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Title: The Struggle between President Johnson and Congress over Reconstruction

Author: Charles E. Chadsey

Release date: March 24, 2011 [eBook #35668]

Language: English

Credits: 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
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*** START OF THE PROJECT GUTENBERG EBOOK THE STRUGGLE BETWEEN PRESIDENT JOHNSON AND CONGRESS OVER RECONSTRUCTION ***




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.








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