Chapter VII: THE CONGRESSIONAL PLAN (Completed)

Negro Suffrage in the District of Columbia--The First Attempts at Impeachment--Stories of Outrages at the South--The Reconstruction Bill--Passage of the Bill by the House--The Bill as Finally Agreed upon--The Condition that the Fourteenth Amendment must be Ratified by a Sufficient Number of "States" to make it a Part of the Constitution--The Tenure-of-Office Bill--The Supplementary Reconstruction Bill--The Assignment of the Commanding Generals to the Military Districts Created by the Reconstruction Acts--The Re-establishment of Martial Law in the South--The President's Instructions to the Generals in Interpretation of the Reconstruction Acts--The Congressional Interpretation of the Reconstruction Acts--The President's Veto of the Bill Interpreting the Reconstruction Acts--The Veto Overridden--The Suspension of Stanton from Office.

[Sidenote: Negro suffrage in the District of Columbia.]

The Congress had but just put itself in working order, when a bill was introduced and passed extending the suffrage to negroes in the District of Columbia. The Republicans reasoned that they could not with good grace force negro suffrage on the South before establishing it in the District, and that the District was the best place in the country to try the experiment first. The bill went to the President on the 26th of December, six days after the adjournment of Congress for the Christmas vacation, although it had passed the Houses on the 13th and 14th. The President held it until January 5th, 1867, and then returned it to the Senate with his veto.

{108} [Sidenote: The President's veto of the bill establishing negro suffrage in the District of Columbia.]

The Message was a strong paper, and to an impartial mind at this day it is a convincing paper. There is no question that Congress had the constitutional power to establish negro suffrage in the District. The President did not dispute that. He simply argued that in legislating for the District, Congress stood in a relation to the inhabitants of the District analogous to that which the legislature of a "State" bore to the inhabitants of the "State," and that as the legislature of a "State" would not act in opposition to the expressed will of a large majority of the voters in the "State," so Congress in legislating for the District of Columbia ought not to disregard the expressed will of a large majority of the voters in the District. He then referred to the vote of the District upon this very subject, taken in December of 1865, only one year before, when out of a poll of 6,556, one of the largest votes ever cast in the Capital city, only thirty-five ballots were cast for negro suffrage, and in Georgetown out of a poll of 813 only one ballot was cast for negro suffrage. He further argued that Congress ought not to make the District a place for trying political experiments of so grave a character as conferring suffrage, the highest privilege of American citizenship, upon a race of men just emerging from the ignorance and vice attendant on a condition of slavery. And he finally asked the Congress to reconsider an act which appeared to him to be the degradation and possibly the destruction of American suffrage.

There is no gainsaying that this was good reasoning, but Congress was in no frame of mind to give ear to the counsel of the President. It took the ground that in legislating for the District it was acting for the whole United States and not simply for the inhabitants of the District, and that there was no place in the entire {109} country where political experiments could be more safely tried than in the District, since Congress had plenary legislative power in the District and could discover and correct mistakes and defects in its legislation more easily and promptly there than anywhere else.

[Sidenote: The first attempts at impeachment.]

Both Houses repassed the bill over the President's veto by the necessary two-thirds majority, the Senate on the 7th of January and the House on the 8th, and negro suffrage was established in the District of Columbia. The President's veto so angered some of the extremists that resolutions of impeachment were introduced into the House, and a resolution for the appointment of a committee to inquire whether there were reasons for impeachment was actually carried, and a committee was appointed. The committee sought everywhere and in every way for grounds upon which to arraign the President at the bar of the Senate, but for the moment it failed.

[Sidenote: Stories of outrages at the South.]

At the same time the halls of Congress were ringing with the most extravagant tales of outrages against the negroes and loyal men of the South at the hands of the late rebels, and of the collusion of the newly established "State" governments with the same. In addition to this, the other three of the ten newly constructed "State" legislatures rejected the proposed Fourteenth Amendment, two of them by unanimous vote, and the other by every vote but one.

[Sidenote: The Fourteenth Amendment as the condition of recognizing the revival of statehood.]

While, as we have seen, the Congress did not pass the proposition to make the acceptance of the proposed Fourteenth Amendment by the newly reconstructed "States" the condition of recognizing them as "States" of the Union, and admitting the Senators- and Representatives-elect from them to seats in Congress, yet the popular mind had so conceived the matter, and the {110} order of events in the case of Tennessee had given this conception the force of precedent. The Republicans in Congress and the North could now fairly claim that they had offered to recognize the President's reconstructed "States," although these bodies were without constitutional warrant, upon the most moderate terms which consideration for the necessary consequences of the Civil War and the victory of the Union would allow, and that their offer had been rejected in every case, except, of course, that of Tennessee--rejected by such majorities and in such a manner as to make the rejection amount to defiance. It was true that logically and constitutionally Congress had no power to make the acceptance of something not at the time a part of the Constitution a condition for the admission of the new "States," or the readmission of old "States," into the Union; and Congress had not done this formally. It is also true, both in good logic and in sound constitutional law, that the proposed Fourteenth Amendment should not have been submitted at all to bodies that were not conventions of the people in, or legislatures of, "States" in the Union. Logically and constitutionally the whole thing was irregular. But it was as it was, and all understood that the way to cut the knot was for the legislatures of the reconstructed "States" to adopt the proposed Fourteenth Amendment, as Tennessee had done. When they refused to do so, it was natural and it was necessary that Congress should at last overturn all of the President's proceedings in Reconstruction, and all of the proceedings made under his guidance, and begin _de novo_, and upon the true constitutional principle of the exclusive power of Congress to admit new "States" into the Union, or, more scientifically expressed, to create new States or control their creation on territory {111} of the Union in which loyal civil government did not exist.

[Sidenote: The correctness of the Republican view.]

There can be no question in the mind of any sound political scientist and constitutional lawyer that Congress was in the right, logically, morally, and legally, in insisting upon brushing aside the results of executive Reconstruction in the winter of 1867, and beginning the work itself from the bottom up. It ought to have done so in 1865. It ought to have created, so soon as armed resistance to the execution of the laws of the United States ceased, regular Territorial civil governments throughout the country which had been in insurrection, and then have admitted these Territories as "States" whenever the conditions warranting the same should have been attained. The phantom of the "indestructible State" had too strong an influence over the minds of all at that moment to admit of such a solution of the question. But after the experiences of 1865 and 1866, and the discussions in the last session of the Thirty-ninth Congress, the minds of the Republicans at least, both in and out of Congress, were prepared to break away from the influence of this idea and to view the process of Reconstruction as nothing but the admission of new "States" into the Union, new "States" founded on territory and including inhabitants that had indeed once formed "States," but had renounced Statehood in the Union through disloyalty to the Union, and had been brought back to the position of territories, civilly unorganized in local instance, but subject to the exclusive jurisdiction of the central Government. From such a point of view, the method of procedure was plain. While it is strange that the Congress did not follow this course in 1865, it is simply astounding that it made such a mess of it in 1867.

{112} [Sidenote: The Reconstruction bill.]

The Reconstruction bill was presented from the Committee of fifteen on Reconstruction to the House of Representatives on the 6th of February by Mr. Stevens. It was a thoroughly drastic measure. Instead of creating Territorial civil government in the usual manner, with an electorate designated by Congress, and with powers under the control of Congress, and sustained, if necessary, by the military of the United States, which would have been amply sufficient to meet all the real or proper exigencies of the case, the bill began by declaring that the pretended "State" governments of the so-called Confederate States did not protect adequately life or property, but countenanced and encouraged lawlessness and crime; and that it was necessary that peace and good order should be enforced in the so-called Confederate States until loyal "State" governments could be legally established therein; and then went on to enact that the said so-called Confederate States should be divided into five military divisions and made subject to the military authority of the United States, Virginia to constitute the first division, North Carolina and South Carolina the second, Georgia, Alabama, and Florida the third, Mississippi and Arkansas the fourth, and Louisiana and Texas the fifth; that the General of the army should assign an army officer of not less rank than a brigadier-general to the command of each of these divisions, and detail sufficient military forces, and place them under the command of each of said generals, to enable him to enforce his authority in the district over which he should be placed; that these commanders might use civil tribunals in the enforcement of the laws if they should see fit, but that, if these were not effective they might institute and govern through military commissions; that no sentence of these commissions should be executed until approved {113} by the commanding officer of the district; and finally, that the United States courts and judges should issue no writs of Habeas Corpus against the proceedings and judgments of these commissions.

[Sidenote: The bill indefensible from the constitutional point of view.]

There was hardly a line in the entire bill which would stand the test of the Constitution. In the first place, the Congress of the United States, or any other part of the Government of the United States, can establish martial law in any part of the territory of the United States only when and where there is armed resistance to the execution of the laws of the United States, or of some "State" or Territory whose jurisdiction is being defended by the Government of the United States. Such was not the condition anywhere in the South. The Executive had proclaimed that such resistance had ceased everywhere several months before; that he had appointed civil officers throughout the South for the execution of the laws of the United States, in many cases with the advice and consent of the Senate; that these laws were in operation everywhere; and that the United States courts were open everywhere and in the unhindered discharge of their functions and duties. It was not pretended, of course, that there was armed resistance to the execution of the laws of the reconstructed "States," and that the military of the United States was to act simply in support of "State" authority. There were here and there, it is true, some of the remains of the military authority of the United States, exercised during the period of the insurrection, but they were a very poor basis upon which to found a resumption of the reign of martial law throughout the length and breadth of the South. No sane and just mind can consider for a moment such a ground as sufficient in policy, morals or constitutional law. While the people of these districts {114} which had attempted to secede from the Union had forfeited their rights to the "State" form of local government, they still had, after they had ceased from armed resistance to the Government of the United States, the rights guaranteed to the criminal by the Constitution of the United States--the right to be presented by a grand jury and tried by a petit jury in the civil tribunals of the United States, under the ordinary forms and guarantees of the common law, even though the crime charged should be treason itself.

[Sidenote: The bill in its attempt to rob the President of his office of Commander-in-chief.]

In the second place, the bill undertook to rob the President of his constitutional prerogative of commandership-in-chief over the army, and vest the same in the General of the army. This was so evident that no one could fail to see that it was a bill directed as much against the powers of the President of the United States as against the late Confederates of the South.

And in the third place, the bill assumed to suspend the writ of Habeas Corpus, substantially, while the Constitution forbids this to be done by any part of the Government of the United States, except in time of war or public danger. There was no war, and to say that there was public danger of the character meant by the constitutional exception was to exaggerate the condition of things entirely beyond all fact or reason.

[Sidenote: The brutality of the measure.]

The bill was the most brutal proposition ever introduced into the Congress of the United States by a responsible committee, and it would never have been tolerated except at such a time of partisan excitement and exaggerated suspicions. Even under such conditions Congress would not pass it as introduced, but incorporated into it many modifying provisions, most of which, however, while reflecting the honest sentiments of the lawmakers, give little {115} evidence of good political science or sound constitutional law.

[Sidenote: The opposition of conservative Republicans to the bill.]

[Sidenote: Mr. Blaine's proposed changes in the bill.]

The two points in the bill which the conservative Republicans were unable to accept were, first, the establishment of martial law for an indefinite period and without any provision tor a way of future escape from its rigors; and, second, the usurpation of the President's constitutional prerogative of commandership-in-chief of the army. It soon became manifest that the bill could not pass without the introduction of a clause covering the first point and without a change of the provision in regard to the second. A number of the conservative Republicans had indicated these things, when Mr. Blaine squarely asked Mr. Stevens to incorporate an amendment in the bill which should provide a way of escape from the martial rule which the bill proposed to establish. Mr. Blaine's amendment held out the promise of the admission of each of the ten communities now to be thrown into military divisions to its proper position as a "State" of the Union when it should adopt the proposed Fourteenth Amendment and conform its constitution and laws thereto, should provide by its constitution for universal male suffrage without regard to race, color or previous condition of servitude, and should adopt a constitution with such a provision in it by popular vote, and when Congress should approve of the said constitution.

[Sidenote: Criticism of Mr. Blaine's propositions.]

There is no doubt that all this, while reflecting the good moral feeling of Mr. Blaine, was bad political science and was the very contradictory of sound constitutional law. As has been pointed out several times already, it would have been good constitutional law had the United States Congress simply delayed the admission or readmission {116} of these communities as "States" of the Union until after the proposed Fourteenth Amendment, and any other desirable amendment, should have been framed and adopted. Their admission then would have been into the _same_ Union with all the other States. But to demand of them, as the condition of admission, their acceptance of things not yet in the Constitution of the United States, things not obligatory on the "States" already in the Union, was tantamount to the creation of a new sort of union with another kind of constitution by an Act of Congress. This question had been thoroughly talked out, fought out, and decided in 1820, and for nearly fifty years it had been the settled principle of constitutional law that Congress has no such power. It has been also pointed out that a sound political science of the federal system of government teaches the same principle.

[Sidenote: Mr. Stevens's refusal to accept Mr. Blaine's amendment.]

[Sidenote: Passage of the bill by the House.]

Mr. Stevens acted correctly, from the point of view of political science and constitutional interpretation, when he declined to accept Mr. Blaine's amendment, or to allow a vote to be taken on it, and the House of Representatives also acted correctly from the same point of view when it voted down a proposition from Mr. Blaine to send his amendment along with the bill to the Judiciary Committee of the House with instruction to report it back with the bill. But it is not to be inferred from the debates that either Mr. Stevens or the House was actuated in this course of conduct by the above mentioned considerations. The expansion of the powers of government inevitably consequent upon a long period of war seemed to have made them all very nearly forget that there was anything but government in our political system. The chief thought was that one Congress could not bind another with any such promises as those held {117} out in the Blaine amendment, and that each Congress must at all times be left to its own discretion in the determination of every question. The House passed the bill as it came from the Committee on Reconstruction without change or amendment, and on the 13th of February it appeared in the Senate.

[Sidenote: The bill in the Senate.]

This more conservative and deliberate body regarded the bill as too radical, and after considerable debate upon a proposed amendment, offered first by Senator Williams of Oregon, and then by Senator Reverdy Johnson, which was in substance the Blaine proposition, laid it aside by general consent and allowed Senator Sherman to offer a substitute for it.

[Sidenote: The Sherman substitute.]

This substitute contained the gist of the Blaine amendment, and also changed the provision which proposed to deprive the President of his constitutional prerogative of commandership-in-chief of the army. While the bill was thus made a less brutal measure, and in one respect a less unconstitutional measure, it still rested upon a very shaky foundation so far as constitutional law was concerned, and it was opposed by all the Democratic Senators. It was passed, however, by a large majority, every Republican who voted voting in favor of it.

[Sidenote: The substitute in the House.]

[Sidenote: The Senate substitute rejected by the House.]

[Sidenote: The bill as finally agreed upon.]

When it was returned to the House of Representatives for concurrence, the Radical Republicans developed a most hostile opposition to the changes which had been made by the Senate. They claimed that the Senate bill proposed to bind future Congresses by pledges which the existing Congress had no right to make and no power to execute, and that it also proposed to use the rebel element of the population of the South in the work of reconstructing loyal "State" {118} governments. After a long and acrid debate, the House rejected the Senate's substitute by a union of Democratic votes with the votes of the Radical Republicans. This result and the manner of its attainment so frightened the Republicans, however, that they quickly came to an understanding among themselves in the House, and with their party colleagues in the Senate, and passed the Senate's substitute, so amended as to prevent disloyal men, as designated in the proposed Fourteenth Amendment, from voting for delegates to a reconstruction convention, or being delegates therein, or being officers in any so-called "State" government before the admission of the Senators and Representatives from that "State" into Congress, and so amended further as to pronounce all professed civil governments existing in any of the late so-called Confederate States, except of course Tennessee, provisional only, until Senators and Representatives from the same should be admitted to seats in Congress, and subject, as provisional governments, to the paramount authority of the United States which should control them, and might supersede or abolish them at any time. The Senate also accepted these amendments, and on the 20th of February the bill was placed in the hands of the President.

[Sidenote: The contents of the bill as passed.]

It contained the following declarations and provisions. First, the preamble designated the ten communities reconstructed under the President's direction as "the rebel States of Virginia, North Carolina, South Carolina, Georgia," and so on. This was certainly an untruth. If they were "States" at all, they certainly were not rebel "States." They might with some appearance of correctness and sincerity have been termed the late rebel "States," but to be called simply rebel "States" was, to say the very least, one of the {119} grossest exaggerations to be found in the wording of the statutes of Congress. It was simply a play on words whereby to justify a dubious procedure. It was at the very best, a confounding of the supposed sentiments of the population of these regions with actual political status. Second, the preamble declared that no legal "State" governments or adequate protection for life or property existed in these "rebel States." As a legal proposition the first part of this declaration was true, and as a matter of fact the second part was substantially true. It would have been an unprecedented thing if anything like an adequate protection of life and property had been re-established, in the short period of two years, in communities which had been disturbed, demoralized and destroyed by four years of civil war, especially when the outcome of the conflict was total defeat and the utter destruction of the basis of the old social, political, and economic systems. It was, however, a serious question whether such a situation required drastic measures rather than mild and soothing measures.

The Republican Congress decided, after much deliberation, that the former were necessary to the maintenance of peace and good order, and, therefore, enacted that the "said rebel States" should be divided into five military districts, as previously described in the original bill; that the President should assign to the command of each of these an army officer of not lower rank than brigadier-general, and place under his command a sufficient force to enable him to perform his duties and execute his authority in his district; that these commanders should have the power to govern these districts by martial law in so far as, in their judgment, the reign of order and the preservation of the public peace might demand, under the limitations simply that "all persons put under military arrest {120} by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no sentence of any military commission or tribunal hereby authorized affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district--and no sentence of death under the provisions of this act shall be carried into effect without the approval of the President."

Then came the provision which offered the terms of escape from this new military régime. They were, first, the exercise of universal manhood suffrage, that is the suffrage of all male citizens, twenty-one years of age, without regard to race, color or previous condition of servitude, who were not disfranchised for participation in rebellion or for felony at common law, and who had resided for one year in the so-called "rebel State," in the election of delegates to a constitutional convention in the so-called "rebel State"; second, the framing of a "State" constitution by a convention composed of delegates so elected, and not disqualified by participation in rebellion or by the commission of felony, which constitution should conform in all respects to the Constitution of the United States and which should contain, as a permanent principle, the same law of suffrage as that prescribed by this Act for the election of the delegates to the convention; third, the ratification of this constitution by a majority of the voters, as designated by the law of suffrage for the choice of delegates to the convention, voting upon the question of ratification; fourth, the approval by Congress of this constitution; and fifth, and last, the adoption of the proposed Fourteenth Amendment to the Constitution of the United States by the legislature created by such adopted and approved "State" constitution, and by a sufficient number of the legislatures {121} of other "States" to make it a part of the Constitution of the United States.

The measure contained, in the last place, a sort of saving clause in regard to the existing civil governments which had been established in all these communities under the direction of the President, and which were now to be displaced. It had been already provided, in section third, that the military commander of a district might use the existing civil courts, if he saw fit to do so, so long as the reign of law and order might be so preserved, and the final section provided that any civil government which might exist in these districts should be regarded as provisional, and should be in all respects subject to the paramount authority of the United States, which should control, and might abolish, modify, or supersede the same, and that the voters for the election of the officers of such provisional governments should be required to have only the qualifications prescribed in this Act for voters for the delegates to the said "State" convention, and persons elected to place and office in such provisional governments must not have the disqualifications prescribed in the proposed Fourteenth Amendment to the Constitution of the United States. It had evidently occurred to the Republican leaders that they might have to make use of some of the machinery of the existing civil governments established under the direction of the President in these regions in executing their own plan of Reconstruction.

[Sidenote: The condition that the proposed Fourteenth Amendment be ratified by a sufficient number of "States" to make it a part of the Constitution.]

All of the points of the measure have been commented on, except the provision in the fifth section, which makes the adoption of the proposed Fourteenth Amendment to the Constitution of the United States by a number of "States" sufficient to ratify it a condition precedent to the admission of any one of these so-called "rebel States" to representation in Congress. The {122} adoption of the proposed amendment by the particular "rebel State" seeking representation was not sufficient. It must be ratified by at least three-fourths of all the "States." No matter how speedily and sincerely the legislature of Virginia might ratify the proposed Amendment, and fulfil all the other conditions required by the Act, Virginia must remain under military despotism until a very large number of the Northern "State" legislatures had pleased to ratify the proposed Amendment. This was certainly a pretty hard condition, and it was not a very fair way of forcing the legislatures of the Northern States to adopt the proposed Amendment. It was, however, an efficient weapon, and Congress had the legal power to use it. It was unconscionable, though it was one of the things about this measure which was constitutional.

[Sidenote: The Tenure-of-Office bill.]

Hand in hand with this bill went another measure, the purpose of which was to limit the customary power of the President, if not his constitutional power, over the civil official system, the so-called Tenure-of-Office bill. On the first day of the session, December 3d, 1866, Mr. Williams of Oregon introduced this bill in the Senate, while at the same moment a bill was introduced and passed in the House repealing that section of the Confiscation Act of July 17th, 1862, which authorized the President to extend pardon and amnesty by proclamation to persons participating in the rebellion. The Senate passed the latter bill or resolution on the 8th of January, 1867, and the President, not considering that the Congress could either give or take away his power to pardon secured to him by the Constitution, simply pocketed the resolution, and it became a law on and from the 21st of January, having been presented to the President on the 9th.

{123} The propositions contained in the Tenure-of-Office bill were, however, of a very different significance. There was no clause in the Constitution which by express literal grant vested the power to dismiss from office in the President, but the clause which made the President solely responsible for the execution of the laws was interpreted by the first Congress as doing so. Madison took the ground that the President must have this power in order to secure the necessary obedience in his subordinates, and declared that the convention which framed the Constitution so understood it and so intended it. This is certainly sound political science and correct constitutional interpretation. It had also been the practice of the Government from the beginning. The Whigs had undertaken to reverse it in their contest with Jackson, and Webster had given his opinion that good political science required that dismissal from office should be treated as an incident of appointment, and should be effected in the same manner as appointment, i.e., with the concurrence of the Senate, and that the decision of 1789 on this subject was, in his opinion, erroneous from the point of view of a proper interpretation of the Constitution as well. But the Whigs did not succeed, as we have seen, in their attempt to break down Presidential prerogative and introduce parliamentary government, and the practice of the Government on this subject remained, after, as before, the fourth decade of the century, the same.

[Sidenote: The reasons for the Tenure-of-Office bill.]

During the experiences of the years 1865 and 1866 the Republicans feared that the President would use this great power of dismissal from office in order to make the entire official system solid with himself on the subject of Reconstruction, and toward the end of 1866 they suspected and asserted that he was dismissing officers {124} from their positions simply on the ground of a difference of opinion with himself on this subject, and they professed to believe that he would make a clean sweep of all such as soon as Congress should adjourn. There is little doubt that excessive partisan feeling made them exaggerate greatly what the President had done and what he intended to do. The President was guided by Mr. Seward in all public matters except his imprudent speeches, and Seward's conservative and diplomatic disposition and methods were all against any such radical and reckless procedure. Besides, it was the constitutional right of the President to require obedience in their official acts from his subordinates, and to dismiss them when in his opinion their views of policy interfered with the discharge of their official duties as he required them to be discharged. The Thirty-ninth Congress, however, resolved to disregard the precedents set by all of its predecessors and to dispute the President's prerogative of control over the tenure of his subordinates.

[Sidenote: The contents of the bill.]

The bill drafted for this purpose made the removal of all officers, appointed by and with the consent of the Senate, except only members of the President's Cabinet, subject to the consent of the Senate. This consent might be given in the form of a ratification of the nomination of a successor to any officer. It allowed the President, during a recess of the Senate, the power of suspension for misconduct in office, crime, legal disqualification or incapacity, and of making appointment of a suitable person to discharge temporarily the duties of such suspended officer, but it required of the President a report of all such suspensions to the Senate within the first twenty days of the next meeting of the Senate, with the reasons therefor, and reinstated the suspended officer in case the Senate {125} should not concur in the suspension. If the Senate should concur, the President must remove the officer, and appoint, with the advice and consent of the Senate, another person in his place.

[Sidenote: Discussion of the bill.]

From the point of view of the present this would seem, in all conscience, to have been a sufficient usurpation of the President's constitutional powers to have satisfied the most radical and reckless interpretation of the organic law. But the bill had hardly come under discussion when Senator Howe moved to strike out the clause excepting the Cabinet officers from its operation, and although the Senate refused to pass this amendment, the House of Representatives did so when the bill came before it. The Senate, however, refused to concur on the ground, of course, that the intimate and confidential relations which should exist between the President and the members of his Cabinet made it necessary that the President should have only the men of his own choice in these positions. The strenuous insistence of the House, however, forced the Senate to a compromise upon the subject, and the bill was finally made to provide that the members of the Cabinet should "hold their offices, respectively, for and during the term of the President by whom they have been appointed, and for one month thereafter, subject to removal by and with the consent of the Senate." That is, that a Cabinet officer might hold his position against the will of the President who appointed him during the entire term of the President and for one month of the term of his successor unless the Senate should agree to such officer's removal either directly or by ratification of the nomination of a successor.

[Sidenote: The provisions for enforcing the measure.]

The bill as finally enacted contained, moreover, the most stringent provisions for its enforcement. It made {126} the acceptance or exercise of any office or the attempt to exercise any office contrary to the Act a high misdemeanor, punishable by a maximum fine of ten thousand dollars or a maximum imprisonment of five years, or both in the discretion of the court; and it made the removal, appointment, or employment of any officer contrary to the provisions of the Act, or the preparation, signing, sealing, countersigning or issuing of any commission of office or letter of authority in respect to any such appointment or employment high misdemeanors, punishable with the same extreme penalties. Lastly, it forbade the officers of the Treasury and all officers of the United States to pay any money, salary or compensation to any person claiming to hold any office or employment contrary to the provisions of this Act, and made the violation of this order a high misdemeanor, punishable with the same extreme penalties as in the other cases.

[Sidenote: The President's vetoes of these bills.]

This monstrous measure went to the President on the same day with the Reconstruction bill, the 20th of February. It is not to be wondered at that he felt that the Republican chiefs were offering him intentional personal insult, as well as that the legislative department of the Government was attempting an unwarranted encroachment upon the constitutional prerogatives of the Executive. It is rather to be wondered at that, in his message to Congress on these subjects, he succeeded so well in ignoring the personal affronts intended by Congress, and in confining himself so closely to a discussion of the public questions and considerations involved in the measures.

The vetoes of these bills were sent to Congress on the same day, March 2d. To the publicist and historian of this day they are masterpieces of political logic, constitutional interpretation, and official style. If not {127} written by Mr. Seward, they must have been edited and revised by him. These documents showed most convincingly, both from constitutional provisions, opinions of contemporaries, statutes of Congress, judicial decisions, and the uniform practices of the Government, that Congress had no power to establish or re-establish martial law anywhere in the country, except when and where war or armed rebellion existed as a fact, a condition which did not then exist anywhere in the length and breadth of the land; and that Congress had no power to force the President to retain agents and subordinates in office against his judgment and will. No good political scientist and no sound constitutional lawyer will, at this day, disagree with the contention of the President upon these two points, and it is very difficult to understand how the great leaders of the Republican party could, at that day, have differed with him.

[Sidenote: Republican motives in Reconstruction.]

Undoubtedly, in some of the baser minds among them, the determination to create Republican party "States" in the South was a very weighty consideration, but just as undoubtedly the consideration with the majority of them was the conviction that the work of the four years of war might have to be done all over again unless a new political people, a new body of suffrage holders, should be created at the South, whose members had never been disloyal. But even from this point of view again, it is difficult to understand how they could have failed to see that the Constitution required that this should be done through the forms of Territorial civil government, instead of through the forms of martial law. Put the best light upon their conduct that is possible, there is still left the conviction that the fanaticism of extreme partisanship had an undue influence over them all. {128} The contest with the President had blinded their perceptions as to the morality, legality and propriety of the means they were willing to employ in securing the victory over him.

[Sidenote: Congressional encroachment on the President's military prerogatives.]

As this contest developed it dwarfed, to say the least, all other considerations. Even as late as when the Reconstruction bill was passed, the majority of the Republicans refused to vote to take the President's military prerogatives from him. In less than a fortnight from this time, however, they voted, in a section of the Army Appropriation bill, "that the head-quarters of the General of the army of the United States shall be at the city of Washington, and all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction in any court of competent jurisdiction."

To the mind of any unprejudiced constitutional lawyer, at the present day, this act must appear as a gross {129} usurpation by Congress of the President's military powers conferred upon him by the Constitution. The Constitution makes the President the Commander-in-Chief of the army and navy, and gives Congress no power whatsoever over the methods or channels by, and through, which he may issue his military commands. Neither does the Constitution give Congress any power to assign any of the officers or troops of the army to any particular position. These are all functions of the commandership-in-chief, and, unless expressly granted by the Constitution to some other department of the Government, belong to the President.

It was not only a usurpation by Congress to pass such an act, but it was a mean thing to do it as a section of an appropriation bill; and there is no escaping the suspicion that it had a sinister purpose, namely, to entrap the President in the commission of what Congress had made a high misdemeanor, and open the way for his impeachment and expulsion from office. The President signed this bill, however, in order to save the appropriations for the support of the army, although he protested strongly against the seizure of his constitutional powers by the Congress.

[Sidenote: The supplementary Reconstruction bill.]

On the same day that the vetoes of the Reconstruction bill and the Tenure-of-Office bill were sent to Congress, this body passed a bill supplementary to the first measure. It was in the nature of an administrative measure for the purpose of carrying out the new plan of Reconstruction. It ordered the commanding generals of the respective districts to cause a registration to be made before September 1st next following of all male citizens of the United States, twenty-one years of age and over, resident in each county or parish in the "State" or "States" included in their respective districts, who were qualified as {130} prescribed by the Reconstruction Act to vote for delegates to a constitutional convention, and who had taken an oath asserting citizenship and residence, and freedom from disfranchisement on account of participation in rebellion or the commission of felony, and had sworn that they had never engaged in insurrection or rebellion against the United States, or given aid and comfort to the enemies of the United States after having been members of Congress or of a "State" legislature, or officers of the United States or of a "State" of the Union, and that they would henceforth faithfully support the Constitution and obey the laws of the United States and encourage others to do so.

It next made it the duty of the commanding generals to order elections, at such times after the completion of the registrations and at such places as they might choose, for delegates to constitutional conventions in the "States" comprised in their respective districts. It required them to give thirty days' notice of the elections, and it fixed the number of delegates to each convention at the number of members in the lower House of the legislature of the "State" concerned in the year 1860, except in the case of Virginia, where, on account of the separation of West Virginia from the old Commonwealth, the number of deputies to the Virginia convention was made to correspond with the number of members in the lower House of the legislature of 1860, representing the territory not included in West Virginia. The bill further directed the commanding generals to distribute the representation in the conventions among the districts, counties and parishes of the "States" in accordance with the number of registered voters in each.

The bill then provided that at the elections for delegates, the voters should vote on the question as to {131} whether there should be a constitutional convention or not, and that such convention should be held only when a majority of the inscribed electors voted upon this question, and a majority of those voting voted in the affirmative. It then ordered the commanding generals, in case the voters did so decide for conventions and elect delegates thereto, to call such within sixty days from the date of the elections, and to notify the delegates to assemble at a given time and place, and frame constitutions according to the provisions of the bill and of the former Act to which it was supplementary, and, when framed, to submit the same to the registered voters for ratification with a notice of thirty days.

The bill then further provided, that if, at such elections, a majority of the registered voters voted upon the question of ratification, and a majority of those voting voted in favor of ratification, the presidents of the respective conventions should transmit copies of the respective constitutions to the President of the United States, who should transmit them to Congress, and that Congress should declare the respective "States," whose conventions had framed these constitutions and whose voters had adopted them, entitled to representation in Congress, provided Congress was satisfied that there had been perfectly free elections, and that no force, fraud or intimidation had been perpetrated at them, and that the constitutions presented met the approval of a majority of the qualified electors and were in conformity with the requirements of the Reconstruction Act.

Finally, the bill put into the hands of the commanding generals the appointment of the officers of the elections, and the control of the machinery of the elections, only requiring them to hold the elections by {132} ballot, and to proclaim the results of the elections in accordance with the returns made to them by their boards of registration.

[Sidenote: Congress in permanence.]

Congress had passed a resolution ordering the assembly of the Fortieth Congress so soon as the Thirty-ninth expired, and in accordance therewith the newly elected Congress opened its session on the 4th of March, 1867, instead of on the first Monday of the following December. The Congress was, therefore, in position to deal at once with a veto of the supplemental bill to the Reconstruction Act, in case one should be sent in.

[Sidenote: The veto of the supplemental Reconstruction bill.]

On the 23d of March the veto appeared. The President argued that the oath required by the bill from every person before his name could be admitted to registration, viz., "that he had not been disfranchised for participation in any rebellion or civil war against the United States," was so entirely uncertain in its meaning that it would prove a most terrible means of oppression in the hands of the military officers and their appointed agents, and declared he could never approve of an election law whose plain and manifest purpose was to disfranchise the great body of respectable white people, and create a new electorate on the basis of universal negro suffrage. He contended that the existing constitutions of the ten "States" to be re-reconstructed conformed to the long-established standards of loyalty and Republicanism, and that the new test of these qualities now set up by Congress, viz., universal negro suffrage, was a gross exaggeration, and would make many of the Northern "States" themselves unrepublican. The President did not expressly say that this bill was unconstitutional, but he quite distinctly implied it. In this, however, he was wrong, unless his doctrine that the rebellious {133} communities remained "States" of the Union throughout the rebellion, or had been reconstructed by his plan, was true, that is, unless these communities were "States" of the Union at the time Congress passed this bill.

[Sidenote: Criticism of the veto.]

On the other hand, from the point of view of the correct legal principle in regard to this subject, the principle which holds that the result of general rebellion within a "State" against the Constitution and laws of the United States is the loss of the "State" form of local government, and brings the territory and population of the former "State" under the exclusive jurisdiction of the central Government, Congress certainly had, and has, the power to create the electorate in such territory at its own discretion, Congress was referred, and is referred, in such a case, only to its own sense of right and policy.

[Sidenote: Criticism of the Reconstruction Acts.]

But there is no question, now, that Congress did a monstrous thing, and committed a great political error, if not a sin, in the creation of this new electorate. It was a great wrong to civilization to put the white race of the South under the domination of the negro race. The claim that there is nothing in the color of the skin from the point of view of political ethics is a great sophism. A black skin means membership in a race of men which has never of itself succeeded in subjecting passion to reason, has never, therefore, created any civilization of any kind. To put such a race of men in possession of a "State" government in a system of federal government is to trust them with the development of political and legal civilization upon the most important subjects of human life, and to do this in communities with a large white population is simply to establish barbarism in power over civilization. The supposed disloyalty, or even the actual disloyalty, of {134} the white population will not justify this. It will justify the indefinite withholding of the "State" form of local government. It will justify the throwing of a "State" of the Union back under the form of a Territory of the Union. It will even justify the establishment of martial law. But it is not to be cured, nor is the welfare of the whole land, or any part of it, to be promoted, by the subjection of the white race to the black race in politics and government. It was a great wrong to the negroes themselves. It made the white men among whom they must live their most bitter enemies, when they most needed them for friends, and it made the negroes trifling and corrupt politicians, when they should have been devoting themselves exclusively to the acquirement of property and education. It was argued, as will be well remembered, that they could not acquire property and education without the ballot. But this is another sophism. The mainstay of property is the courts; and under a Territorial form of local government Congress could have established a system of free schools. It was not at all necessary to have recourse to negro suffrage and negro "State" governments in order to secure the negroes in their personal liberty, and the possession of property, and to aid them in the acquirement of education.

There was another alternative, and a better one. In fact, there were two other conceivable ways of doing these things, either of which would have been better than the one chosen. The one was, as has been already suggested, to establish Territorial civil governments in the late rebellious region and maintain them there until the civil relations between the two races became settled and fixed. The other was to so amend the Constitution of the United States, before the readmission of the "States" which had renounced the "State" form of local {135} government under the Union, as to give Congress and the national judiciary the power to define and defend the fundamental principles of civil liberty. Neither of these methods would have demanded martial law or universal negro suffrage. It is entirely surprising, from the point of view of to-day, that one or the other of these methods or a combination of both was not resorted to, instead of the monstrous plan that was carried out. There is no way to explain this sufficiently, except upon the reflection that the passions of the men of that day had become so inflamed and so completely dominating that they obscured reason, drowned the voice of prudence, and even dulled the sense of decency. There were a few who favored universal negro suffrage from an exalted and exaggerated humanitarianism, but the mass of the Republicans sustained it as a punishment to the late rebellious whites, and as a means of establishing Republican party "State" governments in the South. Many claimed, indeed, that it was the only alternative to long-continued martial law rule, but they were either very ignorant or very insincere.

[Sidenote: The assignment of the commanding generals to the military districts created by the Reconstruction Acts.]

In prompt obedience to the requirements of the two Reconstruction Acts, the President issued his general order through the Adjutant-General's office, on March 11th, assigning General Schofield to the command of the first military district, as created by these Acts, with his head-quarters at Richmond, Virginia; General Sickles to that of the second, with his head-quarters at Columbia, South Carolina; General Thomas to that of the third, with his head-quarters at Montgomery, Alabama; General Ord to that of the fourth, with his head-quarters at Vicksburg, Mississippi; and General Sheridan to that of the fifth, with his head-quarters at New {136} Orleans, Louisiana. On the 15th this order was so modified as to change the assignment of General Thomas from the command of the third district to that of the Department of the Cumberland, and to substitute General Pope for him in the command of the third district.

[Sidenote: The re-establishment of martial law in the South.]

These officers betook themselves at once, with the forces attached to their several commands, to their respective stations, and assumed the government of their respective districts by martial law. No opposition whatever was made to any of them by the populations thus made subject to their despotic rule.

[Sidenote: The President's instructions to the generals in interpretation of the Reconstruction Acts.]

Very soon, however, the generals found great difficulty in interpreting the Reconstruction Acts, especially in respect to the oath required for enfranchisement, both as to the persons who might take it and as to its consequences, and in respect to the powers of the boards appointed to superintend the elections. They applied to the President for information upon these points. The President submitted their application to his Attorney-General and to his Cabinet, and with the full concurrence of all the members thereof, except only Mr. Stanton, issued through the Adjutant-General's office in the War Department, on the 20th of June, the following instructions:

First: That the oath prescribed in the second Act defined all the qualifications required for suffrage, and that any person who could take that oath should have his name entered on the list of voters; that the boards of registration provided in that Act could not require any other, or any additional, oath from the person applying for registration, nor "administer an oath to any other person touching the qualification of the applicant or {137} the falsity of the oath taken by him," but that the person taking the oath must be registered as a voter, and if it could be afterward proved that he had sworn falsely, he could be punished for perjury.

Second: That an unnaturalized alien could not take the oath, but a naturalized alien could, and that no other proof of naturalization could be required of him.

Third: That "actual participation in rebellion or the actual commission of a felony" did not amount to disfranchisement, but there must be a law made by competent authority declaring disfranchisement, or a judicial sentence inflicting it, and that no law of the United States had declared the penalty of disfranchisement for participating in rebellion alone.

Fourth: That a person who had engaged in rebellion, but had not theretofore held an office under a "State" or the United States, or not been a member of a "State" legislature or of Congress, and not taken, as such, an oath to support the Constitution of the United States, was not disfranchised or disqualified from voting.

Fifth: That persons who were militia officers in any "State" prior to the rebellion were not disfranchised by participating in the rebellion.

Sixth: That "an act to fix upon the person the offence of engaging in rebellion under this law must be an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose," and that "a person forced into the rebel service by conscription or under a paramount authority which he could not safely disobey, and who would not have entered such service if left to the free exercise of his own will," was not disfranchised or disqualified from voting.

And lastly: That disloyal sentiments, opinions or sympathies, or anything said or written which fell short {138} of an incitement to others to engage in rebellion, did not disfranchise or disqualify from voting.

Some other instructions were given which were concurred in by the entire Cabinet, Mr. Stanton included, but the recital of them is not essential to this narrative. It must be added, however, that the President's view of the relation of the military commanders to the "State" governments created under his direction and with his aid was one which gave these governments a more independent and permanent character than the language of the Reconstruction Acts seemed to warrant.

[Sidenote: The Congressional interpretation of the Reconstruction Acts.]

When, then, the instructions of June 20th to the generals became known, another bill was introduced into Congress and passed which put the Congressional interpretation upon the Reconstruction Acts.

It declared that the true intent and meaning of these Acts was that the civil governments then existing in the "rebel States" of Virginia, North Carolina, etc., were not legal "State governments," and that, if thereafter they should be allowed to continue to exist at all, they must be subject in all respects to the will of the military commanders of the respective districts, and to the paramount authority of Congress; and it provided that the generals in command of the respective districts might suspend or remove any person from any office under these illegal and pretended governments, and detail or appoint some other person to discharge the duties and exercise the powers said to pertain to such office. The acts of the district commanders in regard to these things were made subject to the disapproval of the General of the army, but not to that of the President, and stood until so disapproved. The same powers in regard to these matters were vested, by this bill, in the General of the army as in the district commanders, {139} but were not accorded by it to the President; and it was made the duty of the General of the army and the district commanders to remove from such pretended offices "all persons who were disloyal to the United States, or who used their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of the Reconstruction Acts."

The bill, furthermore, provided that the boards of registration should have the power, and that it should be their duty, to ascertain the fact as to whether a person applying for registration as a voter was entitled to registration under the Reconstruction Acts, and to refuse registration, if in their judgment he was not, and that the fact that he was willing to take the oath prescribed in the Reconstruction Acts, or had taken it, was not conclusive upon the registration boards in making their inquiries and forming their decisions. And it, finally, declared that the true intent and meaning of the oath prescribed in the Reconstruction Acts for persons who had held office under a "State" government or membership in a "State" legislature, before the rebellion, was that whether such persons were holding such positions at the time of the commencement of the rebellion or at some time prior to the same, and whether they had taken an oath to support the Constitution of the United States or not, they were disqualified from registration and were disfranchised, if, after holding such positions, they had "engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof"; and it gave to the commanders of the districts the power to extend, in their discretion, the time for completing the original registration of the voters, as provided for in the Reconstruction Acts, to October 1st following, and to the boards of registration the power, and imposed upon them the {140} duty, to revise, during the first five of the last fourteen days before any election under the Reconstruction Acts, the registration lists and to strike off any name from said lists which, in their judgment, ought not to be there, and to add any name, which, in their judgment, ought to be there, and required them to disregard any Executive pardon or amnesty as relieving the disability of any person for registration, if such person had committed any act which without such pardon or amnesty would disqualify him.

This bill, it will be readily seen, was a wholesale repudiation of all the instructions given by the President to the generals in command of the districts from which, in the Cabinet council, Mr. Stanton had dissented. The President immediately realized this, of course, and it increased his distrust of Stanton immensely. From that moment forward he regarded him as the spy of Congress upon all his official acts, and he was resolved to remove him upon the first opportunity, that is, so soon as Congress should adjourn.

[Sidenote: The President's veto of the bill interpreting the Reconstruction Acts.]

The bill passed the Houses on the 13th of July, was presented to the President for his signature on the 14th, and on the 19th he returned it with a veto message to the House of Representatives. The President contended in his argument that this new measure was not simply an interpretation of the existing Reconstruction Acts, but was in many respects a large advance upon them. The existing Acts, he contended, made the reconstructed "State" governments at the South subject to absolute military authority in many important respects, but not in all respects, while the new measure proposed to extend the despotism of the military commanders over everything. Against such a measure, in time of peace, he protested as being in violation of every guaranty of {141} individual liberty contained in the Constitution. He dwelt upon the unfitness of military officers to discharge the duties and exercise the powers pertaining naturally to civil office, and he pointed out the inconsistency, as he thought, of the declaration of Congress that the ten "State" governments at the South were illegal with the attempt of Congress to carry on these _illegal_ "State" governments by "Federal agency," when Congress had no power to carry on a _legal_ "State" government through "Federal agency"; and he stopped, as he thought, the way of escape from this argument by pointing out that the entire legislation of Congress down to the passage of the Reconstruction Acts distinctly involved the recognition of the ten communities now to be put under absolute military rule in all respects as "States" of the Union.

But the most vigorous and unanswerable part of the message was the protest against the robbery of the constitutional powers of the Executive by the attempt of Congress, in this measure, to confer some of those powers upon other persons. The President expressed himself so warmly upon this point, that the Republicans began to whisper around their suspicions of sinister purposes on his part, just as if such a declaration to Congress itself was not proof to the contrary. He said: "Whilst I hold the chief executive authority of the United States, whilst the obligation rests upon me to see that all the laws are faithfully executed, I can never willingly surrender that trust or the powers given for its execution. I can never give my assent to be made responsible for the faithful execution of laws, and at the same time surrender that trust and the powers which accompany it to any other executive officer, high or low, or to any number of executive officers. If this executive trust, vested by the Constitution in the President, is to be taken from him {142} and vested in a subordinate officer, the responsibility will be with Congress in clothing the subordinate with unconstitutional power and with the officer who assumes its exercise."

[Sidenote: Ideas and suspicions about the meaning of the message.]

The radical Republicans interpreted this language, at once, as meaning that the President proposed to so interfere with the execution of the Reconstruction Acts as to avoid their intent and destroy their effect. And the talk about impeachment was again revived. The President, however, meant nothing of the kind, and but for exaggerated suspicion and party hatred the language of the message would have been held to mean only an appeal to Congress to desist from its unlawful attempt to rob the Executive of his constitutional powers, and to the people to elect men to Congress who would obey the principles of the Constitution in their legislative acts.

[Sidenote: The veto overridden.]

The Houses passed the bill over the President's veto immediately, by an overwhelming majority, and almost in a spirit of derision. The next day, July 20th, Congress adjourned to the 21st of the following November.

[Sidenote: The suspension of Stanton from office.]

The unfortunate relations of Mr. Stanton with the President, and with the other members of the Cabinet were the thing which was destined to produce the catastrophe. He had become unbearable to the President, and to the most of his colleagues. He ought in all decency to have resigned his portfolio as Speed and Harlan and Dennison had done the year before. The President asked him to resign in a note of the 5th of August. Stanton, feeling sure of the support of the large majority in Congress, contemptuously refused. The President could now in the recess of Congress suspend him without violating the provisions of the Tenure-of-Office Act, or raising the {143} question of its constitutionality. The President at last resolved to take the matter into his own hands and rid himself of Stanton's presence in his confidential counsels. On the 12th of August he sent an executive order to Stanton suspending him from the office of Secretary of War, and another to General Grant authorizing and empowering him to act as Secretary of War _ad interim_. Stanton yielded to this order under protest. He wrote the President that he could not legally suspend him from office and declared that he submitted only to superior physical force. Grant accepted the appointment, although he had, four days before, advised the President against disturbing Stanton. Grant entered upon the duties of the office at once, and Stanton went off to New England to recuperate health, spirits and courage for his battle with the President which was bound to come unless the President should yield and take him back again, so soon as Congress should assemble.

[Sidenote: Changes among the commanders of the military districts.]

By a series of orders issued during the same month (August) General Hancock was substituted for General Sheridan in the command of the fifth military district and General Canby for General Sickles in the command of the second district. Both of the generals thus relieved were great favorites at the North, especially Sheridan. The President felt that they were too much imbued with the military spirit to make good administrators of civil affairs. But the people of the North saw in these changes only the purpose of the President to place his political friends among the army officers in command of the military districts, and through them to modify the intent of the Reconstruction Acts in the course of their execution.

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