Chapter XII (2)

It will not escape observation that the most frequent resort to the veto has been by those Presidents who were chosen by the political organization which has always declared its hostility to Executive power. The Democratic party had its origin and its early growth in the cry against the overshadowing influence of the Presidential office --going so far in their denunciations as to declare that it was aping royalty in its manners and copying monarchy in its prerogatives. The men who made this outcry defeated John Quincy Adams who never used the veto, and installed Jackson who resorted to it on all occasions when his judgment differed from the conclusion of a majority of Congress. Neither Taylor nor Fillmore--both reared in the Whig school --ever attempted to defeat the will of Congress, though each wielded Executive power at a time when questions even more exciting than those of Jackson's era engaged public attention. Mr. Lincoln presents a strong contrast with his predecessors,--Pierce and Buchanan,--illustrating afresh the contradiction that the party declaiming most loudly against Executive power has constantly abused it. Mr. Tyler and Mr. Johnson were both chosen by the opponents of the Democracy, but they were both reared in that school, and both returned to it--exhibiting in their apostasy the readiness with which the Democratic mind turns to the tyranny of the veto.

The success of reconstruction in the South carried with it the ratification of the Fourteenth Amendment by the requisite number of States. The result was duly certified by Mr. Seward as Secretary of State, on the twenty-eighth day of July, 1868, and the Amendment was thenceforward a part of the organic law of the nation. It had been carried, from first to last, as a party measure--unanimously supported by the Republicans, unanimously opposed by the Democrats. Its grand and beneficent provisions failed to attract the vote of a single Democratic member in any State Legislature in the whole Union. Wherever the Democrats were in majority the Legislature rejected it, and in every Legislature where the Republicans had control the Democrats in minority voted against it. Not only was this true, but the States of Ohio and New Jersey, which had ratified it in 1866-67 when their Legislatures were Republican, formally voted in 1868, when the Democrats had come into power, to recall their assent to the Amendment and to record their opposition to its adoption. It is very seldom in the history of political issues, even when partisan feeling is most deeply developed, that so absolute a division is found as was recorded upon the question of adopting the Fourteenth Amendment. It has not been easy in succeeding years to comprehend the deep-seated, all-pervading hostility of the Democratic party to this great measure. Even on the Thirteenth Amendment, containing the far more radical proposition to abolish slavery, a few Democrats, moved by philanthropic motives, broke from the restraint of party and honored themselves by recording their votes on the side of humanity and justice; but on the Fourteenth Amendment the line of Democratic hostility in Nation and in State was absolutely unbroken.

It seems incredible that Democrats can be satisfied with the record made by their party on this most grave and important question. Every one of the many objects aimed at in the Fourteenth Amendment is founded upon a basis of justice, of liberty, of an enlarged and enlightened nationality. Its minor provisions might be regarded as temporary in their nature, but its leading provisions are permanent and are essential to the vitality of a true republic. Even those which may be held as temporary deeply affect more than one generation of American citizens, and are of themselves sufficiently important to justify a great struggle for their adoption.

It was certainly of inestimable concern to the honor of the country that those who had shed their blood and those who had given their treasure for its defense, should have their claims upon the national justice placed beyond the whim, or the caprice, or the malice of an accidental majority in Congress. Nor would it have been wise to leave open to those who in the conflict of arms had lost their slaves, the temptation to besiege Congress and the Legislatures of their States for compensation. Such an opportunity would have been a menace to the public credit, and would have proved a constant source of corruption. The Republican therefore said, "We shall incorporate the right of the soldier to repayment, in the very Constitution of the Republic; and shall in the same solemn manner decree that as slavery instigated the drawing of the sword against the life of the nation, and justly perished by the sword, its assumed value shall not be placed upon the free people of the United States as a mortgage whose payment may be exacted from their property and their toil." Against these just provisions, which in their nature are limited as to time, the Democrats in Congress and in every Legislature of the Union recorded an absolutely unanimous vote.

Another provision of the Fourteenth Amendment, temporary in its application, indeed necessarily limited to the existing generation, was demanded by the Republicans. The great mass of those engaged in the Rebellion were pardoned the moment their arms were laid down. But the leaders who, in official position before the war, had solemnly sworn to support the Constitution, were held to be far more guilty than the multitude who followed them. They deliberately rebelled against a government to which, on their consciences and on their oaths, they had given their personal pledge of fidelity. The Republicans did not propose to visit even these chief offenders with pains and penalties; but they resolved to place in the Constitution a prohibition upon their holding office under the National government until after two-thirds of both branches of Congress, satisfied of their good intentions, should remove their disabilities. The Democrats unanimously voted against even this mild discipline to those who precipitated the desperate war, thereby declaring their willingness, if not their desire, that the most guilty should fare as well as the innocent; that for example Mr. Toombs might resume his seat as a senator from Georgia, Mr. Breckinridge as a senator from Kentucky, Mr. Benjamin as a senator from Louisiana, Mr. Jefferson Davis as a senator from Mississippi.

Still another provision of the Amendment which might prove temporary in its application, or might prove permanent, as the South should decide, was that relating to representation in Congress. On this point the Republicans held, as has been so often repeated, that the negro should not be included in the basis of representation until he was admitted to suffrage. There is such absolute justice and fair dealing in this proposition, that no reply which deserves to be called an argument has ever been made to it. The original provision in the Constitution by which three-fifths of the slaves were enumerated in the basis of representation, agreed to originally as a compromise in connection with the subject of direct taxation, had lost its relevancy by reason of emancipation as decreed in the Thirteenth Amendment. The question now before Congress was therefore a new one. It affected the rights of States and the equality of citizens. To concede four and a half millions of negroes to the basis of Southern representation, and at the same time to confine the suffrage to the whites, was not merely a harsh injustice to the colored race, but it was an insulting discrimination against Northern white men. It gave, as was well said at the time, a far greater influence in National affairs to the vote of the Confederate solider in the South than to the vote of the Union soldier in the North. In Congressional districts where the colored race constituted one-half of the total population (and in many instances the proportion was even larger), the vote of one white man offset the vote of two in a Northern district where suffrage was impartial. This ratio of influence went into the Electoral College, and gave to the white men of South Carolina, Mississippi and Louisiana double the power of that enjoyed by white men in New York, Illinois and California. The loss of Representatives to the Northern States, or more properly speaking the gain to the Southern States on existing numbers, would be nearly one-eighth of the entire House, and fully one-quarter of those likely to occupy seats on the Democratic side of the chamber. In the Electoral College, the loss to the North and the gain to the South would be nearly in the same ratio. In the rapid increase of the negro race the offensive discrimination against the North would be continually enlarging in its proportions. The corrective provision in the Fourteenth Amendment was designed to prevent this grave injustice both to the negro and to the white man--but every Democrat in Congress and in the State Legislatures voted against it through all the stages of its enactment and its ratification, and thereby expressed a willingness to give an unfair advantage to the Southern white man, and to establish an unfair discrimination against the Northern white man.

Important and essential as are the provisions of the Fourteenth Amendment just cited, indispensable as they have proved in the system of Southern Reconstruction, they are relatively of small consequence when compared with that great provision which is for all time:--that provision which establishes American citizenship upon a permanent foundation, which gives to the humblest man in the Republic ample protection against any abridgment of his privileges and immunities by State law, which secures to him and his descendants the equal protection of the law in all that relates to his life, his liberty, and his property. The first section of the Constitutional amendment which includes these invaluable provisions is in fact a new charter of liberty to the citizens of the United States; is the utter destruction of the pestilent heresy of State-rights, which constantly menaced the prosperity and even the existence of the Republic; and is the formal bestowment of Nationality upon the wise Federal system which was the outgrowth of our successful Revolution against Great Britain.

Before the adoption of this Amendment citizenship of the United States was inferred from citizenship of some one of the States, for there was nothing in the Constitution defining or even implying National citizenship as distinct from its origination in or derivation from a State. It was declared in Article IV, Section 2, of the Federal Constitution, that "Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States;" but nothing was better known than that this provision was a dead letter from its very origin. A colored man who was a citizen of a Northern State was certain to be placed under the surveillance of the police if he ventured south of the Potomac or the Ohio, destined probably to be sold into slavery under State law, or permitted as a special favor to return at once to his home. A foreign-born citizen, with his certificate of naturalization in his possession, had prior to the war no guarantee or protection against any form of discrimination or indignity, or even persecution, to which State law might subject him, as has been painfully demonstrated at least twice in our history. But this rank injustice and this hurtful inequality were removed by the Fourteenth Amendment. Its opening section settled all conflicts and contradiction on this question by a comprehensive declaration which defined National citizenship and gave to it precedence of the citizenship of a State. "_All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside_." These pregnant words distinctly reversed the origin and character of American citizenship. Instead of a man being a citizen of the United States because he was a citizen of one of the States, he was now made a citizen of any State in which he might choose to reside, because he was antecedently a citizen of the United States.

The consequences that flowed from this radical change in the basis of citizenship were numerous and weighty. Nor were those consequences left subject to construction or speculation. They were incorporated in the same section of the Amendment. The abuses which were formerly heaped on the citizens of one State by the legislative and judicial authority of another State were rendered thenceforth impossible. The language of the Fourteenth Amendment is authoritative and mandatory: "_No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws_." Under the force of these weighty inhibitions, the citizen of foreign birth cannot be persecuted by discriminating statutes, nor can the citizen of dark complexion be deprived of a single privilege or immunity which belong to the white man. Nor can the Catholic, or the Protestant, or the Jew be placed under ban or subjected to any deprivation of personal or religious right. The provision is comprehensive and absolute, and sweeps away at once every form of oppression and every denial of justice. It abolishes _caste_ and enlarges the scope of human freedom. It increases the power of the Republic to do equal and exact justice to all its citizens, and curtails the power of the States to shelter the wrong-doer or to authorize crime by a statute. To Congress is committed the authority to enforce every provision of the Fourteenth Amendment, and the humblest man who is denied the equal protection of the laws of a State can have his wrongs redressed before the Supreme Judiciary of the Nation.

It is perhaps not strange that the Democrats of the South were hostile to the great results wrought for freedom, for justice, and for popular rights by the Fourteenth Amendment. Their education, their prejudices, their personal interests had all been in the opposite direction, and it was doubtless too much to hope that all these would be overcome by a victory for the Union--a victory which carried to their minds a sense of personal humiliation and of remediless ruin. If their course was unwise it is not altogether unintelligible. But the action of the Northern Democrats cannot be accounted for and cannot be excused. They stood stubbornly, solidly, without reason, without justification, against a great enlargement of popular rights. It is a matter of wonder that a political organization which claims Jefferson for its founder and Jackson for its exemplar, should have surrendered to its rival the sole glory of an achievement which may well be compared with that increase of liberty attained by our ancestors, when the dependence of Colonies was exchanged for the independence of States.

Two eminent judges of the Supreme Court who died after the close of the war are entitled to the admiration and gratitude of the loyal citizens of the United States. When Mr. Lincoln was inaugurated there were three judges on the Supreme Bench from the States which afterwards formed the Confederacy,--James M. Wayne of Georgia, John Catron of Tennessee, and John A. Campbell of Alabama. The last-named was placed upon the bench in 1853, and was undoubtedly the choice of Jefferson Davis, who as the leading Southern member of President Pierce's Cabinet exerted large influence, if not absolute control, over appointments from the slave-holding States. The personal and political associations of Judge Campbell led him to resign his position on the Supreme Bench, and to give the weight of his name and his learning to the Confederate cause.

Judge Wayne was appointed by President Jackson in 1835, and Judge Catron by President Van Buren immediately after his inauguration in 1837, under a bill enlarging the Court, which had been approved by General Jackson. Judge Catron had long been a favorite of General Jackson in Tennessee, and it was understood that in appointing him to the Bench Mr. Van Buren was carrying out the expressed wishes of his predecessor. Both judges came from that earlier and better school of Southern Democracy which resisted the injurious heresies of State-rights and Nullification, sustained the Force Bill under President Jackson, and stood loyally by the Union of the States. They were allied to the South by birth, by education, and by the associations of a lifetime. Their friends, their kindred, even members of their own families, joined in the Rebellion. But these patriotic men, one of whom was born during the Revolutionary war and the other during the first term of Washington's Presidency, maintained their judicial positions and were unshaken in their loyalty to the Union. Their example was followed by few officials from the states that seceded, but the steadfastness of their faith was a striking illustration of the difference between the South of Jefferson and Jackson and the South of Calhoun and Davis. They sat on the Bench throughout the entire civil struggle,--Judge Catron dying in May, 1865, in the eighty-seventh year of his age, and Judge Wayne in July, 1867, in his seventy-eighth year.

The conduct of these venerable judges is all the more to be praised because they did not personally sympathize in any degree with the Republican leaders. They did not believe in the creed or the policies of the party, and feared the result of its administration of the National Government. Their views in regard to the Constitutional rights of the slave-holders were the same as those held by the Confederate chieftains. They had both concurred with Chief Justice Taney in the Dred Scott decision. But it was enough for them now to know that Mr. Lincoln had been Constitutionally chosen President of the United States, and had been Constitutionally installed in his great office. It was not for them as Justices of the Supreme Court to know any thing of his Executive acts, except as they might properly come for review before their high tribunal. They illustrated the honorable line of duty for a Judge under the Government of the United States. Off the Bench, his right to political opinions is no more to be questioned than that of any other citizen. On the Bench, he falls short of the full measure of his exalted duty if by any way or any expression he discloses his sympathy with one political party or his prejudice against another.

It is a tribute of honor to the Supreme Court that through all the mutations of its existence only a single Justice has proved unfaithful to the Union of the States; and prior to the war three-fifths of all the Justices were appointed from the South. Southern men in all other departments of the Public Service--those eminent in our Congressional annals, in the Army, in the Navy, in the field of Diplomacy, and even one who had occupied the Presidential chair--followed the lead of their States in rebellion against the Union; or rather it may with truth be said, they led their States into rebellion against the Union. Judge Campbell, in furnishing the sole exception to the record of judicial loyalty, did not yield without a struggle. He was surrounded with peculiar embarrassments, and was not strong enough to overcome them. He realized his position, and did what he could to avert war; but when war was inevitable, he upheld the Confederate cause and became one of its directing minds. In contrast with the fall from his high estate and over against all the evil influences which forced Judge Campbell to his fate, the names of Catron and Wayne will shine in history as examples of the just judge and the incorruptible patriot.

[(1) The President's personal hostility to some of the officers thus assigned was well known, and surprise was expressed that he did not countermand or qualify the order of General Grant when first issued. He was especially unfriendly to General Sheridan, and late in the summer of 1867 relieved him from his command. General Hancock was gazetted as Sheridan's successor, but he did not reach his post until late in November, the district meanwhile being under the command, first, of General Charles Griffin, and, second, of General Joseph A. Mower. General Hancock's order assuming command, issued on the 29th of November, had a certain political significance. He expressed gratification "that peace and quiet reign in the Department," and that in his purpose to preserve this condition of things, he regarded "the maintenance of the civil authorities in the faithful execution of the laws as the most efficient under existing circumstances." He said that when insurrectionary force had been overthrown and peace established, "the military power should cease to lead, and the civil administration resume its natural and rightful dominion." "Solemnly impressed with these views," the General announced that "the great principles of American liberty are still the lawful inheritance of the people and ever should be. The right of trial by jury, the _habeas corpus_, the liberty of the press, the freedom of speech, the natural rights of persons, and the rights of property, must be preserved."

General Sheridan had issued an order defining the qualifications of those who might sit on juries during the period of Reconstruction. One of the first acts of General Hancock was to annul this order. He declared "that the determination of who shall and who shall not be jurors appertains to the legislative power," and he indicated his intention of carrying out the existing law of Louisiana in regard to the selection of juries. General Sheridan had distributed certain memoranda of disqualification, together with questions to be proposed, for the registrars. Their effect in substance was to disqualify all persons who, having acted, prior to January 26, 1861, as _United-States senators and representatives, electors, officers of the Army and Navy, civil officers of the United States_, and State officers provided for by the Constitution of the State, had afterwards engaged in the Rebellion; and also all those who in 1862 and 1864 claimed the protection of foreign powers. General Hancock set aside this action, declaring that he dissented from the construction given to the Reconstruction laws therein, and ordered the registrars to be guided by their own interpretation of the laws and of the Fourteenth Amendment. It was the popular understanding that General Hancock, in these successive steps, was acting in full sympathy with the wishes and designs of the Administration, in all of which he readily concurred as a Democrat.

The appointment of General Pope for the District of Georgia, Alabama, and Florida, had not been agreeable to the President. General Pope's political convictions were of a very positive character, and they were not at all in sympathy with the National Administration. He administered the Reconstruction laws, therefore, in their full spirit and with an entire belief in their justice and equity. He insisted on fair dealing, and suppressed all interference with voters by violence or threats of violence on the part of the late rebels. He would not permit the menace of military organizations, and expressly refused to allow any parading of armed men, except of United-States troops. It was General Pope's opinion that the South had seen quite enough of men in arms within the past four years, and he believed that safety and order would be best maintained by having no uniform worn except that of the Army of the United States, and no other flag shown than the flag of the Union. Holding these pronounced views, aggressively loyal in every thought and action, General Pope was naturally in antagonism with the policy of the President. Towards the close of the year he was relieved of his command and General Meade ordered to take his place.

General Sickles, of the District of North Carolina and South Carolina, was relieved of his command early in September (1867), and General E. R. S. Canby appointed as his successor. General Sickles had been very energetic in the administration of affairs in his department, and had shown remarkable aptitude and efficiency in the discharge of his peculiar duties,--exhibiting in his administration the very qualities most likely to prove offensive to the President. He had perhaps the most difficult command of any of the generals on duty in the South, as the State of South Carolina had from the beginning of the Rebellion presented certain phases of disobedience to Federal authority peculiar to her population and naturally arising from her antecedent history. General Sickles had some trouble with Attorney-General Stanbery, and asked for a court of inquiry, that he might vindicate himself from the accusations of that official.

General Schofield and General Ord alone of the original commanders in the Southern military districts were left to carry through the work of Reconstruction. They both discharged their duties with intelligence and fidelity. Nor was the work of Reconstruction essentially hindered by the changed in other departments. It is the trained habit of the officers of the United-States Army to carry out their orders with implicit faith, and there is seldom a conflict as to the line of duty to be followed. If there was any exception, it was in regard to the course pursued by General Hancock. His conduct became a subject of controversy, and the popular division respecting its merits was on the political line. The National Administration and the Democratic party, both North and South, applauded every thing which General Hancock said and did in Louisiana. The Republican party throughout the country, and the General commanding the army, who was about to be nominated for the Presidency, united in strong disapproval of his course. But General Hancock's construction of the laws under which he was acting was the same as that held by the Attorney-General of the United States, and he thus felt abundantly justified and fortified in his position. He disobeyed no specific order of the General commanding the army, and, even if there had been a difference between them, General Hancock was sure of the sympathy and support of their common superior--the President of the United States.

It was however the subsequent opinion of General Grant that much of the disorder and bloodshed in the State of Louisiana during the national election of 1868 had resulted from the military government of General Hancock. It was not his belief that General Hancock had the slightest desire or design to produce such results, but that they were the outgrowth of the encouragement which the rebels of Louisiana received from the changes which General Hancock inaugurated in the manner of administering the Reconstruction Laws. Aside however from the conduct of General Hancock, the removal of General Sheridan from the Louisiana District was unqualifiedly offensive to General Grant in a personal sense, and contrary to his best judgment on ground of public policy and safety. His attachment to Sheridan was very strong, and a wrong against the latter was sooner or later sure to be resented by General Grant. His feelings of the question were promptly and significantly shown when he became President. Inaugurated on the 4th of March, he caused an army order to be issued on the morning of the 5th, restoring General Sheridan to his former command in Louisiana, and ordering General Hancock to the remote and peaceful Department of Dakota.]