding the rebellion was suppressed for the +purpose of preserving the Union of the States and establishing the +doctrine that the States could not secede, yet they have practically +assumed and declared and carried up to the present point, that the +Government was dissolved and the States were out of the Union. (Cheers.) +We who contended for the opposite doctrine years ago contended that even +the States had not the right to peaceably secede; and one of the means and +modes of possible secession was that the States of the Union might +withdraw their representatives from the Congress of the United States, and +that would be practical dissolution. We denied that they had any such +right. (Cheers.) And now, when the doctrine is established that they have +no right to withdraw, and the rebellion is at an end * * * we find that in +violation of the Constitution, in express terms as well as in spirit, that +these States of the Union have been and still are denied their +representation in the Senate and in the House of Representatives."[136] +Then, speaking of the people of the South: "* * Do we want to humiliate +them and degrade them and drag them in the dust? ('No, no!' Cheers.) I say +this, and I repeat it here to-night, I do not want them to come back to +this Union a degraded and debased people. (Loud cheers.) They are not fit +to be a part of this great American family if they are degraded and +treated with ignominy and contempt. I want them when they come back to +become a part of this great country, an honored portion of the American +people."[137] + +Another representative speech was the one which he made in Cleveland on +September 3: "I tell you, my countrymen, I have been fighting the South, +and they have been whipped and crushed, and they acknowledge their defeat +and accept the terms of the Constitution; and now, as I go around the +circle, having fought traitors at the South, I am prepared to fight +traitors at the North. (Cheers.) God willing, with your help we will do +it. (Cries of 'We won't.') It will be crushed North and South, and this +glorious Union of ours will be preserved. (Cheers.) I do not come here as +the Chief Magistrate of twenty-five States out of thirty-six. (Cheers.) I +came here to-night with the flag of my country and the Constitution of +thirty-six States untarnished. Are you for dividing this country? (Cries +of 'No.') Then I am President, and I am President of the whole United +States. (Cheers.)"[138] + +Speeches of this nature, coming at a time when the outrages in the South +had so greatly incensed the North, had a most depressing influence upon +the fortunes of the National Union party, and failed utterly in the object +for which they were intended. The trip proved to be a grave political +mistake. The undignified spectacle of a President receiving coarse +personal abuse and retorting in scarcely less coarse expressions was +quickly taken advantage of by his opponents; and the phrase "swinging +around the circle" has assumed historic dignity as a description of his +journey. + +4. The "off year" national convention plan adopted by the National Union +Club was immediately accepted by the congressional party, which was no +less active in preparations for the struggle. On July 4, the same day on +which the Democratic congressmen issued their address to the people, +representative Southern Unionists,[139] supporters of Congress, issued a +call to "the Loyal Unionists of the South," for a convention to be held in +Philadelphia on September 3.[140] The call stated that the convention was +"for the purpose of bringing the loyal Unionists of the South" into +conjunction with the true friends of republican government in the North. +"* * The time has come when the restructure of Southern State government +must be laid on constitutional principles. * * * We maintain that no +State, either by its organic law or legislation, can make transgression on +the rights of the citizen legitimate. * * * Under the doctrine of 'State +sovereignty,' with rebels in the foreground, controlling Southern +legislatures, and embittered by disappointment in their schemes to destroy +the Union, there will be no safety for the loyal element of the South. Our +reliance for protection is now on Congress, and the great Union party that +has stood and is standing by our nationality, by the constitutional +rights of the citizen, and by the beneficent principles of the +government." + +The convention met at the time appointed, with representatives present +from all the lately insurrectionary States.[141] James Speed of Kentucky, +Attorney-General until July 18, was elected permanent chairman. For +purposes of co-operation, the Northern States had been invited to send +delegations, and all responded. Thus the convention was as truly national +as the "National Union" convention of August 14 had been. It was decided, +however, that for the purpose of rendering the declaration of the Southern +Unionists more significant, the Northern and Southern Unionists should +hold their sessions separately, and Governor Curtin of Pennsylvania was +accordingly elected chairman of the Northern section. + +The resolutions of the Southern section were reported by Governor Hamilton +of Texas, chairman of the committee on resolutions, and they naturally +endorsed the action of Congress in its entirety.[142] While demanding the +restoration of the States, they declared Johnson's policy to be "unjust, +oppressive, and intolerable," and that restoration under his "inadequate +conditions" would only magnify "the perils and sorrows of our condition." +They agreed to support Congress and to endeavor to secure the ratification +of the 14th Amendment. Congress alone had power to determine the political +status of the States and the rights of the people, "to the exclusion of +the independent action of any and every other department of the +Government." "The organizations of the unrepresented States, assuming to +be state governments, not having been legally established," were declared +"not legitimate governments until reorganized by Congress." In addition to +these resolutions, an address "from the loyal men of the South to their +fellow-citizens of the United States," was prepared and adopted after the +formal adjournment of the convention.[143] This reaffirmed, in far +stronger terms, the condemnation of President Johnson, specifying many +ways in which he had wrought injury to them, and closing with the +following significant and powerful declaration: "We affirm that the +loyalists of the South look to Congress with affectionate gratitude and +confidence, as the only means to save us from persecution, exile and death +itself; and we also declare that there can be no security for us or our +children, there can be no safety for the country against the fell spirit +of slavery, now organized in the form of serfdom, unless the Government, +by national and appropriate legislation, enforced by national authority, +shall confer on every citizen in the States we represent the American +birthright of impartial suffrage and equality before the law. This is the +one all-sufficient remedy. This is our great need and pressing +necessity."[144] + +A third convention of the year was the Cleveland convention of soldiers +and sailors,[145] organized on September 17, with General Wood of the +regular army as chairman. This convention was composed of supporters of +the administration, and, like the National Union convention, contained a +considerable proportion of Democrats. The resolutions endorsed those of +the National Union convention, and declared that "our object in taking up +arms to suppress the late rebellion was to defend and maintain the +supremacy of the Constitution, and to preserve the Union with all the +dignity, equality, and rights of the States unimpaired." + +The great mass of the soldiers, however, were earnest supporters of +Congress, and the results of the Cleveland convention were disappointing +to its originators; its principal effect was to create great enthusiasm +over the anti-administration convention of soldiers and sailors, which met +in Pittsburg on September 25 and 26.[146] This demonstration was intended +to offset whatever influence the Cleveland convention might have had over +the people, and it proved wonderfully effective. It was estimated that at +least twenty-five thousand old soldiers were in the city at the time. The +cause for this enthusiastic support is not difficult to find. The policy +of the administration appealed to the moderates--those who wished as rapid +a restoration to former conditions as possible, and those who were most +influenced by the appeal to so-called justice. The majority of the +soldiers, on the contrary, those who had made the greatest sacrifices for +their country, were the most sensitive concerning the results of their +sacrifices. Thoroughly accustomed to the thought of their great +accomplishments, the manumission of the slaves and the preservation of the +integrity of national power, they were keen to resent any steps which they +thought tended toward the annulling of these results. With this natural +bias, the arguments which the congressional party brought to bear upon +them were accepted with enthusiasm; and many of the leaders went into the +political campaign to be followed by the same soldiers who had followed +them through their military campaigns. The convention, however, was in no +sense a convention of officers. While the permanent president, Jacob D. +Cox, of Ohio,[147] had been a general of volunteers, the temporary +chairman, L. E. Dudley, had been a private, and the majority of the +offices of the convention were filled by men below the rank of +lieutenant. + +As was to be expected from the nature of the convention, the feeling +against the administration was stronger and declared in more impassioned +tones than in the previous anti-administration convention. Its influence +upon the country was correspondingly greater. The army, recognized at this +time as the great preserver of the commonwealth, had great influence over +all classes of citizens. The anti-administration conventions, the New +Orleans massacre, and the violent attacks on Congress by the President +while "swinging around the circle," assured the triumph of the +congressional party. + +The resolutions adopted at Pittsburgh were presented by General +Butler.[148] They were emphatic in tone, commencing with the declaration +that "the action of the present Congress in passing the pending +constitutional amendment is wise, prudent, and just," and that it was +unfortunate that it was not received in the proper spirit, the terms being +the mildest "ever granted to subdued rebels." The President's policy was +declared to be "as dangerous as it is unwise," and "if consummated it +would render the sacrifices of the nation useless." The power "to pass all +acts of legislation that are necessary for the complete restoration of the +Union" was declared to rest in Congress. The declaration of the President +to the committee of the National Union convention, that he could have made +himself dictator through the Freedmen's Bureau, aided by the army and +navy, was characterized as an insult to "every soldier and sailor in the +Republic." The obligation of the soldiers and sailors to the loyal men of +the South was acknowledged; and it was added: "We will stand by and +protect with our lives, if necessary, those brave men who remain true to +us when all around are false and faithless." + +This, the most successful of the four conventions, completed the +remarkable series of national gatherings organized for effect on the State +elections. They were all characterized by frankness of statement, and by +clear recognition of the points at issue. But, as frequently happens in +political campaigns, the most important incidents were those which were +not designed to affect national issues. The riot at New Orleans was +intended, by its participants, to affect only Louisiana politics, yet all +the Southern States were compelled to share the responsibility. The same +thing was true of all other incidents through which the South manifested, +during these critical months, an unwillingness to accept the political +results of the war. + +5. The fall elections resulted in a decisive victory for the congressional +policy, which secured a two-thirds majority in both houses. The protests +of the President were shown to lack popular support, and his vetoes in the +coming sessions were to be considered as merely one necessary step in the +legislative formality of passing a bill. The country had decreed that +Johnson could not have a voice in legislation. The campaign had been in +all respects disastrous to the President. The support which he had +received was mainly drawn from the Democratic party, and was of a +half-hearted nature; for, however nearly they agreed in theory, the fact +still remained that he was nominally a Republican President, and that +almost all of his patronage was bestowed upon Republicans. He had thrown +out decided hints that he would reverse his policy. For example, in St. +Louis, on September 8, he said: "I believe in the good old doctrine +advocated by Washington, Jefferson and Madison--of rotation in office. +These people who have been enjoying these offices seem to have lost sight +of this doctrine. I believe that one set of men have enjoyed the +emoluments of office long enough. They should let another portion of the +people have a chance. * * * Congress says he [the President] shall not +turn them out, and they are trying to pass laws to prevent it being done. +Well, let me say to you, if you will stand by me in this action (cheers), +if you will stand by me in trying to give the people a fair +chance--soldiers and citizens--to participate in these offices, God being +willing I will kick them out. * * * God willing, with your help, I will +veto their measures whenever any of them come to me."[149] But all this +failed to give him that which he prided himself so much on having, the +support of the people; and, so far as reconstruction was concerned, his +influence was ended by the fall elections of 1866. + +6. While such was the general result of the campaign, the South voted to +sustain the President's policy. The fact that Johnson had taken direct +issue with Congress, and was actively supporting Democratic principles, +had a wonderful influence upon the South. The papers enthusiastically +prophesied the complete overthrow of the Republican party. They reasoned +that the enormous patronage of the President would ensure him a following +so powerful that its coalition with Democracy could not but result in +victory. Then, they reasoned, it would only be necessary to wait until the +convening of the 40th Congress, when the obnoxious amendment would be +discredited and the States readmitted to the possession of all their +rights and privileges without further delay or conditions. They utterly +failed to realize the injury which their discriminative legislation, the +New Orleans riots, the widely spread reports of cruelty and oppression, +and the defiant attitude of their press, had inflicted on their cause. +They only saw that the administration and Congress were estranged, and +believed that to be a sure indication of final success. + +In this frame of mind they came to the polls, and in all the Southern +States overwhelming Democratic majorities evidenced the popular sentiment +among the dominant classes. Accordingly, when the State legislatures +convened, the 14th amendment was rejected almost unanimously in all except +Tennessee, which had ratified it in July. Delaware, Maryland and Kentucky, +the border Union States, also rejected the amendment, allying themselves +with the Southern cause. Twenty-one of the remaining twenty-four States +ratified the amendment, endorsing thereby the action of Congress.[150] +Iowa, Nebraska and California did not act upon the amendment at this time. + +Had Thaddeus Stevens and Charles Sumner been able to persuade Congress to +adopt their theory of the status of the Southern States, the amendment +would have been assumed to be a part of the Constitution, as twenty-one +States were more than three-quarters of twenty-seven, the total number of +States represented in Congress. But the majority of congressmen were never +able to adopt, in its entirety, the theory that the rebellion had utterly +destroyed the States and left them mere territory. It preferred to +accomplish the same result by less violent means. The legislation enacted +as a result of the attitude of the South towards the amendment practically +treated the States as conquered territory, yet they were counted in +determining the ratification of both the 13th and the 14th amendment. + +The defiant attitude taken by the Southern legislatures was a grave +mistake. The most of them did not convene until Congress was again in +session, after the defeat of the administration, and when they should have +been able to see that their only hope was in submission. But the South, +ever too ready to act first and consider the consequences afterwards, only +saw in the proposed amendment an insult to the white race and an injustice +to their leaders. That they should be asked deliberately to inflict upon +themselves this punishment, seemed a humiliation which self-respect could +permit them only to spurn. They did not stop to realize that the rejection +of these terms would cause measures still more severe to be enacted. + + + + +CHAPTER V. + +THE CONGRESSIONAL THEORY FULLY DEVELOPED. + + +1. The second session of the 39th Congress opened with its members in a +far different frame of mind from that in which they had assembled in 1865. +Then they had approached their work with hesitation; their plans were not +formulated; they could not know how far the country would sustain them in +their opposition to the President. Now, in the flush of victory, their +policy sustained, the President discredited, with their two-thirds +majority in both houses unbroken, they were prepared to proceed to enact +legislation which not only should secure that which had been accomplished +already, but also should settle finally the problem of reconstruction, and +place the President in a position where he could do no harm.[151] + +Much curiosity had been felt as to the attitude which Johnson would take +in his annual message. He believed thoroughly in the righteousness of his +cause, and had such implicit confidence in the unerring judgment of the +people that he had deemed it impossible that his policy would be +repudiated. The results of the election were a great disappointment to +him, and some had believed that he would introduce into the message the +abuse which he had so unsparingly inflicted upon Congress during the +campaign. The message, however, contained nothing approaching virulence, +but on the contrary was a document eminently creditable to the +President.[152] It restated in a powerful way the constitutional position +of the administration, and defended its actions in a dignified yet +spirited manner. The fearlessness of his attitude was characteristic; the +argumentative brilliancy of its presentation was unsurpassed. Unmindful of +the fact that Congress had assembled to complete the overthrow of his +policy of reconstruction, he reminded Congress that "the Constitution of +the United States makes it the duty of the President to recommend to the +consideration of Congress" such measures as he shall judge necessary or +expedient. "* * * I know," he said, "of no measure more imperatively +demanded by every consideration of national interest, sound policy, and +equal justice, than the admission of loyal members from the now +unrepresented States. * * * The interests of the nation are best to be +promoted by the revival of fraternal relations, the complete obliteration +of our past differences, and the re-inauguration of all pursuits of +peace."[153] The message closed with the request: "Let us endeavor to +preserve harmony between the co-ordinate departments of the Government, +that each in its proper sphere may cordially co-operate with the other in +securing the maintenance of the Constitution, the preservation of the +Union, and the perpetuity of our free institutions." + +Unfortunately for the country, there could be no harmony "between the +co-ordinate departments of the Government," where there was such +fundamental disagreement. Neither side proposed to retreat an inch from +the stand taken, and the message served no other purpose than to leave a +very excellent state paper as a memento of the session. + +The Joint Committee on Reconstruction[154] was immediately re-appointed by +a concurrent resolution. Only one change was necessary--Mr. Grider, of +Kentucky, one of the minority members, had died during the recess of +Congress, and in his place Mr. Hise, of the same State, was appointed. The +committee immediately resumed its labors, and proceeded to frame a bill +"for the more efficient government of the rebel States." The developments +of the last three months had created a sentiment favorable to more +stringent conditions of re-admission, and the action of the various +Southern legislatures, who were rejecting the 14th amendment during this +period, served as a further stimulus to vigorous action. + +2. Several weeks elapsed before the committee was willing to adopt any +definite plan. Finally, on February 4, 1867, Mr. Williams reported from +the committee, a bill to the Senate;[155] it was referred back to the +committee, and was formally reported to the House by Mr. Stevens on the +6th.[156] + +The preamble to the bill declared that in the absence of legal State +governments there was no adequate protection for person and property, and +that therefore it was necessary to enforce peace and good order until +loyal State governments could be established. To this end "the so-called +States shall be divided into military districts," five in number, Virginia +to constitute the first, North Carolina and South Carolina the second, +Georgia, Alabama, and Florida the third, Mississippi and Arkansas the +fourth, and Louisiana and Texas the fifth. The General of the Army was "to +assign to the command of each of said districts an officer of the regular +army not below the rank of brigadier-general, and to detail a sufficient +force to enable such officer to enforce his authority." The officer in +command of a district was to have complete authority to protect the civil +rights of all, suppress insurrection and preserve order. To assist him he +could employ civil or military tribunals at his discretion, but no capital +punishment, imposed by a military tribunal, should be executed without the +approval of the officer in charge of the district. Writs of _habeas +corpus_ should not be issued by federal courts or judicial officers except +on endorsement of some commissioned officer in the district. + +The discussion of the bill began on the day following its introduction. +Mr. Stevens, with his usual impetuosity, wished for an immediate vote. The +bill seemed more moderate to him than the South deserved, and with the +large Republican majority intent upon some such legislation, he could see +no reason for delay. The bill was clearly worded and all could understand +it perfectly. But there was an influential element that preferred to make +haste slowly, and many hours were given up to debate before the final +passage of the bill by the House, on February 20. + +The measure certainly was exceedingly radical as it was reported from the +committee. As Mr. Le Blond, of Ohio, said: "It strikes at the civil +governments in those States. It ignores State lines. It destroys their +civil governments. It breaks down the judicial system in those +States."[157] The distrust of the President was evidenced by empowering +General Grant to appoint the commanders of the military districts, +ignoring the President as commander-in-chief of the army. Most important +of all, the bill as it stood was the action of a conquering power over +conquered territory. It provided for an indefinite military control over +the territory, and specified no mode in which a State might free herself +from the onerous conditions. It was not a measure of reconstruction; it +was a measure of subjugation. + +Of course none of its supporters had the slightest idea of its being more +than a temporary measure, but even temporary measures must be considered +in all their aspects. Their idea was that expressed by Mr. Brandegee of +Connecticut when he said: "It holds those revolted communities in the +grasp of war until the rebellion shall have laid down its spirit, as two +years ago it formally laid down its arms."[158] + +Mr. Bingham took an active part in the opposition to the adoption of the +bill as it stood. Representing the more conservative branch of the +anti-administration party, he suggested on the opening day of the +discussion amendments which would make the bill more desirable. On +February 12 he submitted an amendment, the essential features of which +were finally adopted, but which encountered the fiercest opposition and +was only carried when compromise between the House and the Senate was +found to be impossible. His amendment provided as conditions for +re-admitting a State to representation in Congress: Ratification of the +14th amendment; such modification of State constitution and laws as would +make them conform to that amendment; a constitutional provision for negro +suffrage; and the approval of the constitution by Congress as republican +in form and consistent with the Constitution and laws of the United +States. + +Mr. Blaine proposed an amendment similar in its aim to that of Mr. +Bingham, who accepted it as a substitute. But the House was opposed to +providing any loop-holes by which the States could escape the provisions +of the act. The feeling that the South had been weighed in the balance and +found wanting, that its whole attitude was that of defiance, and that it +would endeavor to undo all that had been done as soon as it could obtain +an opportunity, was sufficiently strong to defeat an attempt to refer the +bill to the Judiciary Committee with instructions to incorporate the +amendment. Instead, a substitute measure, introduced by Mr. Stevens, which +differed but little from the original bill, passed the House on February +13.[159] + +The great struggle now began in the Senate, where the Blaine amendment was +moved by Mr. Johnson of Maryland, on February 15. There was an influential +element which feared that its adoption would utterly nullify the object of +the bill--to govern the States until they could be re-admitted with +safety. Their objections were based on the same principles that had proved +fatal to the amendment in the House. "I see," said Senator Howard, "in +this amendment a fatal snare by which we shall be deceived in the end, by +which we are to be deluded into a premature re-admission of the rebel +States in such a manner as to make us ultimately repent of our folly and +rashness. * * * It is a snare by which increased representation from the +rebel States may come into Congress, * * while we have no security at all +that the extended elective franchise will be continued in the rebel States +to the black population. They can disfranchise them whenever they see fit +after having secured increased representation."[160] + +The Senate, more conservative than the House, could not muster such a +strong opposition to the amendment. It was rejected, but rejected in order +to open the way for another amendment in the form of a substitute bill, +which was moved by Senator Sherman.[161] The substitute had been agreed +upon in a Republican caucus, and was accordingly carried. Its first four +sections contained nearly all the features of the original bill; it +substituted "President" for "General," in the second section, and, in +place of the provision against writs of _habeas corpus_, the fourth +section simply enacted that "all persons put under military arrest by +virtue of this act shall be tried without unnecessary delay, and no cruel +or unusual punishment shall be inflicted." The fifth section contained the +features proposed in the Bingham and Blaine amendments, amplified in a +manner satisfactory to the majority of the Senatorial caucus. The +conditions of readmission were as follows: The adoption of a constitution +in conformity with the Constitution of the United States, and the +ratification of the 14th amendment. The constitution, which must be +examined and approved by Congress, must be framed by a convention of +delegates chosen by "the male citizens of said State twenty-one years of +age and upwards, of whatever race, color, or previous condition, who have +been resident in the State for one year previous to the day of such +election, except such as may be disfranchised for participation in the +rebellion, or for felony at common law;" must give the elective franchise +to all qualified as electors for the delegates; and must be ratified by a +majority of the persons voting on ratification, and qualified as such +electors. To this the proviso was added that no person disqualified by the +14th amendment from holding office should be chosen as a delegate to the +convention or vote for members of it. One more amendment to the bill was +made on motion of Senator Doolittle. This added as a proviso to the fourth +section: "That no sentence of death under the provisions of this act shall +be carried into effect without the approval of the President." + +The bill was returned to the House in this form, the Senate having passed +it at six o'clock Sunday morning, February 17. The margin of time that +could be used without permitting the bill to be killed by a "pocket veto" +was now very limited, but the House refused to concur in the amendment +and called for a committee of conference, February 19. The Senate insisted +on its amendment and the bill was again returned to the House, which on +the following day concurred in the Senate amendment, but added an +amendment of its own proposed by Mr. Wilson, of Iowa, and amended on +motion of Mr. Shellabarger.[162] This amendment, constituting the sixth +section of the bill, was speedily concurred in by the Senate, and on +February 20, 1867, the bill was finally passed and ready for the +President's veto. + +The sixth section, so hurriedly tacked on to the bill, was of no slight +importance, as it declared in legal form the _status_ of the Southern +governments, and clinched the qualifications for the elective franchise. +It provided that "until the people of said rebel States shall be by law +admitted to representation in the Congress of the United States, any civil +governments which may exist therein shall be deemed provisional only, and +in all respects subject to the paramount authority of the United States at +any time to abolish, modify, control, or supersede the same; and in all +elections to any office under such provisional governments all persons +shall be entitled to vote, and none others, who are entitled to vote under +the provisions of the fifth section of this act; and no person shall be +eligible to any office under any such provisional governments who would be +disqualified from holding office under the provisions of the third article +of said constitutional amendment."[163] + +As had been expected, Johnson withheld his veto as long as it was possible +for him to do so without permitting the bill to become a law, not +returning the bill until March 2.[164] This was done in the hope that the +minority, by dilatory proceedings, might prevent action on the veto +before the adjournment, on March 4, and so prevent the bill from becoming +a law. But the plan failed, and the bill was immediately passed, "the +objections of the President to the contrary notwithstanding." + +The veto message embodied an exhaustive review of the bill, a criticism of +its "cruelty," and an attack upon its constitutionality. It denied the +statement in the preamble that "no legal State governments or adequate +protection for life or property," existed in these ten States, and +declared that "the establishment of peace and good order is not its real +object. * * * The military rule which it establishes is plainly to be +used, not for any purpose of order or for the prevention of crime, but +solely as a means of coercing the people into the adoption of principles +and measures to which it is known that they are opposed, and upon which +they have an undeniable right to exercise their own judgment." The +despotic authority given to the commander of a district was vigorously +denounced, and all the humane provisions of the bill were declared to +depend upon the will of the commander, who could nullify them and oppress +the people without limitations of any kind. "It reduces the whole +population of the ten States--all persons, of every color, sex and +condition, and every stranger within their limits--to the most abject and +degrading slavery." + +But aside from its injustice, Johnson went on to argue, the measure was +unconstitutional and could not legally be carried into execution. In a +time of peace martial law could not be established, in proof of which +statement he quoted from the decision of the Supreme Court, in _Ex parte_ +Milligan, defining military jurisdiction. The denial of the right of trial +by jury and of the privilege of the writ of _habeas corpus_ was not +counterbalanced by the poor privilege of trial "without unnecessary +delay." In defiance of the constitutional prohibition of bills of +attainder, "here is a bill of attainder against nine millions of people at +once"--a legislative enactment "based upon an accusation so vague as to be +scarcely intelligible, and found to be true upon no credible evidence." +The primary purpose of the bill, to compel these States "by force to the +adoption of organic laws and regulations which they are unwilling to +accept if left to themselves," was in itself unconstitutional. "The +Federal Government has no jurisdiction, authority, or power to regulate +such subjects for any State." + +Respecting the legality of the state governments, the important point was +made that if they were illegal, their ratification of the 13th amendment +could not have been legal. The message closed with an appeal for +restoration "by simple compliance with the plain requirements of the +Constitution." + +Taken as a whole, the message unquestionably contained many strong +arguments against the bill, and was virtually a summary of the arguments +advanced by the minority in Congress. But the struggle had passed beyond +the province of unbiased debate, and each side was equally determined not +to yield any point. A measure open to the most serious suspicions +regarding its constitutionality, was passed by an inflexible majority, +settled in the belief that the condition of the South required the +measure, and that the Constitution must accordingly be stretched to cover +the case. + +Those supporters of the bill who were recognized as the most careful in +their judgments confidently asserted that that portion of it establishing +the military districts contained nothing that could not have been carried +out legally by the government as a military measure, without the formality +of enacting the bill. The insurrectionary States would legally remain in a +condition of insurrection until Congress should formally declare the +insurrection to be at end. Consequently martial law could +constitutionally prevail, trial by jury and the writ of _habeas corpus_ be +suspended, and civil government utilized as an aid to military rule, to +any extent that might seem advisable to the general in charge. The claim +that the measure amounted to an enormous bill of attainder was immediately +dismissed as absurd, as no corruption of blood or forfeiture of estates +was involved, and the whole measure was avowedly temporary, to cease as +soon as the State should comply with the conditions of reconstruction. + +Congress felt justified in passing the bill over the veto, and accordingly +the general process of reconstruction was established with conditions far +more onerous than had been intended in the first session of the 39th +Congress. The provisions of the act immediately went into force, and the +commanders of the districts were appointed on March eleventh. + +3. The bill was conceded by all its supporters to be incomplete. It +provided for the establishment of districts and the governing of these +districts by military law, and it was hoped that the immediate crying need +of a strong government to enforce order and prevent the continuance of the +oppression of the freedmen was satisfied. This done, they could proceed +more deliberately to the enactment of measures which would provide the +mechanism for carrying out the provisions of the fifth section. The +adjournment of the 39th Congress at noon of March 4 prevented any action +until the next Congress; but preparation had been made for such an +emergency by an act which provided that in future each Congress should +convene upon the adjournment of its predecessor.[165] + +The 40th Congress at once settled down to work upon the problem. Chief +Justice Chase prepared a bill which was used as a basis for the +discussion. Senator Wilson and others modified the bill to some extent, +and introduced it in the Senate on March 7.[166] The same bill, slightly +modified, was introduced in the House.[167] Considerable trouble was +experienced in agreeing upon the details of the bill, but on March 19 both +houses finally adopted a compromise proposed by a committee of conference. +The veto message of the President was received four days later; the bill +was immediately passed over the veto and became a law.[168] + +As finally passed, the bill was entitled: "An Act supplementary to an Act +entitled, 'An Act to provide for the more efficient government of the +rebel States,' passed March second, eighteen hundred and sixty-seven, and +to facilitate restoration." It enacted that the commanding general in each +district should cause a registration to be made before September 1, 1867, +of those entitled to vote under the original act, and should require all +registering to take the following oath: "I, ---- do solemnly swear (or +affirm) in the presence of Almighty God, that I am a citizen of the State +of ----; that I have resided in said State for ---- months next preceding +this day, and now reside in the county of ----, or the parish of ----, in +said State (as the case may be); that I am twenty-one years old; that I +have not been disfranchised for participation in any rebellion or civil +war against the United States, nor for felony committed against the laws +of any State or of the United States; that I have never been a member of +any State legislature, nor held any executive or judicial office in any +State and afterwards engaged in insurrection or rebellion against the +United States, or given aid or comfort to the enemies thereof; that I +have never taken an oath as a member of Congress of the United States, or +as an officer of the United States, or as a member of any State +legislature, or as an executive or judicial officer of any State, to +support the Constitution of the United States, and afterwards engaged in +insurrection or rebellion against the United States or given aid or +comfort to the enemies thereof; that I will faithfully support the +Constitution and obey the laws of the United States, and will, to the best +of my ability, encourage others so to do, so help me God."[169] After the +completion of the registration in any State, it was provided that there +should be held, after at least thirty days' public notice by the +commanding general, an election of delegates "to a convention for the +purpose of establishing a constitution and civil government for such State +loyal to the Union." This convention was to consist of the same number of +members as the most numerous branch of the State legislature in 1860.[170] +Those voting at the election of delegates were also to vote for or against +the holding of the convention, and it was not to be held if a majority of +the ballots was cast against it, or if a majority of the registered voters +failed to vote on the question. Boards were to be appointed by the +commanding general to superintend the registration and election, and make +returns to him of the results of the election. The convention was required +to assemble at a place and time appointed by the commanding general, by a +notice to be given by him within sixty days from the date of election; and +to frame a constitution according to the provisions of the original and +the present act. The constitution so framed was then to be submitted to +the registered voters at an election conducted by officials who were to +be appointed by the commanding general, and who were to make returns to +him. In case the constitution was ratified "by a majority of the votes of +the registered electors qualified as herein specified, cast at said +election (at least one-half of all the registered voters voting upon the +question of such ratification)," it was provided that the president of the +convention should "transmit a copy of the same, duly certified, to the +President of the United States, who shall forthwith transmit the same to +Congress," and that, if Congress should be satisfied that all the +provisions of the acts were carried out, and that no force or fraud was +used, and should approve the constitution, the State should "be declared +entitled to representation, and senators and representatives shall be +admitted therefrom as therein provided." It was further provided that all +elections in the States mentioned in the original act should, during the +operation of that act, be by ballot; that the officials in charge of the +registration and elections must take the "iron-clad" oath of July 2, +1862[171] that the expenses incurred by the commanding generals in +carrying out the act should be paid out of the treasury, but that the +state conventions should provide for the levying of taxes to pay other +expenses.[172] + +The veto message on this bill was much shorter than that on the original +reconstruction measure. The President said: "No consideration could induce +me to give my approval to such an election law for any purpose, and +especially for the great purpose of framing the constitution of a State. +If ever the American citizen should be left to the free exercise of his +own judgment, it is when he is engaged in the work of forming the +fundamental law under which he is to live." He animadverted upon the +extreme looseness of the provisions in regard to the registration boards, +and upon the great powers vested in them. The main objections to the bill +were of course those which he had stated in the veto of March 2. + +The passage of the supplementary reconstruction act, and of a joint +resolution providing for the expenses involved in carrying out the +provisions of the act, completed the work of this session of the 40th +Congress. It was hoped that no further congressional action would be +needed until the constitutions of the States should be submitted for +examination and approval, preparatory to granting representation. But the +importance of the measures and the avowed hostility of the President +caused hesitation on the part of Congress as to adjourning till the +regular December session. It was realized that if any loop-hole could be +found by which the intention of the act could be evaded, Johnson would +have no hesitation in taking advantage of it. To provide for such a +contingency Congress passed a concurrent resolution which provided for a +recess until July 3, and authorized the President of the Senate and the +Speaker of the House to adjourn Congress until the first Monday in +December if a quorum did not appear on July 3. In case everything +appeared to be progressing with little friction, the members would not +assemble; but if there should be any unfavorable developments, Congress +could assemble independently of the President and enact legislation to +remedy the difficulty. + +4. July 3 found a quorum in both houses. The Attorney-General had rendered +an opinion upon the act of March 2 which greatly hampered the work of the +commanders of the districts. He advised the President that the act should +be construed strictly, that the commanders should be allowed no powers +beyond those specifically bestowed upon them. This prevented them from +removing state officers, from making new laws for the government of the +people, or from suspending the action of the state courts; and with state +officers hostile to the federal authorities, and using every means to +impede their work, the commanders found it impossible properly to +discharge the duties assigned to them by the act.[173] The intent of the +reconstruction acts obviously was to make the commanders of the districts +commanders _de facto_ as well as _de jure_. Consequently remedial +legislation was deemed necessary, and Congress convened for the purpose of +framing additional acts defining more precisely the intention of the +preceding acts and the powers of the commanders. + +A few days' debate sufficed to bring Congress to an agreement as to the +form of a second supplementary act. The bill passed both Houses on July +13, was vetoed on the 19th, and was immediately passed over the veto.[174] +It declared[175] the true intent and meaning of the previous +reconstruction acts to be that the governments then existing in the ten +States specified in the acts were illegal, and that such governments, "if +continued, were to be continued subject in all respects to the military +commanders of the respective districts, and to the paramount authority of +Congress." It therefore provided that the district commanders should have +the power to suspend or remove all incumbents of offices of "any so-called +State or the government thereof," and to fill all vacancies in such +offices, however caused. The same powers were granted to the General of +the Army, who was also empowered to disapprove the appointments or +removals made by the district commanders. The previous appointments by the +district commanders were confirmed and made subject to the provisions of +the act, and it was declared to be the duty of these commanders to remove +from office all who were disloyal to the United States, or who opposed in +any way the administration of the reconstruction acts. The registration +boards were empowered and required "before allowing the registration of +any person to ascertain, upon such facts or information as they can +obtain, whether such person is entitled to be registered."[176] No person +was to be disqualified as a member of any board of registration by reason +of race or color. The true intent and meaning of the oath prescribed in +the supplementary act was fully explained, the most important portion of +the explanation being that the words "executive or judicial office in any +State" should be construed to "include all civil offices created by law +for the administration of any general law of a State, or for the +administration of justice." The time of registration under the +supplementary act was extended to October 1, 1867, in the discretion of +the commander and it was provided that "the boards of registration shall +have power, and it shall be their duty, commencing fourteen days prior to +any election under said act, and upon reasonable notice of the time and +place thereof, to revise, for a period of five days, the registration +lists," by striking out the names of those found to be disqualified, and +adding the names of those qualified for registration. Executive pardon or +amnesty should not qualify any one for registration who without it would +be disqualified. District commanders were empowered "to remove any member +of a board of registration, and to appoint another in his stead, and to +fill any vacancy in such board." The iron-clad oath was to be required of +all registration boards, and of all persons elected or appointed to office +in the military districts. Further possibility of unfavorable construction +by the Attorney-General was prevented by the provision that "no district +commander or member of the board of registration, or any of the officers +or appointees acting under them, shall be bound in his action by any +opinion of any civil officer of the United States." The closing section, +taken in connection with this, was fully as significant: "All the +provisions of this act and of the acts to which this is supplementary +shall be construed liberally, to the end that all the intents thereof may +be fully and perfectly carried out." + +5. Reconstruction under the provisions of these three acts was rapidly +accomplished in most of the States.[177] In some of the districts the +commanders probably were too severe upon the whites, but in the main the +intent of the acts was carried out with as little harshness as could well +be expected. Those qualified were registered, conventions were held, and +constitutions were framed and submitted to the people for their +ratification according to the provisions of the acts. Alabama was the +first State to vote upon a new constitution, and the Democrats, or +Conservatives, as they styled themselves, took advantage of the fifth +section of the act of March 23, which required at least one-half of the +registered voters to vote on the question of ratification, as a condition +of the validity of the election. Non-action seemed to be the easiest +method of defeating the constitution, and they accordingly absented +themselves from the polls, only 70,812, out of 165,812 registered voters, +casting their ballots.[178] + +6. There had been a strong minority in Congress opposed to the insertion +of this section, who had foreseen this very outcome; and the action of +Alabama converted the minority into a majority. A third supplementary bill +was accordingly passed. Johnson neither signed nor vetoed it; and it +became a law without his signature on March 11, 1868. It provided that in +future all elections authorized by the act of March 23, 1867, "should be +decided by a majority of the votes actually cast," thus preventing any +repetition of the Alabama experiment.[179] + +7. The constitution submitted in Mississippi was rejected. Constitutions +were not submitted in Texas and Virginia until a later date. The other +States ratified their constitutions by large majorities, and on June 22 +the act "to admit the State of Arkansas to representation in Congress" +became a law. + +8. Three days later the act admitting North Carolina, South Carolina, +Louisiana, Georgia, Alabama and Florida to representation, became a law. +Both bills were passed over the President's vetoes, Johnson to the last +refusing to recognize even in the most indirect way the constitutionality +of the congressional plan. + +Eight of the eleven States were now nominally reconstructed, but in fact +they were only entering upon that most trying period of their history, the +era of "carpet-bag government." The whole period of reconstruction is +marked by blindness and prejudice on both sides. The spirit of compromise +could find no place in either's plans. "What might have been" is always a +fruitless subject of discussion; but any student of the three tumultuous +years following the war cannot but see that the attitude of both the North +and the South prevented the adoption of the plan of reconstruction which +would with the least trouble and delay, have remoulded the unwieldy mass +of liberated blacks into an orderly, progressive class of citizens. At the +same time he can see that the divergence of views was inevitable and that +it is impossible to say to one side "You were right," and to the other +"You were wrong." + + + + +CHAPTER VI. + +THE IMPEACHMENT OF THE PRESIDENT. + + +1. In the preceding chapters we have traced step by step the development +of the theory of reconstruction and the formulation of the reconstruction +acts of the 39th and 40th Congresses. We have noticed the wide divergence +between the ideas of Johnson and those of the Republican party, and have +seen that the whole program was carried over the vetoes of the President +by the overwhelming Republican majority. But the contest between the +President and Congress, which had been embittered by so many personalities +on both sides, did not come to an end with the passage of legislation +which fully embodied the congressional theory, but continued until it +culminated in a desperate effort of the Republican party to remove Johnson +from the presidential chair. + +The very conditions under which he assumed the presidential office +rendered his position difficult, and made estrangement of the executive +and legislative departments an easy matter. On the particular issue of +reconstruction Lincoln and Congress were at variance; but the tragic +nature of Lincoln's death caused this matter to be forgotten in the +overwhelming sense of the loss of the man who had safely guided the +government through the most trying years of its history. But, for a +Congress so extremely Northern and Republican, with antagonisms and +prejudices which only fratricidal wars can create, to be compelled to work +with a man not only a Southerner, but practically a Democrat, must of +necessity bring about a crisis. + +Moreover, the flourishing condition of the spoils system served to +aggravate the antagonism between the two departments. History shows that, +while selfish motives are always indignantly repudiated by politicians, +they account for many of the more important political movements of the +century. With the immense federal patronage at his disposal, Johnson +realized that he had a powerful instrument of revenge at hand, and he did +not hesitate to use it. At a time when every congressman was under the +strongest pressure from his home constituency, inability to gratify the +demands of the voracious office-seeker was indeed a cause for bitterness. + +We can thus easily distinguish three causes which, working together upon a +strongly Republican Congress, resulted in the attempted removal of the +President. First, the antagonism arising from different fundamental +political ideas, the strained conditions of the times, and the woeful +tactlessness of Johnson; second, the almost morbid yet natural fears of +the Republican party regarding the sometime seceded States; third, the +anger aroused by the use of federal patronage to further the interests of +the President. + +2. Impeachment, however, was too serious a matter for Congress to enter +upon lightly. Art. II, sec. iv, of the Constitution provides for +impeachment as follows: "The President, Vice-President and all civil +officers of the United States shall be removed from office on impeachment +for, and conviction of, treason, bribery, or other high crimes and +misdemeanors." Obviously the President had not committed and would not +commit anything that could legally be called treason or bribery: Had he +done or would he do anything which could be construed as a high crime or +misdemeanor? The answer largely depended upon the person's point of view. +The extreme radical held that Johnson's whole career as President could be +considered as an attempt treasonably to reinstate the Southern States in a +position of power. The more moderate Republicans could not be made to +acquiesce in this view, and it soon became evident that Johnson would +never be brought to trial on impeachment, unless he could be made to +violate some clearly defined law. The radical element, however, did not +easily accept this situation. By every means possible they tried to force +the moderates into line. The whole past career of the President was +critically studied, and every act which could by any possible means be +construed as a breach of presidential duty was put in the list of offences +for which he should be tried. But all to no purpose. Something more +tangible must be produced, or the trial would never occur. + +3. Notwithstanding the evident indisposition on the part of many to +proceed to extreme measures, the radicals determined to force matters to +an issue, if possible. Under Mr. James M. Ashley of Ohio as leader, the +attack was begun shortly after the opening of the second session of the +Thirty-ninth Congress. On December 17, 1866, Mr. Ashley moved to suspend +the rules so as to permit him to report a resolution from the Committee on +Territories. His motion was not agreed to, and the first step towards +impeachment was therefore a failure. The motion is of interest, however, +as evidencing the deliberate intention of the radicals to discover some +act which would justify impeachment. The resolution provided for a select +committee who were to inquire "whether any acts have been done by any +officer of the Government of the United States which in contemplation of +the Constitution are high crimes or misdemeanors, and whether said acts +were designed or calculated to overthrow, subvert or corrupt the +Government of the United States, or any department thereof." + +Again on January 7 resolutions looking to impeachment were offered by Mr. +Ashley and two other persons. Mr. Ashley's resolution was adopted, while +the others were referred to the Committee on Reconstruction and the +Committee on the Judiciary. The resolutions which were referred gave as a +reason for impeachment, "the purpose of securing the fruits of the +victories gained on the part of the republic during the late war, waged by +rebels and traitors against the life of the nation"--a decidedly strong +statement to make, in view of the predominance of the Republican party at +the time, and its ability to render nugatory any attempt of the President +to take away from the republic "the fruits of the victories gained." +Exaggerated expressions of this sort show how far the contest had +degenerated from a conflict of opinions as to the constitutional position +of the revolted States, into a personal warfare. Another significant +reason for impeachment given in these resolutions was, that it was +necessary in order to give "effect to the will of the people as expressed +at the polls during the recent elections by a majority numbering in the +aggregate more than four hundred thousand votes." It has already been +shown how disastrously the campaign resulted for Johnson, and how it +furnished popular sanction for the radical reconstruction legislation +which was passed over the presidential vetoes. But, to assume that a +popular expression of disapproval of the President's political program +made impeachment a moral necessity, was to assume a novel position. It was +also declared in these resolutions that the President was to be impeached +for the high crimes and misdemeanors "of which he is manifestly and +notoriously guilty, and which render it unsafe longer to permit him to +exercise the powers he has unlawfully assumed." + +These expressions seeming to be too indefinite, the specific charges +submitted by Mr. Ashley met with more favor, and were accordingly adopted. +These charges centered about an alleged "usurpation of power and violation +of law" which was to be found in corrupt uses of the appointing, +pardoning, and veto powers, improper disposition of public offices and +corrupt interference in elections. These were clinched again by the +general charge that the President had "committed acts which, in +contemplation of the Constitution, are high crimes and misdemeanors,"--a +charge obviously introduced to include any points which might in the +future be made against him. + +4. As the event proved, the attempt to bring matters to a successful issue +in the 39th Congress was a failure. The Committee on the Judiciary went to +work vigorously, calling many witnesses and collecting as much material as +possible; but on the 28th of February it reported, with only one +dissenting, voice, that in spite of all its efforts not enough testimony +had been gathered to warrant any report beyond a recommendation that the +investigation be continued. The ninth member of the committee, Mr. Rogers +of New Jersey, reported emphatically that a careful examination of the +subject had convinced him that "there is not a particle of evidence to +sustain any of the charges," and that "the case is wholly without a +particle of evidence upon which an impeachment could be founded." He +further declared that but little of the testimony taken would be admitted +in the courts, and that the whole matter should be dropped, as it would +certainly end "in a complete vindication of the President." Logically, the +standpoint of Mr. Rogers was a correct one. From a strictly legal view of +the case, there was very serious doubt as to the advisability of +attempting impeachment; but the opponents of the President counted upon +their large majority to force the matter, and the line of action +recommended by the majority of the committee was adopted. + +As has been seen, the 40th Congress assembled immediately upon the +adjournment of the 39th; and on March 7, 1867, the new Judiciary Committee +was authorized to proceed with the investigation, and to continue it +during any recess the House might take. By another resolution agreed to +March 29, the committee was requested to report immediately upon the +reassembling of Congress, which was to be in the following July, if +political conditions seemed to require it.[180] + +The committee accordingly continued its investigations, but, though the +radicals felt sure that it was composed of men who would favor +impeachment, it at first reported by a majority of five to four against +impeachment. A recommitment resulted in the conversion of one member of +the committee[181] to impeachment views; and on November 25 Mr. Boutwell, +of Massachusetts, reported from the committee a resolution impeaching the +President for high crimes and misdemeanors. + +5. The debate on this resolution was entered upon in December, 1867, and +was marked by the effort on the part of the radicals to support a most +indefinite and general charge. In spite of the thoroughness of the +investigation of the Judiciary Committee, in which neither time nor +expense had been spared, the attitude of the moderates was justified. +Nothing had been unearthed which from the legal standpoint could be +considered a high crime or misdemeanor. Failing in this, Mr. Boutwell +assumed the ground that the evidence showed that President Johnson had +been deliberately using his office to bring back, so far as possible, the +Democratic party into power, and that his efforts to restore the +insurrectionary States to their former power had been in the interest of +the rebellion. + +Although most Republicans at this time could not believe that the +inhabitants of the Southern States were sincere in their protestations of +a desire to lay aside all differences and once more become loyal citizens, +there were many who could not agree to Mr. Boutwell's definition of high +crimes and misdemeanors; and these moderate Republicans, aided by the +Democrats, defeated the resolution by a vote of one hundred and eight to +fifty-seven.[182] The attempt to impeach without definite legal charges +had failed. + +But the President soon gave the House the very opportunity it desired. +While the direct attack upon the President was being carried on by means +of the effort to impeach him, an indirect attack was made by the +legislative limitation of his powers. One of the cries of alarmists had +been that there was danger that the President might in some way take +advantage of his constitutional position as commander-in-chief of the army +and navy, so as to injure the government and advance his own interests. +Some went even farther and declared that he designed with the aid of the +army to overthrow the government, and place the United States in the power +of the rebels. Such charges, viewed from the standpoint of history, seem +too absurd for consideration, but during the reconstruction period the +feverish condition of the country made possible the acceptance of almost +any startling rumor. + +6. But even those who did not apprehend that Johnson would use the army +for any improper purpose, were willing to limit his power and prestige by +depriving him of his military authority; and this was accordingly done by +a section introduced into the army appropriation bill.[183] This section +required all orders to the army to be made through the General of the +Army, thus practically making his approval of them necessary. It also +prevented the President or the Secretary of War from removing, suspending +or relieving from command the General of the Army, and even forbade his +being assigned for duty away from headquarters, except at his own request. +This had the effect of taking away from the President all his +constitutional powers as commander-in-chief. As the section was put as a +rider on an appropriation bill and a veto must cover the whole bill, +Johnson contented himself with a simple protest and returned the act with +his signature.[184] + +7. The attack upon the civil powers of the President was made through the +Tenure-of-Office Act.[185] As the violation of this act was the ground of +the most serious charge in the impeachment trial, a somewhat detailed +study of its provisions, and of the views expressed by the President in +his veto of it, is advisable. The bill provided that "every person holding +any civil office to which he has been appointed by and with the advice and +consent of the Senate," and every person so appointed in the future, +should be entitled to hold such office until a successor should have been +appointed in like manner, that is to say, _with the advice and consent of +the Senate_. The only liberty of action allowed the President was during +the recess of the Senate, when he was permitted to suspend an officer +until the next meeting of the Senate, and appoint a _pro tempore_ +official. Within twenty days after the meeting of the Senate, however, he +was required to give his reasons for the suspension. If the Senate +approved of the removal, a permanent appointment was to be made; if they +refused to concur, the suspended officer was immediately to resume his +duties. Any violation of this act by the President was made an impeachable +offense, by the declaration that "every removal, appointment, or +employment made, had, or exercised, contrary to the provisions of this act +* * * are hereby declared to be high misdemeanors." The other provisions +were of minor importance, and do not require notice here. + +The veto message of the President was a calm, dignified and judicial +discussion of the constitutionality of the bill, and was in every way a +creditable document, sustaining fully the high character of his previous +vetoes. He called attention to the fact that the whole question of the +authority of the President in cases of removal from office had been +discussed thoroughly in Congress as early as 1789, and decided in favor of +the President. He quoted Madison's argument to prove that all executive +power, except what is specifically excepted, is vested in the President, +and that as no exception was made as to the power of removal, it must be +vested in him. He also cited many possible cases, in which it would be +absolutely necessary for the President to possess the power of +removal.[186] A decision of the Supreme Court was referred to,[187] in +which it was observed that both the legislative and the executive +department had assumed in practice that the power of removal was vested in +the President alone. When, for instance, the Departments of State, War and +the Treasury were created in 1789, provision was made for a subordinate +who should take charge of the office "when the head of the Department +should be removed _by the President of the United States_." Story, Kent +and Webster were all quoted as affirming the same legislative construction +of the Constitution. The great practical value of the power during the +Civil War was noticed, and its present and future necessity strongly +urged; and the message closed with an earnest appeal to Congress not to +violate the original spirit of the Constitution. + +8. The passage of the bill over the veto placed Johnson in a situation in +which a collision was almost sure to come. As the chief executive of the +country he was charged with the duty of carrying out the provisions of the +reconstruction acts, notwithstanding his strong personal repugnance to +them. Under the advice of Attorney-General Stanbery he had construed the +acts literally, and he had thus frustrated in part the object of the +legislation. But the co-operation of the army was necessary, and +unfortunately for President Johnson, the Secretary of War, Mr. Stanton, +strongly opposed his views, and conducted himself as far as possible in +accordance with the wishes of the congressional majority. The continued +friction between the President and the Secretary of War seemed to +President Johnson to necessitate Stanton's retirement, but repeated hints +to that effect were not recognized by the latter. Finally, on August 5, +1867, the President informed him that "public considerations of a high +character constrained" him to say that his resignation would be accepted. +The Secretary's prompt reply was that "public considerations of a high +character" constrained him not to resign until the next session of +Congress. A week later, August 12, the President formally suspended him +and appointed General Grant Secretary _ad interim_.[188] Stanton then +submitted "under protest to superior force." + +When Congress met in December the President reported his suspension of +Stanton, and after long discussion the Senate, on January 13, 1868, +refused to concur.[189] When informed of this action of the Senate, +General Grant immediately turned over the Secretary's office to Stanton, +thus definitely committing himself to the congressional interpretation of +the law. Grant's action was a sore disappointment to the President. +Johnson had refused to accept the Tenure-of-Office Act as constitutional, +and had purposed to make this a test case. In the correspondence which +passed between him and General Grant after the latter's acquiescence in +the action of the Senate, Johnson claimed that it was understood that +Grant was either to refuse to give up the office to Stanton, or, if he +should be unwilling to take so prominent a part in the contest, to resign +and permit the office to be filled with some one whose views agreed with +the President's, so that Stanton, if he sought to regain the office, might +be compelled to resort to the courts. In this way the constitutionality of +the act could be tested. Johnson's statements as to the understanding with +Grant were substantially endorsed by the Cabinet, on the strength of a +conversation between Johnson and Grant at a cabinet meeting. Grant, +however, firmly denied that there was any such agreement or +understanding.[190] + +A few days after Stanton had resumed his duties as Secretary of War, the +President sought to put in operation a plan for rendering his possession +of the office ineffective. On January 19, he ordered General Grant, in +charge of the army, to disregard all of Stanton's orders unless he knew +directly from the President that they were the latter's orders.[191] The +order was repeated in writing at Grant's request on January 29. On the +following day, Grant refused to carry it out, declaring that an order from +Secretary Stanton would be considered satisfactory evidence that it was +authorized by the Executive.[192] This correspondence between Johnson and +Grant was subsequently called for by Congress, and an attempt was made to +frame articles of impeachment on the ground that the President was +instructing Grant to disobey the orders of his superior. Careful +examination of the legal bearings of the question convinced a majority of +the Reconstruction Committee that nothing would be gained by inserting +charges based on this correspondence. The President had shrewdly worded +his communication so as not to violate any legal technicalities.[193] + +Having failed in his first two attacks upon Stanton, Johnson finally +resorted to a still stronger measure. Completely ignoring the +Tenure-of-Office Act, he addressed a letter to Stanton, February 21, +removing him from office, and directing him to transfer all the property +of the War Department to Adjutant General Lorenzo Thomas. Thomas, having +received his appointment as secretary _ad interim_, proceeded to the +office and formally demanded possession. Stanton avoided giving a direct +answer to the demand, and on the following morning Gen. Thomas was +arrested for violation of the Tenure-of-Office Act. After bail had been +procured he renewed his demand, but Stanton ignored his appointment. +Several plans were devised by the President and Thomas' lawyers to make +the contest center around Thomas, but the congressional managers decided +to drop the matter, and concentrate their energies upon a presidential +impeachment.[194] + +The last step of the President opened the way for immediate action. +Violation of the Tenure-of-Office Act was explicitly declared an +impeachable offense, and as to the flagrancy of its violation by the order +of February 21 there could be no question. Many of the wavering +Republicans now had their doubts of the expediency of impeachment cleared +away, and on February 24 the resolution formally impeaching the President +of "high crimes and misdemeanors in office" was passed.[195] + +9. On March 2, the first nine articles of impeachment were adopted; two +additional articles were added on the 3d; and on the 4th they were +presented to the Senate. On March 30, the trial began. The articles +charged the President with high crimes and misdemeanors in respect of the +order for the removal of Stanton, the appointment of Thomas as Secretary +of War _ad interim_, the attempt to hinder Stanton in the exercise of his +lawful duties, the wilful violation of the Tenure-of-Office Act, the +attempt to seize the properties of the War Department, the attempt +unlawfully to disburse moneys through the appointment of Thomas, an +attempt to make General Emory violate the Tenure-of-Office Act, the +attempt to injure the good reputation of the legislative department by +speeches delivered at various specified places, and his determined +opposition to the reconstruction policy as outlined in the various acts of +Congress.[196] + +These articles were very sweeping, and were designed as a sort of drag-net +to include all of the complaints which could possibly be brought against +the President. Yet the House of Representatives, previous to the attempted +removal of Secretary Stanton, after the most searching examination into +the President's record, had failed to find sufficient ground on which to +base an impeachment. Therefore the only charges that deserved really +serious attention were those growing out of the violation of the +Tenure-of-Office Act. In the President's reply to the charges he explains +his attitude on this matter. In his opinion the Tenure-of-Office Act was +unconstitutional. The very fact that he as Executive was legally held +responsible for the acts of the Secretary of War made it necessary for him +to exercise the power of removal or of indefinite suspension. He had at +first complied with the letter of the act in order to avoid a further +struggle with Congress; but, having been frustrated by Congress in his +design, the only alternative that remained to him, in view of his strained +relations with the Secretary of War, was the latter's unconditional +removal. + +10. The President's case, as to the constitutionality of his action and +the unconstitutionality of the Tenure-of-Office Act, was strong, and was +presented with great ability by the President's counsel. But, from the +very beginning, it was obvious that the case would be determined mainly on +political lines. + +If the Republican party could hold all the Republican Senators to the +decision of the majority, a verdict of guilty was assured. Consequently, +the strongest efforts were made to bring all into line. But some proved +recalcitrant. The prospect that the President of the United States was to +be forced out of his office as a punishment for his opposition to the +Legislative Department was not edifying. Hitherto the presidential office +had possessed great dignity. To be sure, Johnson's conduct had gone far +towards the destruction of that dignity, but a conviction on impeachment +charges would drag down the office immeasurably. Some of the Senators also +realized that the tendency of Congress during the whole struggle had been +towards an encroachment upon the executive powers, and that there was +serious danger that the balance of the governmental system might be +destroyed. While, therefore, they strongly disapproved of Johnson's +conduct, they felt unwilling to expose the government to the shock which +would accompany his removal from the presidential chair. The trial +proceeded slowly and the case was ably contested by counsel on both sides; +but the prosecution was practically brought to a close on May 16, by the +vote which was taken on the eleventh article of impeachment. This article +was chosen for the first test of strength, because it embodied those +charges which had caused the most feeling, and which were best calculated +to cause Senators to cast aside judicial restraints and vote according to +their prejudices. But, seven Republicans refused to line themselves with +the radical majority. They and the twelve Democratic Senators voted for +acquittal. Thirty-five Republicans voted "guilty," but this lacked one of +the needful two-thirds majority. Ten days later another vote was taken on +the second and third articles, with the same result. The fight was then +given up, and the court of impeachment was declared adjourned. + +11. It was a fortunate thing for the country that the attempt failed. The +convulsions of the Civil War had unsettled most seriously our conceptions +of the relations of the three co-ordinate departments of the government. +Lincoln had not hesitated to assume powers totally outside the ordinary +functions of the Executive. The country had sustained him in this; but, +with the return of peace, and with Johnson in the presidential chair, +Congress had determined to resume its powers. Again the country responded, +but the violence of the reaction caused the pendulum to swing too far in +the opposite direction; and our institutions were placed in greater danger +than the were in before. But, just as the Civil War had settled the +question as to the indissolubility of the Union, so no less emphatically +did the failure of the impeachment trial confirm the equality of the three +departments of our government. + + + + +AUTHORITIES. + + +Blaine, James G. Twenty Years of Congress. Norwich, 1884. + +Congressional Globe. 37th-40th Congresses. Washington, 1861-1868. + +Cooper, T. V., and Fenton, H. T. American Politics. Boston, 1890. + +Cox, S. S. Three Decades of Federal Legislation. Providence, 1888. + +Dunning, Wm. A. Articles on Civil War and Reconstruction, in Political +Science Quarterly, vols. i. and ii., and on The Impeachment, in Papers Am. +Hist. Assoc., vol. iv. + +Gillet, R. H. Democracy in the United States. New York, 1868. + +Herbert, Hilary A. Editor. Why the Solid South? Baltimore, 1890. + +House Journal. 37th-40th Congresses. Washington, 1861-1868. + +House Reports. Vol. ii., 1865-66. Washington, 1866. + +House Reports. Vol. ii., 1866-67. Washington, 1867. + +Hurd, J. C. Theory of our National Existence. Boston, 1881. + +Johnston, Alexander. History of the United States. New York, 1891. + +Johnston, Alexander. Representative American Orations. New York and +London. + +Johnston, Alexander. Reconstruction, Emancipation Proclamation, Freedmen's +Bureau, etc., Lalor, Cyclopedia of Polit. Science. 3 vols. New York, 1890. + +Lowell. J. R. Political Essays, in "Works." Vol. V. Boston and New York, +1891. + +McPherson, Edward. History of the Reconstruction. Washington, 1880. + +Moore, Frank. Speeches of Andrew Johnson. Boston, 1866. + +Patton, J. H. The Democratic Party. New York, 1888. + +Pollard, E. A. The Lost Cause Regained. New York, 1868. + +Poore, Ben: Perley. Veto Messages of the Presidents of the United States. +Washington, 1886. + +Ridpath. History of the United States. New York and Cincinnati. + +Savage, J. Life and Public Services of Andrew Johnson. New York, 1866. + +Scott, E. G. Reconstruction during the Civil War. Boston and New York, +1895. + +Stanwood, E. History of Presidential Elections. Boston and New York. + +Senate Journal. 37th-40th Congresses. Washington, 1861-1868. + +Sterne, Simon. Constitutional History and Political Development of the +United States. New York and London, 1888. + +Stephens, Alexander H. The War between the States. Philadelphia. + +Taylor, Richard. Destruction and Reconstruction. New York, 1879. + +Williams, G. W. History of the Negro Race in America. New York, 1883. + +Wilson, Henry. Rise and Fall of the Slave Power in America. New York. + +Wilson, Henry. History of the Reconstruction Measures. Hartford, 1868. + + + + +FOOTNOTES: + +[1] Scott, _Reconstruction during the Civil War_, 245 ff. + +[2] _House Journal_, 1st Session, 37th Congress, pp. 123-5. + +[3] Alexander H. Stephens, in _The War between the States_, uses this fact +as a basis for the charge that Johnson was inconsistent in refusing to +ratify the Sherman-Johnston Convention. + +[4] _House Journal_, 2d Session, 37th Congress, p. 33. + +[5] _Senate Journal_, 2d Session, 37th Congress, pp. 202-4. + +[6] _House Journal_, 37th Congress, 3d Session, p. 43. Introduced December +5, 1862, by C. L. Vallandigham, whose subsequent career is well known. See +Cox _Three Decades of Federal Legislation_, pp. 80-85. + +[7] The italics are mine. + +[8] _House Journal_, 1st Session, 38th Congress, p. 48. + +[9] _Ibid._, pp. 65-6. + +[10] See Cox, _Three Decades of Federal Legislation_, 123. + +[11] _House Journal_, 1st Session, 38th Congress, pp. 238-9. + +[12] For a very able discussion of the "Efforts at Compromise, 1860-61," +see Frederic Bancroft's article in _Political Science Quarterly_, vi, pp. +401-423. + +[13] _Congressional Globe_, 1st Session, 37th Congress, p. 129. + +[14] _Ibid._, 2d Session, 37th Congress, part i, p. 8. + +[15] _Senate Journal_, 3d Session, 37th Congress, p. 24. + +[16] See Pollard's _Lost Cause Regained_, pp. 44-57, for a discussion of +the growth of Southern sentiment favoring measures of peace. + +[17] It is improbable that he ever modified his views as to the continued +existence of the States--views which were essentially those of his +successor, though less dogmatically asserted. See Hurd, _Theory of Our +National Existence_, 36 and _Index_; Pollard, _Lost Cause Regained_, 65. + +[18] Cooper, _American Politics_, pp. 141-3. + +[19] Blaine, _Twenty Years of Congress_, ii, 36. + +[20] _Congressional Globe_, 3d Session, 37th Congress, part i, p. 834. + +[21] _House Journal_, 3d Session, 37th Congress, pp. 69, 70. + +[22] Cooper, _American Politics_, bk. i, pp. 141-3. On Lincoln's plan of +Reconstruction, _Cf._ Gillet, _Democracy in the United States_, pp. 297-9; +Pollard, _Lost Cause Regained_, 65, which claims that Lincoln could have +successfully carried out his policy had he lived, but does not sustain the +statement; Cox, _Three Decades_, etc., pp. 336-345; Wilson, _Rise and Fall +of the Slave Power_, iii, 519-20; Scott, _Reconstruction during the Civil +War_, 267 ff. + +[23] These excepted classes were: (1) Confederate civil and diplomatic +officers; (2) Confederates who had left U. S. judicial positions; (3) +officers above colonel in army and lieutenant in navy; (4) those who had +formerly been U. S. Congressmen and had aided the rebellion; (5) those who +left U. S. Army and Navy to aid the rebellion; (6) those who had treated +negroes captured while in U. S. military or naval service otherwise than +as prisoners of war. + +[24] Wilson, _Rise and Fall of the Slave Power in America_, iii, 531-41; +_Cf._ Gillet, _Democracy in the United States_, pp. 304-7. + +[25] For results of this reorganization in Tennessee, see chap. iii. + +[26] With one exception--a Republican, Whaley, of West Virginia, voted +with the negative. + +[27] So called from the chairmen of the House and Senate committees +reporting the bill. + +[28] _Congressional Globe_, appendix, 1st Session, 38th Congress, p. 84. +See also _Lalor_, iii, 546; Cox, _Three Decades_, etc., 339-341; Wilson, +_Rise and Fall of the Slave Power in America_, iii, 520-28; Johnson's +_American Orations_, iii, 242-260; Scott, _Reconstruction during the Civil +War_, 274 ff. + +[29] Cooper, _American Politics_, bk. i, p. 169. + +[30] _Congressional Globe_, part ii, 38th Congress, 1st Session, p. 1246. + +[31] _Congressional Globe_, iii, p. 2106, 1st Session, 38th Congress. + +[32] Cooper, _American Politics_, bk. i, 169-70. The President's action +caused much dissatisfaction, Davis and Wade publishing a protest which +impugned Lincoln's motives, declaring that he had committed an outrage on +American legislation. See Johnson, in _Lalor_, iii. 5 and 6; Cox, _Three +Decades_, etc., 341. + +[33] _Senate Journal_, 2d Session, 38th Congress, Feb. 8. Blaine (_Twenty +Years of Congress_, ii, 46) explains that this joint resolution was +intended as a rebuke to the President by the refusal of Congress to accept +the proclamation of December 8, 1863, as a basis for the restoration of +the States fulfilling its requirements. He then points out how Lincoln, +with his usual tact, overthrows what triumph may have accrued to the +leaders of the opposition by explaining that he "signed the joint +resolution in deference to the view of Congress implied in its passage and +presentation." His (Lincoln's) own opinion was that as a matter of course +Congress had complete power to accept or reject electoral votes, and that +the Executive had no right to interpose with a veto, whatever his own +opinions might be. Blaine says that "his triumph was complete, both in the +estimation of Congress and of the people." + +[34] See Cox, _Three Decades of Federal Legislation_, 123; Johnston, in +_Lalor_, iii, 54; Wilson (Woodrow), _Division and Reunion_, 261-2. + +[35] _Senate Journal_, 2d Session, 37th Congress, pp. 194-6. + +[36] The inconsistency in declaring a State to be extinct, and at the same +time acknowledging the obligation to guarantee to it a republican form of +government, is due to careless phraseology. Obviously Sumner uses the word +"State," in these resolutions, where he means state governments. + +[37] _Congressional Globe_, 1st Session, 38th Congress, part ii, p. 2041. +See also his remarks on the Confiscation bill. Cox's _Three Decades of +Federal Legislation_, pp. 365-374, contains a chapter on the policy of +Stevens. + +[38] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +531-541. + +[39] McPherson, _Reconstruction_, pp. 44 f. Cf. Wilson, _Rise and Fall of +the Slave Power in America_, iii, 592. + +[40] McPherson, pp. 46-7. + +[41] McPherson, 44 ff; Moore, _Life and Speeches of Andrew Johnson_, 481 +ff. + +[42] McPherson, p. 47. + +[43] McPherson, pp. 47-8. + +[44] See Gillett, _Democ. in the U. S._, pp. 333-337, for a discussion of +Johnson's policy and mistakes from the Democratic standpoint. + +[45] Mr. Blaine in his _Twenty Years of Congress_, vol. ii, pp. 63-70, +ascribes the apparently great modification of Johnson's attitude towards +the South to two causes: First, the personal influence of Seward; second, +the flattery of Southern leaders. He assumes Johnson to have been +thoroughly determined to carry out a harsh policy of reconstruction, and +points out that of the six members of the Cabinet, excluding Mr. Seward, +three were radical and three conservative in their views, offsetting each +other in their influence upon Johnson. He then calls attention to the fact +that Mr. Seward's most conspicuous faculty was the power to convince +listeners against their will through his personal conversation with them. +With this remarkable faculty he believes Mr. Seward to have deliberately +settled down to the task of reversing the President's views as to +reconstruction. "Equipped with these rare endowments," he says, "it is not +strange that Mr. Seward made a deep impression upon the mind of the +President. In conflicts of opinion the superior mind, the subtle address, +the fixed purpose, the gentle yet strong will, must in the end prevail." +Mr. Seward's fervent pleadings, Blaine thinks, caused a marked change in +Johnson's beliefs, and inclined him to look favorably upon the glory of a +merciful, lenient administration. The leaders in the South, quickly +noticing the change in Johnson's attitude, took advantage of the +opportunity, and by judicious flattery completed the work which Seward had +begun, and placed Johnson before the world as the ardent champion of +immediate restoration. The theory impresses one with its apparent +reasonableness, but as Mr. Blaine produces no evidence beyond his own +authority, one is inclined to look upon it as an ingenious explanation +based upon the environment of Johnson. Doubtless Seward presented his view +on the situation with his accustomed ability, and probably it influenced +Johnson's view to a certain extent. The second part of the supposition can +also readily be granted--that the vanity of Johnson was played upon by +those whose flattery was most pleasing to one who had sprung from the +ranks of those accustomed to be dictated to and spurned by these same men. +Yet to ascribe the adoption of so important a policy, affecting all the +fundamental principles upon which strict and loose constructionists are +divided, to these influences, appears to be a superficial judgment based +upon opinions formed in the heat of the struggle, when extraneous +influences are always given undue prominence by the participants. The +whole career of Johnson proves the logical exactness with which he +followed strict construction dogma in all points excepting the doctrine of +secession. + +[46] McPherson, _Hist. of Recon._, 45, 46 + +[47] The repudiation of the Sherman-Johnston agreement of April 18th was +of a negative character, and did not commit the administration to any +policy. Coming, as it did, so shortly after his inauguration, it was taken +by those expecting harsh measures from the President as an indication of +such a policy. An examination of the circumstances, however, shows that +Johnson was merely following the policy supposed to have been adopted by +Lincoln, and evidenced by instructions sent to Grant on March 3 in regard +to a proposed conference with Lee. Stephens' charge (_War between the +States_, ii, 632), that Johnson was bound to ratify the agreement as +consistent with the Crittenden Resolution of 1861, is inadmissible. +Generals in the field manifestly have no right to decide momentous +political questions. For a copy of the Sherman-Johnston agreement, and the +official dispatch giving particulars of its disapproval, see McPherson, +_Hist. of Recon._, 121-2. + +[48] McPherson, p. 13-14. + +[49] McPherson, p. 8. + +[50] See Appendix; Savage, _Life and Public Services of Andrew Johnson_, +370-373. + +[51] Blaine, ii, 70-76, ascribes this amnesty proclamation to the personal +influence of Mr. Seward, who favored all but the 13th excepted class +(property holders above $20,000). This certainly offers a good explanation +of the promptness of his action, and is not inconsistent with the theory +of Johnson's attitude as outlined above. + +[52] McPherson, p. 11; Blaine, ii, 77, 78. + +[53] Tennessee, of course, having been reorganized during Lincoln's +administration, under the direction of Military Governor Johnson, cannot +be considered in connection with Johnson's policy as President. Louisiana +and Arkansas also retained their reorganized governments until the +reconstruction acts took effect. See Blaine, ii, 79, 80. + +[54] The phraseology differed in the different States, depending upon the +sensitiveness and pride of the legislature. + +[55] McPherson, _Reconst._, 7, 8. + +[56] McPherson, _Reconst._, 49. + +[57] _Ibid._, 51-2. + +[58] McPherson, 20. + +[59] _Ibid._, 21-2. + +[60] McPherson, 43; Blaine, ii, 102-3. + +[61] See _Why the Solid South_, edited by Hilary A. Herbert, for a +detailed presentation of the Southern view. + +[62] The report of the Joint Committee on Reconstruction, June 18th +(_House Reports_, No. 30, 1st Session, 39th Congress; McPherson, 84-93), +gives a spirited summary of the action of the Southern States since the +appointment of the provisional governors. See also Blaine, _Twenty Years +of Congress_, ii, 84-107. + +[63] Lalor, iii, 546. + +[64] Senate: Republicans, 40; Democrats, 11; House: Republicans, 145; +Democrats, 40. The work before Congress was well expressed by Schuyler +Colfax in his speech made upon taking the Speaker's chair. Speaking of +Congress he said: "Representing, in its two branches, the States and the +people, its first and highest obligation is to guarantee to every State a +republican form of government. The rebellion having overthrown +constitutional State governments in many States, it is yours to mature and +enact legislation which, with the concurrence of the Executive, shall +establish them anew on such a basis of enduring justice as will guarantee +all the necessary safeguards to the people, and afford what our Magna +Charta, the Declaration of Independence, proclaims is the chief object of +government--protection to all men in their inalienable rights. * * * * +Then we may hope to see the vacant and once abandoned seats around us +gradually filling up, until this hall shall contain representatives from +every State and district; their hearts devoted to the Union for which they +are to legislate, jealous of its honor, proud of its glory, watchful of +its rights, and hostile to its enemies." _Congressional Globe_, 39th +Congress, 1st Session, p. 5. See Blaine, _Twenty Years of Congress_, ii, +111, 112. + +[65] Among the Senators elected were Alexander H. Stephens, Vice-President +of the Confederacy, and H. V. Johnson, a Senator in the rebel Congress, +both from Georgia; from North Carolina, W. A. Graham, Senator in the rebel +Congress; from South Carolina, B. F. Perry, a Confederate States judge, +and J. I. Manning, volunteer aid to General Beauregard at Fort Sumter and +Manassas (McPherson, 106-7). Among the Representatives chosen were: from +Alabama, Cullen A. Battle, a Confederate general, and T. J. Foster, a +Representative in the rebel Congress; from Georgia, Philip Cook and W. T. +Wofford, generals in the Confederate army; from Mississippi, A. E. +Reynolds and R. A. Pinson, rebel colonels, and J. T. Harrison, in rebel +provisional Congress; from North Carolina, Josiah Turner was a rebel +colonel, and a member of the rebel Congress, and T. C. Fuller a rebel +Congressman; from South Carolina, J. D. Kennedy was a colonel, and Samuel +McGowan a general in the rebel army, and James Farrow, a rebel +Congressman. + +[66] By Mr. Brooks, of New York. _Congressional Globe_, 39th Congress, 1st +Session, pp. 3, 4. + +[67] _Congressional Globe_, 1st Session, 39th Congress, p. 2; Blaine, +_Twenty Years of Congress_, ii, 113-115. + +[68] Wilson, _History of Reconstruction_, 16 ff. + +[69] _Congressional Globe_, 39th Congress, 1st Session, pp. 24-30. + +[70] Senator Lane committed suicide on July 11, 1866. Mortification caused +by abuse, as the result of his action, is supposed to have unbalanced him +mentally. _Cf._, Blaine, ii, 185. + +[71] The resolution as adopted by the House on the 4th contained in +addition: "and until such report shall have been made, and finally acted +upon by Congress, no member shall be received into either House from any +of the so-called Confederate States, and all papers relating to the +representation of the said States shall be referred to the said committee +without debate." The Senate, however, considered such provisions to affect +powers granted to each House separately, and which should not be entrusted +to a joint committee. Therefore they were struck out, but on December 14 +the House of Representatives passed resolutions binding itself to be +governed by similar principles. + +[72] The other members of the committee were: on the part of the Senate, +Howard of Michigan, Grimes of Iowa, Harris of New York, Williams of +Oregon, and Johnson of Maryland; on the part of the House, Washburne of +Illinois, Morrill of Vermont, Grider of Kentucky, Bingham of Ohio, +Conkling of New York, Boutwell of Massachusetts, Blow of Missouri, and +Rogers of New Jersey. + +[73] Blaine, _Twenty Years of Congress_, ii, 115. + +[74] Wilson, _History of the Reconstruction Measures_, 42-105, contains a +summary of the debates on reconstruction; see also Blaine, _Twenty Years +of Congress_, ii, 128 ff. + +[75] _Congressional Globe_, 39th Congress, 1st Session, pp. 72-5. + +[76] _Congressional Globe_, 1st Session, 39th Congress, p. 1019. + +[77] _Congressional Globe_, 1st Session, 39th Congress, p. 1309. These +strong statements of the advisability of confiscation alarmed the Southern +States greatly, and caused them to hate and fear Thaddeus Stevens. See +Lalor, iii, 546 ff. The following extract from General Taylor's +_Destruction and Reconstruction_ (pp. 243-4), is characteristic of the +Southern estimate of the man. General Taylor had occasion to call upon +Stevens while endeavoring to get permission to visit Jefferson Davis, then +in confinement at Fortress Monroe. He goes on to say: "Thaddeus Stevens +received me with as much civility as he was capable of. Deformed in body +and temper like Caliban, this was the Lord Hategood of the fair; but he +was frankness itself. He wanted no restoration of the Union under the +Constitution, which he called a worthless bit of old parchment. The white +people of the South ought never again to be trusted with power, for they +would inevitably unite with the Northern 'Copperheads' and control the +government. The only sound policy was to confiscate the lands and divide +them among the negroes, to whom, sooner or later, suffrage must be given. +Touching the matter in hand, Johnson was a fool to have captured Davis, +whom it would have been wiser to assist in escaping. Nothing would be done +with him, as the Executive had only pluck enough to hang poor devils, such +as Wirz and Mrs. Surratt. Had the leading traitors been promptly strung +up, well; but the time for that had passed. (Here, I thought, he looked +lovingly at my neck, as Petit Andre was wont to do at those of his +merry-go-rounds.)" + +[78] _Congressional Globe_, 39th Congress, 1st Session, p. 1476. + +[79] _Congressional Globe_, 39th Congress, 1st Session, p. 1616. + +[80] _Ibid._, p. 1617. + +[81] _Ibid._, p. 1828. + +[82] _Congressional Globe_, 39th Congress, 1st Session, p. 155. + +[83] _Ibid._, p. 150. + +[84] _Congressional Globe_, 39th Congress, 1st Session, p. 1169. + +[85] _Ibid._, p. 2256. + +[86] Gillet's _Democracy in the United States_, pp. 309-13, discusses the +Freedmen's Bureau from the Northern Democratic standpoint. + +[87] The first bill creating a Freedmen's Bureau was introduced in the +House during the 37th Congress by Mr. Eliot, of Massachusetts, who during +the 39th Congress was chairman of the Select Committee on Freedmen. It was +not reported, but the same bill was presented in the first session of the +38th Congress, and passed the House by a vote of 69 to 67. It was returned +from the Senate on June 30, 1864, amended so as to attach the Bureau to +the Treasury Department. A committee of conference agreed upon a new bill +creating a department of freedmen's affairs, reporting to the President. +This passed the House, but failed in the Senate. The next attempt +succeeded. _Congressional Globe_, 2d Session, 38th Congress, p. 1307. See +Cox's _Three Decades of Federal Legislation_ for an account of the +Freedmen's Bureau; also Wilson, _Rise and Fall of the Slave Power in +America_, iii, 472-485; Wilson (Woodrow), _Division and Reunion_, 263. + +[88] _Congressional Globe_, 39th Congress, 1st Session, p. 1299. Mr. +Doolittle on the 19th of December, 1865, had introduced a bill relative to +the Bureau of Freedmen, but when reported from the Committee on Military +Affairs, to which it had been referred, it was indefinitely postponed. + +[89] This committee had been established by a resolution introduced by Mr. +Eliot, of Massachusetts, on December 6, 1865. So much of the President's +message as related to freedmen, and all papers relating to the same +subject, were to be referred to it. The following were appointed members +of the committee: T. D. Eliot of Massachusetts, W. D. Kelley of +Pennsylvania, G. S. Orth of Indiana, J. A. Bingham of Ohio, Nelson Taylor +of New York, B. F. Loan of Missouri, J. B. Grinnell of Iowa, H. E. Paine +of Wisconsin, and S. S. Marshall of Illinois. + +[90] Cox confuses this act with the act passed over the veto on July 16, +declaring that it was passed over the veto on February 21. _Three Decades +of Federal Legislation_, p. 444. + +[91] See Wilson (Henry), _Rise and Fall of the Slave Power in America_, +iii, 490-97; Wilson, _History of Reconstruction_, 148-184; Blaine, _Twenty +Years of Congress_, ii, 164-170; Wilson (Woodrow), _Division and Reunion_, +264. + +[92] _Congressional Globe_, 1st Session, 39th Congress. McPherson, +_History of the Reconstruction_, pp. 73-4. + +[93] The veto messages of the Presidents of the United States, from +Washington to Cleveland, inclusive, have been compiled by Ben: Perley +Poore by order of the Senate. + +[94] _Congressional Globe_, 39th Congress, 1st Session, pp. 915-917; +McPherson, _History of Reconstruction_, pp. 68-72. + +[95] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +497-99; Wilson, _History of the Reconstruction_, 184-195; Blaine, _Twenty +Years of Congress_, ii, 171-2. + +[96] The votes were: House, 104 to 33; Senate, 33 to 12. For the text of +the bill, see _Congressional Globe_, 1st Session, 39th Congress; +McPherson, _History of the Reconstruction_, pp. 149-50. Blaine, _Twenty +Years of Congress_, ii, 172, states that the bill was far less popular +than the measure vetoed on February 19. "It required potent persuasion, +re-enforced by the severest exercise of party discipline, to prevent a +serious break in both Houses against the bill." + +[97] McPherson, _History of the Reconstruction_, 52-56. + +[98] _House journal_, 39th Congress, 1st Session, 300, 315. The resolution +was carried particularly to silence the Tennessee claimants for +recognition. The somewhat anomalous position of that State gave grounds +for the argument that it should be classed in the same category with the +other Southern States. Thus Mr. Stevens was able to get the power for the +joint committee which he had originally claimed. + +[99] McPherson, _History of the Reconstruction_, pp. 58-63. + +[100] See Wilson, _Rise and Fall of the Slave Power in America_, iii, +684-692; _History of Reconstruction_, 117-149; Blaine, _Twenty Years of +Congress_, ii, 172-79. + +[101] _Congressional Globe_, 1st Session, 39th Congress, pp. 39, 40. + +[102] _Congressional Globe_, 39th Congress, 1st Session; McPherson, +_History of the Reconstruction_, pp. 75-8. + +[103] _Congressional Globe_, 39th Congress, 1st Session, pp. 1679-81; +McPherson, _History of Reconstruction_, pp. 75-8. + +[104] _Senate Journal_, 39th Congress, 1st Session, pp. 431-2; McPherson, +_History of the Reconstruction_, pp. 82-3; Blaine, _Twenty Years of +Congress_, ii, 275-80. + +[105] McPherson, _History of the Reconstruction_, 81-2; _Congressional +Globe_, 39th Congress, 1st Session, 2609. + +[106] McPherson, 160-164. + +[107] McPherson, _History of the Reconstruction_, pp. 164-6; +_Congressional Globe_, 39th Congress, 1st Session. + +[108] Hurd, in his _Theory of our National Existence_, p. 42, says that +this report of the Joint Committee on Reconstruction "as being the most +authoritative declaration of principles supposed to have been afterwards +carried out in political action, is a document which, either for good or +evil, will probably be regarded as one of the most important in the +history of this country." + +[109] For an extended discussion of the constitutional views of the +members of the committee, see Hurd's _Theory_, etc., pp. 224 ff. + +[110] _House Reports_, No. 30, 39th Congress, 1st Session. McPherson, +_History of Reconstruction_, pp. 84-93. + +[111] Gillet, _Democracy in the United States_, pp. 318-20. + +[112] _Congressional Globe_, 1st Session, 39th Congress, pp. 9, 10, 351. + +[113] _Ibid._, 141-2, 232. For general discussions and summaries of the +debates on the 14th Amendment, see Wilson, _Rise and Fall of the Slave +Power in America_, iii, 647-660; Wilson, _History of Reconstruction_, +218-266; Blaine, _Twenty Years of Congress_, ii, 193-214. + +[114] The vote was: yeas, 120; nays, 46. + +[115] _Congressional Globe_, 39th Congress, 1st Session, p. 2459. + +[116] Yeas, 128, nays, 37. + +[117] On May 29, _Congressional Globe_, 39th Congress, 1st Session, p. +2869. + +[118] See Pollard's _Lost Cause Regained_, p. 74. + +[119] _Senate Journal_, 39th Congress, 1st Session, p. 502. + +[120] On the reorganization of Tennessee, see Blaine, _Twenty Years of +Congress_, ii, 50-52, 214-17; Cox, _Three Decades of Federal Legislation_. + +[121] _House Reports_, No. 30, pt. 1; McPherson, _History of the +Reconstruction_, pp. 105-6. + +[122] Ratified by the Senate July 11, yeas, 15, nays, 6; by the House July +12, yeas, 43, nays, 11. Tennessee was the third State to ratify the +amendment, Connecticut and New Hampshire being the first two. + +[123] McPherson, _History of the Reconstruction_, pp. 151-4. + +[124] Blaine, _Twenty Years of Congress_, ii, 219-220. + +[125] The Congressional committee of investigation, appointed at the +beginning of the 2d session, in December, submitted a detailed report of +the riots. See _House Reports_, No. 16, 2d Session, 39th Congress. See +also Blaine, _Twenty Years of Congress_, ii, 233-237. + +[126] _House Reports_, No. 16, 39th Congress, 2d Session, p. 26. + +[127] See below for an account of this canvass. + +[128] _House Reports_, No. 16, 39th Congress, 2d Session, pp. 24-27; +McPherson, _History of the Reconstruction_, 137. + +[129] McPherson, _History of the Reconstruction_, 118, 119; Blaine, +_Twenty Years of Congress_, ii, 220-223. + +[130] Among these Republicans were Thurlow Weed, Edgar Cowan, James R. +Doolittle, A. W. Randall, O. H. Browning, James Dixon, Henry J. Raymond, +R. S. Hale, J. A. Dix, Marshall O. Roberts and Montgomery Blair. + +[131] McPherson, _History of the Reconstruction_, 240-1. + +[132] Blaine, _Twenty Years of Congress_, ii, 222. + +[133] McPherson, _History of the Reconstruction_, 127. + +[134] McPherson, _History of the Reconstruction_, 129. This manner of +indicating his disinterestedness caused great offense in some quarters. +See the account below of the Pittsburg convention of soldiers and sailors +of September 26. + +[135] See Blaine, _Twenty Years of Congress_, ii, 237-239. + +[136] McPherson, _History of the Reconstruction_, 130. + +[137] McPherson, _History of the Reconstruction_, 131, 132. + +[138] McPherson, 135. The following is a good example of the manner in +which Johnson lowered himself to the level of the disorderly element, who +made a bedlam out of some of the meetings he attended. The extract is from +the Cleveland speech: "Who can come and place his finger on one pledge I +ever violated, or one principle I ever proved false to? (A voice, 'How +about New Orleans?' Another voice, 'Hang Jeff Davis.') Hang Jeff Davis, he +says. (Cries of 'No' and 'Down with him!') Hang Jeff Davis, he says. (A +voice, 'Hang Thad. Stevens and Wendell Phillips.') Hang Jeff Davis. Why +don't you hang him? (Cries of 'Give us the opportunity.') Have you not got +the court? Have not you got the Attorney General? (A voice, 'Who is your +Chief Justice who has refused to sit upon the trial?' Cheers.) I am not +the Chief Justice. I am not the prosecuting attorney. (Cheers.) I am not +the jury. + +"I will tell you what I did do. I called upon your Congress that is trying +to break up the government. (Cries, 'You be d--d!' and cheers mingled with +hisses. Great confusion. 'Don't get mad, Andy.') Well, I will tell you who +is mad. 'Whom the gods wish to destroy, they first make mad.' Did your +Congress order them to be tried? ('Three cheers for Congress')," etc. + +[139] Tennessee, Texas, Georgia, Missouri, Virginia, North Carolina and +Alabama were represented among the signers to the call. + +[140] McPherson, _History of the Reconstruction_, 124. + +[141] Blaine, _Twenty Years of Congress_, ii, 224-228. + +[142] McPherson, _History of the Reconstruction_, 241, 242. + +[143] McPherson, _History of the Reconstruction_, 242. + +[144] The address was prepared by Senator Creswell, of Maryland. See +Blaine, _Twenty Years of Congress_, ii, 223-228. + +[145] McPherson, _History of the Reconstruction_, 243; Blaine, _Twenty +Years of Congress_, ii, 228-230. + +[146] Blaine, _Twenty Years of Congress_, ii, 230-233. + +[147] General John A. Logan was first chosen president, but was unable to +attend. + +[148] McPherson, _History of the Reconstruction_, 242, 243. + +[149] McPherson, _History of the Reconstruction_, 140. + +[150] McPherson, _History of the Reconstruction_, 194. + +[151] Scott, _Reconstruction during the Civil War_, 290 ff. + +[152] _House Journal_, 2d Session, 39th Congress, 12-23; McPherson, +_History of the Reconstruction_, 143-147. + +[153] _House Journal_, 2d Session, 39th Congress, 15. + +[154] The resolution passed the House on December 4, and the Senate on +December 5. _House Journal_, 2d Session, 39th Congress, 30; _Senate +Journal_, 2d Session, 39th Congress, 22. + +[155] _Senate Journal_, 2d Session, 39th Congress, 202. + +[156] _House Journal_, 2d Session, 39th Congress, 345. + +[157] _Congressional Globe_, 2d Session, 39th Congress, 1074. + +[158] _Congressional Globe_, 2d Session, 39th Congress, 1076. + +[159] _Congressional Globe_, 2d Session, 39th Congress, 1360. + +[160] _Ibid._, 1381-2. + +[161] _Ibid._, 1360. + +[162] _Congressional Globe_, 2d Session, 39th Congress, 1399. + +[163] McPherson, _History of the Reconstruction_, 192. + +[164] _House Journal_, 2d Session, 39th Congress, 563-572. + +[165] Act of January 22, 1867. + +[166] _Congressional Globe_, 1st Session, 40th Congress, 13. + +[167] The Committee on the Judiciary was instructed on March 7 to report a +supplementary bill (_Congressional Globe_, 17), and the Wilson bill was +accordingly reported by it. + +[168] _Congressional Globe_, 1st Session, 40th Congress, 302-3; 313-14. + +[169] _Congressional Globe_, appendix, 1st Session, 40th Congress, 39; +McPherson, _History of the Reconstruction_, 192. + +[170] Except in Virginia, where the number was modified in proportion to +the change made by the separation of West Virginia. + +[171] By the act of that date all persons elected or appointed to any +office under the government of the United States were required to take the +following oath previous to entering upon the duties of such office: "I, A. +B., do solemnly swear (or affirm) that I have never voluntarily borne arms +against the United States since I have been a citizen thereof; that I have +voluntarily given no aid, countenance, counsel, or encouragement to +persons engaged in armed hostility thereto; that I have neither sought nor +accepted nor attempted to exercise the functions of any office whatever, +under any authority or pretended authority in hostility to the United +States; that I have not yielded a voluntary support to any pretended +government, authority, power or constitution within the United States, +hostile or inimical thereto. And I do further swear (or affirm) that, to +the best of my knowledge and ability, I will support and defend the +Constitution of the United States against all enemies, foreign and +domestic; that I will bear true faith and allegiance to the same; that I +take this obligation freely, without any mental reservation or purpose of +evasion, and that I will well and faithfully discharge the duties of the +office on which I am about to enter, so help me God." + +[172] Appendix, _Congressional Globe_, 1st Session, 40th Congress, 39, 40. + +[173] Johnson, _Reconstruction_, in Lalor, iii, 552; Cox, _Three Decades +of Federal Legislation_, 378. + +[174] _Congressional Globe_, appendix, 1st Session, 39th Congress, 43-4. + +[175] McPherson, _History of the Reconstruction_, 335-6. + +[176] Stanbery had ruled that the willingness of an applicant to take the +oath must be regarded as final evidence of his qualification to register. +Thus those notoriously incapacitated from taking the oath honestly, could +not be prevented from registering. This additional power virtually enabled +the boards of registration to exercise their own discretion as to whom +they should enroll. + +[177] Scott, _Reconstruction during the Civil War_, 317 ff. + +[178] Cox, _Three Decades of Federal Legislation_, 512-14. + +[179] McPherson, _History of the Reconstruction_, 336-7. + +[180] McPherson, 190. + +[181] Dunning, in _Papers of the American Historical Association_, iv, +473; _Congressional Globe_, 1st Session, 40th Congress, p. 565. + +[182] McPherson, 264. + +[183] _Ibid._, 178. + +[184] McPherson, 178. + +[185] Vetoed March 2, 1867, and repassed by both houses on the same day. +For copy of the act, see McPherson, 176 ff. + +[186] His argument here, however, is weak, as the power of suspension +would easily have covered all such cases. + +[187] _Ex parte_ Hennen, January, 1839, 13 Peters, 139. + +[188] McPherson, 261. + +[189] _Ibid._, 262. + +[190] The text of the correspondence between Grant and Johnson may be +found in McPherson, _History of the Reconstruction_, p. 282 ff. + +[191] McPherson, p. 283. + +[192] _Ibid._, p. 284. + +[193] McPherson, 265. The fact also that Grant had refused to be governed +by Johnson's instructions made the attempt still less serious. + +[194] See Dunning, _Papers American Historical Association_, 1890, p. 481. + +[195] McPherson, 266. The vote was 128 to 47, divided strictly on party +lines. + +[196] For the full text of the eleven articles, see McPherson, 266 ff. For +a critical discussion of the legal points involved in the trial, see +Dunning, in _Papers American Historical Association_, iv, 483 ff. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _italics_. + +Foonote 80 appears on page 58 of the text, but there is no corresponding +marker on the page. + +Punctuation has been corrected without note. + +The following misprints have been corrected: + "propsed" corrected to "proposed" (page 23) + "Constution" corrected to "Constitution" (page 26-27) + "reconstructon" corrected to "reconstruction" (page 48) + "or" corrected to "for" (page 50) + "join tcommittee" corrected to "joint committee" (page 53) + "falied" changed to "failed" (page 61) + "eqality" corrected to "equality" (page 77) + "resolulutions" corrected to "resolutions" (page 93) + +Other than the corrections listed above, inconsistencies in spelling and +hyphenation have been retained from the original. + + + + + + +End of the Project Gutenberg EBook of The Struggle between President Johnson +and Congress over Reconstruction, by Charles Ernest Chadsey + +*** END OF THIS PROJECT GUTENBERG EBOOK THE STRUGGLE *** + +***** This file should be named 35668.txt or 35668.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/5/6/6/35668/ + +Produced by Bryan Ness and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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