Chapter XI (2)

As the strife between the Executive and Legislative Departments had grown in intensity, President Johnson naturally sought to increase his own prestige by the use of the patronage of the Government. To this end he had already removed certain conspicuous Republicans from office, especially those who had been recommended and were now sustained by senators and representatives prominently engaged in frustrating his plan of reconstruction. The wonder in the political world was, that the President had not resorted to this form of attack more promptly, and pursued it more determinedly. His delay could be explained only by what was termed his talent for procrastination, and to a certain indecision which was fatal to him as an executive officer. But as the breach between himself and Congress widened, as the bitterness between the partisans of the Executive and of the Legislative Departments grew more intense, the belief became general, that, as soon as Congress should adjourn, there would be a removal of all Federal officers throughout the Union who were not faithful to the principles, and did not respond to the exactions, of the Administration. Outside of his Cabinet, the President was surrounded by the class of men who had great faith in the persuasive power of patronage, and the pressure upon him to resort to its use was constant and growing. Inside of his Cabinet, there were men of the same belief, but their power was somewhat neutralized by the attitude of Mr. Seward, whose faith always lay in the strength of ideas, and not in the use of force, or in the temptation of personal advantage. Mr. Seward's influence had constantly tended to hold the President back from a ruthless removal of the whole body of officers who declined to take part against the policy of Congress.

According to long-accepted construction of the Constitution, the President's power of removal was absolute and unqualified. Appointment to office could not be made unless the consent of the Senate was given in each and every case--but the consent of the Senate had not been held as requisite to the removal of an officer. The Constitution was silent upon the subject, and the existence or non-existence of power in the Senate to prevent a removal from office had been matter of dispute from the foundation of the Government. Those who contended for the right of the President to remove without consulting the Senate were fortified by the early legislation of Congress and the early practice of the Executive. The First Congress of the Union had provided for officers whose appointment depended upon confirmation by the Senate as required by the Constitution, but whose removal was left in explicit terms to the President alone. The decision to that effect was made after debate in which Madison had strenuously contended for that construction, and his high authority gave to the conclusion great weight with subsequent administrations of the Government. But there was undoubtedly a divided opinion in the Congress that conceded it, and that division has continued among Constitutional lawyers and statesmen to this day. In 1835 Mr. Webster, "after considering the question again and again," made this declaration in the Senate: "I am willing to say that, in my deliberate judgment, the original decision was wrong. I cannot but think that those who denied the power in 1789 had the best of the argument. It appears to me, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution in this respect by the decision of the First Congress. . . . I have the clearest conviction that the Convention which formed the Constitution looked to no other mode of displacing an officer than by impeachment or the regular appointment of another to the same place. . . . I believe it to be within the just power of Congress to reverse the decision of 1789, and I mean to hold myself at liberty to act hereafter on that question as the safety of the Government and of the Constitution may require."

Mr. Webster's words would have exerted a far wider influence upon public opinion if his argument had not been made under the pressure of a partisan excitement caused by General Jackson's removal of officers who were not in sympathy with the measures of his Administration. He was effectively though not directly answered by the venerable ex-President Madison. In October, 1834, in a letter to Edward Coles, Mr. Madison said, "The claim of the Senate on Constitutional ground to a share in removal as well as appointment of officers is in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation would not only vary essentially the existing balance of power, but expose the Executive occasionally to a total inaction, and at all times to delays fatal to the due execution of the laws." A year later, and only a few months before his death, Mr. Madison in a letter to Charles Francis Adams thus repeated his views: "The claims for the Senate of a share in the removal from office, and _for the Legislature an authority to regulate its tenure_, have had powerful advocates. I must still think, however, that the text of the Constitution is best interpreted by reference to the tripartite theory of Government, to which practice had conformed, and which so long and uniform a practice would seem to have established. The face of the Constitution and the journalized proceedings of the Convention strongly indicate a partiality to that theory then at the zenith of favor among the most distinguished commentators on the organization of political power." Chief Justice Marshall fortified the position of Mr. Madison, by declaring that the action of the First Congress on this question "has ever been considered as a full expression of the sense of the Legislature on this important part of the American Constitution."

Of the thirty-nine members of the Convention of 1787 who signed the Constitution, thirteen, including Mr. Madison, were members of the first Congress; Alexander Hamilton was Secretary of the Treasury under the new Government; and above all, General Washington, who had presided over the deliberations of the Convention, had attentively listened to every discussion, and had carefully studied every provision, was President of the United States. More than one-third of the members of the Constitutional Convention were therefore engaged in the Executive and Legislative Departments of the new Government in applying the organic instrument which they had taken so large a part in creating. The cotemporaneous interpretation was by those facts rendered valuable if not authoritative. Cotemporaneous interpretations of organic law are not always, it is true, to be regarded as conclusive, but they are entitled to the most careful and respectful consideration, and cannot be reversed with safety unless the argument therefor is unanswerable and the motive which suggests the argument altogether patriotic and unselfish. The familiar rule laid down by Lord Coke is as pertinent to-day as when first announced: "Great regard ought, in construing a law, to be paid to the construction which the sages, who lived about the time soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time when the law was made. _Contemporania exposito est fortissima in legem_."

Against the early decision of the founders of the Government, against the ancient and safe rule of interpretation prescribed by Lord Coke, against the repeatedly expressed judgment of ex-President Madison, against the equally emphatic judgment of Chief Justice Marshall, and above all, against the unbroken practice of the Government for seventy-eight years, the Republican leaders now determined to deprive the President of the power of removing Federal officers. Many were induced to join in the movement under the belief that it was important to test the true meaning of the Constitution in the premises, and that this could be most effectively done by directly restraining by law the power which had been so long conceded to the Executive Department. To that end Mr. Williams of Oregon on the first Monday of December, 1866, introduced a bill "to regulate the tenure of civil offices." It was referred to the Committee on Retrenchment, and reported back with amendment by Mr. Edmunds of Vermont, who thenceforward assumed parliamentary control of the subject.

The bill came up for discussion on the 10th day of January. Its first section provided that every person _except members of the Cabinet_, "holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to such office, shall be entitled to hold such office until a successor shall have been, in like manner, appointed and duly qualified, except as herein otherwise provided." The second section declared that "when any officer shall, during the recess of the Senate, be shown by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become legally disqualified or incapable of performing the duties of his office; in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office, until the next meeting of the Senate, and until the case shall be acted upon by the Senate: and in such case it shall be the duty of the President, within twenty days after the first day of such meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for the same, and if the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who shall thereupon remove such officer, and by and with the advice and consent of the Senate appoint another person to such office; but if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease."

Mr. Howe wished to know why members of the Cabinet should be excepted. "Each one of those officers," he said, "is created by statute, and created not for the personal benefit of the Executive, but created for the benefit of the public service, just as much as a deputy postmaster or an Indian agent." Mr. Edmunds, in reply to Mr. Howe, said that the Committee, "after a great deal of consultation and reflection," had resolved to except members of the Cabinet from the scope of the proposed Act. He gave reasons therefor, which from the foundation of the Government have been considered conclusive--reasons founded on the personal and confidential relations necessarily existing between the President and his Constitutional advisers. The reasons did not satisfy Mr. Howe. He thought "the tenure of Cabinet officers should be under the control of law and independent of any undue exercise of Executive influence." He therefore moved to amend the bill so as to put the members of the Cabinet on the same basis as other civil officers--_not removable by the President, except with the advice and consent of the Senate_. But the Senate was decidedly averse to so radical a change in the practice of the Government, and Mr. Howe secured the votes of only eight senators to join him in support of his amendment.

Mr. Edmunds moved, subsequently, to amend the bill by the addition of several clauses, one declaring it a high misdemeanor for "any person, contrary to the provisions of this Act, to accept any appointment or employment in office, or to hold or attempt to hold, or exercise, any office or employment." The signing, sealing, countersealing, or issuing of any commission, or letter of authority, contrary to the provisions of the Act, was made punishable by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or by both. Various other provisions of great severity were incorporated, and were adopted after brief debate.

When the bill reached the House, every provision of it was readily agreed to except that which excluded Cabinet officers from its operation. An amendment offered by Mr. Williams of Pennsylvania to strike that out was defeated--_ayes_ 76, _noes_ 78. Later in the day, just as the bill was passing its engrossment, Mr. Farquhar of Indiana, having voted with the majority, moved to reconsider the vote by which the amendment was rejected. The vote was taken the ensuing day, and by the zealous work of the intervening night, the motion to reconsider prevailed--_ayes_ 75, _noes_ 69--and the amendment was at once adopted. The bill was then passed by a party vote--_ayes_ 111, _noes_ 38. When it was returned to the Senate, that body refused, by a decisive vote, to concur in the amendment which placed members of the Cabinet on the same basis with other officers respecting the President's power of removal. Upon a conference between the two branches on this disagreement, a substitute was adopted, declaring that the members of the Cabinet "shall hold their offices, respectively, for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." Both Houses agreed to the bill in this form. Mr. Farquhar's change of mind and his motion to reconsider led to the incorporation in the bill of the provision whose alleged violation by President Johnson was the direct cause of his impeachment by the House of Representatives a year later.

The final action on the measure by the Senate was on the 20th of February, so that the President had the opportunity to endanger its passage by postponing the veto, and it was generally anticipated that he would do so. He communicated it, as in the case of the Reconstruction Bill, on the 2d of March. In reviewing the measure Mr. Johnson said: "In effect it provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law, without the advice and consent of the Senate of the United States. The bill conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States, is a principle which has been not more distinctly declared by judicial authority and judicial commentators, than it has been uniformly practiced upon by the Legislative and Executive Departments of the Government. . . . The question has often been raised in subsequent times of high excitement, and the practice of the Government has nevertheless conformed in all cases to the decision thus made. Having at an early period accepted the Constitution, in regard to the Executive office, in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction, or in any assumed necessity of the times, for changing those opinions. . . . For these reasons, I return the bill to the Senate, in which House it originated, for the further consideration of Congress which the Constitution prescribes. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitutions for the self-government of free states and nations; but I think that experience has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitutions of self-government when once happily established."

The veto message was a very able document. In all official papers of importance the President appeared at his best. He had the inestimable advantage of Mr. Seward's calm temper and of his attractive and forcible statement of the proper argument. Few among the public men of the United States have rivaled Mr. Seward in the dignity, felicity, and vigor which he imparted to an official paper. No one ever surpassed him. In the veto message under consideration his hand was evident in every paragraph; and if it had been President Johnson's good fortune to go down to posterity on this single issue with Congress, he might confidently have anticipated the verdict of history in his favor. The delicate, almost humourous sarcasm in the closing words above quoted from the message, afford a good specimen of Mr. Seward's facility of stating the gravest of organic propositions in a form attractive to the general reader. He wrote as one who felt that in this particular issue with Congress, whatever might be the adverse votes of the Senate and House, time would be sure to vindicate the position of the President. But the message did not arrest the action, indeed scarcely the attention, of Congress, and the bill was promptly, even hurriedly, passed over the veto,--in the Senate by 35 _ayes_ to 11 _noes;_ in the House by 133 _ayes_ to 37 _noes_.

The bill was not passed, however, without considerable misgiving on the part of many members of both Houses who voted for it. It was an extreme proposition,--a new departure from the long-established usage of the Federal Government, and for that reason, if for no other, personally degrading to the incumbent of the Presidential office. It could only have grown out of the abnormal excitement created by the dissensions between the two great Departments of the Government. The bitterness engendered resembled that which always distinguishes a family quarrel. The measure was resorted to as one of self-defense against the alleged aggressions and the unrestrained power of the Executive Department. But the history of its operation, and of its subsequent modification, which practically amounted to its repeal, is one to which the Republican party cannot recur with any sense of pride or satisfaction. As matter of fact, a Republican Congress, largely composed of the same members who had enacted the law, indirectly confessed two years later that it could not be maintained. Regarded only in the light of expediency at the time, it could readily be demonstrated (as was afterwards admitted by candid men among those who supported it) to be a blunder,--a blunder all the more censurable because the Act was not needed to uphold the Reconstruction policy of Congress, in aid of which it was devised. That policy relied for its vindication upon the judgment and conscience of the loyal people, and it was an impeachment of their good faith to say that either could be affected by the removal of one man, or of many men, from official position under the Federal Government. The Reconstruction policy stood upon a strong and enduring principle,--as strong and enduring as the question of human right,--and was sustained with vigor and enthusiasm by the great party which was responsible for the war measures that had saved the Union. The same sentiment did not attach to the Tenure-of-office Law, which indeed was only the cause of subsequent humiliation to all who had taken part in its enactment.(2)

It was part of the fixed policy of Mr. Lincoln's administration to increase the number of distinctively free States from that section of the public domain which had never been in any way contaminated by the institution of slavery. To this end he was anxious to encourage the settlement of the Territories already organized west of the Missouri river. To provide for the still more rapid creation of North-western States, two additional Territories, Idaho and Montana, were organized from the area which had been included in Dakota. Mr. Lincoln's evident motive was to place beyond the calculation, or even the hope of the disloyal States the possibility of ever again having sufficient political power to compete in the Senate for the mastery of the Republic. He was persuaded that the sectional contest would be fatally pursued as long as the chimerical idea of equality in the Senate should stimulate Southern ambition. He knew, moreover, that the war could not close with victory for the Union, without the proposal of certain changes in the Constitution, and to this end it was desirable that the loyal States should as early and as nearly as possible constitute three-fourths of the entire Union. With this motive, he had towards the close of his first term, somewhat prematurely it was believed by many, stimulated the desire of the settlers of Nevada for a State government. He had faith not only in the justice, but in the popularity, of this policy; for he took pains to issue the proclamation declaring Nevada a State in the Union only a week preceding the Presidential election of 1864, when the existence of his administration was at stake, and when every public measure was scanned with special scrutiny.

Nebraska had been organized as a Territory in the original Douglas bill repealing the Missouri Compromise, in 1854; and Colorado was made a Territory the week preceding Mr. Lincoln's first inauguration. After Nevada, these Territories offered the earliest promise of becoming States. They were both parts of the old Louisiana purchase from France, and had in popular estimation and in the classification of the earlier geographers been included within the borders of the Great American Desert. But settlers has swarmed upon the plains of Nebraska, and the waving fields of grain and the innumerable herds of cattle browsing on her rich pasture-land soon dispelled that misconception, and gave promise of the prosperous development which the State has since attained. Earlier than the farmer or the grazier could reach its soil, Colorado was settled by an intelligent mining population, whose industry has extracted from her mountains more than two hundred millions of the precious metals, contributed in the last quarter of a century to the wealth of the world. Encouraged by the policy of the Administration, and especially by the precedent of Nevada, both Territories sought an enabling Act from Congress in the winter of 1862-63. Neither succeeded at the time; but in the next Congress a bill "to enable the people of Colorado to form a constitution and State government, and for the admission of said State into the Union on an equal footing with the original States," passed both Houses, and was approved by Mr. Lincoln of the 21st of March, 1864. A month later (April 19, 1864) a similar bill for Nebraska was signed by the President.

It appeared that the citizens of each Territory who had been forward in asking an enabling Act from Congress were somewhat in advance of popular sentiment, for when the question of forming a State government was submitted to direct vote in Colorado it was rejected, and the same action was taken in Nebraska. But soon afterward (in the year 1865) the movement for a State government gained strength in both Territories. Through duly organized conventions and the formation and adoption of State constitutions, the people indicated a willingness, if not an active desire, to be admitted to the Union. In Colorado 5,895 votes were cast when the constitution was submitted, and the majority in favor of the new State was but 155. William Gilpin was elected governor, and John Evans and Jerome W. Chaffee were chosen senators of the United States. But when the new senators reached Washington (early in the year 1866) they found that the policy of the National Administration on the subject of new States had changed, and that instead of a friend in the White House, as Mr. Lincoln had steadily proved, they had a determined opponent in the person of Mr. Johnson. Congress with reasonable promptness passed the bill in both Houses for the admission of Colorado, though it was opposed by the more radical class of Republicans because negroes were excluded from the right of suffrage. It is a striking illustration of the rapid change of public sentiment, that in the winter and early spring of 1866 a bill containing that provision could pass a Congress in which the Republicans had more than two-thirds of the membership of each branch, whereas in less than a year negro suffrage was required as the condition of re-admission of the Southern States.

The Colorado bill passed the Senate by a vote of nineteen to thirteen, and the House by eighty-one to fifty-seven. It reached the President on the fifth day of May and was promptly vetoed. Mr. Johnson did not believe that the establishment of a state government was necessary to the welfare of the people of Colorado; "nor was it satisfactorily established that a majority of the citizens of Colorado desire, or are prepared for, an exchange of the Territorial for a State government." He thought that Colorado, instead of increasing, had declined in population. "At an election for a Territorial Legislature in 1861, 10,580 votes were cast; at an election in 1864 only 6,192 votes were cast; while at the election of 1865 only 5,905 votes have been cast." He said, "I regret this apparent decline of population in Colorado, but it is manifest that it is due to emigration which is going out from that Territory into other regions of the United States, which either are in fact, or are believed to be by the citizens of Colorado, richer in mineral wealth and agricultural resources." The President commented upon the injustice of creating from so small a population a State with senatorial strength equal to that of the largest State in the Union. He thought Colorado did not have a population of more than twenty thousand persons "whereas one hundred and twenty-seven thousand are required in other States for a single representative in Congress." The President did not neglect his one constant theme--the unrepresented condition of the Southern States. He insisted that "so long as eleven of the old States remain unrepresented in Congress, no new State should be prematurely and unnecessarily admitted to a participation in the political power which the Federal Government wields." The strong minority which had opposed the Colorado bill gave no hope of overriding the President's veto, which was simply laid on the table and ordered to be printed.

The bill for the admission of Nebraska came later in the session, not being introduced for consideration until the 23d of July. It passed very promptly by a vote of twenty-four to eighteen in the Senate, and by sixty-two to fifty-two in the House. As in the case of Colorado the constitution excluded the negro from the right of suffrage, and for that reason a very considerable proportion of the Republicans of each branch voted against the bill. The vote was so close in the House that but for a frank and persuasive statement made by Mr. Rice of Maine, from the Committee on Territories, it would have been defeated. He pictured the many evils that would come to the people of Nebraska, now more than sixty thousand in number, if they could not do for themselves, as a State, many things which the National Government would not do for them as a Territory. Under the influence of his speech a majority of ten was found for the bill, but Congress adjourned the day after it was finally passed by both branches, and the President quietly "pocketed" the bill; and thus the earnest and prolonged effort to create two new States came to naught for the time.

Nothing daunted by the President's veto of the bill admitting Colorado, and his pocketing the bill admitting Nebraska, Mr. Wade promptly introduced both bills anew, at the beginning of the second session of the Thirty-ninth Congress. The case of Nebraska was, in popular judgment, stronger than the case of Colorado. The population was larger, and being devoted to agriculture, was naturally regarded as more stable than that of Colorado, which was based principally upon the somewhat fortuitous discovery of mines of the precious metals. But there was an admitted political embarrassment in regard to both Territories, the principal debate on which occurred when the bill admitting Nebraska was under consideration. Congress was, at the time, engaged in passing the Reconstruction Act for the States lately in rebellion, and had made it imperative that negroes should be endowed with suffrage by those States. While insisting on this condition for the Southern States it was obviously impossible for Congress to admit two Northern States with constitutions prohibiting suffrage to the negro. In the months of the Congressional vacation public opinion in the North had made great strides on this question.

A minority of Republicans were intent on sending the bill back and having the question of negro suffrage submitted for popular decision, but in the opinion of the majority of the party this was a needless postponement of a pressing question, and all propositions looking to such postponement were rejected. A final compromise of views was reached, by inserting in the Act of admission an additional section declaring "that this Act shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise or of any other right to any person, by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition that the Legislature of said State, by a solemn public act, shall declare the assent of said State to the said fundamental condition and shall transmit to the President of the United States an authentic copy of said Act." When notified of this solemn public act by the Legislature, it was made the duty of the President to announce the fact by proclamation, and thereupon the admission of the State to the Union, without further proceedings of Congress, was to be considered complete. The objection to this compromise by those who opposed it and by others who reluctantly supported it, was that it did not have the force of Organic Law; that the proposed act of the Legislature would not be rendered any more binding by reason of being called a solemn act, and that it might be repealed by any subsequent Legislature. Much argument was expended upon this point, but the general judgment was that an act of the Legislature, made in pursuance of such an understanding with Congress, was in the nature of a compact which, without discussing the question of power, would certainly be regarded as binding upon the State. With this understanding, Congress passed a bill admitting the State, but the vote in both branches was divided on the line of party.

This action was accomplished late in January (1867), and on the 29th of that month the President vetoed the bill. He objected especially to the clause just referred to, because it was an addition to the enabling Act which Congress had no moral right to make, and because it required of Nebraska a condition not theretofore required of States, --contradicting flatly the declaration of the first section of the bill, in which the State was declared to be "admitted into the Union upon an equal footing with the original States in all respects whatever." He argued that the imposition of the condition prescribed in the bill, and its acceptance by the Legislature, was practically a change in the organic law of the State without consulting the people, which he regarded as an innovation upon the safe practice of the Government. But his arguments fell upon unwilling ears, and the bill was passed over the veto by a vote of thirty to nine in the Senate, and in the House by one hundred and twenty to forty-three.

Colorado did not fare so well. The bill was passed by both branches of Congress, though not with so full a vote nor with so much confidence in the propriety and necessity of the measure. Precisely the same condition in regard to suffrage was inserted as in the case of the Nebraska bill. It met with a prompt veto, more elaborately argued and presented with more confidence by the President than in the case of Nebraska. He said, "I cannot perceive and reason for the admission of Colorado that would not apply with equal force to nearly every other Territory now organized, and I submit whether, if this bill becomes a law, it will be possible to resist the logical conclusion that such Territories as Dakota, Montana, and Idaho must be received as States whenever they present themselves, without regard to the number of inhabitants they may respectively contain." He dwelt forcibly upon the necessity of requiring population enough to secure one representative. "The plain facts of our history," said he, "will attest that the leading States admitted since 1845, namely, Iowa, Wisconsin, California, Minnesota, and Kansas (including Texas, which was admitted in that year), have all come in with an ample population for one representative, and some of them with nearly, if not quite, enough for two."

There were really no facts before Congress tending to prove the existence of those great resources which have since advanced Colorado so rapidly in population and prosperity. Little was known of the Territory. It was several hundred miles beyond the Western border of continuous settlement, and the men who came from it were regarded as adventurous pioneers on the very outposts of civilization. Under this condition of affairs it is not strange that the Senate failed to pass the bill for the admission of the State over the veto of the President. Edmunds, Fessenden, Foster, Grimes, Harris, Morgan, and some other Republicans, less prominent, voted in the negative. The result was twenty-nine in favor of passing it over the veto, and nineteen against. Defeated in the Senate the bill did not go to the House, and the admission of Colorado was by this action postponed for several years.

The President gave specious reasons for his vetoes, especially in the case of Colorado, but they did not conceal the fact that his position was radically different from that which Mr. Lincoln had held--radically different from the position which he would himself had assumed if he had maintained in good faith the principles he had professed when he secured the suffrages of the Republican party for the Vice-Presidency. Having allied himself with the South and compromised his patriotic record by espousing the cause he had so hotly opposed, he naturally adopted all its principles and its worst prejudices. For nearly half a century the leading exponents of Southern sentiment had been envious of the growth of the free North-West, and so far as lay in their power they had obstructed it--being unwilling for a long period to admit one of its giant Territories to the Union until its power could be politically offset by one of less population and wealth in the South. Mr. Johnson in his new associations at once adopted this jealous and ungenerous policy--which had indeed lost something of its significance by the abolition of slavery, but was still stimulated by partisan considerations and was invariable hostile to the admission of a Republican State. The most bitter prejudices could not blind Mr. Johnson or the Southern leaders to the inevitable growth of free commonwealths in the North-West, but it seemed to be an object with both to keep them from participation in the government of the Union so long as possible, and to accomplish this end by every expedient that could be adopted.

An Act in relation to the President's power to grant pardon and amnesty, passed at this session, was more important in its spirit than in its results. By the thirteenth section of the Confiscation Act of July 17, 1862, the President was authorized, at any time, by proclamation, "to extend to any persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty." Under a suspension of the rules, the House of Representatives, by a vote of one hundred and twelve to twenty-nine, repealed this section on the first day of the session (December 3, 1866). There was anxiety on the part of many, under the lead of Mr. Chandler of Michigan, to repeal it so promptly in the Senate, but it was referred to the Judiciary Committee and passed after discussion. Mr. Chandler said, "It is a notorious fact, as notorious as the records of a court, that pardons have been for sale around this town, for sale by women--by more than one woman. The records of your court in the District of Columbia show this. Any senator who desires this disgraceful business to go on, of course desired that this clause shall remain."

The repeal of the clause, however, would not take from the President his constitutional power of pardoning, but in the judgment of Mr. Trumbull, who had charge of the bill in the Senate, it took from him the power to pardon by proclamation and confined him to his right of issuing individual pardons. The difference between pardon and amnesty was defined by Mr. Trumbull. Pardon is an act of mercy extended to an individual. It must be by deed. It must be pleaded. According to Chief Justice Marshall, it is essential to its validity that it be delivered to the person pardoned. But an amnesty is a general pardon by proclamation. Mr. Trumbull thought the repeal would be a "valuable expression of opinion on the part of Congress that general pardons and restoration of property will not be continued, and if they President continues to pardon rebels and restore their property by individual acts under the Constitution, let him do so without having the sanction of Congress for his act."

Mr. Reverdy Johnson took issue with Mr. Trumbull. He maintained that the President's powers to grant pardons, as conferred by the Constitution, had not been affected by the provision of law whose repeal was now urged. He declared that the power of the President "to grant reprieves and pardons for offenses against the United States" was as broad, as general, as unrestricted as language could make it. He could find no logical ground for the distinction made by Mr. Trumbull between individual pardons and general amnesties by proclamation--in illustration of which he said President Washington had by proclamation pardoned the offenders engaged in the Whiskey Insurrection. The enactment of the provision had not, in Mr. Johnson's opinion, enlarged the President's pardoning power, and its repeal would not restrict it.

It was thought that a majority of the Senate concurred in Mr. Johnson's interpretation of the Constitution, but they passed the bill as a rebuke to the scandalous sale of pardons which Mr. Chandler had brought to the attention of the Senate. This vile practice had no doubt been pursued to some extent, but only by a class of "middle men" who had neither honor nor sensibility. They had in some form the opportunity to secure the interposition of men who could reach the ear of the President or the Attorney-General. It is hardly necessary to add that neither of those high officials was in the remotest degree reflected upon even by their bitterest opponents. However wrong-headed Mr. Johnson and Mr. Stanbery might have been considered on certain political issues, the personal integrity of both was unblemished. It was believed that the nefarious practice was stopped by Mr. Chandler's action in the Senate. Exposure made public men careful to examine each application for pardon before they would consent to recommend it to the President.

The President neither approved the bill nor objected to it, but allowed it to become a law by the expiration of the Constitutional limit of ten days. He obviously took the same view that had been advanced by Mr. Reverdy Johnson, and did not take the trouble to sign it, much less to veto it. It was _brutum fulmen_, and the President used his Constitutional power to pardon by proclamation just as freely after its enactment as before.

[NOTE.--"Pocketing a bill" is the phrase commonly used to describe the President's course when he permits a bill which reaches him within the last ten days of the session, to die without action on his part. It is frequently termed the "pocket veto."]

[(1) The original Reconstruction Act and the several supplementary Acts are given in full in Appendix A.]

[(2) The full text of the Act to regulate the tenure of certain civil offices, is given in Appendix B.]