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Title: Reconstruction and the Constitution 1866-1876
Author: John Willliam Burgess
Release Date: October 24, 2015 [EBook #50295]
Language: English
Character set encoding: ISO-8859-1
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THE AMERICAN HISTORY SERIES
RECONSTRUCTION AND THE CONSTITUTION
1866-1876
BY
JOHN W. BURGESS, PH.D., LL.D.
PROFESSOR OF POLITICAL SCIENCE AND CONSTITUTIONAL LAW,
AND DEAN OF THE FACULTY OF POLITICAL SCIENCE,
IN COLUMBIA UNIVERSITY
NEW YORK
CHARLES SCRIBNER'S SONS
1905
COPYRIGHT, 1902, BY
CHARLES SCRIBNER'S SONS
TROW DIRECTORY
PRINTING AND BOOKBINDING COMPANY
NEW YORK
To the memory
of
RICHMOND MAYO-SMITH,
pupil, colleague, and life-long friend,
with grief too deep for words at his loss,
this volume
is affectionately inscribed
by the Author
PREFACE
In my preface to "The Middle Period" I wrote that the re-establishment
of a real national brotherhood between the North and the South could be
attained only on the basis of a sincere and genuine acknowledgment by
the South that secession was an error as well as a failure. I come now
to supplement this contention with the proposition that a corresponding
acknowledgment on the part of the North in regard to Reconstruction
between 1866 and 1876 is equally necessary.
In making this demand, I must not be understood as questioning in the
slightest degree the sincerity of the North in the main purpose of the
Reconstruction policy of that period. On the other hand, I maintain
that that purpose was entirely praiseworthy. It was simply to secure
the civil rights of the newly emancipated race, and to re-establish
loyal Commonwealths in the South. But there is now little question that
erroneous means were chosen.
Two ways were open for the attainment of the end sought. One was that
which was followed, namely, placing the political power in the hands of
the newly emancipated; and the other was the nationalization of civil
liberty by placing it under the protection of the Constitution and the
national Judiciary, and holding the districts of the South under
Territorial civil government until the white race in those districts
should have sufficiently recovered from its temporary disloyalty to the
Union to be intrusted again with the powers of Commonwealth local government.
There is no doubt in my own mind that the latter was the proper and
correct course. And I have just as little doubt that it would have been
found to be the truly practicable course. The people in the loyal
Commonwealths were ready in 1866 to place civil liberty as a whole
under national protection; and not half of the whites of the South
entertained, at that moment, disloyal purposes or feelings. Even the
solid Democratic South was yet to be made; and I doubt most seriously
if it would ever have been made, except for the great mistakes of the
Republican party in its choice of means and measures in Reconstruction.
I will not, however, enter upon the argument in reference to this
question at this point. That belongs to the body of the book. I will
only add that, in my opinion, the North has already yielded assent to
this proposition, and has already made the required acknowledgment. The
policy of Mr. Hayes's administration, and of all the administrations
since his, can be explained and justified only upon this assumption.
And now that the United States has embarked in imperial enterprises,
under the direction of the Republican party, the great Northern party,
the North is learning every day by valuable experiences that there are
vast differences in political capacity between the races, and that it
is the white man's mission, his duty and his right, to hold the reins
of political power in his own hands for the civilization of the world
and the welfare of mankind.
Let the South be equally ready, sincere, and manly in the consciousness
and the acknowledgment of its share in past errors, and the
reconciliation will be complete and permanent!
I have again to express my thanks to my friend and colleague, Dr.
Cushing, for his aid in bringing this volume through the press. I
desire also to acknowledge the courtesy of the New York Independent
for allowing parts of my article on the Geneva Award, published some
years ago in that esteemed journal, to be incorporated in the last
chapter of this book.
JOHN W. BURGESS.
323 WEST 57TH
ST., NEW YORK CITY,
January 22d, 1902.
CONTENTS
CHAPTER I
THE THEORY OF RECONSTRUCTION
CHAPTER II
PRESIDENT LINCOLN'S VIEWS AND
ACTS IN REGARD TO RECONSTRUCTION
CHAPTER III
PRESIDENT JOHNSON'S PLAN OF
RECONSTRUCTION AND HIS PROCEEDINGS IN
REALIZATION OF IT
CHAPTER IV
THE CONGRESSIONAL PLAN OF RECONSTRUCTION
CHAPTER V
THE CONGRESSIONAL PLAN (Continued)
CHAPTER VI
THE CONGRESSIONAL PLAN (Continued)
CHAPTER VII
THE CONGRESSIONAL PLAN (Completed)
CHAPTER VIII
THE EXECUTION OF THE RECONSTRUCTION ACTS
CHAPTER IX
THE ATTEMPT TO REMOVE THE PRESIDENT
CHAPTER X
RECONSTRUCTION RESUMED
CHAPTER XI
PRESIDENT GRANT AND RECONSTRUCTION
CHAPTER XII
"CARPET-BAG" AND NEGRO
DOMINATION IN THE SOUTHERN STATES BETWEEN
1868 AND 1876
CHAPTER XIII
THE PRESIDENTIAL ELECTION OF 1876 AND
ITS CONSEQUENCES
CHAPTER XIV
INTERNATIONAL RELATIONS OF THE UNITED
STATES BETWEEN 1867 AND 1877
INDEX
RECONSTRUCTION AND THE CONSTITUTION
[p. 1]
RECONSTRUCTION
CHAPTER I
THE THEORY OF RECONSTRUCTION
The Conception of a "State" in a System of Federal
Government—The
Different Kinds of Local Government Provided for in the Constitution of
the United States—Local Government Under the Constitution of the
United States—"State" Destructibility in the Federal System of
Government—The Effect on "State" Existence of the Renunciation of
Allegiance to the Union—The Idea of "State" Perdurance—The
Constitutional Results of Attempted Secession.
The key to the solution of the question of Reconstruction is the proper
conception of what a "State" is in a system of federal government. This is
The conception
of a "State" in
a system of
federal
government.
a conception which is not easy to acquire, and which, when acquired,
is not easy to hold. The difficulty lies, chiefly, in the tendency to
confound the idea of a "State" in such a system with a state pure and
simple. Until the distinction between the two is clearly seen and
firmly applied, no real progress can be made in the theory and practice
of the federal system of government. Now the fundamental principle of a
state pure and simple is sovereignty, the original, innate, and legally
unlimited power to command and enforce obedience by the infliction of
penalties for disobedience. On the other hand, the nature of a "State"
in a system of federal
[p. 2]
government is a very different thing. Such a
"State" is a local self-government, under the supremacy of the general
constitution, and possessed of residuary powers. In the federal system
of the United States, it is a local self-government, under the
supremacy of the Constitution of the United States, and of the laws and
treaties of the central Government made in accordance with that
Constitution, republican as to form, and possessed of residuary
powers—that is, of all powers not vested by the Constitution of the
United States exclusively in the central Government, or not denied by
that Constitution to the "State."
It must be kept in mind that this is not the only kind of local
government known in the constitutional law and practice of the United
The different kinds
of local government
provided for in the
Constitution of
the United States.
States. There is, and always has been, since the establishment of the
federal system in 1789, for the larger part of the population which
declared united independence of Great Britain in 1776, another kind of
local government for a part of the United States, a local government
which is not self-government, a local government which is but an agency
of the central Government. In fact, there have been at times three
kinds of local government in the political system of the United States,
viz., local government by the executive department of the central
Government—that is, local government by executive discretion, martial
law—local government as an agency of the legislative department of the
central Government—that is, Territorial government—and "State"
government. That is to say, since 1789 the whole of the United States,
territorially, has never been under the federal system of government,
but has
always been partly under federal government and partly under
the exclusive government of Congress, and has
sometimes been partly
under federal government,
[p. 3]
partly under the exclusive government of
Congress, and partly under the exclusive government of the President.
The Constitution of the United States recognizes and provides for all
three of these species of local government, and vests in Congress the
Local government
under the
Constitution of
the United States.
power of advancing the population of a district, the confines of which
district shall be determined by Congress itself, from the lower to the
higher forms of local government. While the Constitution does not
expressly impose upon Congress the duty of making or permitting the
change from one kind of local government to another, it impliedly
indicates that Congress shall determine the kind of local government
which the population of any particular district shall enjoy in
accordance with the conditions prevailing, at any given moment, among
them. If the maintenance of law and order requires the immediate
exercise of military power, Congress may, and should, permit the
continuance of the President's discretionary government. If, on the
other hand, this is not necessary, Congress may, and should, confer
civil government, under the Territorial form, and when the population
of a Territory shall have become ripe for local self-government and
capable of maintaining it, Congress may, and should, allow the
Territory to become a "State" of the Union, a Commonwealth.
Such being the nature of a "State" of the Union and such the method of
its creation, what reason is there for speaking of the "States" in a
"State" destructibility
in the system of
federal government.
system of federal government as indestructible? As they emerge from the
status of Territories under the exclusive power of Congress, upon
having attained certain conditions, why may they not revert to the
status of Territories upon having lost these conditions of "State"
existence; nay, why may
[p. 4]
they not revert to the status of martial
law by having lost all of the conditions of civil government? The
dictum "once a State always a State" in a system of federal government
has no sound reason in it. Under the Constitution of the United States,
every "State" of the Union may through the process of amendment be made
a province subject to the exclusive government of the central
authorities; and when those who wield the powers of a "State" renounce
The effect on "State"
existence of the
renunciation of
allegiance to the
Union.
the "State's" allegiance to the United States, renounce the supremacy
of the Constitution of the United States and of the laws of the central
Government made in accordance therewith, then from the point of view of
political science it will become a state pure and simple, a
sovereignty, if and when it permanently maintains, by its own power or
by the assent of the United States, this attitude against the United
States, but from the point of view of the constitutional law of the
United States it simply destroys one of the fundamental conditions of
local self-government, and gives, thus, warrant to the central
Government to resume exclusive government in the district, and over the
population which has become disorganized by refusing obedience to the
supreme law of the land, as fixed by the Constitution of the United
States. Whether the central Government has the physical power, at a
given moment, to do this or not, is another question. It certainly has,
at the outset, the legal right. The "State" is no longer a "State" of
the Union, nor has it become a state out of the Union. It is simply
nowhere. The land is there and the people are there, but the form of
local government over it and them has been changed from local
self-government to a Congressional or a Presidential agency, as the
case may be.
Neither is there any reason for holding that the old
[p. 5]"State"
organization perdures as an abstract something under the forms of
The idea of "State"
perdurance.
Congressional or Presidential rule, and will emerge of itself when
these are withdrawn. If the "State" form of local government should be
established again over that same district and over the population
inhabiting it, it would be an entirely new creation, even though it
should recognize the forms and laws and obligations of the old "State."
It must be, however, remembered that both the executive and judicial
The acceptance of
this idea by the
Government of
the United States.
departments of the United States Government committed themselves fully
to this theory of "State" perdurance as an abstract something
unaffected by the loss of the conditions of the "State" form of local
government through the rebellion of the "State" organization against
the supremacy of the Constitution and laws of the United States, and
that Congress did the same thing, at first, in some degree. It was this
error which caused all of the confusion in the ideas and processes of
Reconstruction, and we ought, therefore, to rid ourselves of it at the
start, at the same time that we recognize its influence over the minds
of those who engaged in the difficult work of the years between 1865
and 1876.
From the view which we take of the nature of a "State" in a system of
federal government, and its possible destructibility, there is not much
The constitutional
results of attempted
secession.
difficulty in determining the constitutional results of an attempt upon
the part of such a "State" to break away from its connections in that
system. What it does, stripped of all misconception and verbiage, is
simply this: it forcibly resists the execution of the whole supreme law
of the land, and destroys the prime condition of its own existence by
making it necessary for the central Government to
[p. 6]assert exclusive
power in the district where this happens. Naturally the executive
department of the central Government must act first, and subdue by
force the force which has been offered against the supremacy of the
Constitution and laws of the United States. After that shall have been
accomplished, the question as to how the population in the rebellious
district shall be civilly organized anew, is one for the legislative
department of the central Government exclusively. Congress may fashion
the boundaries of the district at its own pleasure, and may establish
therein such a Territorial organization of civil local government as it
may see fit, and is limited in what it may do in this respect only by
the constitutional immunities of the individual subject or citizen
under every form of civil government provided or allowed by the
Constitution of the United States. Congress may also enable the
existing population of such a district, or such part of that population
as it may designate, to organize the "State" form of local government,
and may grant it participation in the powers of the central Government
upon an equality with the other "States" in the federal system. These
things are matters in which the President, as the executive power,
cannot interfere. As participant in legislation, however, he may, at
his own discretion, use his powers of recommendation and veto.
If rebellion against the supremacy of the Constitution and laws of the
United States should not be committed by an existing "State"
organization, but by a new organization claiming to be the "State"
organization within the district concerned, the existing organization
remaining loyal, but requiring the aid of the central Government to
maintain its authority, then the withdrawal of that aid by the
President after the accomplishment of its purpose would, of course,
leave the old
[p. 7]
"State" organization with restored authority, and
Congress would have no function to perform in the re-establishment of
civil government in such a district, or in the readmission of its
population to participation in the central Government. This was the
course followed in Missouri and Kentucky, and it was the course, which,
at first, was attempted in the case of Virginia. In the first two cases
it was entirely correct. In the last it had to be abandoned, for
reasons, and on account of conditions, which will be explained later.
What we have, therefore, in the theory and history of Reconstruction is
the case of existing "State" organizations forcibly resisting the
execution of the supreme law of the land, and stricken down by the
executive power of the central Government in the attempt, that power
being exercised at its own motion and in its own way.
[p. 8]
CHAPTER II
PRESIDENT LINCOLN'S VIEWS AND ACTS IN REGARD TO RECONSTRUCTION
Did Mr. Lincoln Have any Theory of
Reconstruction?—Mr. Lincoln's
Plan—Mr. Lincoln's Oath of Allegiance, and the Loyal Class to be
Created by the Taking of this Oath—The Proviso in this
Plan—Seward's
Idea of Reconstruction and the Views of Congress and the Judiciary—Ten
Per Centum "State" Governments—Reconstruction in Louisiana under Mr.
Lincoln's Plan—The New Orleans Convention—The Election of a
Governor—The Constitutional Convention of April, 1864, and the
Constitution Framed by it and Adopted by the Voters—Reconstruction in
Arkansas—The Beginning of Resistance in Congress to the President's
Plans—The Wade-Davis Bill—Analysis of this Measure—The President's
Attitude toward the Bill—The President's Proclamation of July 8th,
1864—The Wade-Davis Protest against the President's
Proclamation—The
President's Message of December 6th, 1864—The Threatened Schism in the
Republican Party and the Presidential Election of 1864—The Refusal of
Congress to Count the Electoral Vote from any "State" which had Passed
the Secession Ordinance—Reconstruction in
Tennessee—The Twenty-second
Joint Rule—Reconstruction in Tennessee
Continued—Civil Government
Re-established in Tennessee—The Thirteenth Amendment to the
Constitution of the United States—The Proposition of Amendment as it
Came from the Judiciary Committee of the Senate—The Passage of the
Proposition by the Senate—The House
Draft—Rejection of the Senate's
Draft in the House—Reconsideration of the Senate's Measure in the
House, and its Final Passage.
Some of the ardent admirers of Mr. Lincoln are disposed to dispute the
proposition that he had any theory
[p. 9]
of Reconstruction. It seems,
Did Mr. Lincoln
have any theory
of Reconstruction?
however, that they are unconsciously influenced in this by their desire
to escape the conviction that Mr. Lincoln held an erroneous theory of
Reconstruction. It does not seem that one can read impartially Mr.
Lincoln's proclamation of December 8, 1863, without coming to the
conclusion that Mr. Lincoln had a very decided notion on the subject.
It is true that he said that it must not be understood that no other
possible mode of Reconstruction than that proclaimed by him would be
acceptable, but he laid down a very distinct mode, and he said it was
the best he could suggest under existing impressions.
This plan recognized, in the first place, the continued existence of
the "States" in rebellion as "States" of, and in, the Union. More
Mr. Lincoln's plan.
exactly, it regarded the rebellion against the United States within
these "States" as the act of combinations of disloyal persons, and not
as the act of the "States" at all. These combinations had subverted the
loyal governments within these "States," but the "States" themselves
were not disloyal, because they could not be. They were impersonal
entities, incapable of committing treason or any other wrong. According
to this view the work of Reconstruction consisted simply in placing the
loyal element in a "State" in possession of the government of the
"State."
In the second place, therefore, Mr. Lincoln's plan contained the
principle that the work of Reconstruction was an executive problem. It
was the work of the Executive, through the power of pardon, to create a
loyal class in a "State" which had been the scene of rebellion, and it
was the work of the Executive to support that class by the military
power in taking possession of, organizing, and operating, the "State"
government.
[p. 10]
And so, Mr. Lincoln undertook to create such a class by constructing an
oath of future loyalty and allegiance to the United States of the
Mr. Lincoln's oath
of allegiance, and
the loyal class to
be created by the
taking of this oath.
following tenor: "I, —— ——, do solemnly swear, in the presence of
Almighty God, that I will henceforth faithfully support, protect, and
defend the Constitution of the United States and the union of the
States thereunder; and that I will in like manner abide by and
faithfully support all acts of Congress passed during the existing
rebellion with reference to slaves, so long and so far as not repealed,
modified, or held void, by Congress or by decision of the Supreme
Court; and that I will in like manner abide by and faithfully support
all proclamations of the President during the existing rebellion having
reference to slaves, so long and so far as not modified by the Supreme
Court. So help me God;" and by ordaining that all persons who would
voluntarily take this oath, unless they had been civil or diplomatic
officers of the "so-called Confederate Government," or military
officers thereof above the rank of colonel in the army or lieutenant in
the navy, or had left seats in the United States Congress or judicial
office under the United States, or had resigned commissions in the army
or navy of the United States, in order to aid in the rebellion, or had
been engaged in treating colored persons found in the United States
service in any capacity, or white persons in charge of them, in any
other manner than as prisoners of war, would be regarded as having
re-established their loyalty and allegiance to the United States.
And he then undertook to put this class in possession of the functions
and powers of the "loyal State governments" subverted by the rebellion,
by proclaiming and declaring, "that whenever in any of the States of
[p. 11]
Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama,
Georgia, Florida, South Carolina, and North Carolina, a number of
persons, not less than one-tenth in number of the votes cast in such
State at the Presidential election of the year
A.D. 1860, each having
taken the oath aforesaid, and not having since violated it, and being a
qualified voter by the election law of the State existing immediately
before the so-called act of secession, and excluding all others, shall
re-establish a State government which shall be republican and nowise
contravening said oath, such shall be recognized as the true government
of the State, and the State shall receive thereunder the benefits of
the constitutional provision which declares that 'the United States
shall guarantee to every State in this Union a republican form of
government and shall protect each of them against invasion, and, on
application of the Legislature, or the executive (when the Legislature
cannot be convened) against domestic violence.'"
It is true that Mr. Lincoln was careful to say in this proclamation
that "whether members sent to Congress from any State shall be admitted
The proviso
in this plan.
to seats, constitutionally rests exclusively with the respective
Houses, and not to any extent with the Executive," but it is plain that
he did not think the Houses could constitutionally use their power of
judging of the qualifications and elections of their members to keep
members from "States" reconstructed upon his plan from taking their
seats on the ground that these "States" had not been properly reconstructed.
And it is also true that there occurs in the proclamation another
paragraph which appears to militate against the theory of the
perdurance of a "State" through the period of its rebellion against the
United States. It reads: "And it is suggested as not improper that in
[p. 12]
constructing a loyal State government in any State the name of the
State, the boundary, the subdivisions, the constitution and the general
code of laws as before the rebellion be maintained, subject only to the
modifications made necessary by the conditions hereinbefore stated, and
such others, if any, not contravening such conditions which may be
deemed expedient by those framing the new State government."
It certainly may appear from this language that while Mr. Lincoln
regarded it as convenient and desirable that the new "State" should be
considered a continuation of the old "State," yet that he did not look
upon it as absolutely necessary. Still, it seems more probable that
this was only his cautious habit of leaving open a way of escape out of
any position when necessity or prudence might require its abandonment
than that he doubted the correctness of his idea of the
indestructibility of the "States" in spite of the rebellion of a part
of their population, or even of the whole of their population.
Mr. Lincoln was not alone in this view of the nature of the "States" of
the Union and the problem of Reconstruction. His able Secretary of
Seward's idea of
Reconstruction,
and the views
of Congress and
the Court.
State certainly agreed with him; the resolutions and acts of Congress
down to that time may be better explained upon this theory than upon
any other; and so far as the Supreme Court had dealt with the question,
its dicta, if not its exact decisions, had indicated the same trend of
opinion. The President felt, therefore, no hesitation in applying his
plan in the specific cases that were in a condition for its
realization.
Before treating of his reconstruction of Louisiana and Arkansas under
this plan, however, there are two points of the proclamation which
Virginia not in need
of Reconstruction
according to President
Lincoln's view.
should be briefly noticed.
[p. 13]
The first is the omission of Virginia
from the names of the "States" to which the proclamation should apply.
The reason for this is simple, and easily understood. The President had
always recognized what was called the Pierpont Government at Alexandria
as the true government of Virginia. Virginia, therefore, according to
his view needed no reconstruction. It belonged in the class with
Kentucky and Missouri.
The other point is the proposition to found "State" government upon ten
per centum of the population of the "State." Now we know that "State"
Ten per centum
"State" governments.
government in the federal system of the United States is local
self-government. But local self-government cannot really exist where
the part of the population holding the legal authority does not really
possess the sinews of power; and where the conditions of the society
are democratic, or anything like democratic, one-tenth of the
population cannot really possess the sinews of power. The actual power
to make their government valid, to enable their government to govern
would have to come from the outside. While this may happen under
certain temporary exigencies without destroying local self-government
on the whole, yet it cannot be permitted as a principle upon which to
build a local self-government, a "State" in a federal system.
Provincial governments, Territorial governments may be sustained in
that way, but the distinguishing principle of "State" government
forbids it. It is simply not "State" government when holding in this
way the power to govern, as the principle of its life, no matter what
name we may give it. Upon this point, then, Mr. Lincoln's reasoning was
crude and erroneous, and when applied was destined to result in
mischievous error.
[p. 14]
As far back as the first week in December of 1862 General Shepley, then
Military Governor of Louisiana, had, by permission from the President,
Reconstruction in
Louisiana under
Mr. Lincoln's plan.
ordered an election for members of Congress, in the districts over
which his jurisdiction extended. The President had cautioned him
against any choice of Northern men at the point of the bayonet, and had
declared to him that such a procedure would be "disgraceful and
outrageous." The General heeded the warning, and two old citizens of
The election of
members of
Congress.
Louisiana, Messrs. Hahn and Flanders, were chosen, and were admitted by
the House of Representatives to their seats. This happened in February
of 1863, and it was certainly good evidence that the House of
Representatives was, at that moment, resting on the theory of the
perdurance of the "State" of Louisiana throughout the rebellion within
its limits against the United States.
Things went no further than this, however, during the year 1863, the
military situation requiring the whole thought and activity of the
The New Orleans
convention.
Government. On the 8th of January, 1864, however, a convention was held
at New Orleans for the purpose of advancing the work of reconstruction.
This convention requested General Banks to appoint an election for
officers of the "State" government. The General complied, naming the
22d day of February following for the election, and the 4th of March
for the installation of the officers so chosen. Mr. Hahn was elected
The election of a
governor.
and duly installed Governor, and was soon after declared by the
President to be "invested, until further orders, with the powers
hitherto exercised by the Military Governor of Louisiana." The next
step was for the new Governor to order an election of delegates to a
constitutional convention and the assembly of
The constitutional
convention of
April, 1864, and
the constitution
framed by it and
adopted by the
voters.
[p. 15]the same in
convention, for the purpose of so amending and revising the
constitution as to make it fit the new conditions created by the war.
This was done in March and April of 1864, and an anti-slavery
constitution was established for Louisiana. The instrument drafted and
proposed by the convention was adopted by the voters. Eight thousand
four hundred and two votes were cast upon the question of adoption,
about sixteen per centum of the vote cast at the Presidential election
of 1860. This brought the action of the voters within the President's
ten per centum rule. The vote was almost five to one in favor of
adoption. The President's scheme was now put to the practical test,
both in Louisiana and Arkansas, during the spring of 1864.
Congress was, however, by this time becoming convinced that
Reconstruction was a legislative problem, that is, a problem to be
The beginning
of resistance in
Congress to the
President's plan.
The Wade-
Davis bill.
solved by Congressional acts and constitutional amendment. This is
evidenced not only by the fact that neither House would admit
representatives from Arkansas elected under the new "State"
organization to seats, but by the more pronounced attitude expressed in
what is known as the Wade-Davis measure upon the direct question at
issue. These gentlemen, Mr. Benjamin F. Wade and Mr. Henry Winter
Davis, the former the chairman of the "Committee on the Rebellious
States" in the Senate, and the latter the chairman of a committee
having the same name and functions in the House, originated a bill and
carried it through both Houses of Congress, which, for the first time,
embodied the views of Congress on the subject of Reconstruction. This
bill was finally passed on July 4, 1864, and it contained provisions of
the following tenor: The eleven "States" which had passed
[p. 16]
secession ordinances were all treated as rebellious communities, and
the President was authorized to appoint a provisional governor for
each. This governor should exercise all the powers of civil government
in the community to which he might be appointed until "State"
government should be recognized by Congress as restored therein. An
oath of future allegiance to the Constitution of the United States was
then prescribed, and the provisional governor in each "State" was
ordered, whenever rebellion in his "State" should be suppressed, to
direct the United States Marshal to enroll all the white male citizens
of the United States, resident within the "State," in the respective
counties of the "State," and give them the opportunity to take the oath
of allegiance to the United States. The bill then directed that when a
majority of such citizens should take this oath, they might be
permitted to elect delegates to a convention, which convention might
take action for the establishment of "State" government. The bill
disqualified all persons who had held any office, civil or military,
"State" or Confederate, in rebellion against the United States, or who
had voluntarily borne arms against the United States, from voting for
delegates, or from being elected as delegates, to the convention. The
bill then provided that the convention thus elected and assembled might
form a "State" constitution, but must insert in it clauses abolishing
slavery, repudiating all debts, "State" or Confederate, created by, or
under the sanction of, the usurping power, and disqualifying all
persons who had held office civil or military, "State" or Confederate,
under the usurping power, except civil offices merely ministerial, and
military offices below the rank of colonel, from voting or being
elected governor or members of the legislature. The bill then provided
for the submission of the constitution so formed to the voters,
[p. 17]
and if ratified by a majority thereof, required the provisional
governor to certify the same to the President. It then provided that
the President, after obtaining the consent of Congress thereto, should
proclaim the new "State" government as established, and as the
constitutional government of the "State," after which Representatives
and Senators in Congress, and electors of the President, might be
chosen in said "State." Finally, the bill abolished slavery at once in
all the rebellious "States" and imposed penalties upon all persons
attempting thereafter to hold anyone in involuntary servitude; and
declared all persons who should thereafter hold office civil or
military, "State" or Confederate, in the rebel service, except an
office purely ministerial or under the grade of colonel, not to be
citizens of the United States.
A brief analysis of this bill will show that Congress was nearer to
some doctrine on the subject of Reconstruction than was the President.
Analysis of
this measure.
In the first place, Congress claimed Reconstruction as a legislative
problem. This was undoubtedly the true theory upon that point. In the
second place, Congress required the loyalty to the United States of at
least a majority of the white adult males as the basis of "State"
government, local self-government. That also was undoubtedly true
political theory as has been already explained. In the third place,
Congress asserted the power to abolish slavery within the limits of
those "States" whose legislatures or conventions had passed the
ordinances of secession. That is, Congress dealt with these districts
not as "States" of the Union, but as territories or districts subject
to the exclusive authority of the central Government. Congress was here
beginning, at least, to act upon the idea that the districts in
rebellion did not perdure, as "States,"
[p. 18]throughout the rebellion,
but had lost thereby the forms, powers and functions of "State"
governments, and were neither out of the Union nor in the Union as
"States," but were under the central Government of the Union as
territory inhabited by a population disorganized as to local
government. This was also sound political science, and the President
ought to have heeded its teachings.
But he did not. He did not, it is true, veto the bill. He simply
allowed the session to expire without signing it. This having happened
The President's
attitude toward
the bill.
The President's
proclamation
of July 8, 1864.
in less than ten days from the time it was submitted to him, the bill
failed, as provided in such cases by the Constitution. He, however,
issued on the 8th of July a proclamation in regard to the subject, in
which he objected to the setting aside of the "free State constitutions
and governments already adopted and installed in Arkansas and
Louisiana;" doubted the competency of Congress to abolish slavery
within the "States;" expressed the hope and expectation that this might
be done for the whole country by constitutional amendment; declared his
willingness to have the loyal people in any of the rebellious "States"
reconstruct their governments upon the Congressional plan, if they
should choose to do so; but declared also his unwillingness to commit
himself inflexibly to any single plan of restoration; and virtually
asked the voters to make the difference between himself and Congress
upon the subject an issue in the coming Presidential election.
This was one of the boldest acts of Mr. Lincoln's career as President,
and it is little wonder that men of so much intelligence, courage and
The Wade-Davis
protest against
the President's
proclamation.
tenacity as Messrs. Wade and Davis did not allow the proclamation to go
unanswered. Congress had adjourned, as we have seen, before the
appearance of the proclamation. There was,
[p. 19]therefore, no way for
Congress as a whole to make immediate answer. Messrs. Wade and Davis
believed that the public interests would suffer if the answer should be
postponed until the next meeting of Congress. They, therefore, issued a
protest against the proclamation over their own names. The protest was
printed in the New York
Tribune of August 5, 1864. It was an
intemperate arraignment of the President. It declared, among other
things, that "a more studied outrage on the legislative authority of
the people had never been perpetrated;" that the President had "greatly
presumed on the forbearance which the supporters of his Administration"
had "so long practised, in view of the arduous conflict in which" they
were "engaged and the reckless ferocity of" their "political
opponents;" that he must understand that their support was not of a man
but of a cause; and that he must confine himself to his executive
duties, and leave political reorganization to Congress.
Such denunciations of the President's purposes could have but one
effect, viz., the strengthening of his hands by the support of the
people, who so generally trusted him, in the election of 1864. It
injured Mr. Davis so much that he failed of even a renomination for his
seat in Congress.
The President, on the other hand, used his triumph with great tact and
moderation. He made no reference, in his message of December 6, 1864,
The President's
message of
December 6, 1864.
either to his proclamation or to the protest which had been so fiercely
hurled against it. He simply informed Congress that important movements
had occurred during the year "to the effect of molding society for
durability in the Union;" and that "12,000 citizens in each of the
States of Arkansas and Louisiana" had "organized loyal State
[p. 20]
governments, with free constitutions, and" were "earnestly struggling
to maintain and administer them." He also spoke of the gratifying
situation and movements in Maryland, Kentucky, Missouri and Tennessee.
It may be that Mr. Lincoln did not interpret his great victory at the
polls in November preceding as a specific approval of his
The threatened schism
in the Republican
party, and the
Presidential election
of 1864.
Reconstruction policy. In the spring and early summer of 1864, the
Republican party was threatened with schism largely upon the subject of
Reconstruction. Eight days before the meeting of the regular nominating
convention of the party, that is on the 31st of May, some three hundred
and fifty men, representing, or professing to represent, the more
radical element of the party, met in convention at Cleveland, Ohio.
General John Cochrane of New York was made chairman of the body, and
General John C. Frémont and General John Cochrane were nominated by it
for the presidency and vice-presidency of the United States. The
twelfth section of the platform provided, "that the reconstruction of
the rebel States belongs to the people, through their representatives
in Congress, and not to the Executive."
The regular convention met June 7th at Baltimore, and adopted a
platform which took no sides in regard to Reconstruction, but simply
sought to rally all Union men around the President for the purpose of
saving the Union and putting an end to the rebellion. Many war
Democrats took part in it who favored Lincoln's ideas of
Reconstruction, and many Republicans who did not. The Democratic
convention met at Chicago August 27th and adopted a platform which
virtually proclaimed the war a failure, and demanded a cessation of
hostilities preparatory to a compromise with the Confederates. Their
nominee, General McClellan, with whom was
[p. 21]associated on the ticket
Mr. George H. Pendleton of Ohio, repudiated the platform but accepted
the nomination and made the race.
Under the condition of schism in the Republican ranks, his chances
seemed at first fair. But on September 21st, Generals Frémont and
Cochrane, the nominees of the radical Republicans, withdrew from the
contest, and the reunion of the Republican party on the Baltimore
platform was effected. It was thus a question whether the overwhelming
electoral vote for Lincoln and Johnson, two hundred and twelve to
twenty-one for McClellan and Pendleton, meant the approval of Lincoln's
views and acts in Reconstruction, and it certainly behooved the
President to exercise some caution in so interpreting it, especially as
there was no such wide difference in the popular vote, the McClellan
electors having received 1,835,985 votes to 2,330,552 for the Lincoln
electors. There is no question, however, that the President still
believed in the correctness of his method and was determined to pursue
the course upon which he had entered.
Neither was there any sign manifested that Congress would desist from
pressing its views of its own powers in the matter. Both Houses had
No change in the views
of Congress caused by
the Presidential election.
The refusal of Congress
to count the electoral
vote from any "State"
which had passed the
secession ordinance.
refused to admit members from the reconstructed "States," and now they
passed a joint resolution, on February 4th, 1865, which prohibited the
counting of any electoral votes for President and Vice-President in the
election of 1864, from "States" which had passed the secession
ordinance. Elections had been held in Louisiana and also in Tennessee,
and this resolution was intended to prevent the counting of the votes
which the persons chosen electors for Louisiana and Tennessee should
send in. The resolution was sent to the President for his signature. He
[p. 22]
hesitated for several days, but approved it at last on the day
that Congress counted the electoral votes, February 8th. In doing so,
however, he addressed a message to Congress informing the two Houses
that he had signed it out of deference to their views, and saying that
"in his own view, however, the two Houses of Congress, convened under
the twelfth article of the Constitution, have complete power to exclude
from counting all electoral votes deemed by them to be illegal; and it
is not competent for the Executive to defeat or obstruct that power by
a veto, as would be the case if his action were at all essential in the
matter. He disclaims all rights of the Executive to interfere in any
way in the matter of canvassing or counting electoral votes, and he
also disclaims that, by signing said resolution, he has expressed any
opinion on the recitals of the preamble or any judgment of his own upon
the subject of the resolution." The recitals of the preamble referred
to read thus: "Whereas, the inhabitants and local authorities of the
States of Virginia, North Carolina, South Carolina, Georgia, Florida,
Alabama, Mississippi, Louisiana, Texas, Arkansas and Tennessee rebelled
against the Government of the United States, and were in such condition
on the 8th day of November, 1864, that no valid election for electors
of President and Vice-President of the United States, according to the
Constitution and Laws thereof, was held therein on said day, etc."
Louisiana, which had fulfilled the President's conditions of
reconstruction, was thus included in this list, and also Tennessee,
Reconstruction
in Tennessee.
where by order of Governor Andrew Johnson, the candidate for
Vice-President on the Lincoln ticket, an election of electors had been
held. Tennessee had not, at the time of the counting of the
[p. 23]
electoral vote, completed any process of reconstruction. The
convention, called at Governor Johnson's instigation to meet at
Nashville for the purpose of nominating candidates for Presidential
electors, had called a constitutional convention to meet in Nashville
on December 19th, following the Presidential election, for the purpose
of undertaking the work of reconstruction. Hood's advance upon
Nashville delayed its meeting, however, until January 3d. This
convention took the old constitution of Tennessee as its starting-point
and subjected it to a pretty thorough revision in the direction of a
"free State government." It also prescribed a rather stiff test oath
for all persons offering to vote upon the adoption of the amendments,
an oath which not only promised future loyalty to the Constitution of
the United States, such as Lincoln had prescribed, but which also
required the taker of it to swear that he was an active friend of the
Government of the United States, and an enemy of the so-called
Confederate States. The amended constitution had not, however, been
submitted to the voters at the date when Congress counted the electoral
vote, that is, before the 8th of February, 1865, and of course no
"State" government had been elected under the amended constitution. The
vote upon the constitution occurred on the 22d of February, and the
election of the Governor and the members of the Legislature under it
occurred on March 4th.
The case of Tennessee did not from this point of view appear as strong
as that of Louisiana. But it is difficult to see how the Republicans
could have consistently rejected the vote of Tennessee after having
nominated and elected a citizen of Tennessee as Vice-President of the
United States. It is certainly implied in the Constitution of the
United States that no man is
[p. 24]
eligible to the office of
Vice-President unless he be at the time of his election a citizen of a
"State" of the Union. The Constitution implies that the Vice-President
shall have the same qualifications as the President; and it distinctly
says that in giving their vote, the electors in each "State" shall vote
for two persons, "of whom one at least shall not be an inhabitant of
the same State with themselves." If an inhabitant of Tennessee could be
lawfully Vice-President of the United States, it does certainly seem
implied that Tennessee was, at the time, a "State" of the Union in
regular standing.
However this may have been, the President was certainly correct in
saying that Congress was vested with full power over the count of the
electoral vote, and that the Executive had no control over it
whatsoever. It was a bit of harmless good humor that he signed the
resolution as a perfunctory matter, and it was calculated to improve
the temper of the somewhat irritated members of Congress.
Congress was not, however, formally notified of the fact that he had
signed the measure until after the counting of the vote had been
The twenty-second
joint rule.
finished, and the two Houses met the exigency by the enactment of what
was known as "the twenty-second joint rule," according to which the
consent of both Houses was required to count the electoral vote from
any "State" or any body or place professing to be a "State." As a
matter of fact, the Vice-President, Mr. Hamlin, declared that he had in
his possession returns from the "States" of Louisiana and Tennessee,
but held it to be his duty not to present them, and he did not present
them. He knew that the President had signed the joint resolution,
although Congress had not been officially notified of it, and he acted
under the
[p. 25]
resolution as law. The joint rule would have required
the presentation of these votes to the joint meeting of the two Houses,
and would have required the concurrence of the two Houses, acting
separately, to have included them in the count. The joint rule was,
therefore, not applied to the case for which it was enacted, but it
remained unrepealed for more than ten years, and then showed itself a
sort of Nemesis to its creators.
Tennessee pursued, however, the course of reconstruction upon which she
had set out. Her test oath, as we have seen, required virtually that
Reconstruction in
Tennessee continued.
the basis of her reorganization should be the men who had
remained
loyal throughout the rebellion. It differed thus from Mr. Lincoln's
oath, which rehabilitated those who would promise future loyalty. The
vote in favor of the new constitution, which was the old constitution
of the "State" amended by articles abolishing slavery, nullifying
secession, and repudiating the debt created in aid of the rebellion,
was more than twenty-five thousand, nearly twenty per centum of the
vote for Presidential electors in 1860. This certainly much more than
fulfilled all of Mr. Lincoln's conditions.
Governor Johnson issued his proclamation on February 25th, 1865,
declaring the adoption of the new constitution, and ordering the
Civil government
re-established in
Tennessee.
election of the Governor and legislative members under it for March
4th. W. G. Brownlow was chosen Governor. The newly elected legislature
did not meet, however, until April 2d, and Mr. Brownlow was not
inaugurated as civil Governor until April 7th. As Mr. Johnson was
inaugurated Vice-President on March 4th, he had been obliged to lay
down the military governorship on that date, in fact, a few days
before, and Mr. Brownlow had been appointed
[p. 26]in his stead. Upon
Brownlow's inauguration as civil Governor, the military régime in
Tennessee was formally ended. Lincoln acquiesced certainly in this change.
It remained now for Congress to show its attitude, when the Senators
and Representatives from Tennessee should present themselves for
admission to seats in the two Houses. As this could not happen until
the following December, the history of this point must be deferred
until the events between March 4th and December 4th are related.
The experiences of the year 1863 with the slavery problem had convinced
the President and the leaders of the Republican party in Congress that
The Thirteenth
Amendment to the
Constitution of the
United States.
abolition must be effected by a constitutional amendment. The military
acts of the President in this direction were, as all the purely
military measures of the Executive, temporary, and with the
re-establishment of peace would cease to have force; and it was by this
time pretty clear that but few of the "States" would abolish slavery by
their own act. Already on January 11, 1864, had the proposition for a
constitutional amendment abolishing slavery throughout the length and
breadth of the United States been presented in the Senate by Mr. John
B. Henderson of Missouri, and referred to the Judiciary Committee of
that body for consideration and report.
The language of the first article of Mr. Henderson's proposition read:
"Slavery or involuntary servitude, except as a punishment for crime,
shall not exist in the United States." When it came back from the
Judiciary Committee, as reported by Mr. Trumbull, it was called Article
XIII., and read: "Sec. 1. Neither slavery nor involuntary servitude,
except as a punishment for crime, whereof the party shall have been
duly convicted, shall
[p. 27]
exist in the United States or any place
subject to their jurisdiction. Sec. 2. Congress shall have power to
enforce this article by appropriate legislation."
It will be advantageous in our further consideration of this article to
recall briefly the reasons for these divergencies. The language used by
The proposition of
amendment as it
came from the
Judiciary Committee
of the Senate.
the Judiciary Committee corresponds almost exactly with the wording of
the ordinance of the Northwest Territory of 1787; and it is entirely
evident that the Judiciary Committee had that act in mind when it
reported the article. Mr. Henderson's proposition was that slavery or
involuntary servitude should not exist in the
United States. He well
understood that it did not require a constitutional amendment to
abolish slavery from those parts of the country where "States" had not
been formed. He knew that Congress could do that. The Judiciary
Committee, however, did not think it wise or necessary to "make two
bites of a cherry." They preferred to make their prohibition apply to
the whole country. They knew that the phrase
United States was
capable of being interpreted to mean only that part of the country
where "States" existed, and they preferred and intended to make their
prohibition of slavery extend to the whole country. From abundant
caution they used the words United States, with the additional words
"any place subject to their jurisdiction," in order to cover all
territory over which the flag of the Union should fly in sovereign power.
The second section, giving to Congress special power to enforce this
article, seems, at first, unnecessary, because according to the last
paragraph of Section 8, Article I., of the Constitution, Congress is
vested with the authority to make all laws necessary and proper to
carry into execution all the powers vested by the
[p. 28]Constitution in
any department or officer of the Government. This abolition of slavery
was, however, a restriction on the "States." It laid a new limitation
upon their powers, and hence it was thought that Section 8 of Article
I. might not apply in the execution of such a provision against the
"States." But if we regard the provision from the point of view of the
rights of an individual to his freedom against any "State" law to the
contrary, then we must see that the amendment does invest the United
States courts with the power to impose the restriction in behalf of the
individual seeking deliverance from the attempt of a "State" to enslave
him or to continue his enslavement. And once the power vested in the
courts to do this the general provision of Article I., Section 8, will
certainly apply. The resolution offered by the Judiciary Committee
passed the Senate by the requisite majority on the 8th of April, 1864.
During this same period, Mr. William Windom, of Minnesota, offered in
the House of Representatives a resolution upon the subject in the
The House
draft.
identical words of the Senate's resolution. It was referred to the
Judiciary Committee of the House, February 15, 1864. While it lay in
the room of the Committee, Mr. Stevens offered a substitute for it,
which read: "Slavery and involuntary servitude, except as a punishment
for crime, whereof the party shall have been duly convicted, is forever
prohibited in the United States and all its Territories." This is
another bit of evidence for the proposition that what was meant by the
words "or any place subject to their jurisdiction" in Mr. Trumbull's
resolution was all parts of the country not enjoying "State" government
in local matters.
The Senate resolution was sent into the House on the
Rejection of the
Senate's draft
in the House.
[p. 29]31st of May,
and was there lost on June 15th, having received a large majority,
indeed, in its favor, but not a two-thirds majority.
Foreseeing the failure of the resolution at that juncture, Mr. J. M.
Ashley, of Ohio, voted against the measure, although a stanch friend of
Reconsideration of
the Senate's measure
in the House, and
its final passage.
it. His purpose was of course to be able to move, at some future and
more propitious time, a reconsideration of the subject. He did not,
however, feel that that time had arrived until after the election and
the military victories of the autumn of 1864 had manifested the temper
of the voters on the question of abolition and demonstrated the power
of the Union to carry such a measure into execution. On the 31st of
January, 1865, Mr. Ashley moved a reconsideration of the Senate
resolution lost in the House on the 15th of the preceding June.
Reconsideration was immediately voted, and the Senate resolution was
then carried by the requisite two-thirds majority.
The proposed amendment was then sent to the President, who signed it,
February 1st, 1865. Whereupon the Senate immediately passed another
resolution, declaring that it was through an inadvertency that the
measure had been sent to the President for his signature, that asking
the President of the United States to sign a proposed constitutional
amendment was an error, was without precedent in the practice of the
Government, and that the President's approval should not be
communicated to the House. A concurrent resolution was then passed by
the two Houses authorizing the President to submit the proposed article
of amendment to the "States" for ratification. The Secretary of State
immediately sent it to the legislatures of all the "States" which could
be reached by him, and during the summer and autumn to the legislatures
of all the "States;"
[p. 30]
and the new legislature of Tennessee ratified
it on the 5th of April, 1865, that is, more than a week before
Lincoln's death.
Such was the condition of things when the assassin's bullet ended the
life of the great and good President and brought the Vice-President,
Mr. Johnson, into the office.
[p. 31]
CHAPTER III
PRESIDENT JOHNSON'S PLAN OF RECONSTRUCTION AND HIS PROCEEDINGS IN
REALIZATION OF IT
The Character of Mr. Johnson—The
Radical Nature of Johnson's First
Views on Reconstruction—The Retention of Lincoln's Cabinet by Mr.
Johnson and the Modification of Johnson's Views by Mr. Seward's
Arguments—Johnson's Amnesty Proclamation of
May 29th, 1865—The
Excepted Classes—The Effect of
these Exceptions—The President's
Plan—The Realization of it—The Administering of the
Oath—Reconstruction in North
Carolina—The Identity of Johnson's Plan
with that of Lincoln—Reconstruction in Mississippi—Reconstruction in
Georgia—Reconstruction in Alabama, South Carolina and
Florida—Reconstruction in
Virginia—Reconstruction in Louisiana,
Arkansas and Tennessee—The Constitutional
Conventions of 1865—The
Form of the Work Done in these Conventions, and its Substance—The
Erection of "State" Governments and the Election of Members of
Congress—The Orders of the President Putting the Civil Government of
the United States into Operation Everywhere—The President's First
Annual Message.
Mr. Johnson was a man who rose from very low estate through his own
efforts. He was a man of considerable intellectual power and of great
The character
of Mr. Johnson.
will power. He was somewhat vain of his success and somewhat piqued by
the social neglect which he had suffered at the hands of the "old
families." He was intensely loyal to the Union, and could regard
secession and rebellion only as treason. Having suffered so much for
his loyalty, he was somewhat moved by considerations of revenge. He was
profoundly stirred by
[p. 32]
the assassination of Lincoln, and apparently
believed it to have been planned by those high in authority in the
Confederacy; and he was possessed with an intense desire to
re-establish the Union on an enduring foundation.
With such a history behind him, and such a disposition impelling him,
it is not to be wondered at that his policy in regard to Reconstruction
The radical
nature of Johnson's
first views on
Reconstruction.
should have been more stringent than that of Mr. Lincoln. In fact it
was feared, even by the more radical Republicans, such, for instance,
as Mr. Wade, that he would be bloody minded in the treatment of the
rebel chiefs. He had, before his accession to the Presidency, declared
so often, and so vehemently, that "traitors should be arrested, tried,
convicted and hanged," that most men were expecting the strict
application of the criminal law to the Confederate leaders.
Mr. Johnson retained Lincoln's Cabinet, and among them the conciliatory
and persuasive Seward, who, in about six weeks from the night of the
The retention of
Lincoln's Cabinet
by Mr. Johnson, and
the modification
of Johnson's views
by Mr. Seward's
arguments.
assassination, at which time he himself was seriously wounded, returned
to his work in the State Department. There is no doubt that it was the
influence of Seward which modified the views and purposes of Mr.
Johnson. The compliant spirit manifested at this time by the
Confederate chiefs helped strongly in the same direction. By the 1st of
June, Seward had won Johnson completely for his plan of a rapid and
forgiving reconstruction by the Executive. Congress was not in session,
and the President was not inclined to call an extra session. The late
rebel chieftains were pressing for the political rehabilitation of
their section, and the President now fully believed that he had the
power to proceed with the problem of Reconstruction, and was inclined
to do so.
[p. 33]
On the 29th of May, he issued his proclamation of amnesty and pardon to
all persons who, having engaged in rebellion, had failed to take the
Johnson's Amnesty
Proclamation of
May 29, 1865.
benefits of Mr. Lincoln's proclamations of December 8, 1863, and March
26, 1864. To all such persons Mr. Johnson offered his pardon upon their
taking an oath of the following tenor: "I —— do solemnly swear (or
affirm) in the presence of Almighty God, that I will henceforth
faithfully support, protect, and defend the Constitution of the United
States and the Union of the States thereunder, and that I will in like
manner abide by and faithfully support all laws and proclamations which
have been made during the existing rebellion with reference to the
emancipation of slaves. So help me God."
He, however, excepted the following classes of persons from the
benefits of the offer: 1st. Those who held or had held, under the
The excepted
classes.
pretended Confederate Government, civil or diplomatic office or agency,
or military office above the rank of colonel in the army and lieutenant
in the navy, or military or naval office of any grade, if educated by
the United States Government in the Military Academy at West Point or
the United States Naval Academy; and all those who held, or had held,
the pretended office of Governor of a "State" in insurrection against
the United States;
2d. Those who had left seats in the Congress of the United States or
judicial stations under the United States to aid in the rebellion
against the United States, and those who had resigned or tendered
resignations of their commissions in the army or navy of the United
States to evade duty in resisting the rebellion;
3d. Those who had, in any way, treated persons found in the service of
the United States, in any capacity, otherwise than lawfully as
prisoners of war;
[p. 34]
4th. Those who had been engaged in destroying the commerce of the
United States on the high seas, or upon the lakes and rivers separating
the British Provinces from the United States, or in making raids from
Canada into the United States;
5th. Those who were, or had been, absent from the United States, or had
left their homes within the jurisdiction of the United States, and
passed beyond the military lines of the United States into the
pretended Confederate States, for the purpose of aiding the rebellion;
6th. Those who, at the time they might seek to obtain the benefits of
the proclamation by taking the oath, were prisoners of war, or under
civil or criminal arrest, and those who had taken the oath of
allegiance to the United States since December 8, 1863, and had failed
to keep it;
And, finally, those who had voluntarily participated in any way in the
rebellion and were the owners of taxable property to the value of more
than twenty thousand dollars.
These exceptions would have shut out almost all of the leading men of
most of the "States" that passed secession ordinances from the benefits
The effect
of these
exceptions.
of the proclamation, except for the subsequent provision in the
proclamation, which ordained that special application might be made to
the President for pardon by any person belonging to the excepted
classes, and held out the promise that such clemency would be as
liberally extended as might be consistent with the facts of the case
and the peace and dignity of the United States.
Briefly, the President proposed to pardon the rebel leaders, upon
special personal application, as an act of high executive grace, and to
The President's plan
in a sentence.
amnesty every one else in a body; and upon the basis of
[p. 35]their
re-established loyalty to use the old electorate of the South in
reconstruction. How he succeeded we will now proceed to relate.
In the first place, the machinery for administering the cleansing oath
was made very simple and accessible. Any commissioned officer, civil,
The realization of it.
The administering
of the oath.
military or naval, of the United States, and any officer, civil or
military, of a loyal "State" qualified by the laws of the "State" to
administer oaths, was declared by the President, through his Secretary
of State, to be competent to administer this oath of loyalty, a copy of
which should be given to the person taking it as his certificate of
restored citizenship, and another copy sent to the State Department at
Washington to be there deposited and kept in the archives of the Government.
In the second place, and by a second proclamation, issued on the same
day, May 29th, the President appointed a Provisional Governor for North
Reconstruction in
North Carolina.
Carolina, and authorized and commanded him to cause the election of
delegates to, and their assembly in, a constitutional convention of the
"State" for the reconstruction of the "State," and its restoration to
its constitutional relations to the United States. The electorate to be
employed by the Provisional Governor should be those persons who were
qualified to vote by the laws of North Carolina in force immediately
before the 20th of May, 1861, and had taken the oath prescribed in the
first proclamation.
This second proclamation also commanded the heads of the departments of
the United States Government to put the laws of the United States into
operation in North Carolina, the United States judges to open the
United States courts and proceed to business, and the military officers
in the district to aid the Provisional
[p. 36]
Governor in carrying the
duties assigned to him into effect, and to abstain from hindering,
impeding, or discouraging, in any manner, the organization of a "State"
government as authorized by the proclamation.
It will thus be seen that Mr. Johnson's plan of Reconstruction was in
substance the same as that of Mr. Lincoln. It rested upon the theory of
The identity
of Johnson's
plan with that
of Lincoln.
the indestructibility of the "States," their perdurance as "States"
throughout the period of rebellion, the commission of treason and
rebellion by combinations of private persons, the right of the
Executive to withdraw his military powers and put his civil powers in
operation, whenever, in his judgment, the circumstances would warrant
him in so doing, and his authority to recognize the old electorates of
the "States" in which rebellion had existed as the respective
constituent bodies of the "States," upon such terms and under such
limitations as he might prescribe. He did not lay down any rule as to
the numerical proportion which the modified electorates should bear to
the old, in order to make their acts legitimate, as Mr. Lincoln did;
and he did declare in his second proclamation that the North Carolina
convention, when convened, or the legislature that might be thereafter
assembled, should prescribe the qualification of electors, and the
eligibility of persons to hold office under the constitution and laws
of the "State," which Mr. Lincoln did not do in his proclamation. But
there is no doubt that Mr. Lincoln would have indorsed this
proposition. He could not have avoided it, while holding the theory
that North Carolina was a "State" simply engaged in amending its
constitution, the theory which his own proclamation apparently set up.
In a word Johnson's policy and acts in reconstructing the "States" in
which secession ordinances had been passed, and rebellion committed,
were
[p. 37]
but a continuation of those of Mr. Lincoln. If Lincoln was
right so was Johnson, and
vice versa.
On the 13th of June, the President issued a proclamation of like tenor
and containing similar orders for putting the laws of the United States
Reconstruction
in Mississippi,
Georgia, Alabama,
South Carolina
and Florida.
into operation, and for putting similar machinery in motion for
reconstruction, in Mississippi. He appointed William L. Sharkey
Provisional Governor therein. On the 17th of June, similar steps were
taken for the reconstruction of Georgia, with James Johnson as the
Provisional Governor; on the 21st of June for the reconstruction of
Alabama, with Lewis E. Parsons as Provisional Governor; on the 30th of
June for the reconstruction of South Carolina, with Benjamin F. Perry
as Provisional Governor; and on the 13th of July for the reconstruction
of Florida, with William Marvin as Provisional Governor.
Already on May 9th, twenty days before the issue of his proclamation of
amnesty, the President had issued an executive order putting the laws
Reconstruction
in Virginia.
of the United States in operation in Virginia, and guaranteeing the
support of the United States Government to Governor Francis H. Pierpont
in all lawful measures for the extension and administration of the
"State" government throughout the geographical limits of Virginia. This
meant, of course, that the United States Government recognized the
shadowy loyal "State" government, which had kept up at least a show of
existence throughout the rebellion, as the true "State" government of
Virginia, and that Virginia did not need reconstruction, but only the
extension of the authority of this government throughout her
territorial limits. This was, also, a simple continuation of Mr.
Lincoln's policy, as we well know.
[p. 38]
Of course Mr. Johnson recognized the reconstruction of Louisiana,
Reconstruction
in Louisiana,
Arkansas and
Tennessee.
Arkansas and Tennessee as effected by Mr. Lincoln; so that by
mid-summer of 1865 the reconstruction of all the "States" which had
passed secession ordinances, except only Texas, had been completed, or
had been put in course of completion.
During the summer, autumn and early winter of 1865, the Provisional
Governors of Mississippi, Alabama, South Carolina, North Carolina,
The constitutional
conventions of 1865.
Georgia, and Florida ordered elections for the choosing of delegates to
constitutional conventions, upon the basis of the old suffrage laws of
the respective "States" once answering to these names, modified by the
requirements of the Presidential pardon, received after taking the oath
of allegiance; and these elections were held and these conventions assembled.
These bodies chose to do their work in the form of amendments to the
old constitutions of the "States," whose constituent powers they
The form of the
work done in these
conventions, and
its substance.
assumed to hold, rather than in the form of new constitutions. Before
the meeting of Congress on the first Monday of December, they had all
passed ordinances, either repealing the secession ordinances of their
respective "States," or pronouncing them null and void; had all voted
amendments to the constitutions of their respective "States" abolishing
slavery; and all, except Mississippi and South Carolina, had passed
ordinances repudiating the debt incurred by their respective "States"
in aid of rebellion against the United States.
Before the meeting of Congress also, elections of the members of the
respective "State" legislatures and of "State" officers, and of the
The erection of
"State" governments
and the election of
Members of Congress.
members of the House of Representatives in Congress, had been held by
the
[p. 39]
Provisional Governors, under the direction of the respective
conventions. And, finally, before the assembly of Congress, these
Legislatures had, with the exception of that of Florida, met,
organized, and elected United States Senators, and, with the exception
of those of Florida and Mississippi, had adopted the Thirteenth
Amendment to the Constitution. The legislature of Florida, not having
met and organized, had not at that date been able to consider the
Amendment. It met on December 18th and elected United States Senators,
and adopted the Thirteenth Amendment on the 28th. The legislature of
Mississippi, on the other hand, rejected the Thirteenth Amendment on
the 27th of November.
During the same period, the President had by his several proclamations
and orders declared the cessation of armed resistance, the restoration
The orders of the
President putting the
civil Government
of the United States
into operation
everywhere.
of intercourse throughout the country, and the raising of the blockade
and the opening of the ports, and had put the different branches of the
civil Government of the United States into operation in all the
"States" which had been the scene of the recent rebellion. He had not,
however, restored the privilege of the writ of Habeas Corpus in these
regions or in the District of Columbia, and he reserved the right to
have recourse to military control therein in case of necessity. The
Governors of South Carolina, Georgia, Mississippi and Florida under the
Confederacy had, in the spring of 1865, assumed to summon the
legislatures, chosen by these "States" while members, or pretended
members, of the Confederacy, to meet together for reconstruction
purposes. The President had, through his military officials, ignored
and prevented all such movements. No farther resistance to his plan of
Reconstruction had been attempted, but he saw
[p. 40]plainly that,
without the United States military power to sustain the new "State"
governments, there might be.
This was the situation when Congress met on the first Monday of
December, and received President Johnson's first annual Message. This
The President's
first annual
Message.
document contained a disquisition upon the political system of the
United States, as "an indissoluble union of indestructible States,"
with the natural conclusion that by attempting secession, the "States"
impaired, but did not extinguish, their vitality, suspended, but did
not destroy, their functions. It then proceeded with a narration of the
facts above stated, in which the President sought to establish, upon
the basis of his power to pardon and withdraw military rule, and to
guarantee a republican form of government to every "State," his
authority to reconstruct "State" government, or at any rate to permit
the pardoned citizens to do so under his direction.
Finally, this paper contained the official notice to Congress that the
President had admitted the reconstructed "States"—and that would mean
all that had passed the secession ordinance, except perhaps Texas,
whose convention did not assemble until March of 1866—to participate
in amending the Constitution of the United States. The President
concluded his narration and argumentation upon this all-important
subject in these words: "The amendment to the Constitution being
adopted, it will remain for the States whose powers have been so long
in abeyance to resume their places in the two branches of the National
Legislature, and thereby complete the work of restoration. Here it is
for you, fellow citizens of the Senate, and for you, fellow citizens of
the House of Representatives, to judge, each of you for yourselves, of
the elections, returns and qualifications of your own members."
[p. 41]
It is entirely evident from all this that the President denied the
power of the Houses of Congress, either separately or jointly, to
prevent the Senators and Representatives from the reconstructed
"States" from taking their seats upon any other grounds than defects in
the election and return, or in the personal qualifications, of the
particular persons under consideration.
[p. 42]
CHAPTER IV
THE CONGRESSIONAL PLAN OF RECONSTRUCTION
The Stevens Resolution—Legislation
of the Reconstructed "States" Concerning the Status of the Freedmen, and the Freedmen's
Bureau—Vagrancy, Apprenticeship, and Civil Rights in the Reconstructed
"States"—The View Taken of this Legislation by the
Republicans—The
Ratification of the Thirteenth Amendment to the Constitution—The
Demand of the Senators- and Representatives-elect from the Reconstructed
"States" to be Admitted to Seats in Congress—The Joint Committee of
the Two Houses of Congress on Reconstruction—Thaddeus Stevens's Ideas
on Reconstruction—Mr. Shellabarger's Theory of
Reconstruction—Mr. Sumner's Theory of Reconstruction.
So soon as the House of Representatives had elected its Speaker, Mr.
Colfax, and other officers, and before the reception of the President's
The Stevens
resolution.
Message, Mr. Thaddeus Stevens presented a resolution which proposed the
selection of a joint committee of the House and Senate to inquire into
the condition of the "States," which formed the so-called Confederate
States, and to report by bill or otherwise, whether, in the judgment of
the Committee, these "States," or any of them, were entitled to be
represented in either House of Congress, and which provided that "until
such report shall have been made and finally acted upon by Congress, no
member shall be received into either House from any of the so-called
Confederate
[p. 43]
States." The House passed this resolution by an
overwhelming majority; and then adjourned without allowing a motion by
Mr. Niblack of Indiana, to the effect that "pending the question as to
the admission of persons claiming to have been elected representatives
to the present Congress from the States lately in rebellion, such
persons be entitled to the privileges of the floor of the House," the
usual privilege accorded contestants, to come to a vote.
The view of the House was thus manifest from the start. It was that
Reconstruction could not be effected by the Executive Department of the
The view of the House
that Reconstruction
could not be effected
by the Executive.
Government, but was a problem for Congress, and that this was a matter
entirely separate from the power of each House to judge of the
elections, returns and qualifications of its members, a matter to be
decided by the whole Congress prior to the consideration of the
question of the elections, returns, and qualifications of the members
of each House. In a word, it was the question of the admission, or the
readmission, of "States" into the Union, or more correctly the question
of the establishment or re-establishment of the "State" system of local
government upon territory of the United States under the exclusive
power of the central Government.
There is no question that in sound political science the House was
entirely correct in its theory, and that the objection of the Senate to
that part of the Stevens resolution which provided that no member
should be received into either House from any of the so-called
Confederate States until the report of the Committee on Reconstruction
should have been finally acted on by Congress, as trenching upon the
exclusive power of the Senate to judge of the elections, returns and
qualifications of its members, rested upon a confounding of the
[p. 44]
function of Congress to admit "States" into the Union with the power of
Passage of the Stevens
resolution as a
concurrent resolution.
each House to judge of the elections, returns and qualifications of
those claiming to represent "States" or constituencies in "States"
about whose position in the Union there was no question. The Senate
finally swung into line, however, by passing this part of the House
resolution as a concurrent resolution instead of as a joint resolution.
There were two other considerations which moved the Republicans in
Congress to assume this attitude in regard to Reconstruction. One was
Legislation of the
reconstructed "States"
concerning the status
of the freedmen, and
the Freedmen's Bureau.
the legislation of the "States" reconstructed by the President
concerning the status and the rights of the freedmen. On the 3d of
March preceding, Congress had passed an act organizing a bureau in the
War Department for the care of refugees and freedmen in the districts
in rebellion or in the territory embraced in the operations of the
army. This bureau was officered by a chief commissioner and assistant
commissioners for each of the "States" declared to be in insurrection.
These officers were authorized to take possession of the abandoned
lands within these "States," and other lands belonging to the United
States, and parcel them out to the loyal male refugees and freedmen,
not more than forty acres to each, and protect them in the use and
enjoyment of the same for the term of three years. They were also
authorized to issue under the direction of the Secretary of War
provisions, clothing and fuel to such loyal refugees and freedmen as
were destitute.
There is no question that this was a most humane measure. It would have
been a moral outrage for the Government of the United States to have
taken the slaves away from the support and protection accorded
[p. 45]
them by their masters, and to have thrown them upon their own resources
The administration
of the Freedmen's
Bureau.
without any means of sustenance during the transition into the new
status. But there is also no question that this measure was so
administered as to do the race for whose benefit it was intended almost
as much harm as good. When the Government began to furnish them with
food, clothes, fuel and shelter gratis, they, like the children that
they were, conceived of this, to them, very agreeable state of things
as something that was to last forever, as the New Jerusalem. They
gathered about the depots of the Freedmen's Bureau and could not be
induced to go away in search of work or livelihood. The belief became
quite general that the Government intended to give every man forty
acres of land and a mule, and otherwise to support him permanently. The
danger was that the newly emancipated would quit work altogether and
throw themselves entirely upon the charity of the United States
Government. Many did do so, and formed thus a sort of privileged class
throughout the whole South under the special protection of the
Government of the United States.
When, now, the newly reorganized "States" came to assume jurisdiction
over matters concerning the freedmen, they found themselves driven to
Vagrancy, apprenticeship
and civil rights in the
reconstructed "States."
some legislation to prevent the whole negro race from becoming paupers
and criminals. It was in the face of such a situation that the
legislatures of these "States" passed laws concerning apprenticeship,
vagrancy and civil rights, which were looked upon at the North as
attempts to re-enslave the newly emancipated, and served to bring the
new "State" governments at the South into deep reproach.
It must be remembered, however, that at the time of the passage of the
Stevens resolution by the House of
[p. 46]
Representatives, only two of
Mr. Johnson's reconstructed "States" had passed any laws upon these
Examination of these
vagrancy acts, etc.
subjects. These two were Mississippi and South Carolina; and a close
examination of the text of these enactments will hardly justify the
interpretations placed upon them by the radical Republicans. The South
Carolina Preliminary Act came first in the order of time. It provided
that "all free negroes, mulattoes, and mestizos, all freedwomen, and
all descendants through either sex of any of these persons, shall be
known as
persons of color, except that every such descendant, who may
have of Caucasian blood seven-eighths, or more, shall be deemed a white
person; that the statutes and regulations concerning slaves are now
inapplicable to persons of color; and although such persons are not
entitled to social or political equality with white persons, they shall
have the right to acquire, own, and dispose of property, to make
contracts, to enjoy the fruits of their labor, to sue and be sued, and
to receive protection under the law in their persons and property"; and
"that all rights and remedies respecting persons or property, and all
duties and liabilities under laws civil and criminal, which apply to
white persons, are extended to persons of color, subject to the
modifications made by this act and the other acts hereinbefore mentioned."
The acts to which this one was preliminary were not passed until the
latter half of December, and could not have served, except by
prevision, as grounds for the Stevens resolution. Moreover there was
little in this Act which was really calculated to arouse any pronounced
hostility at the North. It evidently recognized the emancipation of the
former slaves, and the prohibition of future slavery, as fixed facts,
and provided for substantial equality in civil rights between persons
of color
[p. 47]
and white persons. The discriminations which it referred
to, rather than made, were those of a social and political nature,
matters which to that time had been controlled, if controlled at all,
wholly by the "States," except of course in those parts of the country
in which "States" had not been erected.
The Mississippi acts were all passed in November. They were the acts
which were before the view of Congress and the country in the beginning
The Mississippi Acts.
of December, 1865, and, with the exception of the South Carolina
Preliminary Act just commented on, the only ones. They require,
therefore, a somewhat fuller treatment. They consist of "An Act to
regulate the relation of master and apprentice relative to Freedmen,
Free Negroes, and Mulattoes, passed November 22, 1865"; the "Vagrant
Act of November 24, 1865"; an "Act to Confer Civil Rights on Freedmen
and for other purposes," passed November 25, 1865; a supplementary Act
to this, passed November 29, 1865; and another supplementary Act,
passed December 2, 1865.
The first Act provided that freedmen, free negroes, and mulattoes under
the age of eighteen years, being orphans, or the children of parents
who could not, or would not, support them, should be apprenticed by the
clerk of the Probate court in the county where found to competent and
suitable persons, and on such terms as the court should direct; under
the restrictions, that the former owner of the minor should be selected
by the court as the master or mistress if, in the judgment of the
court, he or she were competent and suitable; that the terms fixed by
the court should have the interest of the minor particularly in view;
and that the apprentice should be bound by indenture, to run, in the
case of males, until the completion of the twenty-first year,
[p. 48]and,
in the case of females, until the completion of the eighteenth year.
This Act further provided that in the management and control of
apprentices, the master or mistress should "have power to inflict such
moderate corporal chastisement as a father or guardian is allowed to
inflict on his or her child or ward at common law," but that in no case
should "cruel or inhuman punishment be inflicted."
It furthermore provided, that in case of desertion by the apprentice,
he might be apprehended and brought before a justice of the peace, who
might remand him to his master or mistress, and might, on the refusal
of the apprentice to return, commit him to jail, on failure to give
bond, until the next term of the County court, which court should
inquire into the matter, and determine whether the apprentice had left
the service to which he was bound without good cause or not, and
should, in the one case, compel the return to service by ordering the
infliction of the necessary penalties, and in the other, should order
the discharge of the apprentice, and enter "judgment against the master
or mistress for not more than one hundred dollars, for the use and
benefit of the apprentice."
The second Act provided, that "all free negroes and freedmen in the
State, over the age of eighteen years, found on the second Monday in
January, 1866, or thereafter, with no lawful employment or business, or
found unlawfully assembling themselves together, either in the day or
night time, and all white persons so assembling with freedmen, free
negroes, or mulattoes, or usually associating with freedmen, free
negroes, or mulattoes on terms of equality, or living in adultery or
fornication with a freedwoman, free negro or mulatto, shall be deemed
vagrants, and on conviction thereof, shall be
[p. 49]fined in the sum of
not exceeding, in the case of a freedman, free negro or mulatto, fifty
dollars, and in the case of a white man, two hundred dollars, and
imprisoned, at the discretion of the court, the free negro not
exceeding ten days, and the white man not exceeding six months."
It further provided, that in case the freedman, free negro or mulatto
should not pay the fine within five days from the time of its
infliction, the sheriff of the proper county should hire him or her out
to any person who would for the shortest period of service pay the fine
and all costs, giving the preference, however, to the employer of the
freedman, negro or mulatto, if there should be any, and, if no person
would hire the same, should hold him or her to be dealt with as a
pauper. It also provided that the freedman, free negro, or mulatto
refusing or failing to pay a tax should be dealt with by the sheriff in
the same manner.
And it provided, finally, that the same duties and liabilities existing
among white persons in the "State" to support indigent whites should
attach to freedmen, free negroes and mulattoes in regard to the support
of colored paupers, and that in order to carry out the same a poll tax,
not exceeding one dollar a head, should be levied on every freedman,
free negro, and mulatto, between the ages of eighteen and sixty years,
and should be collected and paid into the hands of the treasurers of
the counties to be used in the support of colored paupers.
The third Act provided, that freedmen, free negroes and mulattoes might
acquire, hold, and dispose of, personal property in the same manner and
to the same extent as white persons, and might sue and be sued in all
the courts of the "State" as white persons, but that they should not
rent or lease lands or tenements except in
[p. 50]incorporated towns or
cities, and under the control of the corporate authorities.
It provided, further, for the intermarriage of freedmen, free negroes
and mulattoes, and for the legalization of all previous and existing
cohabitations between them, and the legitimation of the issue
therefrom; but it forbade intermarriage between them and white persons,
under penalty of life imprisonment, and it defined freedmen, free
negroes and mulattoes as comprehending all of pure negro blood, and all
descended from negroes to the third generation inclusive, although one
parent in each generation should have been white.
It provided, further, that freedmen, free negroes and mulattoes should
be competent as witnesses in all civil cases, in which they themselves
or other freedmen, free negroes and mulattoes were parties or a party
to the suit, and in criminal cases where the crime charged was alleged
to have been committed by a white person or persons upon or against the
person or property of a freedman, free negro, or mulatto.
It provided, further, that every freedman, free negro and mulatto
should have a lawful home and employment, and should have written
evidence thereof in the form of a license from the police authorities
to do irregular or job work, or in the form of a written contract for
labor. It required that all contracts made with freedmen, free negroes
and mulattoes for labor for a longer period than one month should be in
writing, a copy of which should be furnished to each party, and that if
the laborer should quit the service of the employer before the
expiration of the term fixed in the contract, he should forfeit his
wages for that year up to the time of quitting.
It provided, further, for the arrest of any freedman, free negro, or
mulatto quitting the service of an employer, and for the determination
of the question whether
[p. 51]
the quitting was for good cause or not,
and for the disposition to be made of the deserter.
It provided, further, that enticing or persuading freedmen, free
negroes or mulattoes to desert from their legal employment, or
employing deserters from contract labor knowingly, or giving or selling
them food, raiment or other thing knowingly, should be a misdemeanor
punishable by fine, or by imprisonment in case the fine should not be paid.
It provided, further, that no freedman, free negro or mulatto, unless
in the military service of the United States, or licensed thereto by
the police authorities, should keep or carry arms, ammunition or
murderous weapons, and that every civil and military officer should
arrest any such person found in possession of such articles, and commit
him for trial.
It provided, further, that "any freedman, free negro, or mulatto
committing riots, affrays, trespasses, malicious mischief and cruel
treatment to animals, seditious speeches, insulting gestures, language
or acts, or assaults on any person, disturbance of the peace, or
exercising the functions of a minister of the gospel without a license
from some regularly organized church, or selling spirituous or
intoxicating liquors, or committing any other misdemeanor," should be
fined or imprisoned, and, upon failure to pay the fine in five days'
time after conviction, should be publicly hired out to the person who
would pay the fine and costs for the shortest term of labor from the convict.
And it provided, finally, that "all the penal and criminal laws now in
force in this State, defining offences, and prescribing the mode of
punishment for crimes and misdemeanors committed by slaves, free
negroes or mulattoes, be and the same are hereby re-enacted, and
declared to be in full force and effect, against
[p. 52]freedmen, free
negroes and mulattoes, except so far as the mode and manner of trial
and punishment have been changed or altered by law."
This is a fair sample of the legislation subsequently passed by all the
"States" reconstructed under President Johnson's plan. In fact, in the
The Mississippi legislation
a fair sample of the
subsequent legislation in
other "States."
legislatures of several of them, bills containing substantially these
provisions were under consideration when Congress met, and it was fair
to suppose that they would be enacted. Congress had thus in the first
week of December, 1865, substantially before it what the reconstructed
"States" proposed to do in reference to the status and rights of the
former slaves, and in reference to the relations between the negro and
the white man in the future.
As yet, we must remember, the Thirteenth Amendment had not been
proclaimed as adopted, in fact had not been adopted, on the basis of
the calculations of Mr. Seward, the Secretary of State, the officer who
alone could proclaim adoption; and the abolition of slavery rested upon
the military power of the President, and on the acts of the "States"
themselves, the first of which is temporary as to its effects, and the
second of which might be reversed by the "States" at pleasure.
The Northern Republicans professed to see in this new legislation at
the South the virtual re-enslavement of the negroes. This was an
The view taken of this
legislation by the
Republicans.
extreme view of it, although it certainly did not give the negro equal
civil right with the white man, or anything approaching that, to say
nothing of failing to offer him any prospects of ever participating in
political functions. Of course it would be an abstract assumption to
say that the negro ought, at the moment of his emancipation, to have
had equal civil right with the white man. Civilized man can be safely
[p. 53]
intrusted with a much larger civil liberty than the barbarian or
This legislation from
the point of view of
natural justice.
the semi-barbarian. There is no question also that much severer
penalties for the commission of the same crime are necessary among a
barbarous race or class than among a civilized race or class. From
these points of view this Mississippi legislation does not appear as
far from what was natural and even necessary as Mr. Stevens and his
followers made it out. The law of apprenticeship was not severe, and,
if justly and sincerely executed, it would probably have been
beneficial to the young negroes, deprived of the care given them up to
that time by master or mistress, and now thrown upon themselves without
a cent of money or a particle of property, most of them knowing no
parent except a mother as poor as themselves, and entirely unacquainted
with the new conditions of life now confronting them.
The law of vagrancy was severer. But it is easy to see that a
reasonable execution of that law had as much help as harm in it for the
former slave. It would have preserved him against idleness,
drunkenness, and thievery, although it did curtail largely his liberty
of action. It was, undeniably, the third act, which came so near to the
re-enactment of the old slave code in regard to crimes and misdemeanors
committed by negroes, that gave the greatest offence. Almost every act,
word, or gesture of the negro, not consonant with good taste and good
manners, as well as good morals, was made a crime or misdemeanor, for
which he could first be fined by the magistrates, and then consigned to
a condition almost of slavery for an indefinite time, if he could not
pay the fine. There is no question that the "States" of the Union had
at that moment the power under the Constitution of the United States to
do these things. At that time the determination of the criminal law,
both
[p. 54]
as to the definition of crime, the fixing of penalties, and
the fashioning of procedure, was almost entirely a function of the
"States," and there was no provision in the Constitution of the United
States which required the "States" to treat their own inhabitants with
equality in regard to their civil rights and obligations.
Under these circumstances it is not at all surprising that the
Republicans of the North strongly felt that the freedom of the negro
had not yet been sufficiently guaranteed to render the acknowledgment
of the resumption of "State"-powers by the communities so lately in
rebellion against the United States for the upholding of negro slavery
safe and wise.
It was certainly natural, and it was just and right, that the party in
power in Congress should have considered it their duty to so amend the
Correctness of
the Republican
position.
Constitution of the United States, before according "State"-powers to
the communities lately in rebellion, as to reap the just fruits of
their triumph over secession and slavery. It was certainly their duty
to the country to secure the adoption of the Thirteenth Amendment, and
any further amendment, necessary to accomplish this result, before
putting the recently rebellious communities in a position to defeat the
same. And it is certainly not strange that the Republicans should have
feared that the Democrats of the North in Congress would soon be found
fraternizing with the Senators and Representatives from the
reconstructed "States," and that it was their duty to secure "perpetual
ascendancy to the party of the Union," before admitting the Senators
and Representatives from these "States" to participation in public
power. Properly interpreted this only meant that loyal men must govern
the country. But it did not follow that only Republicans were loyal
men, and that the loyal Democrats of the North would follow
[p. 55]the
recently disloyal Democrats of the South in legislating upon the issues
of the war. Republicans were likely to commit this fallacy in their
reasoning. Many of them did commit it. And the result of it was to
intensify partisanship at the expense of statesmanship.
Just two weeks after the passage of the Stevens resolution by the House
of Representatives, Mr. Seward announced the adoption of the Thirteenth
The ratification of the
Thirteenth Amendment
to the Constitution.
Amendment to the Constitution of the United States. In making this
announcement, he declared that there were thirty-six "States" in the
Union, and that the legislatures of twenty-seven "States," just
three-fourths, the necessary number, had voted its adoption; and among
those voting to adopt, he counted the legislatures of Virginia,
Louisiana, Arkansas, Tennessee, North Carolina, South Carolina, Georgia
and Alabama.
It is to be remarked, however, that had he counted none of the "States"
that had passed secession ordinances, either in the whole number, or in
the three-quarters necessary to adopt, the Amendment would in that case
also have been adopted. There would have been, in that case,
twenty-five "States" in the Union, and of these nineteen had adopted
the Amendment. And if any controversy had arisen over the use of
fractions in making nineteen three-fourths of twenty-five, this would
have been quickly overcome by the fact that the legislatures of four
more of the loyal "States" adopted the Amendment soon after Mr.
Seward's declaration, making twenty-three out of twenty-five. It will
not, of course, be disputed that, if the "States" that passed secession
ordinances should have been counted in arriving at the whole number of
"States" in the Union, those of them adopting the Amendment should also
have been counted in making out the three-fourths majority
[p. 56]
necessary to adoption, and that if, on the other hand, they should have
been excluded in arriving at the whole number, they should also have
been excluded in making up the three-fourths majority. In other words,
it does not matter from which point of view we regard the subject, the
Amendment was regularly and lawfully adopted. It must be admitted,
however, that Mr. Seward followed in this most solemn procedure, the
amending of the Constitution, the Presidential plan of Reconstruction,
and gave great encouragement to the Senators- and Representatives-elect
from these reconstructed "States" to expect that they would have the
aid and influence both of the Democrats in Congress, and of the
Administration, in securing their seats.
They had gone to Washington and, bearing themselves confidently from
the first, they now became defiant in demanding their rights. Many of
The demand of the
Senators- and
Representatives-elect
from the reconstructed
"States" to be admitted
to seats in Congress.
them were men who, less than twelve months before, had been in arms
against the United States, and one of them was the person who was the
Vice-President of the Confederacy at the moment of its downfall, Mr.
Alexander H. Stephens. Such an attitude on his part and their part
roused again great bitterness of feeling among the Republicans, many of
whom conscientiously thought that the real deserts of such persons were
the penalties of treason. Moreover, the legislatures of some of the
other "States" reconstructed under the President's plan enacted, during
December, January and February, measures concerning the status and
rights of the emancipated slaves similar to those passed by the
legislature of Mississippi, and in some respects even more illiberal
than those passed by that body; and it was evident that all of them
would finally stand upon the same general ground in regard to this subject.
[p. 57]
This was the situation in the last week of February, 1866, when
the Senate passed a resolution, concurrent with the Stevens resolution
in the House, denying seats to any of the claimants from the "States"
lately in insurrection until the report of the Joint Committee on
Reconstruction should be made and finally acted upon. Four of the
Republican Senators, Messrs. Cowan, Doolittle, Dixon and Norton went
against their party associates in this question, but there was still a
two-thirds majority in both Houses resolute and resolved to combat the
Presidential plan of Reconstruction and to construct and enforce a
Congressional plan.
As we have already seen, the Senate had concurred with the House in
regard to that part of the Stevens resolution which provided for the
The Joint Committee
of the two houses
of Congress on
Reconstruction.
appointment of a Joint Committee on Reconstruction, at the time it was
passed by the House. The members of the Committee were chosen soon
after the passage of this part of the Stevens resolution by the Senate.
They were, from the Senate, Messrs. Fessenden, Grimes, Harris, Howard,
Johnson and Williams, all Republicans except Mr. Reverdy Johnson of
Maryland, and from the House, Messrs. Bingham, Blow, Boutwell,
Conkling, Grider, Morrill, Rogers, Stevens and Washburne, all
Republicans except Grider of Kentucky and Rogers of New Jersey. The
Republicans had given themselves a larger representation on the
Committee than their numerical relation to the Democrats warranted, but
there is no reason to think that the report of the majority would have
been in any respect different, if that relation had been more strictly observed.
This Committee sat for about six months before making its final report.
During this period, however, several propositions issued from it, and
The activity of Congress
in the interim between the
appointment of the Committee
on Reconstruction and the
Report of the Committee.
two great
[p. 58]
measures of statute law were passed by Congress, all of which
must be more nearly considered in order to keep the thread of the
narrative of Reconstruction. Moreover the debate upon the subject of
Reconstruction was at the same time in progress and the view of the
subject held by the leading Republicans was becoming more clear and fixed.
Mr. Stevens opened this debate in the House on the 18th of December
(1865). In a powerful speech, he developed anew his doctrine that the
Thaddeus Stevens's
ideas on
Reconstruction.
territory once covered by the "States," which had seceded from the
Union, was nothing now but a conquered district, whose future condition
depended upon the will of the conqueror. If "States" should ever be
erected there again, it must be accomplished, he contended, by virtue
of that provision in the Constitution which declares that "new States
may be admitted by Congress into this Union." This theory involved the
admission that secession had been temporarily successful. This Mr.
Stevens frankly acknowledged. He said: "Unless the law of nations is a
dead letter, the late war between the two acknowledged belligerents
severed their original contracts, and broke all the ties that bound
them together."
This was the extreme doctrine on the one side. It was in blunt
contradiction to the doctrine upon which the Administration was acting,
Contradiction between
Stevens's view and
the view of the
Administration.
the doctrine that the attempt at secession was entirely abortive, and
that the "States" where it was attempted were still in the Union
as
"States," and had never been anywhere else or anything else, in fact
could not be; that the rebellion was the work of private individuals
combined as truly against the real "States" in which it existed as
against the
[p. 59]
United States; and that, therefore, the overthrow of
these combinations and the cessation of the military rule of the
President must be followed by the resumption on the part of the
"States" concerned of all their rights and powers of local
self-government and of participation in the United States Government,
as guaranteed by the Constitution of the United States, unimpaired, and
without any action whatever on the part of Congress. Mr. Raymond
represented this view on the floor of the House of Representatives. He
was a Republican of the Seward school, and sympathized entirely with
his patron upon this subject. It was a great embarrassment to him that
the Democrats immediately gave in their adherence to this view. It
helped to prevent him from gaining any following at all for it among
the Republicans.
But while the Republicans of the House repudiated entirely Mr.
Raymond's principles, the great mass of them were not able to accept
Mr. Stevens's view of the temporary validity of secession, and the
temporary existence of the Southern Confederacy as a foreign power.
Their feelings and instincts required a principle of reconstruction
which, at the same time that it did not recognize secession as having
any validity for the shortest moment, yet regarded the "States" in
which it was attempted, as having thereby become something other than
"States" of the Union, and as requiring the assent of Congress to the
rightful resumption of that status.
It was Mr. Shellabarger, of Ohio, who did more than anybody else to
give the proper logical interpretation to these feelings and invent the
Mr. Shellabarger's
theory of
Reconstruction.
theory of Reconstruction on which the Republicans could plant
themselves. Briefly stated that theory was that, while secession was a
nullity legally from the beginning, and could not take the territory
[p. 60]
occupied by the "States" attempting it, or the people inhabiting
that territory, out of the Union, or from under the rightful
jurisdiction of the United States Government and Constitution for one
instant, yet it worked the loss of the "State" status in the Union, and
from a legal point of view left this territory and the inhabitants of
it subject exclusively to the jurisdiction of the United States
Government, a status from which they could be relieved only by the
erection of "States" anew upon such territory, an operation which could
be effected, under the Constitution of the United States, only by the
co-operation of Congress with the loyal inhabitants of such territory.
This was sound political science and correct constitutional law. It
could not fail to command the assent of the great majority of the
Mr. Sumner's theory
of Reconstruction.
Republicans in the House and in the country. This same doctrine was, at
the same time, developed in the Senate by Mr. Sumner, Mr. Fessenden and
Mr. Wilson, and it was easy to see that it had become the theory of the
Republican party in Congress long before the final report of the
Committee on Reconstruction promulgated it. Even Stevens and his
radical followers were in line with it in so far as practical results
were concerned. That is, the Republicans all stood together on the
The Republicans in
Congress almost
unanimously in favor
of the Shellabarger-
Sumner plan.
principle that Reconstruction could only be effected by Congressional
acts, since it was tantamount to a conferring, or reconferring, of the
"State" status upon a population at the moment subject to the exclusive
jurisdiction of the Government of the United States. This meant that
the entire Republican party in Congress, with the exception of the four
members of the Senate already named, and of Mr. Raymond and one other
in the House (and this constituted a majority of two-thirds in each
House) would antagonize the plan of Executive Reconstruction
[p. 61]
devised by Lincoln and Seward and persisted in by Johnson and, to that
moment, by his cabinet. How far the Republicans in Congress would go in
the attempt to set aside Executive Reconstruction depended chiefly upon
the moderation of the President, and the sincerity of the people in the
South. It depended also in some degree, to say the least, upon what
would be necessary to keep the Republican party, which conceived itself
to be the only really loyal party to the Union, in power.
There is no doubt that the Sumner-Shellabarger theory of Reconstruction
was correct. The only question was how exacting Congress would be in
realizing it. Under such a situation it behooved the President to act
with great caution and moderation, and to do nothing to provoke a
conflict in which he was certain to be worsted. And it also behooved
the people of the South to make no opposition to the bestowal of a
large measure of civil liberty upon the freedmen, nor to such an
adjustment of the basis of political representation as would not
necessitate negro suffrage, and not to insist upon sending to Congress,
at the outset, the men who had made themselves particularly obnoxious
to loyal feeling. How both the President and the persons in authority
at the South disregarded these considerations of prudence, and how the
position assumed by them upon these subjects drove Congress into more
and more radical lines, is the further subject of the next three
chapters.
[p. 62]
CHAPTER V
THE CONGRESSIONAL PLAN (Continued)
The Freedmen Codes in the
South—The Reports of Grant and Schurz in
Regard to the Status in the South—The Freedmen's Bureau Bill of
1866—The President's 22d of February
Speech—The Civil Rights
Bill—The Veto of the
Bill—The Veto Overridden—The Fourteenth
Amendment—The Discussion of the Propositions in
Congress—The
President's Attitude toward the Proposed Amendment—Mr. Seward's Acts
in Regard to Ratification—The Requirement that the Ratification of the
Proposed Amendment should be the Condition of the Admission of the
Senators- and Representatives-elect to Seats in Congress—The Tennessee
Precedent.
We have reviewed the acts of the new legislature of Mississippi
concerning the civil status of the freedmen. It is sufficient to say
The Freedmen codes
in the South.
that during the winter of 1865-66, the other reconstructed legislatures
followed the example of the legislature of Mississippi. These movements
forced upon the Republican party in Congress the conviction that the
civil rights of the freedmen must be secured by national law. As yet
there existed only the Thirteenth Amendment to the Constitution upon
which to base Congressional statutes, and this, as we know, simply
abolished and prohibited slavery and involuntary servitude, and
empowered Congress to pass appropriate laws for the execution of the
Amendment. By virtue of the war powers still exercised by the
Administration several of the Union Generals, as we shall see, had set
aside this legislation in
[p. 63]
some of these reconstructed "States."
But, of course, it was well understood that this was only a temporary
remedy. During the month of January, 1866, the Republicans in Congress
became convinced that the newly organized "States," with the exception
of Tennessee, were consciously developing freedmen's codes which would
not differ greatly from their old slave codes.
The President had sent General Grant and General Carl Schurz on tours
of inspection and inquiry through the South, during the late summer and
The reports of Grant
and Schurz in regard to
the status in the South.
autumn of 1865; and Congress now asked the President to impart to it
the information thus gathered. The two reports were quite
contradictory. General Grant said that he drew the conclusion from his
observations that "the mass of thinking men of the South accept the
present situation of affairs in good faith." He also indicated that the
officers of the Freedmen's Bureau were a useless set of men, dangerous
to the peace and prosperity of the South, and recommended that the
military officers in the different districts should be put in charge of
the bureau.
Mr. Schurz, on the other hand, reported that his conclusions from his
observations were that there was no loyalty among the leaders and the
mass of the people in the South, except such as consisted in submission
to necessity; that they were consciously attempting in their new
legislation to establish a new form of slavery, distinct only from the
old chattel slavery; and that this could be prevented only by national
law and national control, at least for many years to come.
General Grant's visit had been a flying one, and his inquiries upon the
subject were secondary only to his other business. On the other hand,
General Schurz had journeyed deliberately, and his inquiries were the
chief, if not the sole, purpose of his visit. Moreover,
[p. 64]General
Schurz was a keener observer in regard to such matters than General
Grant, and a much better reasoner.
Despite, therefore, the great popularity and influence of General
Grant, Congress was inclined to place more credence in the report of
The attitude of
Congress toward
the reports.
General Schurz. While its Committee on Reconstruction was deliberating,
it, therefore, most naturally set itself about doing what it could,
under the Thirteenth Amendment, and also under its still existing war
powers, in behalf of the civil rights of the freedmen.
The first measure it attempted was one to enlarge the powers of the
Freedmen's Bureau. This supplementary project originated with the
The Freedmen's
Bureau bill of 1866.
Judiciary Committee of the Senate, and was presented in the Senate on
the 12th of January, 1866. The new bill proposed to increase the
personnel of the bureau and expand the powers vested in it as provided
in the law of March 3d, 1865, in the following most important respects:
First, While the law of March 3d, 1865, provided for the appointment of
a commissioner and ten assistants as the entire personnel of the
Bureau, the new bill authorized the appointment of a commissioner,
twelve assistant commissioners, and the appointment or detail of an
agent for each county or parish throughout the section where the Bureau
might operate.
Second, While in the law of March 3d, 1865, the Bureau rather appeared
to be under the civil administration of the President, the new bill
placed it distinctly under the military administration of the
President, and authorized the President to extend "military
jurisdiction and protection over all of the officers, agents, and
employees of the Bureau."
Third, While the law of March 3d, 1865, confined the powers of the
Bureau to the giving of aid to
[p. 65]
refugees and freedmen and the
distribution of abandoned and confiscated lands among them, the new
bill proposed, in addition to this, to vest in the Bureau the power to
build school houses and asylums for the freedmen, and the most
wide-reaching jurisdiction over all civil and criminal cases where
equality in civil rights and status, and in the application of
penalties, was denied, or the denial thereof attempted, on account of
race, color, or previous condition of servitude; and it authorized
military protection in all such cases to be extended to the suffering
party. In a single sentence, this bill provided a sort of palatine
jurisdiction over the freedmen in the section lately the scene of rebellion.
It was a stiff measure even for the transition period from war to
peace. It cannot be justified constitutionally as anything but a war
measure. It is true that the Thirteenth Amendment, just adopted, could
be interpreted as giving Congress the power to prohibit inequalities in
civil rights and in criminal punishments, as the incidents of slavery
or involuntary servitude, and to extend the ordinary jurisdiction of
the constitutional courts of the United States over all cases where the
attempt to apply such inequalities should be made. But it certainly did
not give Congress the power, under any ordinary circumstances, to
create a new system of courts, subject to the Executive, officered by
military men, and armed directly with military power to enforce
decisions. It was, as has been said, a war measure, and nothing else.
The question was reduced simply to this: Ought the Congress of the
United States to enact a new war measure, after armed resistance had
ceased everywhere, except perhaps in some parts of Texas? Was it sound
policy, was it good morals, to do so, when the people in the sections
lately in rebellion were settling down into the pursuits of peace, even
The passage
of the bill.
though Congress might
[p. 66]
legally have the right to do so? The bill
was debated long and carefully in the Senate by all of the leading
members, and the opinion finally prevailed among them that it was a
measure necessary to preserve and protect the freedom of the newly
enfranchised. It passed the Senate by a vote of 37 to 10, and the House
by a vote of 136 to 33.
On the 10th of February (1866) it was sent to the President for his
signature. In a Message, dated the 19th of February, the President put
The veto
upon it.
his veto upon this bill. The document was a strong and sound
presentation of reasons for his dissent. He said he could not approve
of a war measure, with an indefinite term, when the authority of the
United States was not disputed in any part of the country, when the
rebellion was at an end, and when the country had returned, or was
returning, to the pursuits of peace. He referred to the fact that the
law of March 3d, 1865, was still in operation, and claimed that it
furnished him with all the extraordinary powers necessary to protect
the freedmen. He called attention to the army of officials which this
proposed law would create, and to the enormous expense which it would
entail. And he denied the constitutional power of the Government of the
United States to assume functions for negroes which it had never been
authorized to assume for white men. There is little question now that
the President was correct about this matter, and that the Congress was
both reckless and aggressive, not to say vindictive. But it is
questionable whether the President did not himself lessen unnecessarily
his influence with his party in Congress, by his unqualified opposition
to any strengthening of the measure of 1865. He might have returned the
bill with the suggestion that it should have a definite limit as to the
time it should run, and have
[p. 67]
expressed his willingness to sign a
bill which should be so limited. Johnson was blunt in his honesty. But
Seward was his adviser, and Seward was, above everything, politic. It
would seem that he either failed to advise with his usual sagacity in
this case, or that his advice was unheeded.
For this once the President's arguments convinced enough of the
Senators to deprive the bill of the support of the necessary majority
The veto
effective.
to carry it over his veto, even so stanch a Republican as ex-Governor
Morgan of New York voting against the bill after its return. The
Republican majority was deeply chagrined, not to say discouraged, and
the President was injuriously encouraged to enter upon the struggle
with Congress over the question of Reconstruction.
On the evening of the 22d of February, three days after his successful
veto, the President made a most important speech from the steps of the
The President's 22d
of February speech.
White House to a large popular meeting assembled to congratulate him
upon his victory. He was betrayed by his elation and warmth into an
abusive denunciation of his enemies, once, and only a few months
before, his best friends. He went so far as to declare that Stevens and
Sumner and Phillips and others like them were, in his opinion, laboring
as assiduously to destroy the fundamental principles of the government
as were the leaders of the rebellion. After such an open challenge, the
contest was nearly unavoidable. It was not avoided, whatever might have
been the possibilities of re-establishing harmony. And it cannot be
denied that, from this moment, personal rancor against the President
filled the heart of Stevens, at least, if not of the others. The
President's utterances were, indeed, highly exasperating, and it would
have required a very large measure of public virtue to have ignored them.
[p. 68]
As a part of the same plan for securing the civil rights of the
freedmen against the hostile legislation of the President's
The Civil
Rights Bill.
reconstructed "States," the Judiciary Committee of the Senate reported
a Civil Rights bill to the Senate one day before it reported the
Freedmen's Bureau bill, that is, on the 11th of January. The right of
way, so to speak, was, however, given to the latter bill, and Congress
was nearly two months longer in perfecting the former than the latter.
This Civil Rights bill certainly avoided many of the most serious
objections which could be truthfully made against the Freedmen's Bureau
bill. It was not a war measure in a time of peace. It did not provide a
privileged jurisdiction for any class, and it did not create an army of
new officials to drain the Treasury and increase the patronage of the President.
The purpose of it was simply to establish equality in the enjoyment of
civil rights for all citizens of the country and to make all persons
born in the country and not subject to any foreign power citizens. The
substantial part of the bill, as perfected, read: "All persons born in
the United States and not subject to any foreign power, excluding
Indians not taxed, are hereby declared to be citizens of the United
States; and such citizens of every race and color, without regard to
any previous condition of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall have the same right, in every State and Territory in the United
States, to make and enforce contracts, to sue, be parties, and give
evidence, to inherit, purchase, lease, sell, hold, and convey real and
personal property, and to the full and equal benefit of all laws and
proceedings for the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment, pains and
penalties, and to
[p. 69]
none other, any law, statute, ordinance,
regulation or custom, to the contrary notwithstanding."
This is simply equality for all before the law. It conferred no
political privilege and no social equality. It was fairly within the
power of Congress to pass such a measure, by interpreting broadly the
Thirteenth Amendment, without having any recourse to the idea of war
powers. Slavery was nothing but extreme inequality in civil rights
between master and servant. The prohibition of slavery and involuntary
servitude could, therefore, most certainly be held to be the
prohibition of all of these incidents.
The remaining provisions of the bill did nothing more than fix
penalties for violating, or attempting to violate, civil equality as
thus defined, designate the officers charged with the duty of
prosecuting the offenders, and establish the jurisdiction for the trial
of such cases.
The penalties were somewhat grave. They might be as severe as a fine of
one thousand dollars, or imprisonment for a year, or both, in the
discretion of the courts. But they were not cruel or unusual, and were,
therefore, within the power of Congress to prescribe. The officers
authorized and required to institute proceedings against violators of
the law were the district attorneys, marshals and deputy marshals of
the United States courts, the commissioners appointed by the Circuit
and Territorial courts of the United States, the officers and agents of
the Freedmen's Bureau, and every other officer whom the President might
see fit to empower thereto. And the jurisdiction established for the
trial of such cases was that of the United States courts, upon which
was conferred original and exclusive jurisdiction in any case under the
law, and to which any case touching these subjects commenced in a
"State" court could
[p. 70]
be removed on motion of the defendant. But all
these things were authorized by a liberal construction of the
Thirteenth Amendment, which expressly vests in Congress the power to
make all laws necessary and proper to enforce the prohibition of
slavery throughout the whole country.
It was, indeed, a great change in the system of the jurisprudence of
the United States that the central Government should define and protect
The measure sound
from the points of
view of modern
jurisprudence and
modern political
science.
civil equality within the States. But it was a change which history had
forced upon the country, and the sovereign power of the nation had
deliberately legalized it. There is no question now that it was sound
political science, too, and that it was required by public morality.
Real civil liberty is always national. Its concepts and principles
spring out of the national consciousness of rights and wrongs. And
civil equality is the first principle of modern justice, the most
pressing behest of the public morality of the age. Moreover, this
measure did not militate against the President's plan of
Reconstruction. He could have accepted it without compromising that
plan in the slightest, and it was a monumental blunder on his part that
he did not do so.
On the 27th of March, he sent his veto of the bill into the Senate. It
was a weak argument throughout. He objected to making the freedmen
The veto
of the bill.
citizens by an act of Congress, while eleven of the thirty-six "States"
were unrepresented in Congress, and made out that it was a
discrimination in favor of the ignorant negro against the intelligent
foreigner not yet naturalized. He objected to the extension of the
powers of the central Government in behalf of civil equality within the
"States" as destructive of the federal system of government, and as
degrading to the
[p. 71]
legislators and officials of the "States." He did
not deny that the proposed measure might be sustained as constitutional
under the Thirteenth Amendment, but maintained that it was unnecessary
for the execution of the provisions of the Amendment. He objected,
further, to the number of officers and agents authorized to institute
proceedings under the measure, to the fee which they should receive,
and to the power of the President to order the courts of the United
States to migrate from one place to another when necessary for the
prompt administration of justice. And he objected, finally, to the
power vested in the President to use the land and naval forces and the
militia to prevent the violation, and enforce the due execution, of the measure.
Now all this was easily answered from the point of view which Congress
and the North had now firmly taken, viz.: that the eleven former
"States" in which rebellion had for so long prevailed were not
"States," although the territory formerly occupied by them, and the
population formerly inhabiting them, were within the United States and
were subject to the jurisdiction of the central Government; that the
rebellion had demonstrated that the central Government must be
intrusted with a large increase of powers in protecting civil equality
and civil liberty; and that the sovereign Nation had willed this in the
enactment and adoption of the Thirteenth Amendment to the Constitution.
Really there was but one thing in the bill susceptible of successful
criticism, and that could be explained so as to avoid it. It was the
Criticism
of the bill.
ninth section, which authorized the President to use military power in
execution of the law. The language would permit the President to use
the military before bringing the matter before the courts and securing
a decision. It would permit the President to use the military as the
[p. 72]
primal, instead of the final, agency for executing the law. It
appeared to be in this respect a real force bill, that is a bill in
which the Executive is empowered to use the military, not for the
enforcement of judicial decision in aid of the marshals, deputies,
constables, and their posses, which is the customary order in time of
peace, but for the execution of the law in the first instance, before
decision rendered or trial had. But it was entirely clear that what was
meant in this section of the bill was that, when combinations too
powerful to be dealt with by the courts and their officers should
undertake to prevent the execution of the law, the President might use
the military to overcome them. Under such an interpretation, this
provision was justifiable and proper, certainly so in a transition
period from a condition of general rebellion against the laws of the
United States to that of gradual, and only gradual, acquiescence in
their enforcement.
The President most decidedly lost his chance of rehabilitating himself
with his party, and leading it in the work of Reconstruction, by not
The
President's
blunder.
signing this bill. He sinned against the Southerners themselves in not
doing so. His veto of it made them believe that they could count upon
the Administration, the Administration Republicans, and the whole
Democratic party of the North, in denying equal civil rights to the
freedmen, and that such a combination must eventually triumph. They,
therefore, persisted in their course of exceptional legislation against
the freedmen in the South, and in their arrogant demands for the
immediate admission to seats in Congress of the very men who had led
the rebellion for four years against the sovereignty and Government of
the United States. It is amazing that they did not see that the large
Republican majority in Congress would
[p. 73]be driven to the alternative
of seeing the work of four years of terrible sacrifice undone or of
The veto
overridden.
securing its permanence by making such changes in the organic law as
would effect it, while yet they had the power. On the 6th of April, the
Senate overrode the President's veto of the Civil Rights bill, and on
the 9th the House did likewise.
While, as we have seen, the President did not exactly deny the
constitutionality of the bill, the Democrats in Congress, and the
The Fourteenth
Amendment.
Southerners seeking seats in Congress, did. There was, therefore, but
one course left open to the Republican majority, and that was to make
what they considered to be the incidents of the Thirteenth Amendment
express provisions of the Constitution. There were also several other
things which had become clear in the course of the debates in the Civil
Rights bill and the Freedmen's Bureau bill.
In the first place, it was seen that the emancipation of the slaves
would increase the representation in Congress and in the Presidential
electoral college from the old slave "States" by two-fifths whenever
the Southern communities should be recognized as "States" again, and
that too without the admission of the emancipated persons to the
exercise of political suffrage. It was certainly to be apprehended
that, with such increased representation, the Southern members and the
Northern Democrats would constitute a majority in Congress and in the
electoral college, and might proceed not only to repeal the Civil
Rights Act, and all acts in behalf of the freedmen, but also to throw
the Confederate debt or a part of it upon the United States, or
establish pensions for Confederate soldiers, or even repudiate the debt
of the Union made in defence of its own life. While the danger of these
things was, probably, somewhat
[p. 74]
exaggerated, still it would not
have been becoming for men of prudence and patriotism to have failed to
provide against them. Really there was but one thing to do, and that
was to enact, and secure the adoption of, another amendment to the
Constitution covering these points, while the power to do so still existed.
It would be an agreeable thing to the writer of this period of American
history, were he able to record that the principal matter which
The political
provision in
the proposed
Fourteenth
Amendment.
occupied the thought and attention of the Committee on Reconstruction
was how to secure the necessary civil rights of the freedmen. But in
the interest of exact truth he is compelled to forego this pleasure.
The first thing which that Committee considered and recommended to the
Houses of Congress was the political matter of a redistribution of the
representation in the House of Representatives and in the Presidential
electoral college. On the 22d of January (1866) the Committee reported
to the two Houses the following proposition as an amendment to the
Constitution of the United States: "Representatives and direct taxes
shall be apportioned among the several States which may be included
within this Union according to their respective numbers, counting the
whole number of persons in each State—excluding Indians not
taxed—provided, that whenever the elective franchise shall be denied
or abridged in any State on account of race or color, all persons of
such race or color shall be excluded from the basis of representation."
For nearly six weeks both the Committee and Congress were occupied in
the discussion of this proposition. In a slightly modified form it was
adopted in the House, but, at last, on the 9th of March, it came to
vote in the Senate, and not having received the necessary two-thirds
majority, it was abandoned as a separate measure, and
[p. 75]merged into
the general article containing the regulations of all the points to
which reference was made above.
It was Monday, April 30th, before the Committee was ready to report the
entire article, which took the name of the Fourteenth Amendment to the
Constitution. The article as presented to the Houses of Congress by the
Joint Committee on that day read as follows:
"Sect. 1. 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.
"Sect. 2. Representatives shall be apportioned among the several States
which may be included within this Union according to their respective
numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But whenever in any State the elective franchise
shall be denied to any portion of its male citizens not less than
twenty-one years of age, or in any way abridged, except for
participation in rebellion or other crime, the basis of representation
in such State shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens not
less than twenty-one years of age.
"Sect. 3. Until the 4th day of July in the year 1870, all persons who
voluntarily adhered to the late insurrection, giving it aid and
comfort, shall be excluded from the right to vote for Representatives
in Congress and for electors for President and Vice-President of the
United States.
"Sect. 4. Neither the United States nor any State shall assume or pay
any debt or obligation already incurred, or which may hereafter be
incurred, in aid of [p. 76]
insurrection or war against the United States,
or any claim for compensation for loss of involuntary service or labor.
"Sect. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this Article."
The chief difficulties with these provisions were, first, that they did
not define who were the citizens of the United States; second, that
Defects in the
first draft of the
Amendment.
while they disfranchised for two or three years all who had voluntarily
taken part in the rebellion, they did not disqualify anybody from
holding office or legislative mandate on account of such conduct; and
third, that while they forbade the payment of any debt or obligation
incurred in aid of rebellion, they did not guarantee those incurred in
the suppression of such rebellion.
The discussion in Congress upon these provisions lasted through the
month of May and well into June. At last in the second week of June,
The discussion of the
propositions in Congress.
the two Houses arrived at an agreement upon the modifications which
seemed proper and necessary, and the Article as thus perfected was
adopted by the necessary two-thirds vote in each branch.
The first section had been modified by the incorporation into it of a
sentence which defined citizenship of the United States. It reads: "All
The final draft
agreed upon.
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the
State wherein they reside." This cleared up all difficulties in
determining who the persons were, whose privileges and immunities were
to be protected against "State" action. It also settled the question,
forever, as to whether citizenship of the United States or citizenship
of the "State" is primary. There is no doubt that in that clause of the
original
[p. 77]
Constitution which declares that the Constitution of the
United States, and the laws of Congress made in accordance therewith,
and the treaties made under the authority thereof, are the supreme law
of the land, no matter what may be found in "State" constitutions or
laws to the contrary, primary allegiance of all citizens and persons to
the United States was established and required, but the advocates of
"State" sovereignty always contended that, because there was no express
clause in the Constitution defining citizenship, and declaring the
citizenship of the United States primary, citizenship was primarily of
the "State," and, hence, allegiance was due primarily to the "State" by
all its inhabitants. It was very proper and very desirable that this
contention should be set at rest.
The language of the second section had been revised so as to make its
meaning more clear, but it had not been changed at all as to its
meaning. It reads in its perfected form: "Representatives shall be
apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the
choice of electors for President and Vice-President of the United
States, Representatives in Congress, the executive and judicial
officers of a State, or the members of the legislature thereof, is
denied to any of the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion or other crime, the
basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such State."
For section third, denying suffrage until 1870 to all
[p. 78]persons who
had given aid voluntarily to the rebellion, Congress had substituted an
entirely new resolution, which rendered the Confederate chieftains
ineligible to office instead of disqualifying the rank and file for
suffrage. It reads as follows: "No person shall be a Senator or
Representative in Congress, or elector of President and Vice-President,
or hold any office, civil or military, under the United States, or
under any State, who having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any
State legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may, by a vote of two-thirds of each
House, remove such disability."
This was certainly a wise change. It certainly could not be contended
that disqualifications for holding office and legislative mandate
violated any so-called natural right. It was better that whatever
punishments of a political nature might fall upon the Confederates
should strike the leaders, rather than the followers. And it was not a
severe punishment which required that, for a time at least, the people
inhabiting the communities lately in rebellion should choose as their
representatives to the National legislature and to the Presidential
electoral college, and as their "State" officers, men not identified
with the rebellion so closely as to have been among its leaders. It is
difficult to see how the Confederate leaders could have been required
to suffer less, and have been rebuked at all for their acts.
Finally, section four was supplemented by a sentence which declared
that "the validity of the public debt of the United States, authorized
by law, including debts
[p. 79]
incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion, shall
not be questioned." The last words of the section were also somewhat
modified in the direction of greater emphasis, but the meaning remained
the same. As thus perfected, the section declared the validity of all
the existing obligations of the United States, and repudiated all
obligations whatsoever assumed in aid of rebellion, and all claims for
the loss or emancipation of any slave. This covered the ground
completely in regard to the security of the public obligations of the
United States both from the positive and negative side, and it
prevented both Congress and the "States" from ever recognizing, in the
future, the claim for any relief from the natural consequences of
unsuccessful rebellion, and the right to any compensation for
deprivation of property in man.
As Congress passed these propositions by the necessary two-thirds
majority they were not submitted to the President at all, it being
considered that his disapproval, if given, would avail nothing against
such a majority. This has been the custom from the first in
Congressional propositions of amendment, and it is now too late to
dispute its regularity. But it is easy to see that the President might
support a veto of such propositions by such reasoning as to make it at
least possible that sufficient votes might be changed from affirmative
to negative upon them, to finally defeat them; and it is certainly true
that the Constitution requires that every bill, order, resolution, or
vote to which the concurrence of the Senate and House of
Representatives may be necessary (except on a question of adjournment)
shall be presented to the President and is subject to his approval or
veto, no matter by what majority it may have been passed.
[p. 80]
However, President Johnson had no opportunity to express himself
officially or make himself officially felt in regard to this Amendment.
The President's attitude
toward the proposed
amendment.
It was pretty well understood that he did not view it with favor while
it was pending, and it soon became manifest that he was advising its
rejection by the "States."
Mr. Seward issued his notification of the passage of the amendment by
Congress to the "State" legislatures for their ratificatory action on
Mr. Seward's
acts in regard to
ratification.
the 16th of June. He sent the same to the legislatures of all the
"States," that is, to the legislatures of those bodies claiming to be
"States" under the President's plan of Reconstruction, as well as to
the legislatures of those "States" which had never pretended to secede
from the Union. This was, again, certainly a recognition of all these
bodies as "States" of the Union by the executive branch of the
Government, at least.
On the other hand, the Reconstruction Committee of Congress had
reported a bill along with the Article of Amendment, which virtually
The requirement that
the ratification of the
proposed Amendment
should be the condition
of the admission of
the Senators- and
Representatives-elect
to seats in Congress.
proposed to make the ratification of the proposed Amendment by the
respective legislatures of the reconstructed Southern communities the
condition of the admission of the Senators- and Representatives-elect
from them to seats in Congress. That is, it was proposed that Congress
should make its recognition of the reconstructed bodies as "States"
conditional upon their ratification of the Article of Amendment. Or
perhaps some of those supporting this proposition would have preferred
the statement that it was proposed that Congress should make its
recognition of the reconstructed governments of the "States" in which
secession had
[p. 81]
been attempted conditional upon the ratification of
the Amendment by the legislative departments of these reconstructed
governments respectively.
No matter how it might have been stated, it was an absurdity. The true
theory on this point was that held by Mr. Stevens, viz., to consider
The absurdity of
the condition.
only those "States" which had never attempted secession, those "States"
which had never been members of the Southern Confederacy, as
constituting the "States" of the Union at that moment, and all other
territory and people subject to the jurisdiction of the United States
as being under the exclusive government of the central Government; to
amend the Constitution by a three-fourths majority of these loyal
"States"; and then to admit these reconstructed communities as new
"States" into the Union with its amended Constitution.
The amended Constitution would then have the same power over them as if
the Amendment had been ratified by them. In fact, their petition for
admission or recognition as "States" of the Union with the amended
Constitution would imply their assent to the Amendment as well as to
every other part of the Constitution. The more moderate Republicans
feared that the Southern communities would not feel obligated by a
Constitution amended in this way. It is difficult to see why they
should not. The Southern statesmen knew that Congress had no power
under the Constitution to require of new "States" obedience to anything
as a condition of their admission to the Union, but the Constitution as
it was at the moment of their admission. Looked at from the point of
view of the present, it would certainly appear that the exaction of
such an unlawful promise, imposing such a degrading discrimination,
would have been far more exasperating than anything else which could
have been invented or imagined.
[p. 82]
Enough of them saw this to prevent Congress from enacting the bill
proposed by the Reconstruction Committee into a law, and when the
proposed Amendment went to the legislatures of the "States," there was
no requirement attending it which appeared to deprive any legislature,
or body claiming to be a legislature, of its discretion in dealing with
the subject.
As a matter of fact, however, the legislature of Tennessee ratified the
proposed Amendment within about a month after receiving the Article
The precedent set
by Tennessee.
from Secretary Seward, and Congress thereupon passed the following
joint resolution and sent it to the President for his signature:
"Whereas in the year 1861 the government of the State of Tennessee was
seized upon and taken possession of by persons in hostility to the
United States, and the inhabitants of said State, in pursuance of an
act of Congress, were declared to be in a state of insurrection against
the United States; and whereas said State government can only be
restored to its former political relations in the Union by consent of
the lawmaking power of the United States; and whereas the people of
said State did, on the 22d of February, 1865, by a large popular vote,
adopt and ratify a constitution of government whereby slavery was
abolished and all ordinances and laws of secession and debts contracted
under the same were declared void; and whereas a State government has
been organized under said constitution which has ratified the amendment
to the constitution abolishing slavery, also the amendment proposed by
the thirty-ninth Congress" (the Fourteenth Amendment) "and has done
other acts proclaiming and denoting loyalty: Therefore,
Be it resolved
by the Senate and House of Representatives in Congress assembled, That
the State of Tennessee is hereby restored to her former practical
relations to the
[p. 83]
Union, and is again entitled to be represented by Senators and Representatives in Congress."
These proceedings made it certain that, while Congress had failed to
pass any formal act making the acceptance of the proposed Fourteenth
The Tennessee
precedent.
Amendment a condition precedent to the readmission of the other
"States" which had been in rebellion, Congress would not readmit any of
them which did not do this. Tennessee, it was thought, had sinned the
least of all, and, therefore, should be readmitted on lightest terms.
More might be righteously required of the others, but not less.
The President signed the resolution, but accompanied the same with a
short message in which he made a rather telling criticism upon the
The President's message in
regard to the rehabilitation
of Tennessee.
procedure of submitting proposed constitutional amendments to bodies
not already "States" in the Union, and warned Congress against
construing his approval as committing him to all of the statements of
fact contained in the preamble to the resolution, or to the doctrine
that Congress had any right "to pass laws preliminary to the admission
of duly qualified Representatives from any of the States." These latter
words manifest the fact that the President was still holding on to the
idea that the whole function of Congress in Reconstruction consisted in
the power of each House to judge of the election and qualifications of
its members.
[p. 84]
CHAPTER VI
THE CONGRESSIONAL PLAN (Continued)
The Reports of the Committee on
Reconstruction—The Idea of a New
Electorate as the Basis and Condition of Reconstruction—The Freedmen's
Bureau Act of July 16th, 1866—The Disaffection in the
Cabinet—The New
Orleans Riot—The Issue of Reconstruction in the Campaign
of 1866—The
Congressional Election of 1866—The President's Final Proclamation
Declaring the Civil War Ended—The October Elections—The President's
Message of December 3d, 1866—Rejection of the Proposed Fourteenth
Amendment by the Legislatures of the Reconstructed "States."
Two days after the transmission of the Fourteenth Amendment to the
"State" legislatures, the Joint Committee of Congress on
The reports of the Committee
on Reconstruction.
Reconstruction made its final report, or rather reports, since there were two of them,
one being signed by all the Republican members of the Committee, and
the other by all the Democratic members.
The majority report was an able defence of the view, that by rebellion
and attempted secession the eleven "States" in which these things
The majority
report.
happened had lost their "Statehood" and had become disorganized
communities, but that while they could and had destroyed "State"
government, and placed themselves outside of the Union so far as
exercising the powers and privileges of "State" local government was
concerned, they could not, and had not, escaped the obligations of the
Constitution and the authority of the
[p. 85]central Government. The
exact language of the report on this point was: "The Constitution, it
will be observed, does not act upon States, as such, but upon the
people; while, therefore, the people cannot escape its authority, the
States may, through the act of their people, cease to exist in an
organized form, and thus dissolve their political relations with the
United States." The doctrine is here more clearly expressed than in
other places, but even here there is a confusing modification contained
in the words "in an organized form." It would have been much clearer if
they had been entirely omitted. The framers of the report were
evidently haunted by that spectre of an abstract, unorganized "State,"
which has played such havoc with good sense in some of the subsequent
decisions of the Supreme Court, and which is nothing more than a
Platonic idea.
Based upon this doctrine, the majority report naturally vindicated the
exclusive right of Congress in the work of Reconstruction, which work
was virtually the admission of new "States" into the Union. It,
furthermore, demonstrated that the situation in these disorganized
sections was one largely of exhausted disloyalty only, and that all
that the inhabitants of them had done under the President's
Reconstruction policy was directed toward putting the same men in power
who had led in the rebellion and toward denying civil, to say nothing
of political, rights to the freedmen.
And its final conclusion was, "that Congress would not be justified in
admitting such communities to a participation in the government of the
country without first providing such constitutional or other guarantees
as would tend to secure the civil rights of all citizens of the
Republic; a just equality of representation; protection against claims
founded in rebellion and crime; a temporary restoration of the right of
suffrage to those
[p. 86]
who have not actively participated in the
efforts to destroy the Union and overthrow the Government; and the
exclusion from positions of public trust of at least a portion of those
whose crimes have proved them to be the enemies of the Union, and
unworthy of public confidence."
As we have seen, the proposed Fourteenth Article of Amendment had
provided for all of these things, except the direct conferring of
suffrage on anybody. With this exception, it had gone even further, in
its provision declaratory of citizenship, and in its protection of the
public debt of the Union.
The report of the minority, that is of the three Democrats, was written
by Mr. Reverdy Johnson, of Maryland. It was, as a lawyer's brief, an
The minority
report.
able presentation of the view that a "State" of the Union can never
become anything else than a "State," no matter what may be the
character, deeds, attempts or disposition of the people who inhabit it,
and is at all times entitled to the same powers, rights and privileges,
under the Constitution of the United States. It was, however, the
veriest dry bones of legal reasoning, the veriest sophistry of juristic
abstraction. There was no political science in it, no common sense in
it, and it ended with an unfortunate and irritating defence of
President Johnson's personal loyalty, which had not been in the
slightest degree impugned by the majority.
The majority report indicated, at least, that Congress might require
something more than adoption of the Fourteenth Amendment by the
communities lately in rebellion before they would be recognized as
having been restored to their proper relations in the Union as
"States," and entitled to representation in Congress. At the moment,
however, it is probable that a prompt adoption of
[p. 87]the proposed
Amendment by any of the reconstructed legislatures would have been
followed by a joint resolution on the part of Congress similar to that
The idea of a new
electorate as the
basis and condition
of Reconstruction.
enacted in the case of Tennessee. There is no doubt that many of the
more radical members of Congress had been long considering the question
of creating an entirely new electorate in the South as the only proper
basis for reconstruction, and that some of the conservatives, from
being opponents of this idea at the beginning of the year, had, by the
middle of it, begun, at least, to waver. To those who could read the
signs of the times correctly, it was manifest that a rejection of the
proposed Fourteenth Amendment by these communities would lead Congress
forward upon that line. The President ought to have understood this,
when Mr. Raymond voted for the proposed Amendment in the House. He
ought to have done all in his power to influence the reconstructed
communities to adopt the proposed Amendment, no matter whether the
submission of it to them by the Secretary of State of the United States
logically involved their recognition as "States" of the Union by the
Administration at Washington, or not. They were not in a position to
exact the precise conclusion of a logical process in their favor,
especially as it was based on a fallacious premise, and the President
did both himself and them a great wrong in not discouraging them from
so doing.
A few weeks later Congress scored another victory over the President,
one which did much toward wiping out the defeats of February 19th and
The Freedmen's
Bureau Act of
July 16th, 1866.
21st. It passed another Freedmen's Bureau Bill, and then repassed it
July 16th, over the President's veto. This bill was framed with the
purpose in view of avoiding those features of the bill, successfully
vetoed by the President on February 19th preceding,
[p. 88]which had
influenced certain Republicans to sustain the President's veto. The
differences between the two measures consisted in the following points.
The first bill had no definite time limit; the second would expire in
two years from the date of its passage. The first bill vested
jurisdiction in the Freedmen's Bureau over the civil rights of freedmen
and refugees in all parts of the United States. The second vested the
bureau with jurisdiction over loyal refugees and freedmen without
mention of place. The first vested a most sweeping power in the Bureau
to give all kinds of aid and support to the destitute refugees and
freedmen. The second contained only the more moderate provision of the
original law of March 3d, 1865, on that subject. Finally the first gave
the Bureau jurisdiction over the civil rights of freedmen and refugees,
not only when the deprivation of them was the consequence of rebellion,
but when it was effected by
any local law, ordinance, police
regulation or other regulation. The second, on the contrary, limited
the jurisdiction of the Bureau to those cases where the deprivation was
the consequence of rebellion.
The President could not, however, see much difference between them. He
claimed that his objections to the first bill were valid against the
The veto of
the measure.
second. The second measure, he contended, was only a war measure for a
definite period, in a time of peace. It was the prolongation for a
definite time of military jurisdiction over civil matters, when the
civil courts both "State" and Union were open and in the unhindered
discharge of their business. And he held the ground that Congress had
no more constitutional power to create, or perpetuate, military
jurisdiction over civil matters for a definite period in time of peace
than for an indefinite period. He referred to the fact that the Civil
Rights measure, just passed over his veto, met all
[p. 89]the points
provided for in the Freedmen's Bureau bill, and affirmed that all of
the provisions of that law would be executed by him through ordinary
civil means, in so far as they should not be repealed by Congress or
declared unconstitutional by the courts.
From the point of view of to-day it is difficult to see why the
President was not right. There is no doubt that the Freedmen's Bureau
Correctness of the
President's views.
with its powers, jurisdiction and charities, was a far greater source
of irritation in the South than was the presence of the United States
army. While its superior officers were generally men of ability and
character, a large number of the subalterns were canting hypocrites and
outright thieves. They kept the negroes in a state of idleness, beggary
and unrest, and made them a constant danger to the life and property of
the whites; and their veritable tyranny over the white population did
more to destroy Union sentiment among the whites and make them regard
the United States Government in a hostile light than anything which had
happened during the whole course of the rebellion. It was an
institution which ought to have been dispensed with the instant that
the necessity which called it into existence passed away. The law of
March 3d, 1865, had still about eight months to run, and Congress would
be in session again four months before it would expire. There was ample
opportunity for prolonging the law, and that law, it was to be
presumed, was less needed in 1866 than in 1865. It took all of the
party discipline of the Republicans to prevent sufficient disaffection
in their ranks to sustain the President's veto. On the merits of the
question alone they could not have done it. They were in error, and
many of them knew it, but they were now in to fight the President and
they must stand together.
[p. 90]
The veto of the bill was dated July 16th, and the two Houses repassed
it over the veto on the same day. The new law was to be executed
The veto
overridden.
through the War Department, as the original measure had been, and the
Secretary of War had begun to manifest that indecent hostility to the
President which disgraced the last years of the Administration. The
President was largely cut off from even the knowledge of what was
taking place in the operations of the Freedmen's Bureau, and Mr.
Stanton now managed it in such a manner, whether intentional or not, as
to cause the greatest possible friction between the Government and the
whites of the South, and thus to retard the process of Reconstruction
and to destroy what had been already accomplished in that direction.
Besides Stanton, three other members of the Cabinet had showed their
disaffection toward the President's policy. They were Mr. Speed, the
Disaffection
in the Cabinet.
Attorney-General, Mr. Dennison, the Postmaster-General, and Mr. Harlan,
the Secretary of the Interior. During the course of the month (July)
these three gentlemen resigned their offices, and were replaced by Mr.
Stanbery, Mr. A. W. Randall, and Mr. O. H. Browning. Their sense of
propriety would not permit them to retain high office under the
President while differing with him so widely in regard to the
fundamental question of Reconstruction. Mr. Stanton, however, took a
Stanton's
attitude
toward the
President.
different view of his duty. He seemed to feel that he was under
obligations to his country to remain in the President's Cabinet, at the
head of the most important branch of the Administration at that moment,
and protect the country against the purposes of the President. He was
sustained in this view by the Republican majority in Congress, which
soon entered upon its course of depriving
[p. 91]the President of his
military control even, by transferring his functions to the Secretary
of War and the General of the army. To the men of the present day, Mr.
Stanton's conduct appears, at least, lacking in a proper sense of
delicacy. It may be regarded in an even more serious light. It may be
looked upon as a conspiracy with the Republican majority in Congress to
rob the President of his constitutional prerogatives, to change the
form of government from the presidential system to the parliamentary
system of administration. It is difficult to find any sufficient
defence for Mr. Stanton's course. It is impossible to clear him of the
appearance of great egotism or of great greed of office, in not
resigning along with his dissatisfied colleagues.
The President knew of this difference of feeling between himself and
his War Secretary at the time of his reorganization of the Cabinet in
July, and would undoubtedly have been glad to receive his resignation,
but he did not ask for it. The newspapers which sustained the
Administration did, however, and predicted that it would be
forthcoming. The Republican leaders, on the other hand, encouraged
Stanton to hold on to the office, and represented to him that the
welfare of his country demanded the sacrifice of his personal feelings
in the matter.
It was now generally proclaimed throughout the North that the rebel
chieftains had repossessed themselves of the reconstructed "State"
The opinion and feeling
in the North concerning
the condition of things
in the South.
governments and were making use of "State" powers to re-enslave the
freedmen. It was also proclaimed that the life and property of Union
men, of whatever race, at the South were utterly insecure, and that at
least a thousand men had been murdered in that section within a year's
time, without any considerable number of the
[p. 92]murderers having been
brought to justice. And it was asserted that the President of the
United States had deserted the party of the Union, the party which had
elevated him to the chief magistracy of the land, and was now
conspiring with his old party friends, the Democrats, in both the North
and the South, to drive the Republican party from power and restore the
régime of the Democracy of 1860.
At this moment a horrible tragedy was enacted in New Orleans which
seemed to give verification to some, if not all, of these statements.
The New
Orleans riot.
It seems that the late Confederate leaders resident in Louisiana,
having received pardon from the President of the United States upon
fulfilling the conditions of the President's amnesty proclamation, had
got possession in 1864 of the reconstructed "State" government of
Louisiana, with the exception of the governorship and some of the
judicial offices. The constitution of 1864, made by sincere Union men,
did not exactly suit them, and the legislature in the spring of 1866
took into consideration a bill for calling another convention together
for the purpose of framing a new constitution, but the Administration
at Washington frowned upon the movement and the legislature abandoned
it. In like manner, the men who formed and established the constitution
of 1864 were displeased with the fact that the "State" government under
it had been captured at the polls by the old electorate of Louisiana,
reinstated through the President's amnesty. They also wanted to change
the constitution, to so change it as to create an electorate which
would bring them back into power again. This meant negro suffrage. Just
before the convention of 1864 adjourned, it passed a resolution vesting
in the presiding officer of the convention the power, and imposing on
him the duty, of reconvoking the
[p. 93]
convention in case the
constitution framed by it should not be ratified at the polls, or for
any other necessary reason, for the purpose of taking such measures as
might be needful for forming civil government in Louisiana.
Of course, when the constitution framed by the convention was adopted
by popular vote and a "State" government was set up under it, common
sense and common honesty would hold that the convention had been
finally dissolved, no matter how the wording of the resolution might be
forced in the opposite direction. The men of "'64" saw in this wording
their only chance, however, to rescue the "State" government from the
hands of the amnestied electorate, and in their desperation they were
determined to attempt to make use of it. A number of the members of the
old convention got together informally on the 26th of June. The
president of the old convention did not call them together, and he
would not preside at the informal meeting. He made some trivial excuse;
but there cannot be much doubt in regard to his real reason. This
informal meeting then proceeded to elect a pro tempore president,
Judge Howell, an office-holder under the constitution of 1864. It was
this man who issued the proclamation of July 7th, reconvoking the old
convention of 1864. The time appointed by him was the 30th of July at
noon, and the place designated by him was the Mechanics' Institute
Building at New Orleans. The men called together were the members of
the old convention, but to provide for any vacancies that might have
happened or might happen in the former membership of this old body,
Judge Howell called on the Governor, Mr. Wells, to issue writs of
election. The governor did so, and ordered an election of such
delegates to be held September 3d. He thus manifested his approval of
the movement.
[p. 94]
Naturally the party of the amnestied viewed this scheme for
depriving them of the "State" government by means of a new
constitution, framed by a defunct convention, and certain to contain a
provision for negro suffrage, with the most intense hostility. They
were not placated either by being referred to the consideration that
the constitution framed by this convention must be submitted to the
suffrages of the existing electorate, and must be ratified by a
majority of the same, before it could be put into operation. They had a
suspicion that the whole thing was instigated by the wicked Republicans
at the North, and that the voting upon such a proposed constitution
would be controlled by them through the military of the United States Government.
They, therefore, resolved to nip the plan in the bud by preventing the
assembly of the convention, or forcing it to disperse if it did
assemble. The mayor of the city, Mr. Monroe, the same who was mayor
when the Union army entered the city in 1862, applied to the General in
command of the United States troops in Louisiana, General Absalom
Baird, to know what attitude the military authorities would take toward
the convention, and informed General Baird that he intended to disperse
the convention if it should attempt to assemble without having the
approval of these authorities. General Baird was acting for General
Sheridan, who was absent from his post, and he replied with much more
caution than he would probably have done had he been alone responsible.
He told Mayor Monroe that he thought the Governor of the "State,"
rather than the mayor of the city, was the man to interfere with the
assembly of a body professing to be a "State" convention, if there was
to be any interference at all, and he gave the mayor to understand that
his proposed course might be perilous. This was the
[p. 95]25th of July.
Two days later the mayor went again to the General, this time
accompanied by the Lieutenant-Governor, who was of the party of the
amnestied. He now told General Baird that the police would not
undertake to prevent the assembly of the convention, or disperse its
members when assembled, but that its members would be indicted by the
grand jury and arrested by the sheriff. The General seemed to think
that the convention could lawfully assemble, but agreed with the mayor
and Lieutenant-Governor that both he and they would request
instructions from Washington.
The General applied to the Secretary of War, and the mayor applied to
the President. The General informed the Secretary of the movement to
assemble a convention; that it had the approval of the Governor; that
the Lieutenant-Governor and the municipal authorities considered it
unlawful and proposed to prevent it by arresting the delegates; that he
had declared to them that he would not permit them to do this, unless
the President should so instruct him; and he asked for orders, in the
premises, by telegraph. The Lieutenant-Governor and the
Attorney-General of the "State" informed the President of the movement
to assemble the old convention; informed him that negroes were
assembling, incendiary speeches were being made calling them to arm
themselves, and the President was being denounced; that the Governor
was in sympathy with the movement; that the matter was before the grand
jury; and that it was contemplated to have the members of the
convention arrested by criminal process; and they asked the President
to inform them whether the military authorities would interfere to
prevent the execution of the processes of the criminal court.
Secretary Stanton did not reply to General Baird's application at all.
He did not even communicate the
[p. 96]
General's application to the
President. He afterward explained that he did not consider that Baird's
telegram required any reply. Baird had said in his despatch that he had
informed the Lieutenant-Governor and the city authorities that he would
not allow them to arrest the delegates and break up the convention
unless instructed to do so by the President. The Secretary did not
propose to send the General any such orders, or to allow any such to be
transmitted to him from the President through the War Department, and
so the Secretary thought it best to let the matter rest where the
General had placed it. He did not know that the President had been
applied to by the other side, and the President did not inform the
Secretary of the despatch which he had received. The confidence between
the two men had been already so largely destroyed as to prevent even
consultation upon these grave subjects.
The President, on the other hand, answered the application made to him.
He telegraphed to the Lieutenant-Governor that the military would be
expected to sustain, and not to obstruct, or interfere with, the
proceedings of the criminal court. He did not send any orders to
General Baird, however. Whether the Lieutenant-Governor showed his
telegram from the President to General Baird or not is not positively
known, so far as the writer of these pages has been able to discover,
but it is probable that he did.
It was certainly then the understanding on all sides, at least, that
the "State" and municipal authorities would deal with the delegates to
the convention, if they interfered with them at all, through the grand
jury and the officers of the criminal court, and not through the
police. This did not mean, of course, that the police should not be
present in the neighborhood of the convention for the purpose of
keeping the
[p. 97]
public peace. They were ordered to assemble at the
stations on the morning of the 30th (July) and to bring their arms.
According to General Sheridan's report to the President, the riot was
occasioned by the marching of a procession of negroes, about one
hundred strong and partly armed, through several of the streets to the
locality of the convention. It occurred about an hour after the members
of the convention had assembled. Naturally a number of people, mostly
of the lower orders, gathered on the sidewalks of the streets through
which the procession passed. Hooting and jeering followed. Then a shot
was fired, probably by a negro in the procession. Then other shots
followed and the crowd rushed after the procession, which soon arrived
in front of the building in which the convention sat. Brickbats now
flew from each side and the riot was in full progress when the police
appeared on the scene. The procession rushed into the building, leaving
a few of its members outside. One of these and a policeman came to
blows, when another shot was fired, upon which the policemen began
firing through the windows of the building. After a few moments a white
flag was displayed from one of the windows, whereupon the firing ceased
and the policemen rushed into the building. Once in the building they
fired their revolvers upon the persons present indiscriminately and
with terrible effect. The persons who succeeded in escaping from the
building were also fired on by the police and by citizens, and many
were killed or wounded. Nearly two hundred persons were killed or
injured, mostly negroes, but some whites, and among them some members
of the proposed convention. There were no United States troops in the
city at the hour of the riot, their barracks being outside. General
Baird had ordered four companies to take position near the place of the
[p. 98]
convention, but owing to the fact that he had got the impression
that the convention would assemble at 6
P.M., he had ordered them to
repair to the assigned position at 5
P.M. They, consequently, did not
arrive until the riot was over and the convention was dispersed.
Each party considered the other the aggressor. The Republicans of the
North viewed the massacre as a new rebellion, while the amnestied
Southerners considered the riot the result of a justified resistance to
an attempt to force negro suffrage and then negro rule upon them. It is
very nearly certain that the first shot was fired by a negro, but this
would not justify the wholesale massacre executed by the police. It
could, therefore, be held by the Republicans with a great show of truth
that the public authorities of the reconstructed "State" government of
Louisiana not only would not extend the equal protection of the laws to
all persons, but would themselves deprive persons even of life without
due process of law.
The issue of the campaign of 1866 was thus made up. It was simply
whether Congress should reconstruct the President's reconstructed
The issue of
Reconstruction
in the campaign
of 1866.
"States," or rather should pronounce the President's Reconstruction,
and the Reconstruction effected by the amnestied Southerners, null and
void, and proceed to do the work
de novo, with the purpose of
creating adequate guarantee for life and property and for the equal
protection of the laws to all.
Although it was not a Presidential year, the election of the members of
the House of Representatives with such a problem to deal with, and the
election of "State" legislatures which would consider the question of
adopting the proposed Fourteenth Amendment to the Constitution, made
the canvass of 1866 a truly national
[p. 99]one. Four National
Conventions were held during the summer and early autumn, two of each party.
The Administration party led off with their great meeting in
Philadelphia on the 14th of August. There were a few prominent
The National
Conventions
of the summer
of 1866.
Republicans among the delegates, such as Montgomery Blair, Raymond,
Dix, Cowan, Doolittle and Browning, but the vast majority of them were
Democrats. All of the Southern delegates were such. The larger number
of the Northern Democrats were conservative men of the stamp and style
of R. C. Winthrop, W. B. Lawrence, S. J. Tilden, J. P. Stockton, J. E.
English and Reverdy Johnson, but there were also present men of more
radical anti-national creed, like Fernando Wood, J. G. Sinclair, and
James Campbell. Even Clement L. Vallandigham, presented himself as a
delegate. There were many, however, who objected to his presence and he
withdrew. The doctrines put forward at this meeting were simply those
of the President's Reconstruction policy, the doctrines that the
"States" in our Federal system are indestructible and immaculate, and
under submission to national authority always possessed of the rights
of local self-government and of representation in the National
Government. These doctrines were developed into such extreme forms of
statement, and such extreme results were boldly accepted as their
logical consequences, that the cause of the Administration was damaged
rather than helped at the North by the work and experiences of the convention.
Inasmuch as there had been a great display of harmony between the
leading men of the South and the Northern delegates in the convention
of the 14th of August, making it appear that the Democrats were the
party of peace and reunion, while the Republicans were
[p. 100]in favor
of a continuation of the hostile status, the Southern Republicans, or
as they called themselves the loyal Union men of the South, assembled
in considerable numbers in Philadelphia on the 3d of September, for the
purpose of conferring with the leading Republicans of the North in
regard to the condition of things in the South. Such men as John Minor
Botts, William G. Brownlow, George W. Paschal, Thomas J. Durant, M. J.
Safford, Thomas H. Benton, Lewis M. Kenzie, G. W. Ashburn, and many
more of almost equal reputation came to counsel with the leaders of the
Republican party. Many of the most important of these were there,
Trumbull, Greeley, Morton, Chandler, Schenck, Schurz, Matthews, Curtin,
Cameron, Gerry, Speed, the ex-Attorney-General, and Creswell. These are
only a few names of the eminent men who were present.
The delegates separated into two bodies, one body comprehending the
representatives from the South, and the other those from the North.
This was done in order to leave the Southerners free from undue
Northern influence. Mr. Speed presided over the Southern assembly, and
in his opening words declared the purpose of the convention to be to
determine and proclaim whether the assertion of the late Confederates
that their constitutional rights were being denied them in not
admitting their Representatives- and Senators-elect to seats in
Congress was true, or whether, on the other hand, the claim of the
emancipated that their civil and natural rights were being denied them
was true. He soon left no doubt upon the minds of his hearers as to his
own view and belief, and he denounced the President's reconstruction
work, both in principle and results, most roundly. On account of the
intimate relation in which he had stood to the President as his legal
adviser, and on
[p. 101]
account of the fact that he was a citizen of one
of the old slave-holding "States," his words had tremendous effect in
steeling the purpose of the Republicans of the North.
Under the inspiration of Mr. Speed's speech, the Southern convention
framed and fulminated an address which arraigned the President as
almost a traitor to his party and the Union, and as a friend of rebels
and of sympathizers with rebels, described the results of his
Reconstruction policy and acts as most deplorable, and urged the speedy
adoption of the proposed Fourteenth Amendment to the Constitution as
the only possible cure for the evils which were afflicting the country.
This address made up the issues of the campaign. The dividing line of
the parties now separated those who favored the adoption of the
proposed Fourteenth Amendment from those who did not. The issue was
simple, and the vote upon it was decisive, as we shall see.
The Administration party now attempted to divide the late soldiers, as
it had attempted to divide the Republicans, with but little better
effect. They got together a convention of the veterans at Cleveland,
Ohio, on the 17th of September, and had the venerable General Wool
preside over it. There were many good men and true present, among them
Gordon Granger, Rousseau, Custer, McClernand, and Thomas Ewing; and
they accused the Republicans of attempting to stir up another civil war
over the question of negro suffrage, and urged their old comrades to
insist that the status of peace, and all the consequences thereof,
existed and must be preserved.
This movement was met on the other side by the assembly of a Republican
soldier convention at Pittsburg on the 25th and 26th of September, for
the purpose of upholding Congress in its fight with the Administration
over the question of Reconstruction. The convention
[p. 102]was presided
over by General J. D. Cox, and a host of the most capable officers of
the armies of the Union, lately disbanded, participated in its
deliberations and resolves. They denounced the President's
Reconstruction policy, pronounced their adherence to Congress, and
declared for the adoption of the proposed Fourteenth Amendment as the
indispensable measure for the re-establishment of peace, justice and union.
During the summer and autumn the orators and politicians of both
parties pursued the canvass upon the basis of the doctrines put forth
The canvass of 1866.
by the conventions. A very large number, an unusually large number, of
the leading men of the country, took part in the great debate. Even the
President of the United States took part in it.
On the 28th of August he started from Washington to go to Chicago to be
present at the laying of the corner-stone of the Douglas monument. He
The "swing
around the
circle."
took with him General Grant, Admiral Farragut, three of his Cabinet
officers, Seward, Randall and Welles, and a large number of lesser
lights. Crowds gathered at all the principal stopping-places, and the
President spoke to them in defence of his policy of Reconstruction and
of his acts in the execution of it. He denounced his enemies and
opponents bitterly, and descended to undignified and even vulgar
altercation with individuals in the crowds. In his speech at St. Louis,
on September 28th, his hot temper betrayed him into an attempt to throw
upon Congress, the radical Congress, as he called it, the blame for the
New Orleans riot, and he went to the imprudent extreme of almost making
an excuse or a quasi-excuse for the riot. The whole performance of the
President upon the journey was termed "swinging around the circle," and
it both degraded the great office and its
[p. 103]incumbent, and injured
the prospects of the Administration party in the campaign.
The President had on the 20th day of August, a week before setting out
upon his tour, finally proclaimed the insurrection and Civil War at an
The President's final
proclamation declaring
the Civil War ended.
end in every part of the country. He had, on the 2d day of April
preceding, declared the insurrection at an end everywhere except in
Texas, and the proclamation of August 20th gave official witness to its
cessation in Texas. It is certainly a prerogative of the President to
proclaim the cessation of opposition to his execution of the laws of
the Union, and then to execute the same thereafter through civil,
instead of military, officers. If the President had meant no more than
this by his proclamations of the termination of the insurrection, the
position would have been unassailable. But he evidently intended his
proclamations as furnishing a basis for his Reconstruction work, or at
any rate as furnishing a great reason for the general recognition of
the validity of that work. This we can easily gather from the speeches
he made as he "swung around the circle" in the campaign of 1866. He
felt that he had solid ground under his feet, and did not appreciate
the fact that he was resting one of his doctrines upon another, the
latter being no more self-evident than the former. He felt quite sure
of victory, until what were called the "October States," at that time,
The October elections.
Pennsylvania, Ohio, Indiana and Iowa, held their elections. The two
"September States," Vermont and Maine, had largely increased their
Republican majorities, which the President had probably expected and
allowed for, but when the four "October States" gave only twelve seats
in the House of Representatives to the Democrats and nearly fifty to
the Republicans, it was pretty clearly revealed
[p. 104]that the
Administration was on the eve of a terrible defeat. It was as
overwhelming as these figures indicated. The final results showed that
the Republicans had elected one hundred and forty-three of their
The Republican
triumph in the
elections of 1866.
candidates to seats in the House of Representatives, while the
Democrats had succeeded in securing only forty-nine seats. With the
exception of Delaware, Maryland and Kentucky, all the "States"
represented in Congress had given the Republican party strong
majorities. The strength of the Democratic party was again in the
South, where the Democratic candidates for any kind of office had
almost universally succeeded. In the Senate the Republicans constituted
more than a two-thirds majority of the members, and with their almost
three-fourths majority in the House, there could be no question that,
in a contest between the President and Congress, the former would be
obliged to yield.
Notwithstanding all this, however, the President, in his Message to
Congress of December 3d, returned to the contest. He reargued his case
The President's
Message of
December 3d, 1866.
from every point of view, and with both moderation and great force. He
restated what had been done toward Reconstruction, declaring that peace
had been restored everywhere, that all the laws of the United States
and all the machinery of the United States Government were in unimpeded
operation everywhere throughout the length and breadth of the land, and
that loyal "State" governments had been restored everywhere, and lacked
but one thing of completion, viz., the admission of Representatives and
Senators from ten of the eleven "States" in which secession ordinances
had been passed to seats in Congress. He contended that all the
departments of the United States Government had proceeded upon the view
that the "States" were indestructible—the Congress, in the
[p. 105]
declaration, at the outset, that the war was not to be waged in any
spirit of oppression, nor for any purpose of conquest or subjugation,
nor purpose of overthrowing or interfering with the rights or
established institutions of the "States" which were the scene of
rebellion, but to defend and maintain the supremacy of the Constitution
and all laws made in pursuance thereof, and to preserve the Union, with
all the dignity, equality, and rights of the several States unimpaired,
and in many other acts and resolutions; the Judiciary, in all
proceedings affecting the reconstruction communities as "States"; and
the Executive, in the entire plan of Reconstruction created by Mr.
Lincoln and followed out by himself. He further contended that in
recognizing these "States" as restored to their former relations,
Congress was not running any risk of having disloyal men thrust into
the legislative chambers of the nation, because each House of Congress
could reject members-elect on account of disloyalty, and could continue
to reject until the constituencies should send up such persons as the
House could approve, and could expel any member whose conduct should
reveal disloyalty. He therefore urged Congress to acknowledge the
Reconstruction of the "States" lately in rebellion, in principle, and
to apply the powers of the two Houses in regard to the elections,
returns and qualifications of their respective members to the
individual persons elected to seats.
The President's argument fell, however, upon deaf ears. This was, it is
true, the second session of the Thirty-ninth Congress, and was not,
Ineffectiveness of
the President's argument.
therefore, composed of the persons just elected; but the influence of
the recent elections over its members had been to cow the
conservatives, strengthen the radicals, and cause the wavering to
incline to the side of the extremists. They took the
[p. 106]verdict of
the people to be that Congress should ignore the President's work in
Reconstruction, develop a plan of its own, put it into operation, and
base it upon a newly constructed electorate in the South, in which the
lately emancipated should participate. The attitude of the legislatures
Rejection of the
proposed Fourteenth
Amendment by the
legislatures of the
Reconstructed "States."
of the President's reconstructed "States" in regard to the proposed
Fourteenth Amendment also strengthened them greatly in this view and
purpose. Before the first day of January, 1867, all of these except
three had rejected it by overwhelming votes, and these three followed
the same course a little later. It was said and believed in Washington
that they had rejected the proposed Amendment contemptuously, and under
The effect of this
on the temper of
the North.
the advice of the President of the United States. It was the angry
rejection of the proposed Amendment which did more than anything and
everything else to convince the people of the North that Reconstruction
must be now undertaken by Congress, and must proceed upon the basis of
a new electorate at the South which Congress should create.
[p. 107]
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.
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
Negro suffrage in the
District of Columbia.
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.
[p. 108]
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
The President's veto of
the bill establishing
negro suffrage in the
District of Columbia.
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
[p. 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.
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
The first attempts
at impeachment.
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.
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
Stories of outrages
at the South.
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.
While, as we have seen, the Congress did not pass the proposition to
make the acceptance of the proposed Fourteenth Amendment by the newly
The Fourteenth
Amendment as the
condition of
recognizing the
revival of statehood.
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
[p. 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
[p. 111]
of the Union in which loyal civil government did not exist.
There can be no question in the mind of any sound political scientist
and constitutional lawyer that Congress was in the right, logically,
The correctness of
the Republican view.
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.
[p. 112]
The Reconstruction bill was presented from the Committee of fifteen on
Reconstruction to the House of Representatives on the 6th of February
The Reconstruction bill.
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
[p. 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.
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
The bill indefensible
from the constitutional
point of view.
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
[p. 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.
In the second place, the bill undertook to rob the President of his
constitutional prerogative of commandership-in-chief over the army, and
The bill in its attempt
to rob the President
of his office of
Commander-in-chief.
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.
The bill was the most brutal proposition ever introduced into the
Congress of the United States by a responsible committee, and it would
The brutality of
the measure.
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
[p. 115]evidence of good
political science or sound constitutional law.
The two points in the bill which the conservative Republicans were
unable to accept were, first, the establishment of martial law for an
The opposition
of conservative
Republicans to
the bill.
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. Blaine's
proposed
changes in
the bill.
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.
There is no doubt that all this, while reflecting the good moral
feeling of Mr. Blaine, was bad political science and was the very
Criticism of
Mr. Blaine's
propositions.
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
[p. 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.
Mr. Stevens acted correctly, from the point of view of political
science and constitutional interpretation, when he declined to accept
Mr. Stevens's
refusal to accept
Mr. Blaine's
amendment.
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
[p. 117]out in the Blaine amendment,
and that each Congress must at all times be left to its own discretion
Passage of the bill
by the House.
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.
This more conservative and deliberate body regarded the bill as too
radical, and after considerable debate upon a proposed amendment,
The bill in
the Senate.
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.
This substitute contained the gist of the Blaine amendment, and also
changed the provision which proposed to deprive the President of his
The Sherman
substitute.
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.
When it was returned to the House of Representatives for concurrence,
the Radical Republicans developed a most hostile opposition to the
The substitute
in the House.
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"
[p. 118]governments. After a long
The Senate
substitute
rejected by
the House.
The bill as
finally
agreed upon.
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.
It contained the following declarations and provisions. First, the
preamble designated the ten communities reconstructed under the
The contents of
the bill as passed.
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
[p. 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
[p. 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
[p. 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.
All of the points of the measure have been commented on, except the
provision in the fifth section, which makes the adoption of the
The condition that the
proposed Fourteenth
Amendment be ratified
by a sufficient number
of "States" to make it a
part of the Constitution.
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
[p. 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.
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
The Tenure-of-Office bill.
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.
[p. 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.
During the experiences of the years 1865 and 1866 the Republicans
feared that the President would use this great power of dismissal from
The reasons for the
Tenure-of-Office bill.
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
[p. 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.
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 contents
of the bill.
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
[p. 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.
From the point of view of the present this would seem, in all
conscience, to have been a sufficient usurpation of the President's
Discussion
of the bill.
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.
The bill as finally enacted contained, moreover, the most stringent
provisions for its enforcement. It made
The provisions for
enforcing the measure.
[p. 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.
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
The President's
vetoes of these bills.
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
[p. 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.
Undoubtedly, in some of the baser minds among them, the determination
to create Republican party "States" in the South was a very weighty
Republican motives
in Reconstruction.
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.
[p. 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.
As this contest developed it dwarfed, to say the least, all other
considerations. Even as late as when the Reconstruction bill was
Congressional
encroachment
on the President's
military prerogatives.
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
[p. 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.
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
The supplementary
Reconstruction 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
[p. 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
[p. 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
[p. 132]
ballot, and to proclaim the results of the elections in
accordance with the returns made to them by their boards of registration.
Congress had passed a resolution ordering the assembly of the Fortieth
Congress so soon as the Thirty-ninth expired, and in accordance
Congress in
permanence.
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.
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
The veto of the
supplemental
Reconstruction
bill.
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
[p. 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.
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
Criticism
of the veto.
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.
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
Criticism of the
Reconstruction Acts.
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
[p. 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
[p. 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.
In prompt obedience to the requirements of the two Reconstruction Acts,
the President issued his general order through the Adjutant-General's
The assignment of the
commanding generals
to the military districts
created by the
Reconstruction Acts.
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
[p. 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.
These officers betook themselves at once, with the forces attached to
their several commands, to their respective stations, and assumed the
The re-establishment of
martial law in the South.
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.
Very soon, however, the generals found great difficulty in interpreting
the Reconstruction Acts, especially in respect to the oath required for
The President's
instructions to
the generals in
interpretation of
the Reconstruction
Acts.
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
[p. 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
[p. 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.
When, then, the instructions of June 20th to the generals became known,
The Congressional interpretation
of the Reconstruction Acts.
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,
[p. 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
[p. 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.
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
The President's veto of
the bill interpreting the
Reconstruction Acts.
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
[p. 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
[p. 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."
The radical Republicans interpreted this language, at once, as meaning
that the President proposed to so interfere with the execution of the
Ideas and suspicions
about the meaning
of the message.
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.
The Houses passed the bill over the President's veto immediately, by an
The veto overridden.
overwhelming majority, and almost in a spirit of derision. The next
day, July 20th, Congress adjourned to the 21st of the following November.
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
[p. 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
The suspension of
Stanton from office.
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.
By a series of orders issued during the same month (August) General
Hancock was substituted for General Sheridan in the command of the
Changes among the
commanders of the
military districts.
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.
[p. 144]
CHAPTER VIII
THE EXECUTION OF THE RECONSTRUCTION ACTS
The Attempt to Prevent the Execution of the Reconstruction Acts in
Mississippi and Georgia—The Case of Mississippi vs. Johnson—The Case
of Georgia vs. Stanton—The Operations of the Commanders—The
Registration—The Numbers
Registered—The Change in the Electorate in
the South—The Elections—Efforts of the Commanders to Get the Vote
Out—The Result of the
Elections—The Character of the Convention
Delegates Chosen—The Work of the
Conventions—The Vote upon
Ratification—Fraudulent Voting and Unlawful Voting—The Recall of Pope
and the Appointment of Meade in His Stead—Rejection of the
Constitution in Alabama—The Statute of Congress Changing the
Proportion of Votes to Registration in the Ratification of a
Constitution—Criticism of the
Statute—Ratification in
Arkansas—Ratification in North Carolina, South Carolina, Georgia,
Florida and Louisiana—Second Attempt in Georgia to Obstruct
Reconstruction—Rejection of the Constitution in Mississippi.
Although the Supreme Court of the United States had said, in the case
of Kendall vs. the United States, in 1838, that so far as the
The attempt to prevent
the execution of the
Reconstruction Acts in
Mississippi and Georgia.
President's power is derived from the Constitution he is beyond the
reach of any other department, except in the mode prescribed by the
Constitution, through the impeaching power, and had also indicated, in
the cases of the Cherokee Nation vs. the State of Georgia, in 1831, and
Luther vs. Borden, in 1849, that it had no jurisdiction over political
questions, there still prevailed in many minds the idea that the Court
was the ultimate
[p. 145]
interpreter of the Constitution in all cases of
whatever nature, and that no person was exempted from its jurisdiction
on account of official station. Under the influence of this idea, W. L.
Sharkey, the ex-provisional Governor of Mississippi, appointed by
President Johnson in 1865, undertook to obtain from the Supreme Court
of the United States an injunction restraining the President of the
United States from carrying the Reconstruction Acts of March, 1867,
into effect. He was aided in this attempt by the Hon. Robert J. Walker,
and their client in the case, as set up by them, was the "State of
Mississippi." In a powerful argument, noted for both clearness and
frankness, Mr. Johnson's Attorney-General, Mr. Stanbery, demonstrated
that the President of the United States cannot be made subject to the
jurisdiction of any court, while in office, except only the Senate of
the United States, as the constitutional court of impeachment. The plea
of Mr. Stanbery is also notable for another thing, viz.: the frank way
in which he notified the Southerners that the President's opposition to
these laws ceased with their successful passage over his vetoes, and
that the President intended to execute them in spirit and letter, as it
The case of
Mississippi
vs. Johnson.
was his sworn duty to do. The Court decided, in 1866, in the case of
Mississippi vs. Johnson, that "a bill praying an injunction against the
execution of an act of Congress by the incumbent of the presidential
office cannot be received, whether it describes him as President or as
a citizen of a State."
Under the delusion that this decision was based entirely upon the
official exemption from jurisdiction of the person sought to be made
The case of
Georgia
vs. Stanton.
defendant, Hon. Charles J. Jenkins, Governor of Georgia, under the
reconstructed constitution of 1865, undertook, as representing the
"State of Georgia," to obtain an injunction against
[p. 146]Stanton as
Secretary of War, Grant as General of the army and Pope as commander of
the third military district, restraining them from putting the
Reconstruction Acts of March, 1867, into operation. Mr. Stanbery again
came forward, in the case of the State of Georgia vs. Stanton, with a
most able argument against the jurisdiction of the Court over the
question involved, it being, as he contended, a political question pure
and simple, and the Court again sustained him, deciding that it
possessed no jurisdiction over the subject-matter presented in the bill
for relief.
The generals now had free hand to go ahead according, pretty much, to
their own discretion. The law gave them, first until September, and
The operations of
the commanders.
then until October, to complete the registration, and they themselves
appointed and extended the times of registration at will. They
constituted the boards of registry chiefly of army officers, Freedmen's
Bureau officers, discharged Union soldiers, and negroes. Where white
residents could be found who could take the iron-clad oath, the oath
prescribed by Congress July 2d, 1862, they were also used in
The registration.
constituting these boards. The registration was quite successful in
bringing out most of those qualified to register. The reason for this
was not ready acquiescence on the part of the whites in the
Reconstruction Acts, but it was the calculation that by registering and
not voting on the question of holding a convention, or on the question
of constitutional ratification, one or both of these propositions might
be defeated, since the act of March 23d provided, as we have seen, that
a majority of the registered voters must vote in order to carry them in
the affirmative.
In Alabama the registration reached the number of 165,813, of whom
104,518 were negroes or colored. In
The numbers
registered.
[p. 147]Arkansas it reached the
number of 66,831, of whom less than half were known to be colored,
although no exact account of the proportion was reported. In Florida it
reached the number of 28,003, of whom 16,089 were colored. In Georgia
it reached the number of 191,501, of whom 95,168 were colored. In
Louisiana it reached the number of 129,654, of whom 84,436 were
colored. In Mississippi it reached the number of 139,690, of whom, it
was well known, a large majority were colored, although no exact
figures giving the proportions were reported. In North Carolina it
reached the number of 179,653, of whom 72,932 were colored. In South
Carolina it reached the number of 127,432, of whom 80,550 were colored.
In Texas it reached the number of 109,130, of whom 49,497 were colored.
In Virginia it reached the number of 225,933, of whom 105,832 were colored.
It will thus be seen that of the ten "States" to be reconstructed five
were to be recreated through an electorate in which the majority would
The change in
the electorate
in the South.
be negroes and mulattoes, about all of whom had been, three years
before, slaves; while in the other five the majority of the
constructing electorate would be whites by a comparatively small
number. This was a tremendous
bouleversement of the political society
of these sections. A large majority of the old leaders were
disfranchised completely and a goodly number of the old Unionists were
deterred by social considerations from taking any part in the work,
while negroes, "poor white trash," "carpet-baggers" and a few
self-denying respectables formed the new electorate for recreating
"State" governments.
There is no doubt that Congress had the constitutional power to do this
thing, on the theory, of course, that these communities were not
"States" of the Union;
[p. 148]
but it was a reckless thing, and a
monstrous thing. Anybody of common sense and common honesty could, at
the time, have foreseen some of the horrible results which were sure to follow.
So soon as the registration was completed, the commanders ordered
elections to be held and the vote to be taken, first, upon the question
The elections.
Efforts of the
commanders to
get the vote out.
of convention or no convention, and, at the same time, for the choice
of delegates to the conventions. The commanders did their best to get
out the vote. They met every device for keeping the negroes away from
the polls and foiled it by means of their arbitrary powers, and they
kept the polls open for two and three days, and in the case of Georgia,
for five days. There is no doubt that there was repeating, although the
military authorities exerted themselves most sincerely to prevent it.
Their purpose was not, in any case, to permit fraud, but to give every
opportunity to the freedmen to vote. Their efforts were aided by the
fact that the elections in the Northern "States" during the autumn
showed, in most quarters, large Democratic gains, and by the fact that
in one of the great Northern "States," Ohio, the proposition to
enfranchise negroes by an amendment to the "State" constitution was
rejected by a large popular majority. The effect of these facts was to
encourage the whites in the South, who had registered with the
intention of defeating the proposed reconstruction by abstention from
voting, to vote with the hope of securing a majority of the delegates
to the proposed conventions.
The result was that in all the communities to be reconstructed as
"States" a majority of the registered voters voted on the question of
The result of
the elections.
convention or no convention, and a large majority of those voting voted
in
[p. 149]
every case for the holding of the convention. The figures were
as follows: In Alabama, of the 165,813 registered voters, 96,866 voted
on the question of convention or no convention, and 90,283 voted for
holding the convention. In Arkansas, of the 66,831 registered voters,
41,134 voted on the question, and 27,576 of these voted in favor of
holding the convention. In Florida, of the 28,003 registered voters,
14,503 voted on the question, and of these 14,300 voted in favor of
holding the convention. In Georgia, of the 191,501 registered voters,
106,410 voted on the question, and of these 102,283 voted in favor of
holding the convention. In Louisiana, of the 129,654 registered voters,
79,089 voted on the question, and of these 75,083 voted in favor of
holding the convention. In Mississippi, of the 139,690 registered
voters, 76,016 voted on the question, and of these 69,739 voted in
favor of holding the convention. In North Carolina, of the 179,653
registered voters, 125,967 voted on the question of convention or no
convention, and of these 93,006 voted for holding the convention. In
South Carolina, of the 127,432 registered voters, 71,046 voted on the
question, and of these 68,768 voted for holding the convention. In
Texas, of the 109,130 registered voters, 56,129 voted on the question,
and of these 44,689 voted for holding the convention. And in Virginia,
of the 225,933 registered voters, 169,229 voted on the question, and of
these 107,342 voted for holding the convention.
The great mass of those who registered and refrained from voting were
the whites who were opposed to the Congressional Acts for
The character of
the Convention
delegates chosen.
Reconstruction, and hence the persons voting were chiefly the newly
enfranchised. This was likewise true in the voting for the delegates to
the conventions, with the result that radical men were, for the most
part,
[p. 150]
chosen. They were new men to the political society of the
South. There were a few of the old Whigs among them, who had remained
true to the Union in their sentiments during the rebellion, but the
most of them were "carpet-baggers," that is adventurers or new settlers
from the North, "poor white trash" and negroes. In the South Carolina
convention there were 63 negro delegates to 34 white. No such hideous
bodies of men had ever been assembled before upon the soil of the
United States for the purpose of participation in the creation of a
"State" of the Union, and but for the control exercised over them by
the military commanders, and the co-operation between the commanders
and the small conservative white element in these bodies, the result of
their work would have been the most ghastly travesty of justice,
common-sense, and common honesty which the republic had ever been
called upon to witness.
During the winter and spring of 1867-68 the work of these conventions
went on under the greatest extravagance and incompetence of every kind.
The work of the
conventions.
The constitutions which came from them provided for complete equality
in civil rights and, in some cases, in advantages of a social
character, such as equal privileges in public conveyances, etc. They
also not only established negro suffrage, as in fact was required by
the Reconstruction Acts, but they, in most cases, disfranchised those
whites whom the proposed Fourteenth Amendment would disqualify from
holding office. In Alabama, Arkansas and Louisiana they went even
further than this and disfranchised also, in the case of the first two,
all who "had violated the rules of civilized warfare," and in the case
of the last, all who had voted for secession, or had advocated treason
against the United States in the press or the pulpit. It is true
[p. 151]
that in most cases ways were provided for removing these disabilities,
but they were generally connected with such self-stultifying
requirements as to make them worthless.
The restrictions upon eligibility to hold office or mandate were in
general the same as those imposed on the exercise of the suffrage, and
in some cases they went even further, as in the cases of the
Mississippi and Virginia instruments, by both of which anybody who had
voluntarily participated in the rebellion, or had voluntarily given aid
or comfort to those who had, was disqualified.
The next step in the procedure was the submission of these
constitutions to the voters. The registration was effected in the same
The vote upon
ratification.
manner as for the vote on the question of holding the conventions, and
the election of the delegates; and the elections were held, as before,
under the direction and control of the military commanders. The voting
upon the question of ratification came off first in Alabama. General
Pope had issued orders that the votes of persons registered in one
precinct might be received in another, and that "State" officers and
legislative members should be elected at the same election with the
vote on ratification, and by the same voters. There is no doubt that
the General only desired to secure the freedmen, who were then moving
about restlessly, in their right of suffrage under the Reconstruction
Acts, and to expedite the process of reconstruction so far as possible.
But he undoubtedly opened the door to fraudulent voting by offering
Fraudulent
voting and
unlawful
voting.
unrivalled opportunities for repeating, and he also violated the law
and practice under the Constitution of the United States in regard to
the qualified electors of "State" officers and legislators. Such
officers and legislators could have been constitutionally elected only
by the electors
[p. 152]
designated in the constitution submitted for
adoption. The qualifications of the electors who vote upon the question
of the adoption of the first "State" constitution are necessarily fixed
by Congress, but Congress has no constitutional power to fix the
qualifications of the electors of "State" officers and legislators.
Neither has the constitutional convention, which frames the first
"State" constitution any such power, for the constitution which it
frames is only a proposition, and ratification by the electors
designated by Congress is necessary to its validity. Furthermore, any
resolution which it might pass ordering the election of "State"
officers or legislators by the electors designated by the Congressional
statute is only a proposition to those electors, which must be accepted
by them by a preliminary vote before they can proceed to the election
of such officers and legislators. The General certainly did not
understand these niceties of constitutional law and practice, and his
The recall of
Pope and the
appointment
of Meade in
his stead.
desire to hurry up the re-establishment of civil government was rather
laudable than otherwise. The President, however, who had in his
Attorney-General one of the ablest lawyers of the country, understood
well the constitutional limitations upon the General's powers and
duties. He recalled the reckless commander and sent the more
conservative Meade to take his place, December 28th, 1867.
Before the election came off, however, a bill was introduced into
Congress, and passed the House of Representatives, and was making its
Rejection of the
constitution in
Alabama.
way, a little more slowly, but surely, through the Senate, which
authorized the election of "State" officers and legislators in the
communities suffering reconstruction at the same time that the vote
should be taken upon the ratification of the new constitutions and by
the same electors. Congress had not a whit more power to
[p. 153]do this
than the commanders, and the President knew this well enough, but he
gave no instructions to Meade, and so the commander permitted the
voting for "State" officers and legislators at the same election that
the vote was taken upon the question of the ratification of the
constitution and by the same electors. But the registered voters
refrained from voting upon the question of ratification in sufficient
numbers to reduce the vote to several thousand less than half the
registration. The proposed constitution was thus rejected under the
provision of the Reconstruction Acts which required a vote exceeding
the half of the registration, as well as a majority of that vote, for
ratification. The "State" government chosen at this same election was
thus in the air.
The Senate now passed the House bill providing that the approval of a
majority of those voting, no matter what the proportion of the vote to
The statute of Congress
changing the proportion
of votes to registration
in the ratification of a
constitution.
the registration might be, should be regarded as a sufficient
ratification of the proposed "State" constitutions for the communities
suffering reconstruction; and although this Act was passed more than a
month after the vote on the constitution was taken in Alabama, and
although, furthermore, General Meade reported that a majority of the
registered voters had not voted on the question of ratification, and
that he interpreted this to mean that a majority of the registered
voters did not want the constitution, yet Congress, as we shall see
later, applied this new law of March 11th to the Alabama election which
had taken place in the first days of the preceding February.
In the original requirement that the vote to be effective must exceed
half of the registration, Congress was still upon the ground of correct
Criticism of
the statute.
principle. When it left this ground it virtually accepted the principle
that republican "State" governments may be
[p. 154]legitimately created
by a minority of the lawful voters against the will of a majority of
the lawful voters, and that, too, not by allowing that minority to
demonstrate its political superiority to the majority by greater
intelligence, or shrewder management, or even by brute force,
but by
the aid of power coming from without. Now this is not, in correct
political science, "State" government in a federal system, autonomous
local government, at all. It is provincial government in local affairs,
more or less complete as the necessity for the outside aid is more or
less continuous. The Republicans had denounced the Johnson "State"
governments upon the ground, among other grounds, that they were
minority governments, minority governments in the vague and uncertain
sense that not a majority of the adult males had been enfranchised, and
not in the clear and distinct and unmistakable sense that a minority of
the enfranchised, supported by the military power of the United States,
might impose its will upon a majority of the enfranchised. There was
nothing disloyal in the registered voters of Alabama giving Congress to
understand that a majority of them preferred the continuance of the
military régime, or the creation of a Territorial government for them
by Congress, to the "State" constitution offered them. But it was utter
self-stultification for Congress to take the ground that the Johnson
"State" governments were unrepublican because they did not enfranchise
all adult males of whatever race, color, or condition of mind or estate
and overthrow them on that ground, and then proceed to create new
"State" governments in their places upon the basis of a minority of the
already duly qualified and registered voters. No impartial student, at
this day, can view this terrible inconsistency in any other light than
that of a high political crime.
[p. 155]
While the Senate was proceeding with the bill, another of the Southern
communities was rapidly approaching the date fixed for voting upon the
Ratification
in Arkansas.
proposed "State" constitution, viz., Arkansas. The bill was passed by
Congress the day before the voting began in Arkansas, but it was not
known in Arkansas that it had been passed until near the close of the
second day of the election. It could, however, be claimed that it was
applicable to the case, and it certainly made all figures unnecessary
except in regard to the actual voting. The "State" officers and
legislators under the constitution to be adopted were chosen at the
same time, by the Congressional electorate in Arkansas, and not by the
"State" electorate, created by the new constitution.
In the course of the next two months, April and May, voting upon
Ratification in
North Carolina,
South Carolina,
Georgia, Florida
and Louisiana.
the question of ratifying the new "State" constitutions took place in North
and South Carolina, Georgia, Florida and Louisiana. As the
Congressional Act of March 11th was in full force at this time, the
result was affirmative in all cases.
During the Reconstruction proceedings in Georgia Governor Jenkins had
refused to issue an order to the "State" Treasurer to pay a sum of
Second attempt in
Georgia to obstruct
Reconstruction.
forty thousand dollars, on the ground that the "State" legislature
(Johnson government) had not made any such appropriation. For this
refusal Meade removed him and the "State" Treasurer and Controller
General, and appointed military men in their places. These new officers
seized the "State" buildings, but Jenkins succeeded in getting away
with the money in the treasury. He went to Washington and undertook to
institute a proceeding in the Supreme Court of the United States
against Generals Grant and
[p. 156]
Meade to restrain the officers
appointed by Meade from levying taxes upon the people of Georgia, and
from collecting the same and the other income of the "State," as well
as from exercising other functions. The Court gave its permission to
the filing of the bill, but put off the hearing of the argument until
the next term, and before this arrived, the new constitution had been
ratified, and new "State" officers elected along with the ratification.
In the other communities mentioned no opposition to the reconstruction
process was offered.
On the other hand, the opponents of the proposed "State" constitution
in Mississippi went into a most earnest and energetic campaign against
Rejection of
the Constitution
in Mississippi.
its ratification and succeeded, at the election on June 22d, in
rejecting the same by between seven and eight thousand majority. Many
of the better class of negroes voted with their old masters, that is
with such of these as were allowed by the Congressional acts to
register and vote, against ratification. Those in favor of ratification
claimed that fraud was practised by their opponents, in the face of the
fact that they had the elections in their own hands, and they
petitioned the military authorities to put the proposed constitution,
notwithstanding its rejection at the polls, into operation. This these
authorities refused to do.
[p. 157]
CHAPTER IX
THE ATTEMPT TO REMOVE THE PRESIDENT
Grant in the War
Office—The President's Message of December 3d,
1867—The President's Special Message Concerning the Suspension of
Stanton—The Senate Resolution in Regard to the Suspension of
Stanton—Grant's Disobedience toward the
President—The Unbearable
Situation in which the President now Found Himself—The Dismissal of
Stanton from Office—General Thomas Appointed Secretary of War ad
interim—Stanton's
Resistance—Thomas and the President—The Attitude
of the Senate toward the Dismissal of Stanton—The Movements in the
House of Representatives—The Arrest of General
Thomas—Thomas's Second
Attempt to Take Possession of the War Office—The House Resolution to
Impeach the President—The Withdrawal of Stanton's Complaint against
Thomas—The Fear of the Republicans to Test the Tenure-of-Office Act
before the Courts—The Managers
of Impeachment—The Charges against the
President—The President's Answer to
the Complaint—The Withdrawal of
Mr. Black from the President's Counsel—The Contents of the President's
Answer—The Replication of the House to the President's
Answer—The
Trial—Conduct of the Managers—The Evidence
in the Case—The Argument—The Law in
the Case—Mr. Stanton's Violation of Law—The
Nomination of General Schofield to be Secretary of War—The Vote upon
Impeachment—The Truth of the Matter—The Abdication of
Stanton—Schofield's Confirmation as Secretary of War and His
Acceptance of the Office.
During this same period, another act in the drama of Reconstruction was
being played, a fit companion piece to what was occurring in the
unhappy communities of the South. It was the attempt to dispose of the
President, and the presidency, by the impeachment of the President.
[p. 158]
The history of the President's relations to Mr. Stanton, his Secretary
of War, has already been given down to the suspension of Mr. Stanton in
Grant in the
War Office.
August of 1867, and the designation of General Grant to succeed him
ad
interim. Grant immediately assumed the duties of the office, and Mr.
Stanton then regarded General Grant as a friend of the President in the
controversy between himself and the President.
In his annual Message to Congress, the Fortieth Congress, of December
3d, 1867, the President said nothing directly in regard to his
The President's Message
of December 3d, 1867.
suspension of Mr. Stanton from office. He put forward a strong
argument, couched in moderate and respectful language, against the
policy and constitutionality of the Reconstruction Acts, as measures
establishing martial law in times of peace, and as doing it for the
purpose of establishing negro rule over the Southern communities, and
he urged the repeal of these Acts, and the immediate admission of the
Representatives and Senators from these communities, or "States" as he
considered them, to their seats in Congress. What he said upon these
subjects is, for the most part, entirely convincing to the impartial
mind, at this day, and all of it was apparently animated with true
patriotism and earnest desire to promote the common weal. At the close
of the argument, however, the President introduced into his Message
some ambiguous expressions which were unfortunate, to say the least,
and which roused to a high degree the suspicions and the hatred already
entertained against him by the radical Republicans.
He wrote as follows: "How far the duty of the President 'to preserve,
protect, and defend the Constitution' requires him to go in opposing an
unconstitutional act of Congress is a very serious and important
[p. 159]
question, on which I have deliberated much and felt extremely anxious
to reach a proper conclusion. Where an act has been passed according to
the forms of the Constitution by the supreme legislative authority, and
is regularly enrolled among the public statutes of the country,
Executive resistance to it, especially in times of high party
excitement, would be likely to produce violent collision between the
respective adherents of the two branches of the Government. This would
be simply civil war, and civil war must be resorted to only as the last
remedy for the worst of evils. Whatever might tend to provoke it should
be most carefully avoided. A faithful and conscientious magistrate will
concede very much to honest error, and something even to perverse
malice, before he will endanger the public peace; and he will not adopt
forcible measures, or such as might lead to force, as long as those
which are peaceable remain open to him or to his constituents. It is
true that cases may occur in which the Executive would be compelled to
stand on its rights, and maintain them regardless of all consequences.
If Congress should pass an act which is not only in palpable conflict
with the Constitution, but will certainly, if carried out, produce
immediate and irreparable injury to the organic structure of the
Government, and if there be neither judicial remedy for the wrongs it
inflicts nor power in the people to protect themselves without the
official aid of their elected defender—if, for instance, the
legislative department should pass an act even through all the forms of
law to abolish a co-ordinate department of the Government—in such a
case the President must take the high responsibilities of his office
and save the life of the nation at all hazards. The so-called
Reconstruction Acts, though as plainly unconstitutional as any that can
be imagined, were not believed to be within the class last mentioned.
[p. 160]
The people were not wholly disarmed of the power of self-defence.
In all the Northern 'States' they still held in their hands the sacred
right of the ballot, and it was safe to believe that in due time they
would come to the rescue of their own institutions. It gives me
pleasure to add that the appeal to our common constituents was not
taken in vain, and that my confidence in their wisdom and virtue seems
not to have been misplaced." These last words referred undoubtedly to
the recent rejection, by popular vote, in a number of the most
important Northern "States," of proposed amendments to "State"
constitutions conferring suffrage upon negroes.
Most of the Republicans in Congress interpreted this whole paragraph in
the Message as a threat to violate the Reconstruction Acts, although
The interpretation placed
by the Republicans on
the President's Message.
this was disavowed, rather indistinctly it is true, and to violate also
the Tenure-of-Office Act. It is very difficult to say what the
President was aiming at in giving such a warning to a body already
excited against him to a high degree. It was certainly a
faux pas of
the worst kind, to say the least about it.
Just nine days later the President sent his special Message to the
Senate in regard to his suspension of Mr. Stanton. The gist of it was
The President's special
Message concerning the
suspension of Stanton.
that mutual confidence between himself and Mr. Stanton no longer
existed, and that when he asked Mr. Stanton to resign Mr. Stanton had
declined to do so and had strongly intimated that his reason for
declining was his own lack of confidence in the President's patriotism
and integrity. The President claimed that such an attitude, on the part
of a subordinate toward his superior, was unendurable, was in fact
official misconduct of a grave order, and he also referred to Stanton's
withholding Baird's telegram from
[p. 161]
him just before the New Orleans
riot. The President furthermore discussed Mr. Stanton's letter in reply
to his order to him suspending him from office and commanding him to
turn over the records and property of the office to General Grant. This
letter contained a declaration by Mr. Stanton denying the right of the
President, under the Constitution and laws, to suspend him from office,
without the advice and consent of the Senate, and without legal cause,
and affirming that he yielded, under protest, to the superior force
wielded by the General of the Army who had been designated to succeed him.
This contention of Mr. Stanton that the President could not suspend him
under the Constitution and laws of the United States gave the President
the opportunity of saying that Mr. Stanton must be claiming the
protection of the Tenure-of-Office Act of March 2d, 1867, and of
revealing to the Senate Mr. Stanton's most decided condemnation of that
Act when it was a bill before the President. The President asserted
that Mr. Stanton, as every other member of his Cabinet, advised him
that the bill was unconstitutional, in that it was a dangerous
encroachment upon the President's constitutional prerogatives, and
urged him to veto it. He also said that all the members of his Cabinet
who had been appointed by Mr. Lincoln—and Stanton was one of
these—appeared to be of the opinion that their tenures were not fixed
or affected by the provisions of the bill. The conclusion arrived at by
the President evidently was that the Tenure-of-Office Act did not cover
Mr. Stanton's case, but left it under the law and practice existing
before the passage of that measure, and that if it did cover it, the
Act was unconstitutional, and was so considered by Mr. Stanton himself,
and every other member of the Cabinet.
[p. 162]
It is hardly credible that the President intended to recognize
the validity of the Act by sending this Message to the Senate. It is
true that the second section of the Act provided that the President
might suspend an officer during a recess of the Senate, and designate
an ad interim successor, and must, within the first twenty days of
the next meeting of the Senate, report the suspension to the Senate,
and it does appear, from a casual view, that the President was acting
under the authority of this provision, or rather under the duty imposed
by it, in suspending instead of removing Mr. Stanton and in making this
report of Mr. Stanton's suspension to the Senate. But the President
could claim that he was proceeding under his general constitutional
power and duty of suspending from office, as a power included in the
power of removal, and of sending such communications as he saw fit to
Congress or to either House thereof. And the fact that he disputed the
constitutionality of the Act in the Message itself is good internal
evidence that he did not consider that he was in any way acting under
the authority granted to him by it, or in any way estopping himself, so
to speak, from making future declarations against the constitutionality
of the Act, or even from disobeying its requirements.
The Senate, however, conceived at once that the President was acting
under the Tenure-of-Office Act, and after considerable discussion,
The Senate resolution
in regard to the
suspension of Stanton.
passed a resolution, on the 13th day of January, 1868, which provided
that, "having considered the evidence and reasons given by the
President in his report of December 12th, 1867, for the suspension of
Edwin M. Stanton from the office of Secretary of War, the Senate does
not concur in such suspension." The body then instructed its secretary
to send copies of this resolution to the President, General
[p. 163]Grant
and Mr. Stanton. It is also evident that General Grant supposed the
President was acting under the Tenure-of-Office Act both in suspending
Stanton, in appointing himself
ad interim, and in making report of
these proceedings to the Senate; for upon receiving his copy of the
Senate's resolution from the secretary of the Senate, he immediately
left the room of the Secretary of War, locking the door after him and
giving the key to the Adjutant-General, and repaired to the official
head-quarters of the General of the army. Stanton manifestly regarded
the matter in the same way, for upon receiving his copy of the notice
of the Senate's action, he went to the room of the Secretary of War,
and resumed the duties of Secretary of War without further ceremony. He
did not even go to see Grant, but sent word over to the head-quarters
of the General of the army summoning Grant to wait upon him in the
Secretary's room.
There is no question now in any calm and impartial mind that the Senate
acted most inconsiderately, not to say wrongfully, in passing that
Criticism of the
Senate resolution.
resolution. The situation was a perfectly plain one. The President and
Stanton could not work together, since they had lost all confidence in
each other. Common-sense and common decency required in such a case the
retirement of the subordinate. The Senate itself had committed itself
to this view in the discussion and votes upon the Tenure-of-Office
bill, in its original form and in its final form. General Grant, the
man who stood first in the confidence of the whole people, was in
possession of the War Office. He had held it already nearly six months,
and had in that short time improved the administration of it very
greatly. At the end of the six months, at farthest, the President was
held by the law of 1795, a law whose constitutionality
[p. 164]he did not
dispute, to make a nomination to the Senate of a permanent incumbent.
The Senate would then be able to prevent the appointment of any person
to the office who did not have the confidence of the Senate and the
country. No possible harm could thus have come to the country from
acquiescing in Stanton's suspension, and it is hard to see that
anything but harm did come to it in not doing so. No perfectly fair and
unprejudiced mind could have failed to see that then; but the radical
Republicans—and most of the Republicans in Congress at that moment
were radical, or at least intensely partisan—were bent upon attacking
and destroying the President in any way they could. They were ready to
lay traps for him, and then to so excite him by encroachments upon the
prerogatives and the dignity of his office as to make him fall into
them. They were determined to sustain Stanton against the President,
the subordinate against his lawful superior, simply because they
despised the President. They claimed that the welfare of the country
demanded it, and most of them probably thought so, but everybody can
see the fallacy of that now, and anybody fit to be a Senator of the
United States ought to have been able to see it then.
It is also a question whether General Grant did not act hastily, and
inconsiderately, not to say wrongfully, in yielding the post without
Criticism
of General
Grant's act.
dispute to Mr. Stanton. The President certainly understood General
Grant to promise him to hold on to the office in case the Senate should
not approve of Stanton's suspension, and thereby compel Stanton to have
recourse to the courts to regain possession, and thus secure a judicial
determination of the constitutionality of the Tenure-of-Office Act, or
to give the office back to the President before the Senate reached its
[p. 165]
determination, so that he might have opportunity to put it into
the hands of a man who would be willing to incur this responsibility;
and the President was able to back this understanding by the testimony
of five members of his Cabinet. On the other hand, General Grant was
just as sincere in his view that his remarks to the President on the
subject did not amount to a promise, and if they did, he had fulfilled
it when on the 11th of January, two days before the Senate acted, he
indicated to the President his unwillingness to involve himself in a
lawsuit to test the constitutionality of the Tenure-of-Office Act. It
is true that when he spoke with the President, on the 11th, he did not
offer to resign the office, and that it was understood that he would
see the President again on the subject, and that he did not see the
President, nor attempt to see him, before the Senate acted. But he
explained this apparent failure to keep faith by saying that he was
extremely busy during the two days between the 11th and the 13th, and
that the Senate had acted much more hastily than he expected it would.
There is little doubt that General Grant thought the Senate would
acquiesce in Stanton's suspension, and was taken by surprise when it
did not do so, and that until the action of the Senate on the 13th, he
had never seriously considered that any opportunity or necessity for a
judicial proceeding would arise. When, then, the alternative was
suddenly presented to him of obeying the Tenure-of-Office Act, or
disputing its constitutionality by forcibly holding possession of the
War Office, he decided that it would be wrong for the General of the
army to assume the attitude of defiance to Congress, whatever a
civilian might consider his duty to be. He thought that such an act on
his part would look like a contest between the civil and military
powers of the Government, and he was unwilling to provoke it.
[p. 166]
The President blundered very seriously when he did not accept the
explanation from General Grant and drop the matter. The General was
The President's
blunder in his
attitude toward
Grant.
friendly in his feelings toward the President, and when Stanton
repossessed himself of the War Office in his cavalier way, without
seeking any understanding with Grant, and sent the General a rude
summons to wait upon him, the General was very naturally and properly
indignant with Stanton. The way was here open for the President to make
a close friend of General Grant, by simply appreciating Grant's point
of view in surrendering the War Office, and saying nothing more about
it. But the President was not a prudent man when crossed in his
purposes. He generally thought that the motives of all men who differed
with him were bad. He showed in this trait his common origin and his
vulgar breeding. He thought that Grant had deceived him and made a
scapegoat of him, and he resolved to have it out with him. He did not
seem to understand at all that in an issue of veracity between General
Grant and himself, the country would believe Grant, no matter who told
the truth, and who the lie. The utter impossibility of coming out
winner in a contest with a national hero, no matter what the merits of
the case might be, does not seem to have occurred to him at all. And so
he plunged into that unfortunate controversy with General Grant in the
public prints, which made Grant his enemy for life, at a time when he
needed most his friendship, and might have had it by the exercise of a
little common prudence.
The outcome of this whole course of crimination and recrimination was
that the country came to the belief that the President first tried to
The result of the
controversy between
the President and
General Grant.
force the responsibility of a violation of the Tenure-of-Office Act
upon the popular General of the army, and then, when the
[p. 167]General
foiled him in his purpose, undertook to impugn his honor and his
integrity, and destroy his character before the public. An impartial
study of the facts and the correspondence will not sustain any such
view now, but in the state of feeling then prevailing, no such
impartial study was possible. The President ought to have known this,
and to have controlled his indignation until a more propitious time.
General Grant's letter closing the controversy is dated February 11th.
In the interval between his quitting the War Office and this latter
Grant's disobedience
toward the President.
date, the President instructed the General not to obey any orders from
Stanton until he knew they came from the President. This instruction
was given, first, verbally on January 19th. Grant demanded, on January
24th, a written order from the President on the subject, and repeated
this request on the 28th. The President replied on the 29th that
"General Grant is instructed, in writing, not to obey any order from
the War Department, assumed to be issued by the direction of the
President, unless such order is known by the General commanding the
armies of the United States to have been authorized by the Executive."
Grant responded, on January 30th, that he had been informed by the
Secretary of War that he (the Secretary) had not received from the
Executive any order or instructions limiting or impairing his authority
to issue orders to the army as had theretofore been his practice under
the law and the customs of the Department, and that while this
authority to the War Department was not countermanded it would be
satisfactory evidence to him (the General) that any orders issued from
the War Department by the formal direction of the President were
authorized by the Executive. This was coming very nearly up to the
[p. 168]
line between obedience and disobedience on the part of the
General of the army toward the constitutional Commander-in-chief of the
army and navy of the United States. The General must have himself felt
that he was on rather shaky ground, for in the closing paragraph of his
letter of February 11th he disclaimed any intention of disobeying "any
legal order of the President distinctly communicated." But this was
still an ambiguous situation. Who was to determine whether an order of
the President to the General was legal or not? If the President, then
there was no need of qualifying the word "order" by the word "legal."
The language used, therefore, indicates that the General considered it
within
his power to decide this question. But if the subordinate can
determine upon the legality of the orders of his superior, and disobey
them in case he considers them illegal, then farewell to all discipline
in civil or military service. It is very clear from these expressions
of the General that Stanton's successful insubordination was already
exercising its demoralizing influence, and was confusing the minds of
those high in command in regard to the interpretation of their duties
and responsibilities.
The situation was utterly unbearable for the President. Here was the
constitutional Executive of the United States, the Commander-in-chief
The unbearable situation
in which the President
now found himself.
of the army and the navy, virtually excluded by one of his own
subordinates from any relation to the business of one of the most
important departments of the Government for which he alone was
responsible, and his subordinate sustained in this attitude by the
legislative branch of the Government.
Matters were now rapidly approaching a crisis which could be avoided
only by the resignation of the
[p. 169]
President or by the retreat of the
The dismissal of
Stanton from office.
Senate from its indefensible position. If both stood firm the clash
must follow, and that too very quickly. On the 21st (February) it came.
The President addressed an order of that date to Mr. Stanton dismissing
him from the office of Secretary of War, and another order of the same
date to General Lorenzo Thomas, Adjutant-General of the army,
commanding him to take possession of the War Office and administer its
affairs
ad interim. He, on the same date, informed the Senate of his
action, and transmitted to that body a copy of the orders to Stanton
and Thomas.
Upon receiving the order, General Thomas repaired immediately to the
Secretary's room in the War Office, and handed to Mr. Stanton both of
General Thomas
appointed Secretary
of War ad interim.
the documents, they having been put into his hands by the President's
private secretary. Upon reading the one addressed to himself, Mr.
Stanton immediately asked General Thomas whether he wished him to
vacate at once or would give him time to remove his private property.
Thomas replied, "act as you please." Stanton then read the order
addressed to Thomas designating him Secretary
ad interim, and asked
Thomas for a copy of it.
Thomas then left the Secretary's room and went into his old room, the
Adjutant-General's room, to have a copy of the order made. He returned
Stanton's resistance.
at once with it, and when he handed it to Mr. Stanton, the latter said:
"I do not know whether I will obey your instructions, or whether I will
resist them." General Thomas had certified the correctness of the copy,
and had signed himself Secretary of War
ad interim. The two then went
into General Schriver's room just across the hallway, and there Stanton
declared outright that Thomas should not issue orders as
[p. 170]
Secretary of War, and that if he did he (Stanton) would countermand
them, and he then and there directed General Schriver and General
Townsend, both of whom were present, to disobey any orders coming from
General Thomas as Secretary of War. Mr. Stanton then caused General
Townsend to prepare a written order to Thomas, signed by Mr. Stanton as
Secretary of War, which was as follows: "Sir: I am informed that you
presume to issue orders as Secretary of War
ad interim. Such conduct
and orders are illegal, and you are hereby commanded to abstain from
issuing any orders other than in your capacity as Adjutant-General of
the army."
General Thomas then went over to the White House to see the President
about the matter. He told the President of his conversation with Mr.
Thomas and
the President.
Stanton, and repeated to him Stanton's replies verbatim. The President
simply said to him: "Very well; go and take charge of the office and
perform the duties." Thomas did not, however, return to the Secretary's
room in the War Office that day, and did not see Mr. Stanton again on
that day.
While these things were occurring in the executive offices matters were
seething at the other end of the avenue. The Senate was deliberating,
The attitude of the
Senate toward the
dismissal of Stanton.
if we may call such a stormy procedure as took place a deliberation,
upon the President's communication. It very quickly passed the
following resolution: "Whereas, the Senate have received and considered
the communication of the President stating that he had removed Edwin M.
Stanton, Secretary of War, and had designated the Adjutant-General of
the army to act as Secretary of War
ad interim: Therefore, Resolved
by the Senate of the United States, That under the Constitution and
laws of the United States the President has no power to remove
[p. 171]
the Secretary of War and designate any other officer to perform the
duties of that office
ad interim." A copy of this resolution was sent
to the President, another copy to Mr. Stanton, and another to General Thomas.
The excitement in the other House was still more intense and
irrational. The Senate resolution had hardly passed when the radical
The movements in the
House of Representatives.
Mr. Covode presented a motion to the effect that "Andrew Johnson,
President of the United States, be impeached of high crimes and
misdemeanors." This resolution was referred to the Committee of the
House on Reconstruction, which was, as we have seen, composed of
members nearly all of whom were radical Republicans.
Encouraged and strengthened by these movements in the legislature, and
hearing that Thomas had threatened to force his way into the office,
The arrest of
General Thomas.
Mr. Stanton resolved to forestall all possible movements of General
Thomas for gaining possession of the office of Secretary of War. He
procured a warrant of arrest for the General, and on the next morning,
the morning of the 22d, the warrant was served on General Thomas just
after he had risen from his bed, and before he had taken his morning
meal. The officers who arrested him, the Marshal of the District, and
his assistant, and a constable, took the General at once before Judge
Cartter, the Chief Justice of the District of Columbia. On the way from
the General's residence to the court-room, the General asked the
officers to allow him to see the President, and inform the latter of
his arrest. The Marshal went with the General to the White House, and
was present at the interview between the General and the President. It
lasted but a moment. The General told the President that he was under
arrest. The President replied that he was
[p. 172]satisfied to have the
case go into the courts, that he wanted it judicially determined. He
then directed the General to go to the Attorney-General, Mr. Stanbery.
The Marshal permitted him to call at Mr. Stanbery's apartment in his
hotel, and inform the Attorney-General of his arrest. He then took him
before Judge Cartter. Nobody was with the General before the Judge,
except the officers who had arrested him. The Judge held him to bail in
the sum of five thousand dollars to appear on the following Wednesday
morning, the 26th. After about an hour friends of the General came in
and signed his bail bond, and the General was released, the Judge
informing him that he was not suspended from any of his official
functions. The General then went back to the White House and informed
the President of his release under bail, and the President again
replied that he wanted the case in the courts.
Finally, the General went over to the rooms of the Secretary of War.
There he found some six or eight members of Congress with Mr. Stanton,
Thomas's second
attempt to take
possession of
the War Office.
evidently awaiting the
dénouement. He demanded the office. Stanton
ordered him to his room as Adjutant-General. He refused to obey. He
demanded the office of the Secretary of War a second and a third time,
and a second and a third time Stanton refused to yield it to him and
ordered him to his room as Adjutant-General. The General then left the
room of the Secretary of War, and went across the hall into General
Schriver's room. Stanton followed him and asked him if he insisted on
acting as Secretary of War. The General replied that he did, and would
demand the mails of the War Office. The two then fell into a friendly
chat, General Thomas saying that he had had nothing to eat or drink
that day and requesting Mr. Stanton the next time he might have him
arrested not to do it before
[p. 173]
breakfast, and Stanton appealing to
Schriver to bring out his whiskey, which Schriver did, and the two men,
Thomas and Stanton, drank a little together on Stanton's invitation.
With this Thomas's attempt to get possession of the War Office seems to
have ended. On the same day the President sent to the Senate for
confirmation as Secretary of War the name of Thomas Ewing, Sr. Mr.
Ewing was a man of undoubted ability and of the purest loyalty. He had
been one of Lincoln's best friends and supporters and was the
father-in-law of General Sherman; but the Senate denied that the
President had any power to send in a nomination, that is, denied that
there was a vacancy.
On the same day, also, the 22d, the Reconstruction Committee of the
House, to whom the resolution for impeaching the President had been
The House resolution to
impeach the President.
referred, reported it back with the recommendation that it be passed,
and the chairman, Mr. Thaddeus Stevens, urged that it might pass
without debate. But the members began at once to debate it hotly, and
continued to do so through the day and deep into the night. The
following day was Sunday, the 23d. The House had, therefore, one day of
recess in which to cool down. But on Monday the angry determination of
the Republican leaders was even more manifest than on the preceding
Saturday. All day long the war of words went on. The reproach and the
odium heaped upon the President were simply immeasurable. Read from the
point of view of to-day, and at this distance from the event, most of
it appears highly extravagant, and some of it ridiculous and even
puerile. Late in the afternoon the vote was reached, by application of
the previous question rule. The House resolved to impeach the President
before the Senate by a vote of 126 to 47. All those voting in the
affirmative were
[p. 174]
Republicans, and all those voting in the
negative were Democrats.
By another strict party vote the House authorized the Speaker to
appoint a committee to acquaint the Senate with its resolution to
The committee of the
House on impeachment.
impeach the President before that body, and another committee to draw
up the articles of impeachment. The Speaker, Mr. Colfax, appointed Mr.
Stevens and Mr. Bingham to constitute the first committee, and Mr.
Boutwell, Mr. Stevens, Mr. Bingham, Mr. Wilson, Mr. Logan, Mr. Julian
and Mr. Ward to constitute the second. This committee immediately set
about its work, and on the 29th was ready to report.
Meanwhile the day for General Thomas to appear in court, February 26th,
arrived. By this time the General had taken legal advice, and the plan
The withdrawal of Stanton's
complaint against Thomas.
of his counsel was to refuse to give further bail, allow him thus to be
committed to jail, then sue out a writ of Habeas Corpus from a United
States judge, and bring in this way the question of the
constitutionality of the Tenure-of-Office Act to judicial
determination. But Judge Cartter foiled this plan, according to the
word of Judge Luke P. Poland of Vermont, who drew the complaint against
Thomas, by declining to make any further order requiring bail, and on
the same day Mr. Stanton withdrew the complaint, and the case was thus
prevented from reaching the United States courts at all.
There is little doubt that the Republicans were afraid to have the
Tenure-of-Office Act tested judicially. They preferred recourse to the
The fear of the Republicans
to test the Tenure-of-Office
Act before the courts.
Court of Impeachment to settle the matter so far as President Johnson
was concerned. It is true that Stanton alleged that he brought the case
against Thomas in order to test judicially the right of
[p. 175]Thomas to
the office of Secretary of War, and that he withdrew the complaint as
superfluous after the House of Representatives had resolved to impeach
the President, but that may have been a mere legal form of excuse.
Three days after this, as we have seen, the committee charged with
preparing the articles of impeachment reported to the House. They were
The managers
of impeachment.
debated until March 3d, when they were adopted by a strict party vote,
and the managers to conduct the prosecution were elected. They were
Messrs. Bingham, Boutwell, Wilson, Butler, Williams, Logan and Stevens.
The charges against
the President.
Disregarding the legal order and form of the eleven articles of
impeachment, we may say briefly that the charges against the President were:
First, that he violated the Tenure-of-Office Act in issuing an order
deposing Stanton from the office of Secretary of War, and another order
appointing Thomas to the office of Secretary of War ad interim.
Second, that he violated the Anti-conspiracy Act of July 31, 1861, in
conspiring with Thomas to expel Stanton by force from the War Office,
and to seize upon the property and papers of the United States in the
War Office, and to unlawfully disburse the money appropriated for the
military service and the Department of War.
Third, that he violated the Act of March 2, 1867, which, among other
things, directed that the military orders and instructions of the
President and Secretary of War should be issued through the General of
the army, by attempting to induce General Emory, the commander of the
troops around Washington, to disregard this law and take his orders
immediately from the President.
And fourthly, that he committed high misdemeanors
[p. 176]in his speeches
denouncing the Thirty-ninth Congress, and declaring it to be a Congress
of only a part of the "States."
These charges were presented by the managers of the impeachment to the
Senate on March 5th, the day upon which the Senate organized itself as
The charges
presented to
the Senate.
a Court of Impeachment, by assembling under the presidency of the Chief
Justice of the United States, who administered the oath to the Senators
as members of the court. The court directed its sergeant-at-arms to
serve its summons upon the President to appear before its bar and
answer to the charges preferred against him, and then adjourned to the
13th of the month. On the 13th the court reassembled. The chief clerk
read the return of the sergeant-at-arms to the writ of summons, to the
effect that he had served the writ upon the President at seven o'clock
The President's
appearance
entered by
his counsel.
P.M. of Saturday, the 7th day of the month; and the President entered
his appearance by his counsel, Henry Stanbery, Benjamin R. Curtis,
Jeremiah S. Black, William M. Evarts and Thomas A. R. Nelson, and asked
for forty days for the preparation of his answer to the charges. The
first four of these men were the most noted constitutional lawyers of
the country, and the fifth was one of Mr. Johnson's loyal Tennessee
friends and his chief ally in the Union cause in Tennessee during the
years of sorest trial. Mr. Stanbery had resigned the office of
Attorney-General of the United States in order to take the leading part
in the defence of the President.
The managers on the part of the House very ungenerously objected to
giving the President any time at all for the preparation of his answer
The President's answer
to the complaint.
further than what he had had since the service of the summons upon him,
but the Senate
[p. 177]
resolved to give him ten days, that is until March
23d. Upon the latter day the Senate resumed its sitting as a Court of
Impeachment, and the President's counsel appeared with his answer to
the charges made against him.
An incident occurred at this point in the history of the procedure,
which should be related, although it interrupts somewhat the thread of
The withdrawal of
Mr. Black from the
President's counsel.
the narrative. It was the disappearance of Mr. Black from among the
counsel for the President, and the appearance of Mr. Groesbeck in his
place. It was the gossip among the enemies of the President, and this
gossip was sedulously spread abroad throughout the whole country by
them, that Black on examining the case had become convinced of the
President's guilt and had retired from the case for this reason, and
for the further reason that he had become disgusted with the
President's conduct. It did not become known until later that during
this time Judge Black was counsel for a firm composed of one Patterson
and one Marguiendo, which firm claimed a guano island in the West
Indies, called Alta Vela, and that one of Judge Black's colleagues in
the prosecution of the Patterson-Marguiendo claim, one J. W. Shaffer,
procured a letter of the date of the 9th of March, 1868, that is one
week after the House of Representatives had resolved to impeach the
President, signed by General Benjamin F. Butler and approved by John A.
Logan, J. A. Garfield, W. H. Koontz, J. K. Moorhead, Thaddeus Stevens,
J. G. Blaine and John A. Bingham, some of them the most bitter among
the President's enemies, which contained the statement that these
gentlemen were clearly of the opinion that the citizens of the United
States had the exclusive right to the guano beds of Alta Vela island,
and an expression of their
[p. 178]
surprise that the President had not
upheld this right by force against the claims of the Dominican
Government to the island, and caused this letter to be placed in the
hands of the President on the 16th day of March, and that on the 17th
or 18th of March Judge Black had an interview with the President and
urged him to send an armed vessel of the United States to Alta Vela to
take possession of the island, and that the President, viewing this
approach to him at this time as an attempt to take advantage of his
situation, refused, and that on the next day, the 19th of March, Judge
Black declined to appear further as the President's counsel in the
impeachment trial.
It must have taken a good deal of self-control on the part of the
President, in possession of all these facts, to keep them quietly to
himself for more than a month from the time of Judge Black's retirement
from his case, while his enemies were pointing the finger of a supposed
triumphant scorn at him as being unworthy to have so honest a man as
Judge Black among his counsel, and then to allow them to be given out
only under provocation from the managers of the impeachment, taunting
him with his treatment of Judge Black, and with Judge Black's
withdrawal from his case.
But to return to the President's answer to the charges against him.
Disregarding again legal verbiage and order, the President answered
The contents of the
President's answer.
substantially that Stanton's case was not affected by the
Tenure-of-Office Act, and that he held his office, according to the
Constitution and laws of the United States, and the wording of his
commission, at the pleasure of the President; that even if Stanton's
case were covered by the Act, the President was within his right and
was not thereby committing any crime or misdemeanor at all, to so act
as to make up an issue
[p. 179]
before the Supreme Court of the United
States, whereby the constitutionality of the Act might be tested; that
the authority given to General Thomas to act as Secretary of War
ad
interim was not an appointment nor an attempt to make an appointment,
but was only a designation of a person to act temporarily until an
appointment could be made by and with the consent of the Senate, a
thing which the President was empowered to do by the Act of February
13th, 1795, still in force; that he had not entered into any conspiracy
with Thomas or anybody else to force Stanton out of the War Office, or
to seize the property and papers of the United States in the War
Office, that he could not in fact do so, since Stanton was not lawfully
in the War Office, and since the President of the United States was the
ultimate lawful custodian of the property and papers of the United
States in the War Office, but that his communications with Thomas were
orders from the President to a subordinate officer, to whom the
President gave no authority to use force for their execution, and who
did not use any force in his attempts to execute them, the intention of
the President only being, if his authority should be resisted by Mr.
Stanton, to create an issue before the Supreme Court of the United
States, and secure thereby a judicial determination of the rights and
powers of the parties concerned, and not to do anything unlawful; that
he had never undertaken to induce General Emory to take his orders
immediately from himself in violation of the Act of March 2d, 1867,
which provided that all of the military orders and instructions issuing
from the President and the Secretary of War should pass through the
hands of the General of the Army, but that he had only expressed to
General Emory, as he had to Congress, his conviction that the Act was
in violation of the Constitution, which latter
[p. 180]conferred upon the
President the Commandership-in-chief of the army and the navy; and
finally, that his speeches were simply the expression of his opinions
as a free citizen of the Republic, which right was guaranteed to him
and to every other citizen by the Constitution of the country, and
could not be made out in any way to have any of the qualities of a
crime or a misdemeanor, and that his declaration that the Thirty-ninth
Congress was a Congress of only a part of the "States" was intended by
him in no other sense than that of an assertion that ten "States" of
the Union were not represented in it, all of which ought to be so
represented when they should send loyal men to take seats therein, and
that he had never intended by this declaration to deny the validity of
the acts of the Congress or its power to originate and adopt an
amendment to the Constitution of the United States.
After the filing of this answer, the counsel of the President asked the
Court of Impeachment for thirty days' time after the replication of the
House of Representatives to this answer should be filed for the
preparation of the President's case. But the managers on the part of
the House again very ungenerously opposed giving them any time at all
for this purpose. The debate over this point lasted until after the
replication of the House was filed on the following day, that is on the
24th of March. The Court of Impeachment then decided to give them until
March 30th, and ordered the trial to proceed on that day.
The replication filed by the House of Representatives, on the 26th, was
The replication of
the House to the
President's answer.
an exception to the answer of the President as insufficient, a denial
of all the averments of the answer, a declaration of the guilt of the
President of the high crimes and misdemeanors charged, and an offer to
prove the same.
[p. 181]
On the 30th, the trial opened with the fierce, not to say brutal,
attack of Mr. Butler on the President. During the entire course of the
The trial.
Conduct of
the managers.
trial, from the 30th of March until the 16th of May, the managers
followed a line of conduct which no impartial student of this day can
fail to condemn, and which, even in that time of hostile passion
against the President, lost to them a large measure of popular favor.
They tried to prevail upon the Court of Impeachment to regard itself as
a political body instead of a court, to renounce all limitations upon
its powers, and to accept common rumors against the President as good
evidence of his guilt. On the other hand, they objected to the
introduction of evidence by the President to prove the purpose of his
acts, and to show the advice upon which he had proceeded in their
commission. They succeeded in inducing the Court of Impeachment to
refuse to hear the President's evidence upon these points, although the
Chief Justice had ruled in favor of its reception. There is no doubt
that their cause was greatly weakened in the public esteem by this
manifestation of partisanship on the part of the court.
The evidence in the case showed no conspiracy with Thomas to do
anything, and no orders to him to use any force in what he was
The evidence
in the case.
authorized to do, and no attempt to induce General Emory to violate any
law or any orders received from or through the General of the Army or
any other legal authority. The case, thus, rested chiefly upon the
question as to whether the President had violated the Tenure-of-Office
Act; and the transactions of the President in regard to this subject
were matters of record.
When one, at this lapse of time from the events, peruses the calm,
dignified, convincing and masterful arguments of the President's
counsel, and compares
[p. 182]
them with the passionate, partisan
The argument.
harangues of the managers, it is very difficult to understand how the
latter could have made any serious impression at all. There was only a
single point upon the law seemingly involved in the case in regard to
which they held the better reason. That was the claim on their part
that the President had no right to violate an act of Congress for the
purpose of testing its validity before the United States courts, or for
any other purpose. They argued with much force that to allow the
President the power to violate an act of Congress, or to omit to
execute an act of Congress, in order to make up an issue before the
courts upon the question of its constitutionality, would be virtually
to attribute to the President the once hated royal power of suspending
the law at the pleasure of the Executive. They contended that the veto
power was placed in the hands of the President for the purpose of
allowing him to be heard at the proper time, and to act at the proper
time, in regard to the passage of any law, and that no other power was
given him in relation to the subject; that after he had exhausted this
power, he was bound to execute the legislation of Congress, and could
not suspend it or violate it for any purpose whatsoever; and that the
constitutionality of any of the acts of Congress could be raised before
the courts only by persons not charged with the execution of the law
and having such interests affected by the act in question as would
warrant a judicial procedure.
Judge Curtis was so influenced by the consideration that to claim such
a power for the President would give him a double veto upon all of the
acts of Congress, a veto when acting as a part of the legislature in
the enactment of law, and then a purely executive veto which could be
overcome only by an adverse judicial decision, that he expressed his
contention on the subject in very
[p. 183]
cautious language. He declared
that the President claimed no such general power as that, but he said
"when a question arises whether a particular law has cut off a power
confided to him by the people through the Constitution, and he alone
can raise that question, and he alone can cause a judicial decision to
come between the two branches of the Government to say which of them is
right, and after due deliberation, with the advice of those who are his
proper advisers, he settles down firmly upon the opinion that such is
the character of the law, it remains to be decided by you, Senators,
whether there is any violation of his duty when he takes the needful
steps to raise that question and have it peacefully decided."
The great lawyer refused thus to commit himself upon this fundamental
question of constitutional law. And well he might, for to recognize any
such power in the President would be to enable him to rule with such
arbitrariness as to upset the principles and practices of all free
government. The President can constitutionally defend his prerogatives
with the veto power, a power which nothing short of a two-thirds
majority of both Houses of Congress can overcome, and he has no other
power of defence confided to him by the Constitution. He must execute
the laws passed over his veto upon matters which in his opinion touch
his executive prerogatives, just the same as upon all other matters,
and if persons not connected with the administration of the laws do not
call such measures in question before the courts, the remedies provided
by the Constitution for the people of the United States are either the
election of members of Congress who will repeal the enactments, or else
the amendment of the Constitution so as to repeal them. It was,
however, a question whether, in showing the sole purpose of making an
issue before the courts, the
[p. 184]
President would not clear himself of
any criminal intent. Happily his case did not require this, as was
demonstrated by his counsel and by Senators Trumbull and Fessenden in
their opinions.
The law governing the President's case was perfectly clear to anyone
who could divest himself of political prejudice and of personal
The law in
the case.
hostility. It was briefly this. By an Act of the First Congress, of the
date of August 7th, 1789, Congress interpreted the Constitution as
giving the President the power to remove any officer of the United
States, except judges of the United States courts, at his discretion,
as an incident of his sole executive responsibility, and in an especial
sense recognized this constitutional power as belonging to the
President in the case of the heads of the governmental departments, the
members of the Cabinet, as they afterwards came to be called, since
these persons stood, and must stand, in a peculiarly confidential
relation to the President, as his official advisers. This
interpretation of the Constitution as to the President's power of
removal and the practice built upon it remained untouched by the
Congress until the 2d of March, 1867, when, as we have seen, Congress
enacted, "that every person holding any civil office to which he has
been appointed by and with the advice and consent of the Senate, and
every person who shall be hereafter appointed to any such office, and
shall become duly qualified to act therein, is and 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:
Provided, That the Secretaries of State, of the Treasury, of War, of
the Navy, and of the Interior, the Postmaster-General, and the
Attorney-General, shall hold their offices respectively for and during
the term of the President by whom they may have been
[p. 185]appointed,
and one month thereafter, subject to removal by and with the advice and
consent of the Senate."
It will be remembered that in the Tenure-of-Office bill as it
originated in the Senate the members of the Cabinet were entirely
excepted from its operation; that the House in passing the bill
included them; that the Senate would not agree to their inclusion; that
the bill was then sent to a conference committee; that this committee
invented the compromise contained in the proviso; that this proviso was
understood to give to each President the power to choose his own
Cabinet officers once during his term, and therefore to remove any
Cabinet officer not originally appointed by him, but holding under a
commission from a former President, and remaining in office only by the
sufferance of the existing President; that this was especially the true
meaning of the proviso in regard to those Cabinet officers then in
office, but who had been appointed and commissioned by Mr. Lincoln
during his first term to hold during the pleasure of the President; and
that it was upon this explanation of the meaning of the proviso that
the Senate voted the resolution of the conference committee.
From all this it is entirely clear that the President had the legal
power to remove Mr. Stanton, no matter whether the Tenure-of-Office Act
was constitutional or not, simply because his case was excepted by the
proviso in the first article in the Act from the operation of the Act,
and was left to the operation of the laws in existence at the time the
Act was passed. There is little question now that that Act was not in
accordance with a fair interpretation of the Constitution, but it was
not at all necessary to hold that view in order to clear the President
of the accusation of having violated the Constitution and the laws of
the land.
[p. 186]
The law in reference to the ad interim appointment, or
designation, of General Thomas was equally plain to the impartial eye.
The Constitution provides only for vacancies that may happen during the
recess of the Senate, and empowers the President to fill all such by
granting commissions which shall expire at the end of its next session.
By an act of May 8th, 1792, Congress empowered the President, in case
of the death, sickness, or absence from the seat of government, of the
Secretary of State, the Secretary of the Treasury, or the Secretary of
War, whether these events should occur during a session, or a recess,
of the Senate, "to authorize any person or persons, at his discretion,
to perform the duties of the said respective offices until a successor
be appointed, or until such absence or inability by sickness should cease."
Another act of Congress of February 13th, 1795, empowered the
President, in case of vacancy from any cause in the offices of
Secretary of State, Secretary of the Treasury, or Secretary of War,
happening either during a recess or a session of the Senate, "to
authorize any person or persons, at his discretion, to perform the
duties of the said respective offices until a successor be appointed or
such vacancy be filled," provided, however, that no one vacancy should
be supplied in that manner for a longer time than six months.
It will be seen that neither of these statutes provided for the
temporary filling of vacancies in any of the Departments, except those
of State, the Treasury, and War. In practice, however, the Presidents
have followed the analogies of the law of 1795, when it became
necessary, in their opinion, to make a temporary designation in the
other Departments. On the 22d of September, 1862, President Lincoln
appointed J. B. L. Skinner Postmaster-General
ad interim. It was Mr.
Lincoln himself
[p. 187]
who called the attention of Congress to the fact
that he had no literal legal authority for this, and who on January 2d,
1863, asked Congress to extend the Act of May 8th, 1792, so as to cover
the cases of the other Departments, and empower the President to make
ad interim appointments to fill vacancies in these Departments
happening on account of death, sickness, or absence from the seat of
government. Why the President did not ask for the extension of the Act
of February 13th, 1795, which covered all vacancies happening from
whatever cause, instead of the Act of 1792, which covered those only
which might happen from death, sickness, or absence from the seat of
government, we do not know. We only know that in January, 1863, both
the President and Congress were greatly pressed by the exigencies of
the war, and did things generally in haste and without much
consideration. In answer to the President's suggestion, Congress passed
the Act of February 20th, 1863, extending the Act of 1792 so as to
cover all the executive Departments in the cases of vacancy provided
for in that Act, viz., by cause of death, sickness, or absence from the
seat of Government—adding resignation—and limiting the President,
however, in these appointments to persons already officers in one or
the other of the Departments, and providing that no one vacancy should
be so supplied for a longer period than six months. The vacancies which
might happen from expiration of term or by removal were not at all
provided for by the Act of 1863; and as the Act of 1863 did not
expressly repeal the Act of 1795, but only declared that "all acts and
parts of acts inconsistent with this act are hereby repealed," the Act
of 1795 remained in force as to all vacancies caused by expiration of
term or by removal, whether happening during a recess or a session of
the Senate.
[p. 188]
Neither did the Tenure-of-Office Act of 1867 repeal the Act of
1795 in regard to first vacancies happening among the Secretaries of
Departments by other causes than those provided for in the Act of 1863,
either expressly or by implication, since these first vacancies were
expressly excepted from the operation of the Act of 1867, by the
proviso attached to the first article. And even if it should be held
that the Act of 1867 did repeal that of 1795 entirely, yet, in that it
did not forbid the President to make ad interim appointments in the
cases where a Secretary's term expired, or a Secretary was lawfully
removed by him, the President's designation of Thomas could not be
considered as a violation of law but only as an act without warrant of
law, the very kind of an act committed by Mr. Lincoln in his
appointment of Skinner as Postmaster-General ad interim in 1862, and
committed by other Presidents in other cases.
The managers made much of the argument that the President had
recognized the validity of the Tenure-of-Office Act in suspending
Stanton the preceding August, and reporting his suspension to the
Senate, and in notifying the Secretary of the Treasury of the
suspension, as provided in the Act, and asserted that he was therefore
estopped from denying its constitutionality. But while it can be easily
shown that these acts of the President did not at all militate against
his claim that other parts of the statute were unconstitutional, still
this was not at all necessary to the President's defence, under the
view here advanced of the relations between the Acts of 1867, 1863, and
1795. It made no difference, under this view, whether the Act of 1867
was, or was not, constitutional and valid. In either case the President
had violated no law, either constitutional or statutory.
[p. 189]
The fact is that Mr. Stanton and those who abetted him were the
violators of law. Every official act which he committed after receiving
Mr. Stanton's
violation of law.
the notification from the President of his removal, on the 21st of
February, was a usurpation of governmental powers by a private citizen,
and the gathering of armed men about him with the purpose of sustaining
him in holding on to the War Office after his dismissal by the
President was treason. It is a question whether his official acts after
the 13th of January and down to February 21st were not also
usurpations. That depends upon whether the Tenure-of-Office Act was, or
was not, constitutional, and whether, if it were, the right of a member
of the Cabinet, suspended from office, to resume the functions of the
office, after disapproval of the suspension by the Senate, was made, by
the Act, to apply to such members of the Cabinet as were excepted from
the operation of the first article of the Act by the proviso to that
article. The best Republican lawyers in the Senate, Trumbull,
Fessenden, Grimes and Doolittle, took the view of the law in the
President's case as here explained. They, with one other Republican,
Van Winkle of West Virginia, filed, after the vote on impeachment,
opinions in the case expressing substantially this view.
It is now known that during the trial some of these men expressed to
one of the President's counsel the belief that Mr. Johnson could not be
The nomination of
General Schofield to
be Secretary of War.
convicted upon the law and evidence in the case, and that should the
Senate vote to remove him, "it would be done wholly from supposed party
necessity," and from fear of what the President might do in case he
were acquitted, and that they suggested to this member of the
President's counsel the wisdom of the President's sending to the
Senate, at that
[p. 190]
juncture, a nomination for the Secretaryship of
War, which would allay all reasonable apprehension that the President
would, if acquitted, use the War Department for the accomplishment of
any arbitrary purposes, and that they mentioned General Schofield as a
man who would be satisfactory. These communications were made about the
20th of April. The President was immediately informed of them, as was
General Schofield, and, on April 24th, the President nominated General
Schofield to the Senate to be Secretary of War. Whether this move on
the part of the President influenced any Senator to vote for acquittal
is unknown. It certainly served to allay popular apprehension, if the
testimony of the newspapers of the day may be taken on that point.
Fifty-four Senators from the twenty-seven "States" represented
constituted the membership of the Court of Impeachment under the
The vote upon
impeachment.
presidency of the Chief Justice. The President must, therefore, have
nineteen votes in order to escape conviction. Of these fifty-four, only
eight were Democrats. It was practically certain that all of these
would vote for acquittal. He needed, therefore, at least eleven
Republican votes in his favor. The closing of the case by the
prosecution occurred on the 6th of May, and, on the 7th, the court
passed the resolution to take the vote of its members upon the articles
of impeachment on the 12th. On that day Mr. Chandler of Michigan
informed the court that his colleague, Mr. Howard, was too ill to
appear, and asked the court to adjourn to the 16th, in order to give
Mr. Howard the opportunity to be present. The court agreed to this
request. On the 16th, with all the members present, the voting began.
The last article, the eleventh, was, by an order of the court, taken
first, and the Chief Justice
[p. 191]
put the question to each Senator:
"Mr. Senator—how say you? Is the respondent Andrew Johnson, President
of the United States, guilty or not guilty of a high misdemeanor, as
charged in this article?" Thirty-five votes were cast in the
affirmative, and nineteen in the negative. So soon as it was known that
the President had been acquitted upon this article, a motion was made
by Mr. Williams of Oregon to adjourn the court to the 26th. After the
announcement of the vote by the Chief Justice, this motion was carried
and the court adjourned to the 26th. On that day it reassembled and
proceeded to vote upon the second article and then on the third, with
the same result as upon the eleventh. Whereupon Mr. Williams moved that
the Senate sitting as a Court of Impeachment adjourn
sine die, and
the motion was carried by a vote of 34 to 16, 4 not voting. The
Republicans who voted "not guilty" were Messrs. Dixon of Connecticut,
Doolittle of Wisconsin, Fessenden of Maine, Fowler of Tennessee, Grimes
of Iowa, Henderson of Missouri, Norton of Minnesota, Patterson of
Tennessee, Ross of Kansas, Trumbull of Illinois, and Van Winkle of West
Virginia. The country and the Republican party itself were placed under
the deepest obligation to these men for their courage and independent
action. They saved the country from the direst results of the great
political scandal of the age, and they saved the Republican party from
the commission of a deed which would have destroyed its hold upon the people.
The truth of the whole matter is that, while Mr. Johnson was an unfit
person to be President of the United States—which may be also affirmed
The truth of
the matter.
of some others who have occupied the high place—he was utterly and
entirely guiltless of the commission of any crime or misdemeanor. He
was
[p. 192]
low-born and low-bred, violent in temper, obstinate, coarse,
vindictive, and lacking in the sense of propriety, but he was not
behind any of his accusers in patriotism and loyalty to the country,
and in his willingness to sacrifice every personal advantage for the
maintenance of the Union and the preservation of the Government. In
fact, most of them were pygmies in these qualities beside him. It is
true that he differed with them somewhat in his conception of what
measures were for the welfare of the country and what not, but the
sequel has shown that he was nearer right than they in this respect.
So soon as the Court of Impeachment pronounced its acquittal of the
President, Mr. Stanton addressed to the President a letter announcing
The abdication of Stanton.
his relinquishment of the War Department, and his delivery of the
papers and properties thereof to General Townsend, subject to the
President's directions.
The Senate now confirmed the nomination of General Schofield to be
Secretary of War. The General at once accepted the appointment and
Schofield's confirmation
as Secretary of War and
his acceptance of the office.
entered upon the duties of his office, and administered these duties to
the end of his term, according to his own testimony, in perfect harmony
with the President.
Some of Stanton's friends have tried to make out that but for Stanton's
resistance and the impeachment, and its nearness to success, Johnson
would have appointed a tool of his own to the War Office and have rode
rough-shod over the laws of the land, and that he was frightened out of
this purpose, and frightened into an implied agreement with certain
Senators and General Schofield that the Reconstruction laws should be
executed as Stanton understood them, and not as the President
understood them. There is little ground for
[p. 193]any such assumptions.
There is certainly none in the character of the men whom the President
asked to take the War Office, Grant, Sherman and Ewing; and it must be
remembered that through Mr. Stanbery, in the case of Mississippi vs.
Johnson, he had long before announced to the Southerners that his
opposition to the Reconstruction Acts ceased with his unsuccessful veto
of them, and that he should execute them both in letter and in spirit.
It was Republican Senators who suggested to the President's counsel the
nomination of General Schofield, a man entirely friendly with the
President and acceptable to him. Neither the President nor the
President's counsel approached any Senator with the proposition. It was
the Republican Senators who were frightened, rather than the President
or his counsel. These Senators knew that the law and the evidence were
with the President, and that the Republican party was on trial, as much
so as the President; and they knew that, if the Republican Senate
should, upon the showing made by the President's counsel of the law and
the evidence in the case, convict the President and remove him from
office, the party would stand arraigned before the people for having
destroyed the constitutional balance between the executive and the
legislature in order to gain a partisan end. They recognized the
dilemma into which the hot-headed leaders of the party in the House of
Representatives had, by their hasty impeachment procedure, brought the
party, and they were very much relieved to secure any understanding
with the President's counsel whereby the chance of averting the
catastrophe to the party, as well as to the country, might be
increased. The suspicion that Mr. Stanton was playing his part for the
purpose of securing the Republican nomination for the presidency in
1868, rather than from any motives of disinterested
[p. 194]patriotism,
has about as little foundation as has the theory of salutary terror,
produced by the impeachment, controlling the President's subsequent
actions against his own preconceived plans and purposes. Both of these
speculations are no valid parts of the history of this great
transaction. What we have as certain facts are that the judgment was an
acquittal, that it was rendered in accordance with law and evidence,
and that it preserved the constitutional balance between the executive
and the legislature in the governmental system of the country; and that
for this the judgment of history coincides with the judgment of the court.
[p. 195]
CHAPTER X
RECONSTRUCTION RESUMED
The McCardle
Case—The Congressional Acts Admitting the Senators- and
Representatives-elect from the Reconstructed "States" to Seats in
Congress—The Veto of these Bills by the
President—The Vetoes
Overridden—Ratification of the Fourteenth Amendment and the
President's Proclamations Declaring Reconstruction Completed—Seward's
Proclamation Declaring the Ratification of the Fourteenth Amendment by
the Required Number of "States"—The Questions Suggested by Mr.
Seward's First Proclamation—The Concurrent Resolution of Congress upon
these Questions—The Correct
Procedure—The National Conventions of
1868—Platform and Nominees of the Republican
Party—Democratic
Platform and Nominees—The Election and the
Electoral Vote—The Conduct
of the President during the Campaign—Congress and the
President—The
President's Last Annual Message—The President's Amnesty Proclamation
of December 25th, 1868—The President's Veto of the Bill in Regard to
the Colored Schools in the District of Columbia—The Fifteenth
Amendment—Criticism of the Republican
View—Johnson's Retirement from
the Presidency—The President and the Republican Party.
During the period of the impeachment trial, a case was in progress
before the Supreme Court of the United States, which in its final
The McCardle case.
settlement was destined to deprive the President of any hope that a
judicial decision in regard to the constitutionality of the
Reconstruction Acts could ever be attained. We have seen that in the
cases of Mississippi vs. Johnson and of Georgia vs. Stanton the
President had resisted the jurisdiction of the Court when
[p. 196]aimed
directly at the Executive and his immediate agents. This was his duty,
and he performed it sincerely and successfully. But it is not to be
inferred from this that he would not have welcomed a judicial decision
from the Supreme Court of the United States pronouncing these Acts null
and void, if it could have been reached through the forms of a proper
case, one not involving the executive authority at all.
Such a case had appeared in this Court in the winter term of 1867-68,
and the argument as to the jurisdiction of the Court, and the decision
of this point in the affirmative, had both been made before the
impeachment trial began. One William H. McCardle, arrested and held by
the military authorities in Mississippi for trial before a military
commission on charge of having published in a newspaper, of which he
was editor, libellous and incendiary articles, petitioned the Circuit
Court of the United States for a writ of Habeas Corpus. The writ was
issued, and return was made by the military commander, General A. C.
Gillem, admitting the arrest and detention of McCardle, but contending
that these acts were lawful. The Circuit Court, on the 25th of
November, 1867, remanded McCardle, who had been held in custody between
the time of the return to the writ and this date by the United States
marshal, to the custody of General Gillem. McCardle then appealed from
this judgment of the Circuit Court to the Supreme Court of the United
States. Upon a motion to dismiss the appeal, made by the counsel of the
military authorities, this Court decided that under the statute of
February 5th, 1867, the Supreme Court of the United States could hear
the appeal, and denied the motion to dismiss it.
The question was now before the Supreme Court upon its merits, and it
involved the constitutionality
[p. 197]
of the Reconstruction Acts. It was
argued very ably, and the part of the Reconstruction Acts putting the
districts of the South under martial law two years after the Civil War
had ended, and when the civil authority of the United States was
everywhere recognized and enforced, was pretty clearly shown to have
been a very serious stretching of its powers by Congress, if not a
distinct usurpation. The Republicans in Congress were greatly
frightened, and while the case was under advisement in the Court, they
hastened to repeal the Act of February 5th, 1867, and to make the
repeal apply to appeals already taken under that Act, as well as to
such as might be attempted in the future. The repealing bill was vetoed
by the President on the 25th of March, but it was immediately repassed
by the majority necessary to override the veto, repassed without the
slightest regard to the President's very sound and convincing
objections. This Act of the 27th of March was intended to prevent any
decision upon the constitutionality of the Reconstruction Acts, and did
do so most effectively, but it was an abominable subterfuge on the part
of Congress and a shameful abuse of its powers.
As will be remembered, seven of the ten Southern communities, viz.,
North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana,
and Arkansas, had already before the close of the impeachment trial
ratified the "State" constitutions framed for them by the "carpet-bag,
scalawag, negro conventions" held in each for them, had elected "State"
officers and legislators, and the legislature of one of them, Arkansas,
had ratified the proposed Fourteenth Amendment to the Constitution of
the United States, as the legislature of each of them was required to
do before it could be admitted to representation in Congress.
[p. 198]
Congress now looked upon the work of its hands and pronounced it good,
and proceeded to pass the acts, necessary in its conceit, to admit
The Congressional Acts
admitting the Senators-
and Representatives-elect
from the reconstructed
"States" to seats in Congress.
these communities to representation in the legislative houses of the
Nation. First came the Act in reference to Arkansas, of the 22d of
June, 1868, since, as has been just said, the new legislature of
Arkansas had already ratified the proposed Fourteenth Amendment. It
provided "that the State of Arkansas is entitled and admitted to
representation in Congress, as one of the States of the Union, on the
following fundamental condition: That the constitution of Arkansas
shall never be so amended or changed as to deprive any citizen, or
class of citizens, of the United States of the right to vote who are
entitled to vote by the constitution herein recognized, except as a
punishment for such crimes as are now felonies at common law, whereof
they shall have been duly convicted under laws equally applicable to
all the inhabitants of said State: Provided that any alteration of said
constitution prospective in its effect may be made in regard to the
time and place of residence of voters."
Three days later, that is on the 25th, Congress provided in a single
act for the admission of the Senators and Representatives from the
other six reconstructed "States" to the national legislature in the
following language: "
Be it enacted, &c., That each of the States of
North Carolina, South Carolina, Louisiana, Georgia, Alabama, and
Florida, shall be entitled and admitted to representation in Congress
as a State of the Union when the legislature of such State shall have
duly ratified the Amendment to the Constitution of the United States
proposed by the Thirty-ninth Congress, and known as Article XIV., upon
the following fundamental
[p. 199]
conditions: That the constitution of
neither of said States shall ever be so amended or changed as to
deprive any citizen, or class of citizens, of the United States of the
right to vote in said State who are entitled to vote by the
constitution thereof, herein recognized, except as a punishment for
such crimes as are now felonies at common law, whereof they shall have
been duly convicted under laws equally applicable to all the
inhabitants of said State:
Provided, that any alteration of said
constitutions may be made with regard to the time and place of
residence of voters." It was also further provided that the legislature
of Georgia should, by solemn public act, declare its assent to the
fundamental condition that the article of the new constitution of
Georgia prohibiting the courts within the "State" from entertaining any
suit against any resident of the "State" for any debt existing prior to
June 1st, 1865, and prohibiting the judicial and ministerial officers
of the "State" from executing any process in reference to such debts,
should be considered and treated as null and void.
The President had placed his veto on both of these bills. The veto of
the Arkansas bill bears the date of June 20th, and that of the other
The veto of
these bills by
the President.
bill bears the date of June 25th. There are parts of the President's
argument which are entirely convincing to any candid mind at the
present day. He pointed out that the fundamental condition imposed by
Congress, in all these cases, upon the admission of Senators and
Representatives to Congress, viz., that no change should ever be made
in the suffrage qualifications provided in these "State" constitutions
whereby any citizen or class of citizens of the United States having
the right to vote under these constitutions should be deprived of such
right, was an assumption of power by Congress to regulate a subject,
within the "States," which by the
[p. 200]
existing Constitution of the
United States belonged exclusively to the "States," to each "State" for itself.
There can be no question that the President was entirely correct in
this contention. The Fifteenth Amendment was as yet no part of the
Constitution. It had not even been proposed by Congress to the
"States." It is very questionable whether a majority in Congress could
have been found, at that time, in favor of making such a proposition,
much less the required extraordinary majority of two-thirds. And until
the Fifteenth Amendment had been ratified as a part of the Constitution
of the United States, Congress had no power to exact such a concession,
or anything like it, from any "State" as the price of the admission of
representatives from it to the Houses of the National Legislature. And
even since the Fifteenth Amendment has become a part of the
Constitution, the Government of the United States cannot prohibit such
changes in a "State" constitution, unless the deprivation of suffrage
is made on account of race, color, or previous condition of servitude.
The President also called attention to the fact that no way was
provided in the bills whereby the "States" should signify their
acceptance of this "fundamental condition" of admission to
representation in Congress, and that no penalty was prescribed for a
violation of the condition. Did Congress mean that, in case of any
violation of its "fundamental condition," it would throw the "State"
back under martial law, and proceed to reconstruct anew? That was a
question which might well be asked in view of what Congress had already
done; and it was a question which was not calculated to allay
uneasiness in the minds of the people in the Southern communities.
[p. 201]
Finally, in the veto of the Arkansas bill, the President
expressed his very serious doubts whether the new "State" constitution
had been ratified by the electorate created by the Acts of Congress for
that purpose, since a section in that constitution prescribed that no
person would be allowed to vote upon the ratification of the
constitution who had not previously taken an oath to the effect "that
he accepted the doctrine of the civil and political equality of all
men, and agreed not to attempt to deprive any person or persons, on
account of race, color, or previous condition, of any political or
civil right, privilege or immunity enjoyed by any other class of men,"
thus adding a new qualification for registration and voting to those
prescribed in the Reconstruction Acts of Congress. There is no question
that the President was right about this, too. And there is no question
that this new qualification was entirely null and void, in so far as it
applied to voting upon, and registering to vote upon, the ratification
of the constitution itself, unless we ascribe constituent power to the
convention which framed the constitution, instead of the power of
initiation only. We know that no constitutional convention has, or then
had, any such powers in our system. It was nothing more or less than a
palpable usurpation of constituent power when the convention in
Arkansas presumed to add this qualification to those prescribed by
Congress for voting upon the ratification of the constitution itself.
Of course it would have been lawful and regular for the "State"
constitution to make this additional requirement for voting in all
future elections, after the constitution prescribing it should have
been adopted by the electorate created by the Congressional Acts,
although the requirement itself would have been unreasonable and
oppressive. But for the convention, a mere proposing
[p. 202]body, to
ordain this new qualification for voting on the question of the
adoption of the constitution itself was a political outrage of the
first order.
The vetoes
overridden.
Congress was not, however, in a state of mind to listen to any
suggestions from the President, no matter how correct and important
they might be. Both Houses promptly, almost mockingly, passed the two
bills over the President's vetoes.
Such of the legislatures created under the new "State" constitutions as
were not already in session were quickly summoned to assemble, and by
Ratification of the
Fourteenth Amendment
and the President's
proclamations declaring
Reconstruction completed.
July 21st all of them had ratified the proposed Fourteenth Amendment to
the Constitution of the United States, and the legislature of Georgia had
also pledged by solemn act that the repudiation article of the new
constitution should never be enforced. By July 27th the President had
issued his several proclamations, as required by the Act of June 25th,
announcing the ratification of the proposed Fourteenth Amendment by
these legislatures, and consequently the admission of these "States" to
representation in Congress; and so far as the seven "States" of
Arkansas, North Carolina, South Carolina, Georgia, Alabama, Florida and
Louisiana were concerned the work of reconstruction was now completed.
Virginia, Mississippi and Texas still remained under martial law.
On the 28th day of July, Mr. Seward, the Secretary of State, issued his
Seward's proclamation
declaring the ratification
of the Fourteenth
Amendment by the required
number of "States."
proclamation, declaring the ratification of the proposed Fourteenth
Amendment to the Constitution of the United States by the legislatures
of thirty States of the Union, and its consequent validity as a part of
the Constitution of the United States.
[p. 203]
Eight days before this proclamation, that is on the 20th, Mr. Seward
had issued a proclamation declaring that the legislatures of
The questions
suggested by
Mr. Seward's
first proclamation.
twenty-three States, viz., of Connecticut, New Hampshire, Tennessee,
New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia,
Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, Rhode Island,
Wisconsin, Pennsylvania, Michigan, Massachusetts, Nebraska and Iowa,
had ratified the proposed Fourteenth Amendment, and that six
"newly-constituted and newly-established bodies avowing themselves to
be, and acting as, the legislatures, respectively, of the States of
Arkansas, Florida, North Carolina, Louisiana, South Carolina, and
Alabama" had also ratified it; that the legislatures of Ohio and New
Jersey had subsequently passed resolutions withdrawing their
ratification of the Amendment; and that, if these latter resolutions of
the legislatures of Ohio and New Jersey should be disregarded, the
proposed Fourteenth Amendment had been adopted by the legislatures of
twenty-nine of the thirty-seven "States" of the Union and had thus
become a valid part of the Constitution of the United States.
Besides the question expressed in this Proclamation, Mr. Seward
indicates by his language a further question, viz., whether the six
"newly-constituted and newly-established bodies, avowing themselves to
be, and acting as, the legislatures, respectively, of the States of
Arkansas, Florida, North Carolina, Louisiana, South Carolina, and
Alabama" were genuine "State" legislatures. They were the legislatures
established under the Reconstruction Acts of Congress, but as Congress
had refused to recognize the "States" for whom these bodies acted as
entitled to representation in Congress, that is as "States" having the
rights of "States" of the Union, until
[p. 204]after these bodies had
ratified the proposed Fourteenth Amendment to the Constitution of the
United States, it was no wonder that so good a constitutional lawyer
and so logical a thinker as Mr. Seward had his doubts as to whether
these bodies were genuine "State" legislatures.
In order to quiet these doubts, if possible, the two Houses of Congress
passed on the following day, July 21st, the following concurrent
The concurrent
resolution of
Congress upon
these questions.
resolution: "Whereas the legislatures of the States of Connecticut,
Tennessee,
New Jersey, Oregon, Vermont, West Virginia, Kansas,
Missouri, Indiana,
Ohio, Illinois, Minnesota, New York, Wisconsin,
Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire,
Massachusetts, Nebraska, Maine, Iowa,
Arkansas,
Florida,
North
Carolina,
Alabama,
South Carolina and
Louisiana, being
three-fourths and more of the several States of the Union, have
ratified the Fourteenth Article of Amendment to the Constitution of the
United States, duly proposed by two-thirds of each House of the
Thirty-ninth Congress; therefore, Resolved by the Senate (the House of
Representatives concurring), That said Fourteenth Article is hereby
declared to be a part of the Constitution of the United States, and it
shall be duly promulgated as such by the Secretary of State." Upon the
basis of this resolution, which decided, in so far as Congress can
decide, that the consent of the legislature of a "State" to a proposed
amendment to the Constitution of the United States cannot be withdrawn
when once given, and that the "newly-constituted and newly-established
bodies, avowing themselves to be, and acting as, the legislatures,
respectively, of the States of Arkansas, Florida, North Carolina,
Louisiana, South Carolina, and Alabama" were genuine "State"
legislatures qualified to
[p. 205]
vote upon the ratification of a
proposed amendment to the Constitution of the United States, Mr. Seward
issued his proclamation of the 28th of July, above recited. As the
Georgia Legislature ratified the proposed amendment on the 21st inst.
and also gave its pledge not to allow the repudiation article in its
constitution to be enforced, Mr. Seward included Georgia in this last
proclamation.
It will be seen that both Mr. Seward and Congress counted all of the
Southern communities which had ever been "States" as being "States,"
making the whole number of "States" thirty-seven, and the number
necessary for ratification of the amendment twenty-eight. Upon this
basis of calculation two more than the necessary number had ratified at
the date of Mr. Seward's final proclamation. It will also be seen that
both Mr. Seward and Congress, that is that both the legislative and
executive departments of the Government, ignored the attempt of Ohio
and New Jersey to withdraw their consent to the amendment, and fixed
the precedent in the constitutional practice of the United States that
a "State" legislature cannot reconsider its ratification of an
amendment to the Constitution of the United States at any time. This
means, when scientifically appreciated, that the ratification of an
amendment to the Constitution of the United States is not an agreement
between the "States," and therefore becomes valid as to each only after
three-fourths of the "States," the constitutional number necessary to
make the proposed amendment a valid part of the Constitution, shall
have ratified it, but that ratification by a "State" legislature, and
a fortiori by a convention of the people within a "State," is only an
indirect vote of a part of the people of the United States upon a
question submitted to the suffrages of the whole people of the United
States. When,
[p. 206]
therefore, this affirmative vote has been once
officially announced by the proper authorities within the "State" to
the proper authorities of the United States there is no further control
over it by the authorities within the "State."
If, however, the votes of Ohio and New Jersey had not been counted in
the affirmative, there was still a three-fourths majority of
The correct
procedure.
thirty-seven "States" in favor of ratification. And if the ten Southern
communities had been left out of the computation altogether, which
would have made the Union to consist, so far as that part of it erected
into "States" was concerned, of twenty-seven "States," there would
still have been more than a three-fourths majority in favor of
ratification, with or without Ohio and New Jersey. The correct
procedure, from a scientific point of view, would undoubtedly have been
to have computed the necessary majority upon the basis of twenty-seven
"States," to have included Ohio and New Jersey among the "States" whose
legislatures voted for ratification, and then to have admitted the ten
Southern communities as "States" under the Constitution of the United
States,
with the Fourteenth Amendment as an already established part
of it, concerning which they had no more to say than they had in
regard to any other part of the Constitution. But, however that may be,
no objection can be made to the validity of the Fourteenth Amendment on
the ground of the majority by which it was ratified. In whatever way we
may compute the whole number of "States" and the majority voting in the
affirmative, the Amendment was lawfully ratified.
During these movements in execution of the Reconstruction Acts, the
national party conventions for the nomination of candidates for the
The national
conventions
of 1868.
presidency and for the formation of platforms were held. That of the
[p. 207]
Republican party assembled first, on the twenty-first day of May
in Chicago, at the moment when its radical elements were filled with
rage and chagrin at the failure of the impeachment of the President.
It made General Joseph R. Hawley, of Connecticut, its presiding
officer; adopted a platform, a large part of which was devoted to
Platform and nominees
of the Republican party.
denunciation of the President, to the promise of bountiful pensions,
and to a twist of the British lion's tail on the subject of
expatriation; the main principles of which, however, were good faith in
the payment of the public debt with sound money, and equal suffrage by
Congressional law in the Southern communities; and nominated Grant and
Colfax for the presidency and the vice-presidency.
In pronouncing for the guaranty of negro suffrage at the South by
Congressional law, the platform attempted to steer clear of the
prejudices against negro suffrage at the North by a sort of proviso,
which read, "While the question of suffrage in all the loyal States
properly belongs to the people of those States." This was certainly
inconsistent, not to say hypocritical. Negro suffrage at the North
would have been a comparatively harmless thing on account of the
fewness of the negroes as compared with the whites in that section, and
on account of the superior average intelligence of the negroes of the
North when compared with that of those of the South. There was no sound
principle in this article of the platform. It was a mean, shuffling bit
of partisan politics. The party itself felt it to be so in the course
of the campaign, and came out finally for the settlement of the whole
question of negro suffrage upon the same basis for the whole country
and by means of a constitutional amendment.
[p. 208]
The nominees immediately accepted their nominations in
characteristic letters, that of General Grant being short, crisp,
modest and ending with the now famous sentence: "Let us have peace,"
and that of Colfax being more lengthy and wordy and containing a
rhetorical defence of some of the more questionable parts of the platform.
The Democratic convention assembled in New York on the 4th day of July.
It was confronted at the start with the Greenback heresy, and the
Democratic
platform and
nominees.
candidacy of the Greenback champion for the presidency, Mr. George H.
Pendleton of Ohio. This heresy was in a sentence the doctrine that all
the public debt of the United States not made expressly payable in coin
should be paid in United States paper, which Congress might order to be
stamped, issued, and made legal tender, to any amount it might please.
The shibboleth was, "the same currency for the bondholder and the
plough-holder." It had taken firm hold in Ohio, and was rapidly
spreading through the valley of the Mississippi. The Eastern Democrats,
however, looked upon it with disfavor, and were determined to defeat
the nomination of Mr. Pendleton. They were obliged, however, to accept
the platform, in so far as it related to this subject, as dictated by
their Western compatriots. The third plank in the platform read, "...
and where the obligations of the Government do not expressly state upon
their face, or the law under which they were issued does not provide,
that they shall be paid in coin, they ought in right and in justice to
be paid in the lawful money of the United States." The fifth plank also
read, "one currency for the Government and the people, the laborer and
the officeholder, the pensioner and the soldier, the producer and the
bondholder." It is true that the
[p. 209]platform did not expressly
pronounce in favor of an unlimited issue of paper money with which to
pay the bonds, but it was generally understood that this was what was
meant. The questions then of sound money and of the faithful discharge
of the public obligations were thus put in issue. The Democrats also
met squarely the Republican doctrine of Reconstruction. They demanded
the "immediate restoration of all the States to their rights in the
Union under the Constitution, and of civil government to the American
people," with "amnesty for all past political offences, and the
regulation of the election franchise in the States by their citizens."
And they denounced the Radical party, as they termed the Republicans,
"for its disregard of right, and the unparalleled oppression and
tyranny which have marked its career," declared the Reconstruction Acts
to be unconstitutional, revolutionary and void, and lauded President
Johnson for his unflinching resistance to "the aggressions of Congress
upon the constitutional rights of the States and the people."
There is no question that the platform of the Democrats, with its paper
money doctrine, and its hostility to Reconstruction and universal
Weakness of
the platform.
suffrage, was a shaky foundation for any party to attempt to stand upon
at that juncture. Not much conscience and not much sentiment could be
aroused with such tenets. Conscience and sentiment were much more
amenable to the appeals of the Republican platform upon these points.
Moreover, the tremendous popularity of the Republican candidates had to
be reckoned with. Where could the Democrats find a candidate who would
both match Grant in the popular affection and overbalance also the
weakness of the platform? The New Yorkers in the convention, led by
Seymour, Tilden, Schell and Kernan,
[p. 210]had their man for this
emergency, but they dared not reveal at the outset their plan. They
were resolved to nominate Chief Justice Chase. They thought that
Chase's well-known devotion to the principles of universal suffrage and
his career as Secretary of the Treasury would satisfy the Eastern men
in regard to the platform, and that his attachment to the principles of
civil government versus militarism would, in some degree at least,
neutralize the popularity of the military hero. The delegates from
Ohio, Mr. Chase's own "State," suspected the purpose of the New
Yorkers, and were determined to foil it. If they could not get
Pendleton, they were determined not to have Chase. After the first six
ballots without result, Pendleton, however, leading, the New Yorkers
brought forward Hendricks of Indiana, in order to break down
Pendleton's vote. Having succeeded in this after some six more ballots,
the name of Chase was brought before the convention by a half vote from
California. The purpose was probably to feel of the convention. It was
highly successful. The announcement of the half vote was received with
enthusiastic applause. Masking themselves behind Hancock, who was at
that juncture in the lead, and Hendricks, the New Yorkers now prepared
to present Chase; but the Ohioans were too quick for them. They
succeeded in withdrawing Pendleton and presenting Seymour himself as
their candidate, before the New Yorkers knew what they were about.
Seymour, who was occupying the presidency of the convention, declared
from his seat that he could not accept, but the Ohioans stuck to their
nomination, and the New Yorkers had to assent. They were fairly caught
in their own net.
Seymour finally yielded, and the convention addressed itself to the
nomination of its candidate for the vice-presidency. The ex-Confederate
The nominees.
General William Preston of
[p. 211]
Kentucky presented the name of the
noted Union General Francis P. Blair of Missouri for the place. The
nomination was seconded by the ex-Confederate General Wade Hampton of
South Carolina, and was made by acclamation. While General Blair was a
noted Union soldier of high ability and undoubted loyalty, he was a
fierce enemy of the Reconstruction Acts of Congress, and was for this
reason very popular with the ex-Confederates. In an open letter to
Colonel J. O. Brodhead of St. Louis, written five days before the
assembly of the Democratic convention, he not only denounced the
Reconstruction Acts as unconstitutional, but advanced a method for
getting rid of them and their effects in case a Democratic President
should be elected. He proposed that the new President should "declare
these Acts null and void, compel the army to undo its usurpations at
the South, disperse the carpet-bag State governments, allow the white
people to reorganize their own governments, and elect Senators and
Representatives." He said, further, that the House of Representatives
would contain a majority of Democrats from the North, who would admit
the members elected to that body from the South to seats, and that the
House with the President would exert such a pressure on the Senate as
to cause the doors of that body to be opened to the members from the
Southern "States." When General Blair wrote this letter he was being
spoken of as a candidate for the presidency, and this letter was taken
as the declaration of what he would do if elected to the position of
Chief Magistrate of the nation. After his nomination for the
vice-presidency, in his speech and letter of acceptance, he announced
the chief issue in the contest to be the relief of the South from
martial law and negro domination. The ex-Confederates represented it
the same way at the South, and threw themselves into
[p. 212]the campaign
with great enthusiasm for Seymour and Blair.
On the other hand, the bland, politic and persuasive Seymour pursued a
much more moderate and conciliatory course, and when it became evident
that General Blair's violent expressions and revolutionary purposes
were ruining the Democratic prospects at the North, he went into the
campaign personally, and by his diplomatic manners and fine oratory
succeeded in stemming the tide which, running against the Democrats
from the moment when their platform was proclaimed, had been driven on
to a flood by General Blair's indiscretions, to put it very mildly, in
speech and conduct. But while some lost ground was regained, it was
evident that the hopes of the Democrats had been blasted.
The electoral votes of thirty-four "States" were counted, Virginia,
Mississippi and Texas being still regarded by Congress as
The election and
the electoral vote.
unreconstructed. Of these thirty-four, eight cast their votes for
Seymour and Blair. These were New York, New Jersey, Delaware, Maryland,
Kentucky, Oregon, Georgia and Louisiana. The rest went for Grant and
Colfax. The electoral vote stood eighty for Seymour and Blair and two
hundred and fourteen for Grant and Colfax. The popular vote stood two
millions seven hundred and three thousand two hundred and forty-nine
for Seymour and Blair, and three millions and twelve thousand eight
hundred and thirty-three for Grant and Colfax. The exclusion of
Virginia, Mississippi and Texas from the vote and the inclusion of the
suffrages of the "carpet-baggers" and the negroes, under the protection
of the military, in the reconstructed "States," had saved the day for
Grant and Colfax. If the electorate of the South had been as in 1860,
or probably as it was in the years of the Johnson governments, Seymour
and Blair
[p. 213]
would have triumphed. As it was, but for the Greenback
plank in the Democratic platform and the indiscretions of General
Blair, they might have triumphed. That is to say, if the Reconstruction
policy of Congress had been the sole issue, it is quite possible that
the Republicans would have lost the election, even with the most
popular man in the North as their standard bearer.
Meanwhile the President had continued to ply the Congress with his
vetoes and messages and to address the country with his proclamations.
The conduct of
the President
during the
campaign.
He had thought that he ought to be vindicated by being nominated by the
Democrats for the presidency, and had actually received sixty-five
votes on the first ballot. His failure before the convention ought to
have taught him that he was no longer a factor to be reckoned with in
the domain of politics, and that his proper course was to execute
quietly the functions of his office to the end of his term, and then
retire to private life. But he seemed to think that his political
opinions were still of great value, and in a very few days after the
adjournment of the Democratic convention he addressed a message to
Congress advising a most radical change in the structure of the
government by means of constitutional amendment. He therein recommended
that Congress should propose to the "States" so to amend the
Constitution as to provide for the election of the President and
Vice-President by a direct vote of the people, for the ineligibility of
these officers for a second term, for the designation of the members of
the Cabinet in a certain order, beginning with the Secretary of State,
as the persons to discharge the duties of the President in case of a
vacancy in the presidential office by the death, resignation or removal
of both the President and the Vice-President, for the election of the
Senators by the direct vote of the people,
[p. 214]and for the limitation
of the terms of the United States judges to a period of years. There
was sound reason for the third of these suggestions, the designation by
the Constitution of the Cabinet officers in a certain order as the
successors to the powers and duties of the President, when the country
might be without both a President and a Vice-President, and it has
since then been made law under the form of a statute of Congress.
But the Congress was not then in a mood to hear anything from Mr.
Johnson. Two days later, July 20th, the President vetoed the joint
Congress and
the President.
resolution passed by the two Houses, excluding from the electoral
college in the coming presidential election the votes of "States"
lately in rebellion which should not have been reorganized under the
Reconstruction Acts of Congress. In this veto he went over his whole
argument once more against the constitutionality of these Acts and in
favor of his own method of Reconstruction. But the Congress treated the
message with contempt and promptly repassed the resolution.
On the 9th of December President Johnson sent his last annual Message
to Congress. It was a grave, dignified and statesmanlike document both
The President's last
annual Message.
in form and content. In it he told Congress plainly and respectfully
that its Reconstruction policy had arrayed the races against each other
at the South, had impaired, if not destroyed, the kindly relations that
had previously existed between them, and had given mortal offence to
the civilized race by placing the uncivilized race in domination over
it; and he urged that legislation which had produced such baleful
consequences ought to be abrogated. He also told Congress that it had
seriously impaired the power of the President to exact the necessary
accountability of the public officers by its Tenure-of-Office Act, and
had embarrassed
[p. 215]
the Executive in the exercise of his
constitutional military functions by the Act of March 2d, 1867; and he
urged the repeal of both of these measures. He also gave a most serious
and startling account of the condition of the public finances, and of
the consumption of the wealth of the Nation by the bondholders,
officials and pensioners. He pointed out that the public debt, which in
1860 was 64,000,000 dollars, had become 2,527,129,552 dollars; that the
annual expenditure, which was, in 1860, 63,000,000 dollars, had become
336,000,000 dollars and more, and that the expenditure per capita,
which was two dollars in 1860, had become nearly ten dollars. And he
suggested the ways in which this threatening condition might be
relieved, viz., by a refunding of the bonds at a lower interest, by a
speedy resumption of specie payment, by a reduction of the army and of
the horde of Reconstruction officials in the South, and by a strict
accountability of the revenue officials to their superiors and of these
latter to the President. From the point of view of sound political
science, good public policy and true patriotism all of these
suggestions were at least worth consideration, but Congress took no
more notice of them than it did of the distant murmurs of the waters of
the Potomac.
Only once again did the Congress break over its apparent resolve to
ignore the President, and that was upon the occasion of his issue of
The President's
amnesty proclamation
of December 25th, 1868.
his universal and unconditional pardon and amnesty to all persons who
had participated, either directly or indirectly, in the rebellion, with
the restoration of all their rights, privileges and immunities under
the Constitution and the laws made in pursuance thereof. The date of
this document was December 25th, 1868. On the 5th of January, 1869, the
Senate called him to account for this by a
[p. 216]resolution calling
upon him "to transmit to the Senate a copy of any proclamation of
amnesty made by him since the last adjournment of Congress, and also to
communicate to the Senate by what authority of law the same was made."
The President replied on the 18th, sending a copy of his proclamation
of December 25th, 1868, and declaring that he issued it by authority of
the second section of Article second of the Constitution, which vested
in the President the power to grant reprieves and pardons for offences
against the United States, except in cases of impeachment, and in
accordance with precedents established by his predecessors in office,
Washington, Adams, Madison and Lincoln. The Senate did not say that he
had no right to claim any constitutional prerogative, and that he was
not worthy to act under precedents set by Washington, Adams, Madison,
and Lincoln, but most of the Senators evidently so thought. The
proclamation had no effect upon the qualifications for suffrage in the
face of the Reconstruction Acts and the "State" constitutions framed
and established in accordance with them. It was little more than the
bull against the comet.
As a sort of final stroke the President vetoed the bill concerning the
transfer of the control of the colored schools in the District of
The President's veto of
the Bill in regard to the
colored schools in the
District of Columbia.
Columbia, and the bill for raising the duties on imported copper and
copper ores. He gave excellent reasons for both of these vetoes, but
Congress had long ceased to be guided by reason in matters which
related to the President.
On its side it was busy with a project which, though not intended as a
blow at him particularly, was not in accordance with his view that the
The Fifteenth Amendment.
regulation of the suffrage within the "States" was, and should be, left
to the "States" respectively, and exclusively, viz.,
[p. 217]the proposed
Fifteenth Amendment to the Constitution. Reference has already been
made to the inconsistent doctrine, we might almost say the timorous
subterfuge, of the Republican platform on the matter of negro suffrage,
and to the growing conviction on the part of the Republicans during the
campaign that this question must be settled for the entire country
alike, and by a constitutional amendment. At the opening of Congress in
December, and during the first days of the session, the proposition was
presented which finally took on the form given it by the conference
committee of the two Houses in the words: "The right of citizens of the
United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition
of servitude. The Congress shall have power to enforce this article by
appropriate legislation." It was passed by both Houses with the
requisite two-thirds majority on the 26th of February and sent to the
legislatures of the "States" for ratification. The Republicans had at
last come to the view that the emancipation of the freedmen involved
their civil equality with the whites, and that such equality could not
be maintained unless they possessed the elective franchise, and that it
was cowardly for the "States" of the North to force negro suffrage on
the South without accepting it for themselves.
It is certainly true that full freedom implies civil liberty and civil
equality, but there was another way, and a better way, to have secured
Criticism of the
Republican view.
these than by the immediate and universal suffrage of the newly
emancipated in all their ignorance, immorality and poverty, and that
was by the nationalization of civil liberty, and its protection and
enforcement by the United States courts. Most of the
[p. 218]Republicans
believed, at that moment, that that had been secured by the Fourteenth
Amendment; and there can be little question that a very important
consideration with such was the fear that after Reconstruction should
be accomplished, the Southern "States" might amend negro suffrage out
of their "State" constitutions, and thus destroy the Republican party
in these "States," unless the Constitution of the United States should
be so amended as to prevent it. The most radical among them were no
doubt moved chiefly by the extravagant humanitarianism of the period,
which had developed in their minds to the point of justifying not only
the political equality of the races, but the political superiority, at
least in loyalty to the Union, the Constitution and republican
government, of the uncivilized negroes over the whites of the South;
but that this conviction was not very strong among the masses of them
can be readily concluded from the fact that that party is to-day the
party which is following the European idea of the duty of civilized
races to impose their political sovereignty upon uncivilized, or half
civilized, or not fully civilized, races anywhere and everywhere in the
world. No party can, in so short a time, so completely change its
fundamental principle of political ethics when it is really and
conscientiously believed in by the masses of the party.
This proposed Fifteenth Amendment was not sent to the President for his
approval, but went, according to custom, to the Secretary of State, to
Johnson's retirement
from the presidency.
be submitted to the "State" legislatures. The President was now within
a very few days of the end of his term. His sun had fairly set, and the
disrespect felt for him by the members of the dominant party in
Congress and out of Congress was expressed in the rude and quite
unprecedented refusal of General Grant to sit in the same carriage with
him in the
[p. 219]
procession from the White House to the Capitol, on the
4th of March, for the ceremonies of the inauguration of the new
President. Discredited, despised, and scoffed at, as a traitor to his
party, to his political creed, and to his country, Mr. Johnson stepped
down from the high office which he had occupied during one of the two
most critical periods in American history since the establishment of
the present Constitution.
And yet it is certainly true that the Republican party had left him
rather than that he had left the party. This party began simply as a
The President and
the Republican party.
Union party and an anti-slavery extension party. Mr. Johnson, an
original Democrat, joined with the Republicans upon this basis, and he
never left it. On the other hand, when the necessities of the war for
the Union made it evident that the slaves within the Southern
communities which had declared secession, and were engaged in
rebellion, must be proclaimed free, Mr. Johnson still went with the
Republicans in the justification of this measure. And when, finally,
the war was ended and the Union was preserved, and the Republicans
decided that the legitimate outcome of the victory was the prohibition
of slavery everywhere within the United States by an amendment to the
Constitution, Mr. Johnson still marched with them, at the head of the
column. It was only when they became more and more radical in their
policy, and insisted upon transforming rather than restoring the
"States" of the South, by placing civil rights under national
protection instead of "State" protection, disfranchising the whites of
the South, and enfranchising the negroes, and upon overcoming the
Executive's objections to these movements not simply by overriding the
veto, but by generally subordinating the Executive to Congress—it was
only then that he
[p. 220]
separated from them and fell back naturally on
such support as he could get, which was chiefly from the Democratic party.
No fair mind can claim that the Republicans in their quarrel with the
President had not departed from their solemn declaration made in
Congress assembled in those dark July days of 1861, just after the
first great defeat of the Union arms, "That this war is not waged upon
our part in any spirit of oppression, nor for any purpose of conquest
or subjugation, nor purpose of overthrowing or interfering with the
rights or established institutions of the Southern States, but to
defend and maintain the supremacy of the Constitution, and to preserve
the Union, with all the dignity, equality, and rights of the several
States unimpaired." And it was upon the basis of this understanding
that the Democrats in Congress, Mr. Johnson among them, stood with the
Republicans in the prosecution of the war. It is indeed a serious
question of political casuistry as to how far declarations of policy
are binding upon a political party. They are certainly not like
agreements entered into between sovereign states, and the law of
development rather than the law of contract must be the constructive
force in party creed. But this, at least, must be held, viz., that a
man originally not of a given political party, but acting with it upon
the basis of a given creed, cannot be accused of being an apostate from
that party if he does not continue with it when it adopts a new creed
in many respects the very opposite of that given creed, except in the
most groveling sense of machine politics; and that when he and it do
part company, more by its own departures from the given creed than by
his, he is certainly not on that account to be necessarily considered
as a traitor to his country. The truth is, that while all men who
occupy high station are
[p. 221]
peculiarly subject to wanton, as well as
ignorant, assaults upon their purposes and their conduct, few men that
have occupied so high a station have ever been so unreasonably
slandered and vilified as Andrew Johnson. His own unfortunate and
irritating manners and methods will account for a good deal of the
misunderstanding of his character, but the violence of the times was
the occasion of a great deal more of it. The true Union men of
Tennessee will, however, never forget the hope, and encouragement, and
support which he gave to them, when they were left in the lurch by
their own natural leader, John Bell; and the Nation should for this, if
nothing else, write his name in the book of its heroes.
[p. 222]
CHAPTER XI
PRESIDENT GRANT AND RECONSTRUCTION
The Situation at the Moment of Grant's
Accession to Power—The Georgia
Question—The Attitude of the New President
toward Reconstruction—The
Virginia Case—Grant's Message to Congress of April 7th, 1869, and His
Proclamation of May 14th—Ratification of the Virginia Constitution and
Election of "State" Officers under it—The Restoration of Virginia to
Her Federal Relations—Ratification of the Mississippi Constitution and
Election of "State" Officers and Legislative Members under it—The
Restoration of Mississippi to Her Federal Relations—Ratification of
the Texas Constitution and Election of "State" Officers and Legislative
Members under it—Restoration of Texas to Her Federal Relations—Grant
and the Tenure-of-Office Act—Congress and the Tenure-of-Office Act
after Grant's Accession to the Presidency—The Modification of the
Tenure-of-Office Act—The President's Dissatisfaction with the
Measure—The Facts in the Georgia
Case—New Conditions Imposed on
Georgia—The Final Restoration of Georgia to Her Federal
Relations—Negro Rule in the South from the Point of View of Political
Science and Ethnical Principle.
At the moment of Grant's accession to power, four of the Southern
communities were still denied recognition as "States" upon the floor of
The situation at the
moment of Grant's
accession to power.
Congress. Three of the four had not yet adopted "State" constitutions,
viz.: Virginia, Mississippi and Texas; and the fourth, Georgia, the
representatives from which to the lower House of Congress had been
admitted in December of 1868, was still unrepresented in the Senate,
for the reason that the legislature of Georgia, after electing United
States Senators,
[p. 223]
had rejected the negro members-elect of that
body on the ground that negroes were not eligible to legislative seats
in Georgia.
When the news of this procedure reached Washington, the Senate held
back from admitting the Senators-elect from Georgia to seats and did
The Georgia
question.
not admit them during the last session of the Fortieth Congress; and at
the opening of the Forty-first Congress, on March 4th, 1869, the day of
Grant's inauguration, one of the first acts of the respective Houses
was to refuse admittance to the representatives from Georgia to
either
House, and to refer their credentials to the Committee of each House
on Elections.
In his inaugural Address the new President made no reference to these
questions, but he had hardly been one month in the presidential office
The attitude of the
new President toward
Reconstruction.
before he recognized the difficulties with which his predecessor had
been beset, and asked and almost demanded of Congress relief from them.
On the 7th day of April he addressed a message to Congress requesting
that body to provide for submitting to the voters of Virginia the
"State" constitution drafted and adopted by a constitutional convention
at Richmond nearly a year before, and recommending that "a separate
vote be taken upon such parts as might be thought expedient," and that
the constitution, "
or such parts thereof as shall have been adopted by
the people," should be submitted to Congress on the first Monday of
the following December, and that the officers provided for under the
said constitution should be chosen at the same election.
The President also suggested that the constitution framed by the
convention in Mississippi and rejected by the voters might be
resubmitted in the same way. The events in Mississippi culminating in
the rejection
[p. 224]
of the proposed State constitution by the voters in
June of 1868 have been already related.
The case of Virginia, on the other hand, which differed in several
material respects from that of any of the others, has not been as yet
The Virginia case.
sufficiently stated for a clear understanding of the President's
meaning in his recommendations to Congress of April 7th. It will be
remembered that a loyal government of Virginia, with its seat first at
Wheeling and then at Alexandria, existed during the entire period of
the Civil War, and that from 1861 to 1864 Virginia, under this
government, had been represented in Congress, and that it was this
government which consented to the partition of Virginia recognized by
Congress. On the 23d day of May, 1865, this government transferred
itself from Alexandria to Richmond, having been recognized by President
Johnson on May 9th as the true government of Virginia. The legislative
department of it met in session on the 20th of June following. The
Governor, Mr. Pierpont, recommended, in his message to that body, that
a constitutional amendment should be drafted, and proposed by it to the
voters for ratification, which would enfranchise, and qualify for
office, a much larger proportion of the people than was the case under
the revised constitution of Virginia of 1864, adopted by the loyal
convention at Alexandria. The legislature followed the Governor's
advice and proposed an amendment to the voters which granted suffrage
and eligibility substantially to the old ante-bellum electorate and
eligibles on the condition of future loyalty to the United States. This
proposition was voted on at the elections held on the 12th of October
for the choice of members of the legislature and of the lower House of
Congress, and was ratified by a large majority. The election was held
in every county and the result was fairly
[p. 225]representative of the
people. There was lacking but one thing more for the complete
restoration of the "State" to its federal relations, viz., the
admission of the Senators and Representatives from it to seats in
Congress. They presented themselves at the opening of the Congressional
session on the first Monday of December following, and were excluded,
along with the Senators and Representatives from the other "Johnson
States," by the Stevens resolution.
For more than a year, however, this government continued to act as the
"State" government of Virginia, under the limitations placed upon it by
the presence of the military of the United States, and the interference
of the commanding general in behalf of the freedmen. On January 15th,
The Vagrant Act.
1866, the legislature chosen at the October elections of the preceding
year passed the vagrant act, which defined as vagrants "all persons
who, not having wherewith to maintain themselves and their families,
live idly and without employment, and refuse to work for the usual and
common wages given to the laborers in the like work in the place where
they are," and which authorized the condemned vagrant to be hired out,
and his wages applied to his own use or the use of his family, and, in
case of his running away from the hirer, to be apprehended on the
warrant of a justice and returned to the hirer, who should have one
month of service extra, and without wages, for the interruption of the
service contracted for, and other trouble and expense, and should also
have the right, by permission of the justice, to work the returned
vagrant with ball and chain, in order to prevent a repetition of his
flight. On the 24th, just nine days after the passage of the act,
General Terry's
order setting
aside the
Vagrant Act.
General Terry, the military commander at Richmond, issued an order
setting aside this measure as to the freedmen. He based his order on
the
[p. 226]
tendency of the statute to influence employers to combine for
the purpose of lowering the wages of the freedmen to a point that would
pauperize them and drive them into vagrancy, and create thus the very
situation which, under the operation of the measure, would lead to a
species of servitude worse than the old domestic slavery. He had no
reliable facts of experience upon which to base his theory. It was a
bit of political and economic prophecy on his part. It was sufficient,
however, to call down maledictions from the Congress at Washington and
the people of the North upon the legislature at Richmond and the people
of Virginia and of the South generally.
Congress, however, gave this legislature one more opportunity to redeem
itself. The proposed Fourteenth Amendment to the Constitution of the
United States was submitted to it for ratification in June of 1866.
After long deliberation upon it, the legislature rejected it on the 9th
of January, 1867. This act sealed the fate of that legislature.
Virginia was brought, with the other Southern communities which had
rejected or not adopted the proposed Amendment, under the
Reconstruction Acts of March, 1867, and became the first military
Virginia made a
Military District.
district under those Acts, with General Schofield as commander.
Schofield ordered the election for delegates to a constitutional
convention, by the voters designated in the Reconstruction Acts, to be
held in November of 1867, and ordered the delegates so elected to
assemble in Richmond on the 3d of the following December. These orders
were successfully executed under the supervision and control of the
military. Schofield himself appeared in the convention, and urged the
delegates to be moderate in the propositions for the disfranchisement
and disqualification of those who had participated in rebellion. But
the delegates
[p. 227]
elected under the Reconstruction Acts, and by the
electorate created through them, were not only radical, but bent upon
retaliation. They would not listen to the wise counsel of Schofield,
but drafted and adopted such provisions in regard to suffrage
qualifications and eligibility to office and mandate as would have put
the "State" government, based on such a constitution, in the hands of
negroes, "scalawags" and "carpet-bag" adventurers. The opposition to
these provisions on the part of the commander and the Administration at
Washington was, however, sufficiently effective to delay indefinitely
the submission of the constitution to the voters. Near the end of the
year 1868, a conference of prominent Virginians assembled at Richmond
and appointed a committee, and sent its members to Washington to
petition Congress to allow the disfranchising and disqualifying
clauses, and the clauses in reference to county organization, to be
voted on separately from the other parts of the proposed constitution.
This committee proceeded to Washington in January of 1869, and argued
their case before committees of both of the Houses of Congress, and
also presented the same to the new President-elect, General Grant.
It was in consequence of such representations and prayers, that
President Grant sent his message of April 7th to Congress, requesting
Grant's message to
Congress of April
7th, 1869, and
his proclamation
of May 14th.
authority to accede to the petition of the Virginians, and that
Congress immediately conferred the authority upon him. Armed with this
authority, the President issued a proclamation on the 14th day of May,
1869, commanding the "State" constitution framed for Virginia by the
convention which assembled on December 3d, 1867, at Richmond, to be
submitted to the voters, on July 6th, 1869, for ratification or
rejection, and also commanding that those
[p. 228]provisions
disqualifying persons from voting and holding office who had in any way
aided the rebellion against the United States should be separately
submitted.
Ratification of the
Virginia Constitution.
At the election ordered by the President, the constitution without
these clauses was ratified, and the conservative Republican candidates
for office and legislative membership were elected.
At the next session of Congress, in December of 1869, the Senators and
Representatives presented themselves for admission. Their claims were
The restoration of
Virginia to her
Federal relations.
sustained by the President, who reported to Congress that Virginia had
fulfilled all of the conditions required of her for readmission to her
full privileges as a member of the Union, having among other things
ratified by legislative acts both the Fourteenth and Fifteenth
Amendments to the Constitution of the United States, and urged the
admission of the Senators and Representatives from the "State" to
Congress. After a good deal of discussion and some wrangling, the bill
for the accomplishment of this object was passed, and, in the last days
of January of 1870, Virginia was restored to her proper federal
relations, on the conditions that the constitution of the "State"
should never be so amended as to deprive any person enfranchised
therein of the suffrage, or any citizen or class of citizens of the
United States of the educational rights and privileges provided
therein, or any citizen of the United States of the equal right to hold
office, on account of race, color or previous condition of servitude,
or of the school rights provided in the constitution of the "State."
The Congressional Act also undertook to purge the new "State"
legislature by requiring that every member must take an oath that he
was not disqualified by the Fourteenth Amendment to the Constitution of
the United States, or that, if he had been, he had also been
[p. 229]
relieved by the Congressional Act authorized for the case in the Amendment.
The Act of Congress of April 10th empowered the President to deal with
the question of Reconstruction in Mississippi in the same manner as in
Virginia. By virtue of this power, the President issued a proclamation,
on the 13th of July, 1869, commanding the resubmission to the voters of
the constitution adopted by the Mississippi convention, on the 15th of
May, 1868, and rejected by the voters as stated on a previous page, and
designating the 30th day of November, 1869, as the date of the
Ratification of the
Mississippi constitution.
election. As in the case of Virginia, the President ordered a separate
vote to be taken upon the disfranchising and disqualifying clauses of
the constitution which prohibited any person from voting or holding
office who had given any aid or comfort to persons in rebellion.
The result of the vote on the constitution was the same as in Virginia.
The restoration of
Mississippi to her
Federal relations.
The constitution was ratified without these clauses; and on the 23d of
February, 1870, the bill for the restoration of Mississippi and the
admission of the Senators and Representatives from the "State" to
Congress, on the same conditions as those exacted of Virginia, became law.
The Act of April 10th, 1869, also invested the President with the power
of ordering the submission of the constitution framed and adopted by
the convention at Austin, Texas, in June of 1868, to the voters for
ratification. By virtue of this authority, the President ordered a vote
to be taken upon this instrument on the 30th day of November, 1869.
This proposed constitution did not contain any such disfranchising and
disqualifying clauses as those which rendered the Virginia and
Mississippi instruments
[p. 230]
obnoxious to the intelligence of these
Ratification of the
Texas Constitution.
Restoration of
Texas to her
Federal relations.
communities, and the vote was, therefore, ordered to be taken upon the
entire constitution at once. The result was ratification; and on the
30th of March, 1870, the Congressional measure for the complete
restoration of Texas to her proper federal relations, upon the same
fundamental conditions as those required of Virginia and Mississippi,
became law.
Thus while the new President did not, as his predecessor had done,
dispute the power of Congress to direct and control the reconstruction
of the disrupted Southern communities as "States" of the Union, he
appealed to Congress for the authority to relieve some of them still
suffering under military rule from the hard alternative of negro
domination, and when Congress gave him the power requested, he used it
for the amelioration of the situation. This was true statesmanship. If
President Johnson had done this instead of insisting upon his
constitutional power to reconstruct, independently of Congress, these
communities, and repeating continually his unsound, though specious,
arguments in support of his view, it is quite possible that he might
have maintained his influence, in some degree at least, with the
Republican majority, and at the same time, and in consequence thereof,
might have accomplished something in the interest of a true
conservatism in Reconstruction. This is not, however, certain. Johnson
had none of Grant's vast popularity with the people of the North
whereby to overawe Congress, and there is no doubt, deny it as we may
to conscious reflection, that down below consciousness there was a sort
of distrust of a Southern Union man on the part of a large portion of
the people of the North. Mr. Johnson had to suffer under the influence
of this feeling, like all others of his class, and whenever he
suggested any moderate
[p. 231]
course in the treatment of former rebels,
he fell under the suspicion of masking sympathy with their sentiments
under a pretence of Unionism. He was, thus, rather an object of
Congressional distrust from the first, and could probably never have
done so much as Grant succeeded in doing for conservatism in Virginia
and Mississippi, even though he had recognized the power of Congress in
the work of reconstruction, and had preferred respectful requests,
instead of asserting presidential prerogatives.
Likewise the new President found, as soon as he began the work of
administration, that the Tenure-of-Office Act was an unendurable
Grant and the
Tenure-of-Office Act.
hindrance to the efficient discharge of his duties. None of Mr.
Johnson's Secretaries, it is true, gave him any trouble by attempting
to hold on to office for the one month allowed them after the
expiration of Mr. Johnson's term. The men nominated by President Grant
for his Cabinet of chiefs and advisers were immediately confirmed, and,
with one exception, inducted into office. These men were E. B.
Washburne, of Illinois, as Secretary of State; A. T. Stewart, of New
York, as Secretary of the Treasury; A. E. Borie, of Pennsylvania, as
Secretary of the Navy; J. D. Cox, of Ohio, as Secretary of the
Interior; E. R. Hoar, of Massachusetts, as Attorney-General; and J. A.
J. Creswell, of Maryland, as Postmaster-General. No immediate
nomination was made for the Secretaryship of War, and General Schofield
remained for a few days at the head of the Department. The President
soon found that Mr. Stewart, being a large importer of foreign goods,
was disqualified by statute from holding the office of Secretary of the
Treasury. He first suggested to the Senate the removal of the
disability by a joint resolution of Congress, and, on objection being
made to the introduction of a
[p. 232]
bill repealing the disqualifying
statute, he withdrew the suggestion. Mr. Stewart then relieved the
situation by sending in his declination, and the President nominated
Mr. G. S. Boutwell of Massachusetts for the office, which nomination
was immediately confirmed, and Mr. Boutwell took immediate charge of
the Department. Mr. Washburne, the Secretary of State, resigned the
office within a few days, and Mr. Hamilton Fish, of New York, was
nominated and appointed to succeed him. General Schofield next resigned
the War Office, and was succeeded by General John A. Rawlins of
Illinois. Finally, Mr. Borie resigned in June the Secretaryship of the
Navy, and was succeeded by Mr. G. M. Robeson of New Jersey. The Senate
put nothing in the way of these changes. But President Grant made up
his mind in a very few days after his inauguration not to have his
hands tied in regard to any of the officers for whose acts he was
responsible. He gave the Republican leaders in Congress to understand
that he would allow the existing incumbents of the offices to remain in
office, unless they should commit some such offence as would call for
their suspension, so long as the Tenure-of-Office Act should remain on
the statute book. The Republicans were hungry for a new distribution of
the spoils. They called it a righteous desire for the "cleaning of the
Augean stables." Whatever it was, they were thrown into a great state
of trepidation by this covert threat of the President not to clear the
way for their friends.
On the 9th day of March, less than a week after the accession of the
new President to power, a bill was introduced into the House of
Congress and the
Tenure-of-Office Act
after Grant's accession
to the presidency.
Representatives providing for the immediate repeal of the
Tenure-of-Office Act, and was passed, immediately and without debate,
by a vote of 138 to 16. These 16 were naturally Republicans.
[p. 233]The
Democrats voted for the repeal on principle. When the bill reached the
Senate it was sent to the Judiciary Committee. This Committee quickly
reported to the Senate a substitute for the bill of the House. This
substitute provided that the Tenure-of-Office Act should be suspended
from operation until the next session of Congress. No more shameless
piece of partisanship was ever advanced on the floor of the Senate than
this. It simply meant, suspend the Act when the Republicans wanted to
get the offices, and keep it in force when they might be in danger of
being put out. The Senate itself could not be brought to vote this
proposition of its Judiciary Committee. It was withdrawn by the
committee, and Mr. Trumbull proposed to supersede the existing law with
a measure which would allow the President to suspend from office
without assigning any cause for the same to the Senate, or even
reporting the suspension to the Senate, and to nominate to the Senate a
person to fill the vacancy, and in case of rejection by the Senate to
nominate another person; and only when the session of the Senate should
come to a close without a ratification should the suspended officer be restored.
It was pretty clear that the President would not find any trouble with
such a measure as this, but it seemed to the House that the Senate was
trying to cling to a certain control over the Executive, and the House
refused concurrence in the bill. The matter was finally referred to a
The modification of the
Tenure-of-Office Act.
conference committee, and this committee speedily matured and reported
a measure, which allowed the President, during a recess of the Senate,
to suspend any civil officer appointed by and with the consent of the
Senate, except judges of the United States courts, until the end of the
next session of the Senate, and to designate some other person
[p. 234]to
discharge the duties of the vacant office in the meantime, and made it
the duty of the President simply to nominate to the Senate, within
thirty days from the beginning of its next session, some one to succeed
to the office permanently, and in case the Senate should refuse to
ratify the nomination, to nominate another person. Both Houses accepted
the recommendation of the Committee and the bill agreed upon by its
members became law April 5, 1869.
The President's
dissatisfaction
with the measure.
Still the President was not satisfied with it. He thought that any
control whatever of the Senate over dismissal from office was not
warranted by the Constitution, and he regarded the attempt of the
Senate to cling to any shadow of such a power as a personal affront to himself.
In his first annual Message, that of December 6th, 1869, he earnestly
recommended the total repeal of the Tenure-of-Office Acts, and declared
them both unconstitutional, and inconsistent with "a faithful and
efficient administration of the Government." His recommendation was
probably an effective warning to Congress against any attempt to hamper
him by claiming any power under them to control his dismissals and
suspensions, but they still remained on the statute book for nearly two
decades longer. The glaring inconsistency of a bare and bald repeal of
the Acts was too great even for the partisan Congress. It was willing
to make them practically null and void, but it wanted a shadow with
which to cover its nakedness. At any rate, the position taken by
President Grant toward them was a complete vindication of President
Johnson's views concerning them, and, in no small degree, of his deeds also.
At the date of this Message all of the Southern communities had
completed the acts required by Congress
[p. 235]for their restoration as
"States" of the Union, but the result of the elections held in
Mississippi were not known in Washington. The President simply
expressed the hope that the constitutions submitted in these
communities to the voters would be ratified, and "thus close the work
of Reconstruction." As we have seen, the elections resulted as the
President hoped, and these communities were restored, on the basis of
the "State" constitutions adopted, to their proper federal relations.
The case of Georgia still remained, however, unsettled, and the
President suggested that Congress should enact a law authorizing the
The facts in the
Georgia case.
Governor of Georgia, Mr. Bullock, "to convene the members originally
elected to the legislature, requiring each member to take the oath
prescribed by the Reconstruction Acts, and none to be admitted who were
ineligible under the third clause of the Fourteenth Amendment." The
situation was briefly as follows: The Senators and Representatives from
Georgia had been refused admission to seats in Congress at the first
session of the Forty-first Congress which convened the 4th of March,
1869, because the legislature of Georgia had expelled the colored men
elected to that body as ineligible, and had rejected the proposed
Fifteenth Amendment to the Constitution of the United States. It is
true that the Senators from Georgia had been elected by the legislature
before the colored members were expelled, and that the Representatives
had been admitted to seats in the House during the last session of the
Fortieth Congress, and that the ostensible reason for not admitting the
members to the lower House of the Forty-first Congress was that they
had not been elected to the Forty-first Congress. However, Georgia had
no representation in either House of Congress at the date of President
Grant's first annual Message in December of 1869.
[p. 236]Her "State"
government seems, therefore, to have been considered by Congress as
being still only provisional, despite the fact that by the Act of June
25th, 1868, she had been declared entitled to admission to
representation in Congress upon conditions which she had subsequently fulfilled.
A bill had been introduced into Congress soon after the opening of the
session beginning March 4th, 1869, dealing with the subject. It was
claimed in the preamble of this bill that the Georgia legislature had
not purged itself of disloyal members as required by the Fourteenth
Amendment to the Constitution of the United States, that it had
violated the constitution of Georgia and the Constitution of the United
States and the fundamental principles of the Reconstruction Acts by
expelling the negro members for ineligibility, and that the civil
authorities in the "State" could not, or did not, protect the loyal
citizens in the enjoyment of their rights and liberties or even in
their persons. The bill proposed to meet these difficulties by
providing that the Governor of Georgia should reconvene the originally
elected members of the legislature, reseat the expelled negro members,
and expel such members as could not swear that they were not
disqualified by the Fourteenth Amendment to the Constitution of the
United States. It may be remarked here in passing that the Fourteenth
Amendment does not disqualify anybody, in express language, from being
a member of a "State" legislature. It disqualifies all persons who have
engaged in rebellion after having taken an oath, as a member of
Congress or of a "State" legislature, or as a United States or a
"State" officer, to support the Constitution of the United States, from
holding a seat in Congress or from being an officer of the United
States or of a "State,"
but not from holding a seat in a "State"
legislature. The word officer in the public
[p. 237]jurisprudence of
this country does not include membership in a legislative body. But to
return to the bill. It provided finally for making United States troops
in Georgia subject to the Governor's call for assistance. This bill was
so seriously opposed by the Democrats and the conservative Republicans
that it did not pass, and during this session Congress did nothing
further for the restoration of Georgia.
On the other hand, the conservatives in Georgia undertook to do
something for themselves. They got up a test case in the Supreme Court
The case of
White and
Clements.
of the "State" to determine the rights of negroes to hold office. The
case was that of White and Clements, and the office involved was a
county court clerkship. Of course the decision was not binding upon the
legislative houses in judging of the eligibility of their members, but
it was thought that it would have an influence upon their views. The
court decided that under the new constitution of Georgia and the code
of Georgia negroes could hold office, since the constitution of 1868
declared that all persons born or naturalized in the United States and
residents in Georgia were citizens of Georgia, and the code declared
that among the rights of citizens was the right to hold office. Of
course the legislature could abolish or amend the code. After the
rendering of this decision the conservative members of the legislature
requested the Governor, Mr. Bullock, who was a radical Republican, and
a New Yorker by birth, to reconvene the legislature for the purpose of
reseating the expelled negro members. The Governor refused, apparently
not desiring to anticipate the action of Congress in the case. The
attempt of the conservatives to help themselves thus came to naught,
and the unhappy community drifted on toward anarchy and violence,
according to the report now made by
[p. 238]General Terry to the
President, who declared it to be his opinion that the United States
Government must intervene anew in order to preserve it against that fate.
It was then with a good deal of irritation that Congress came to
consider the subject of Reconstruction in Georgia again in the session
New conditions
imposed on Georgia.
of 1869-70, and the determination soon became manifest to impose
additional and harder conditions upon this community than upon the
others. Moreover, as matters appeared at that juncture, the
ratification of the Fifteenth Amendment by the legislature of Georgia
would be necessary to make out the required three-fourths majority. It
was in this temper, and under the pressure of this supposed necessity,
that Congress, acting promptly upon the general suggestion in the
President's Message, passed a bill which provided that the Governor of
Georgia should forthwith summon the persons declared by the
proclamation of General Meade, of the date of June 25th, 1868, to be
members-elect of the legislature, to assemble at Atlanta; that every
such person should take an oath or affirmation that he had never, after
having been a member of Congress or of a "State" legislature, or an
officer of the United States or of a "State" "engaged in insurrection
or rebellion against the United States, or given any aid or comfort to
its enemies, or rendered, except in consequence of direct physical
compulsion, any support or aid to any insurrection, or rebellion
against the United States, or held any office under, or given any
support to, any government of any kind acting in hostility to the
United States, or levying war against the United States," or should
make oath or affirmation that, if he had so acted, he had been relieved
by Congress from any disability attaching to such act in the manner
provided in
[p. 239]
the Fourteenth Amendment to the Constitution; that in
case any person claiming to be a member of the legislature should fail
to make such an oath or affirmation he should be excluded from a seat
in the body; that no member-elect should be excluded on account of
race, color or previous condition of servitude; that, on application of
the Governor, the President should employ the military power of the
United States to enforce the provisions of the Act; and that the
legislature of Georgia should ratify the proposed Fifteenth Amendment
to the Constitution of the United States before Senators and
Representatives from Georgia should be admitted to seats in Congress.
This bill was approved by the President on the 22d of December, 1869.
So great was the opposition to Reconstruction, under these hard
conditions, on the part of the white people in Georgia, that the
Resumption of military
government in Georgia.
Governor was obliged to call for the military of the United States to
aid him, and finally to step aside for General Terry, who by an order
from the President, dated January 4th, 1870, was authorized to resume
the powers in Georgia of the commander of a military district, as
provided under the Reconstruction Act of March 2d, 1867. The General
found a number of members in the legislature recognized by General
Meade's proclamation who could not take either of the oaths or
affirmations prescribed. These he caused to be removed from their seats
in very arbitrary ways. This procedure put the Republicans in the
legislature in majority, and they filled these vacancies by admitting
persons who had received the next highest number of votes to those cast
for the expelled members in the election, and who could take one or the
other of the oaths or affirmations prescribed in the Act of the 22d of
December, 1869.
[p. 240]
The legislature as thus reconstructed was approved by the military
authorities, and it now proceeded to fulfil the final condition
Ratification of the
Fifteenth Amendment by
the Georgia legislature.
required of Georgia, viz., the ratification of the proposed Fifteenth
Amendment to the Constitution of the United States. It also ratified
the Fourteenth Amendment. This was, from a legal point of view,
entirely superfluous, since the Fourteenth Amendment was, at the
moment, already a part of the Constitution, as much so as any other
Article, and in resuming the status of a "State" in the Union, Georgia
was, of course, subject to all parts of the Constitution alike. The
legislature might, with equal reason, have ratified specially any other
part of the Constitution. The idea seems to have been to correct any
possible defects in the ratification of this amendment which the
Georgia legislature had voted on July 21st, 1868.
This purified legislature now elected United States Senators, both of
them Republicans, of course. All these things were done in the latter
Further delay in
the admission of
representatives
from Georgia.
part of January and the early part of February of 1870, and as the
Congress was in session, there was reason to expect that Georgia would
be, at once, fully restored as a "State" of the Union. A bill was
reported in the House of Representatives on the 25th of February from
the Committee on Reconstruction for this purpose. It was nearly
identical in its provisions and language with the Virginia and
Mississippi bills, but it dragged along through nearly five months of
debate and partisan wrangling before it became law. The reason of this
delay was that, on March 4th, General Butler proposed an amendment to
the bill which provided: "That the power granted by the constitution of
Georgia to the general assembly to change the time of holding
elections, and prescribe the
[p. 241]
day of meeting of the general
assembly, shall not be so exercised as to postpone the election of the
next general assembly beyond the Tuesday after the first Monday in
November in the year 1872, nor shall such power ever be by any future
legislature so exercised as to extend the term of any office beyond the
regular period named in said constitution; and the said general
assembly shall by joint resolution consent to this condition before
this Act shall take effect."
This language was at once taken to mean that Congress would undertake
to empower the legislature of Georgia to extend the terms of the
members of the Georgia legislature and of the Governor, elected in
April of 1868, by two years, on the ground that the "State" government
of Georgia was still provisional, and would so remain until the passage
of this Act, and that these terms would, therefore, not really begin
until the passage of this Act. The conservative Republicans as well as
the Democrats repudiated this interpretation of the powers of Congress
to extend, or to authorize the "State" legislature to extend, the terms
of the members of the legislature and of "State" officers as an
unprecedented usurpation. Some of them repudiated the idea that there
could be a provisional "State" government, and declared that any
further legislation in regard to the reconstruction of Georgia was
unnecessary, since the Act of June 25th, 1868, had restored Georgia to
her position as a "State" of the Union, along with North Carolina,
South Carolina, Louisiana, Alabama, and Florida, upon certain
conditions, all of which Georgia had fulfilled, just as the others had
done, and since all the others had been admitted to the enjoyment of
all of their rights and privileges as "States" of the Union without any
further legislation than the Act of June 25th, 1868.
[p. 242]
There is no doubt that the Butler amendment meant, and was
intended by its author to mean, just what was charged by the
conservatives. General Butler at last acknowledged and avowed it, and
attempted to justify it. But he was unable to rally a majority to
sustain it, and he withdrew it in the face of an amendment offered by
Mr. Bingham on the 7th, which provided that nothing contained in the
bill should be construed either to vacate any of the "State" offices in
Georgia, or to extend the terms of the present holders of them beyond
the time provided in the "State" constitution, or deprive the people of
Georgia of the right under their "State" constitution of electing
members of their legislature in the year 1870.
This amendment was passed on the 8th of March, and the bill as thus
amended was passed by the House of Representatives, and sent to the
Senate on the same day. It was immediately referred to the Judiciary
Committee of that body and on the next day, the 9th, it was reported
back to the Senate by this committee, without amendment. The Senate now
considered it in committee of the whole from this time to April 19th,
and when it was reported to the Senate it had been changed to a bill
which declared the existing government of Georgia to be provisional and
subject to the provisions of the Reconstruction Acts of 1867; ordered
an election in Georgia on the 15th day of November, 1870, for members
of the "State" legislature as provided for in the "State" constitution
of 1868; ordered the assembly of this legislature on the 13th of
December, 1870, and its organization preparatory to the admission of
the "State" to representation in Congress; declared that the powers and
functions of the members of the existing legislature should cease on
the 13th day of December, 1870; and made it the duty of the
[p. 243]
President of the United States, in case of domestic violence in any
municipality in the "State," reported to him by the legislature or
Governor of the State, to suppress by military power such domestic
violence, and "to exercise all such powers and inflict such punishments
as may by the laws, or the rules and articles of war be exercised or
inflicted in case of insurrection or invasion." The Senate concurred in
the recommendations of the committee of the whole, and added a
provision repealing that part of the Act of March 2d, 1867, which
prohibited the organizing of any militia force in Georgia.
In this form and with this content the bill was returned to the House.
Here it was again debated, off and on, until June 24th, when it was
The final restoration
of Georgia to her
Federal relations.
finally agreed upon with the following contents: "That the State of
Georgia having complied with the Reconstruction Acts, and the
Fourteenth and Fifteenth Articles of Amendment to the Constitution of
the United States having been ratified in good faith by a legal
legislature of said State, it is hereby declared that the State of
Georgia is entitled to representation in the Congress of the United
States. But nothing in this act contained shall be construed to deprive
the people of Georgia of the right to an election for members of the
general assembly of said State, as provided for in the constitution
thereof," and "That so much of the Act of March 2d, 1867, as prohibits
the organization, arming, or calling into service of the militia forces
in the States of Georgia, Mississippi, Texas and Virginia be, and the
same is, hereby repealed."
The Senate disagreed to the bill in this form and with these contents,
and asked for a conference committee. The House agreed and appointed
members. The conference committee agreed upon the bill as
[p. 244]
perfected by the House with the addition to the second section of these
words: "And nothing in this or any other Act of Congress shall be
construed to affect the term to which any officer has been appointed or
any member of the general assembly elected, as prescribed by the
constitution of the State of Georgia." Both the Senate and the House
accepted and concurred in the recommendations of the committee, and the
bill, as thus perfected, became law on the 15th day of July, 1870. This
bill terminated the era of Reconstruction legislation by Congress, and
at the next session of Congress, the session of 1870-71, the Senators
and Representatives from Georgia were admitted to their seats, the
Senate admitting those chosen to that body in July of 1868, Messrs.
Hill and Miller. The attempt of Governor Bullock to prolong the terms
of the members of the legislature and of the officers of the "State"
government was decidedly disapproved of by President Grant's
Administration, and an election was held for members and county
officers and for Representatives in Congress in December of 1870. The
white residents of the "State" stood well together, and carried the
election by a large majority against the Republicans. So soon as the
result was known Governor Bullock, whose term had still two more years
to run, abandoned his office and left the "State," and Georgia was thus
early rescued from negro domination, or rather "carpet-bag" domination
through negro suffrage. Her harder experiences during the years from
1868 to 1870 had worked out to her advantage, in that it brought the
respectable and capable portion of her white citizens together earlier
than was the case in the other reconstructed Commonwealths similarly situated.
From the point of view of a sound political science the imposition of
universal negro suffrage upon the
[p. 245]Southern communities, in some
of which the negroes were in large majority, was one of the
Negro rule in the
South from the point
of view of political
science and
ethnical principle.
"blunder-crimes" of the century. There is something natural in the
subordination of an inferior race to a superior race, even to the point
of the enslavement of the inferior race, but there is nothing natural
in the opposite. It is entirely unnatural, ruinous, and utterly
demoralizing and barbarizing to both races. It is difficult to believe
that the creation of such a relation between the blacks and whites of
the South was at all within the intentions of the framers of the
Reconstruction Acts. They were irritated because these communities
would not accord civil equality to the freedmen, would not accept the
proposed Fourteenth Amendment, and had passed acts which created a new
species of slavery or quasi-slavery of the blacks. They thought they
were placed between the alternative of continuing military government
in the South indefinitely, or giving the negro the political power with
which to maintain his civil rights.
Opposition to military government in time of peace was an ingrained
principle of the American people, and there was a large part of people
of the North, nearly all adhering to the Republican party, who believed
that manhood suffrage was the true principle of a sound political
science. And it was thought that the only way of creating "States" in
the South which would sustain the Republican party was by giving the
negro the suffrage. It is not surprising, then, that they adopted the
course which they did. There was a third alternative, as has already
been pointed out, viz., the placing of these communities under
Territorial civil government and keeping them there until the spirit of
loyalty to the Nation was established and the principle and practice of
civil equality among all citizens was made thoroughly secure.
[p. 246]
But, as has been said, the idea that these communities were "States" of
the Union, notwithstanding their rebellion against the United States
and their attempted secession from the Union, seemed to prohibit the
following of this course, the only true and sound course. And so these
unhappy communities were given over, as sham "States" of the Union, to
the rule of the ignorant and vicious part of their population, to be
sustained therein by the military power of the Nation, under the excuse
that that part alone was loyal.
A period of darkness now settled down upon these unhappy communities
blacker and more hopeless than the worst experiences of the war. The
conduct of the men who now appeared upon the scene as the creators of
the new South was so tyrannic, corrupt, mean and vulgar as to repel the
historian from attempting any detailed account of their doings, and
incline him to the vaguest outline. Moreover it is most difficult to
fix upon reliable facts in this period of confusion and political
night, illuminated only by the lurid gleams of passion and hatred. It
is best for the North, best for the South, best for the whole country,
and best for the world that this terrible mistake of the North and this
terrible degradation of the South should be dealt with briefly and
impersonally, and that lessons of warning should be drawn from these
experiences, instead of multiplying criminations and recriminations in
regard to them.
[p. 247]
CHAPTER XII
"CARPET-BAG" AND NEGRO DOMINATION IN THE SOUTHERN STATES BETWEEN 1868
AND 1876
Escape of Virginia, Georgia and Texas from
Negro Rule—North Carolina's
Rapid Recovery from Negro Rule—The Loyal
League—Origin of the K. K.
K.'s—Methods of the
Ku-Klux—Periods in the History of Negro
Rule—The
Act for the Enforcement of the New Amendments—The Corruption in the
New "State" Governments—The Supplemental
Enforcement Act—The
President's Proclamation of March 23d, 1871—The Ku-Klux Act of April
20th, 1871—Interference of the United States Military Power in the
Affairs of South Carolina—The President's Proclamation of May 3d,
1871—The President's Proclamation to the People of
South Carolina—The
Ku-Klux Trials—Corruption in the "State"
Governments of the South—The
Revolt in the Republican Party—The Liberal Republican Convention of
1872—Acceptance of the Liberal Republican Candidates by the
Democrats—Division in the Democratic
Party—The Republican Platform
and Nominees—The Republican
Triumph—Events in Alabama—Events in
Louisiana—The Downward Course between 1872 and 1874—The Elections of
1874—The Change in Alabama, Arkansas and
Texas—The Status in South
Carolina in 1874—The Day of Complete Deliverance—The Status in
Mississippi in 1875—Fiat Money and the Resumption of Specie
Payments—The Inflation Bill of 1874 and the Veto of it by the
President.
Virginia, Texas and Georgia had been in no great hurry, as we have
seen, to exchange military government exercised by the white officers
Escape of Virginia,
Georgia and Texas
from negro rule.
of the United States army for "State" government under the electorate
proposed in the Reconstruction Acts. In this they were wise. The army
officers did not, as a rule, sympathize with the radical
[p. 248]
movements of the Republicans in Congress, and they so executed the
duties imposed upon them as to cause the least suffering and
inconvenience. Their rule, though exercised under a repellent title,
was in fact far milder than, and far preferable to, the civil
government of the adventurer and the negro. They mingled socially with
the old families, and, in many cases, married their fair daughters. The
common soldiers from the Northern "States" also fraternized with their
race relatives in the South. They did not fancy the black soldiers
either of the regular army or the "State" militia, and many were the
cases in which they intervened between the defenceless ex-Confederates
and the brutal blacks in blue. It is even said by men who have every
opportunity to know that many of them doffed their uniforms on election
day, went to the polls, and voted the Democratic ticket.
In spite of the threats of Congress, and the ever-increasing conditions
imposed by that body upon the permission to resume the "State" status,
these three communities held out under military rule until so many of
their leading citizens had been amnestied by Congress and made again
eligible to office and mandate, and until so much better provisions
concerning the enfranchisement of the ex-Confederates had been secured,
as to put them in a far better position to resume "State" government
than was the case two years before. Moreover, these communities had
larger white than black populations. After their full restoration,
consequently, Virginia and Georgia escaped largely the suffering
experienced by most of the others, and Texas also managed to pull
through the years from 1870 to 1874 with only about a four-fold
increase of taxation, and the creation of a debt of only about
5,000,000 of dollars, when she reached the period of union of almost
all her best citizens in the
[p. 249]
Democratic party, which, in the
election of Richard Coke as Governor in 1874, and of a majority of the
legislative members, permanently triumphed in Texas. Mississippi also
had held back in 1868 and 1869, as we have seen, in order to secure
better terms for the ex-Confederates in the enfranchising and
disfranchising provisions of the "State" constitution, and by doing so
had accomplished this result. But Mississippi was one of the three
Southern communities in which the negro population far outnumbered the
white. Mississippi was not, for this reason chiefly, so fortunate as
Virginia, Texas and Georgia. She was obliged, with South Carolina and
Louisiana, to pass through the fiery furnace in order to fuse the
respectable white elements in her population into a single political
party with a well-understood and a well-determined purpose.
Of all the "States" included in the Congressional Act of June 25th,
1868, only North Carolina had been fortunate enough to rid herself,
North Carolina's
rapid recovery
from negro rule.
before 1872, of the rule of the adventurers and their ignorant negro
support. This happened because matters were driven to a crisis sooner
here than elsewhere. The legislature of 1868 had proceeded promptly to
authorize the issue of $25,000,000 of bonds, when the whole taxable
property of the "State" was not over $125,000,000. From the first
moment the people were threatened with confiscation, and when to this
was added the legislative act, known as the Schaffner law, authorizing
the Governor to suspend civil government, and institute martial law in
any part of the "State," and when he actually undertook to do so in
three counties of the "State," the whites came together in the election
of 1870, captured the legislature and redeemed the "State" from the
hideous tyranny with which it was threatened.
[p. 250]
Already before the Reconstruction Acts were passed, the political
adventurers in the South had begun organizing the negroes into secret
The Loyal League.
bodies, known later as the Union or Loyal League. The members of these
bodies were sworn to obey the decisions of the organization and to
execute them. The original idea seems to have been a combination for
protection against bands of lawless white people, and for mutual aid
and assistance in the hard struggle for existence to which the freedmen
were now exposed. The League soon took on, however, a political
character, and became a sort of Republican party organization in the South.
It is difficult to determine whether the Ku-Klux organization preceded
that of the Loyal League and provoked it or not. So far as we know,
Origin of the
K. K. K.'s.
both of them were first heard of in the year 1866. It is probable that
the Ku-Klux had its origin a little farther north than the Loyal
League. It is said by those who profess to know most about it, that the
first appearance of this body was in one of the southern counties of
Tennessee, Giles County; that it was first organized by a lot of young
loafers, probably ex-Confederate soldiers, who lived in the town of
Pulaski, the county town of that county; and that their first purpose
was the playing of practical jokes upon the ignorant and superstitious
negroes of the neighborhood. They operated in the night-time, went
disguised, travelled on horseback, their horses being also disguised,
and were oath-bound to execute the decisions of the organization, and
to protect each other. Whatever may have been its origin, this body
also soon found its political usefulness. It soon proved to be a
powerful means for intimidating and terrorizing the negroes, and also
white men acting with the negroes.
[p. 251]
After the Reconstruction Acts were passed and put into operation, and
especially after the Southern communities were reorganized as "States"
Methods of
the Ku-Klux.
under them, and the military governments gave way to the "State"
governments, this organization spread all over the South, and
contributed much by its violent and unlawful methods toward wringing
finally the new "State" governments of the South from the hands of the
negroes and the "carpet-baggers." As it extended, its methods became
more lawless and violent. Its members whipped, plundered, burned,
abducted, imprisoned, tortured and murdered, for the prime purpose of
keeping the negroes from exercising suffrage and holding office. They
were protected by many respectable people who would not have
participated personally in their nefarious work. And they had
confederates everywhere, who, upon the witness stand and in the jury
box, would perjure themselves to prevent their conviction and
punishment. It was even said that there were many cases where members
of these Klans were able to have themselves subpoenaed as witnesses, or
summoned as jurors, in the trials of their comrades, and that they were
sworn to perjure themselves, if necessary, to clear each other. The
respectable people of the South tried to make it appear that these
lawless bands were simply freebooters, such as generally infest a
country for a time after a period of war, and had no political meaning
or purpose whatsoever; and it is probably true that the Klans never
went beyond county organization, any wider bond than the county
organization, or Klan, being rather the moral bond of a common purpose;
but it cannot be well questioned now that they had one purpose at least
in common, and that that was a chief purpose with them all, viz., to
terrorize the negro out of the exercise of his
[p. 252]newly-granted
privileges of suffrage and office-holding, and keep him in his place as
a menial.
The appearance of both the Loyal Leagues and the Ku-Klux Klans in the
manner in which they appeared, and at the time when they appeared,
The naturalness of
these organizations.
ought not to cause any surprise to the student of history. Under the
reconstruction of the Southern communities as pursued before March of
1867 it seemed as if the freedmen were to be left to the tender mercies
of their former masters, irritated against them by the act of the North
in emancipating them, and by failure in war to prevent it. It was
entirely natural, not to say praiseworthy, for them to combine for the
defence of their newly found rights, and for mutual assistance in the
hard battle against want which they were now obliged to wage. And it
was no less natural that they should look for the intellectual power
necessary for forming such combinations to the white men from the North
who had helped them out of their bondage, and had given them food and
clothes in their hunger and nakedness.
And, again, when by the Reconstruction Acts and the restoration of
martial law in the South under them, Congress turned the tables upon
the Southern white people, and placed the ignorant barbarians in
political control of them, and made every open attempt to resist this
control a penal offence, it was also rather natural, though not
praiseworthy, that men should have bound themselves together by secret
oaths to do anything and everything in their power to defeat this
blunder-crime against civilization. Whether natural or not, it always
happens when such attempts are made, and it is always to be expected.
But to return to the order of the narrative. The formation of the Union
Leagues in 1867 and 1868 enabled
[p. 253]
the negroes to vote in these
The opportunity for
political adventurers.
years for delegates to the constitutional conventions required under
the Reconstruction Acts, and to vote upon the ratification of the
constitutions framed by them, and to participate in the election for
the "State" officers and legislative members under those constitutions,
with the help and under the direction of these organizations, and to
operate the newly established "State" governments under the same
direction. This opened the way for the "carpet-bag" governments in the
Southern "States," whose deeds may be now briefly narrated.
The landing places in this story may be placed at the years 1872, 1874,
and 1876. The year 1872 is the date of the national revolt against the
Periods in
the history of
negro rule.
policy of the Washington government in the affairs of the reconstructed
"States." The year 1874 is the date when some of the reconstructed
"States" succeeded in overthrowing carpet-bag and negro rule, and the
Democrats succeeded in electing a majority of members in the lower
House of Congress. And the year 1876 is the date of the complete
overthrow of that rule and the complete establishment of the "solid
South" under white Democratic government.
Before all of the Southern communities had been admitted to
representation in Congress, and before any of them except Tennessee had
The Act for the
enforcement of the
new Amendments.
gotten fairly under way with their new "State" governments, a bill was
presented in Congress to provide for the enforcement of the Fourteenth
and Fifteenth Amendments to the Constitution of the United States. It
will be remembered that these Amendments authorized the exercise of
power by the United States Government against "State" action only. They
read: "No
State shall make or enforce any law which shall abridge the
privileges or immunities of a citizen of
[p. 254]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"; and "the right of
citizens of the United States to vote shall not be denied or abridged
by the United States or by any
State on account of race, color or
previous condition of servitude."
It is entirely clear from this language that, in the enforcement of
these new provisions of the Constitution, the United States Government
must direct its powers against the action of the "States,"
respectively, through their legislators and officials, and against that
only. But in this bill which became law on the 31st of May, 1870,
Congress enacted penalties not only against "State" officers and agents
for the violation of the Fourteenth and Fifteenth Amendments, but
severe penalties against any
person within the "States," as well as
the Territories, who should undertake to deprive by unlawful means any
other person of his right to qualify and vote at any election, and
against any
person who under color of any law, statute or ordinance,
regulation or custom, should undertake to deprive any other person of
his civil rights and civil equality. Congress also, in this Act, vested
the jurisdiction over such cases in the United States courts and
authorized the President of the United States to enforce their
decisions by the aid of the United States army and navy if necessary.
Now, while it may probably be rightly claimed that the
Thirteenth
Amendment to the Constitution, which reads: "Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist in the United States,
or in any place subject to their jurisdiction," empowers Congress to
make laws protecting the civil rights and civil equality of persons
[p. 255]
within the "States" against infringement by other
persons, and
to invest the officers of the United States, both judicial and
executive, with the power to enforce these laws, since in this
Amendment the prohibition of slavery or involuntary servitude is not
directed against "State" action solely, but against any attempt made by
anybody to create an involuntary servitude, it cannot on the other hand
be claimed, with any show of correct interpretation, that the
Fourteenth Amendment warrants the exercise of any such power by the
United States Government, and it is entirely out of the question to
claim that the Fifteenth Amendment protects the right of a person,
within a State, to vote against the attempt of another person or of
other persons to infringe the same, or even against the "State" itself
to do so, except it be on account of race, color or previous condition
of servitude.
There is not the slightest doubt in the mind of any good constitutional
lawyer, at the present time, that Congress overstepped its
Criticism
of the Act.
constitutional powers in that part of the Enforcement Act of May 31st,
1870, which related to the exercise of the suffrage, and trenched upon
the reserved powers of the "States." The excuse for it was that lawless
bands of white men, the Ku-Klux Klans and the like, were intimidating
the blacks, and in the approaching elections of the autumn of 1870
would prevent them from voting. But that was a matter for the "State"
governments to look out for, and the "State" governments in the South
were, at the time of the passage of this Act, with the exception of
Tennessee, in the hands of the Republicans.
Meanwhile the new "State" governments had well begun their career of
corruption, shame and vulgarity. They were plundering the treasury,
The corruption in the
new "State" governments.
increasing the taxes, selling franchises, issuing bonds, and
celebrating
[p. 256]
high carnival everywhere and all the time. The
gentlemen and political leaders of the old school, and the old
political class, of the South looked on aghast, with mingled feelings
of bitter degradation and anger, and the hotspurs and desperadoes were
stirred to deeds of intimidation and violence. There is little doubt
that some negroes were terrified out of exercising the suffrage in the
election of 1870. Not yet, however, had enough of the disqualified
whites been amnestied, or enough intimidation been exercised, or
sufficient unity among the whites been attained, to work the overthrow
of "carpet-bag," negro rule. Enough, however, was threatened to
influence the Republican Congress to proceed to more complete, if not
more extreme, measures for the protection of the negro in his civil and
political rights, and to move the President to garrison the principal
points in the Southern "States" with United States soldiers.
The Congress passed the Act of the 28th of February, 1871, which so
supplemented the Act of May 31st, 1870, as to place the whole control
The supplemental
enforcement Act.
of the registrations and elections when and where Representatives to
Congress should be chosen, in the hands of United States officers, the
supervisors, and the deputy marshals, commissioners and judges of the
United States courts. It may be claimed that Congress, under the power
to regulate the manner of holding Congressional elections vested in it
by Article I., section 4, of the Constitution, was authorized to pass
this law, provided it confined the action of it to the Congressional
registration and election. But since the "State" elections were held at
the same time and place, and under the same control and direction as
the Congressional, it was inevitable that the control of the United
States officers would be exercised, either directly
[p. 257]or
indirectly, over those also. And this was unquestionably the chief
purpose of the Act, so far as its execution in the Southern "States"
was concerned.
But this was not yet enough in the views of the Administration. In the
two years of his incumbency of the Presidential office, General Grant
The President's Message
of March 23d, 1871.
had fallen into the arms of the radical Republicans, who appeared to be
in large majority, and the usual manoeuvering had begun for the second
term. Upon the basis of information, which turned out to be very
insufficient and unreliable, the President, on the 23d of March, 1871,
addressed a message to Congress, in which he affirmed that life and
property were insecure in some of the "States," and the carrying of the
mails and the collection of the revenue dangerous; that the power to
correct these evils was not possessed by the "State" governments; and
that it was doubtful if the Executive of the United States, under
existing laws, had the power to meet these exigencies; and asked
Congress to pass such laws as would enable him to cope with the situation.
Congress answered this appeal with the noted, not to say notorious,
Ku-Klux Act of April 20th, 1871, in which Congress simply threw to the
The Ku-Klux Act of
April 20th, 1871.
winds the constitutional distribution of powers between the "States"
and the United States Government in respect to civil liberty, crime and
punishment, and assumed to legislate freely and without limitation for
the preservation of civil and political rights within the "States," and
for the punishment of the infraction of the same by individual persons
conspiring together for that end, and for the punishment of the
conspiracy alone, whether the infraction or the conspiracy was executed
upon, or directed against, officers of the Government or merely private
persons; and
[p. 258]
in which the act of a combination of private
individuals defying successfully the constituted authorities of the
United States in a given "State," or those of the "State" concerned,
was declared to be rebellion against the United States, upon the
happening, and during the continuance, of which the President might
suspend the privileges of the writ of Habeas Corpus within such
districts as he, by proclamation, might designate.
The first part of this Act was, unquestionably, an unconstitutional
encroachment upon the powers of the "States," in so far as it is
The unconstitutionality
of the Act.
related to the protection of political rights against infraction, or
against conspiracy for the purpose of infraction, by private persons.
The second part was probably within the powers of Congress, but it was
a most extreme use of its powers. The "State" governments in the South
were in the hands of the Republican "carpet-baggers" and Republican
negroes, and there is no question that the governors and legislatures
of these "States" were quick enough to call in the aid of United States
troops long before it was necessary to do so. Moreover, the militia of
these "States" was composed almost entirely of negroes, and the whites
were forbidden to keep arms. Under such circumstances this Act of
Congress empowering the President to establish martial law upon his own
motion in time of peace within a "State" when combinations of private
persons had successfully defied, in any instance, the laws of the
"State" was a very stiff measure, and unwarranted by the facts of the situation.
As a matter of fact, the Governor of South Carolina had asked the
President to give him United States soldiers for the protection of the
Interference of the
United States military
power in the affairs
of South Carolina.
"State" and its citizens against domestic violence, and the President
had, on the 24th of March just preceding the passage of this act,
issued his proclamation commanding the persons
[p. 259]composing the
unlawful combinations to disperse and retire to their abodes within
twenty days. This was the method prescribed by the Constitution for
bringing the military power of the United States to the assistance of a
"State" government whenever the "State" government might not be able to
maintain itself against domestic violence. There is no doubt that
General Scott of Ohio, whilom officer in the Union army and in the
Freedmen's Bureau, the "carpet-bag," radical Republican Governor of
South Carolina, attributed the most traitorous character possible to
these combinations, exaggerated the strength and extent of them to the
highest possible degree, and called for United States troops to
suppress them at the earliest possible moment. The most trustworthy men
in South Carolina affirmed then, and have continued to affirm to this
day, that those combinations had no traitorous intent whatsoever, but
were simply defensive in their nature; that the wholesale pardoning of
criminals by the Governor and the vagrancy of the negroes had filled
the country with desperadoes who made life, property, and female honor
insecure; and that, as the militia was composed of the friends of these
fiends, and the "State" government itself would not protect the white
citizens, it was absolutely necessary for the white people to create
some means of united action in self-defence and take the law into their
own hands. Statements to this effect were made by one Judge Carpenter,
a Republican "State" official of South Carolina, before the
investigating committee of Congress in 1871.
On the 3d day of May following the passage of the Ku-Klux Act, the
President issued his general proclamation warning the people that the
The President's
proclamation of
May 3d, 1871.
law applied to the whole country, but particularly exhorting the people
[p. 260]
in the newly reconstructed "States" to suppress all unlawful
combinations by their own voluntary efforts, and declaring, that while
he was reluctant to make use of the extraordinary powers conferred on
him by the Act, he would nevertheless do so if it should be found
necessary for securing all the citizens of the United States in "the
peaceful enjoyment of the rights guaranteed to them by the Constitution
and the laws."
On the 12th of the following October, the President directed his
proclamation to the people of South Carolina alone, declaring that
The President's
proclamation to
the people of
South Carolina.
hostile combinations of persons making armed resistance to the civil
authorities of the "State" and the United States, in their attempt to
secure the people in their rights guaranteed by the Constitution of the
United States and the Congressional Act of April 20th, 1871, too strong
to be overcome by these authorities, existed in the counties of York,
Marion, Chester, Laurens, Newberry, Fairfield, Lancaster and
Chesterfield, and commanding the members of these combinations to
deliver their arms and accoutrements into the hands of the United
States officers in those districts, and disperse to their abodes within
five days.
At the end of the five days of grace, the President issued a third
Suspension of the
privileges of the writ
of Habeas Corpus
by the President in
certain counties of
South Carolina.
proclamation, declaring that the members of these unlawful combinations
in the places mentioned in his former proclamation had not dispersed
and had not delivered up their arms and accoutrements as ordered, and
suspending the privileges of the writ of Habeas Corpus in the counties
of South Carolina above designated.
On the 3d day of the following November a fourth proclamation was
published, in which the President
[p. 261]acknowledged his error in
including the county of Marion in the list of counties in which the
privileges of the writ were suspended, but declared that the situation
in Union county was such as to warrant the suspension of those
privileges in that county also, and warned the insurgents in that
county to deliver up their arms and accoutrements and disperse to their
abodes within five days. This warning not having been obeyed, according
to the views of the President, a final proclamation was issued by him
on the 10th day of November suspending the privileges of the writ of
Habeas Corpus in Union county.
In execution of the Act of April 20th, and in pursuance of these
proclamations, the President now sent a strong force of United States
The Ku-Klux trials.
troops into the district composed of the nine counties mentioned, the
commanders of which arrested some five or six hundred persons, kept
them in confinement so long as they pleased, and procured the
arraignment of some of them before the United States courts, where a
number of them were convicted and sentenced to fine or imprisonment or
to both. Whether there was any necessity for the exercise of such
harshness as this is a grave question. It was felt at the South to be
an abominable outrage, and the Democrats of the North held the same
opinion. More ominous than all this, however, was the fact that many
leading Republicans raised their voices in disapproval of it, and of
the law which authorized it.
During the year 1872, in addition to all this, there came to the
knowledge of Congress and of the people of the North the frightful and
Corruption in the
"State" governments
of the South.
In South Carolina.
scandalous corruption of the "State" governments in the South. It is
very difficult to get at distinct and reliable facts upon a subject
which officials undertake to cover up and keep shrouded in darkness.
[p. 262]
But the record of these doings in South Carolina was something as
follows. The House of Representatives, the majority of the members of
which were negroes, and the presiding officer of which was the
notorious F. J. Moses, spent ninety-five thousand dollars to refurnish
its assembly hall, where the aristocrats of South Carolina had never
spent over five thousand. Clocks costing six hundred dollars each,
sofas two hundred dollars each, chairs at sixty dollars each, desks at
a hundred and twenty-five dollars each, mirrors at six hundred dollars
each, cuspidors at eight dollars each—such were the items of the bill.
In the four years from 1868 to 1872, two hundred thousand dollars were
expended for furniture for the legislative chambers alone. Then came
the bills of supplies, sundries and incidentals, amounting in one
session to three hundred and fifty thousand dollars, one hundred and
twenty-five thousand of it for a free restaurant, lunch counter and
bar, at which the members and their friends fared most royally, eating,
drinking and smoking, and paying not a penny therefor directly, nor
indirectly, since many, if not most, of the members of that legislature
paid no stiver of the taxes. Then came the printing bills, averaging
more than one hundred and fifty thousand dollars a year where ten
thousand dollars would have been more than enough to pay every
legitimate expense of that kind.
Then came the sale of franchises of all kinds, and the pledging of the
credit of the "State" in the form of bonds to aid all sorts of
enterprises pretended to be set on foot, or promoted as is now said, by
combinations of legislators or officials or their friends. In 1868 the
"State" debt was about five millions of dollars, with almost enough
assets to pay it. In 1872 the assets had disappeared and the debt was
more than eighteen
[p. 263]
millions, and nothing worth mentioning to show
for it. And all this when the "State" taxes had been raised from less
than a half million of dollars a year on a valuation of over four
hundred millions to two millions of dollars a year on a valuation of
less than two hundred millions of property.
In Louisiana, under the leadership of the brilliant young adventurer,
Henry C. Warmoth of Illinois, the financial history of the "State" was
In Louisiana.
even more scandalous. During the four years of Warmoth's governorship,
from 1868 to 1872, the average annual expenditure of the "State"
government was about six millions of dollars, when, measured by the
previous experiences of the "State," six hundred thousand dollars would
have been ample to defray all legitimate expenses. At the beginning of
Warmoth's administration the debt of the "State" was between six and
seven millions of dollars, with more than enough assets to extinguish
it. At the end of the four years of his power, in 1872, the debt was
nearly fifty millions of dollars, the assets had all disappeared, and
there was nothing worth mentioning to show for the one or the other.
In the counties and municipalities of both "States" the corruption was
equally rampant, shameless, and vulgar. It is impossible to obtain
exact figures in regard to it, or to estimate with any degree of
exactness, or even probability, the amounts stolen and made away with.
In the other reconstructed "States" where the adventurers and the
negroes held sway, the "State" governments worked along the same lines,
though not to the same appalling extent.
It was the most soul-sickening spectacle that Americans had ever been
called upon to behold. Every principle of the old American polity was
here reversed. In place of government by the most intelligent and
[p. 264]
virtuous part of the people for the benefit of the governed, here was
government by the most ignorant and vicious part of the population for
the benefit, the vulgar, materialistic, brutal benefit of the governing set.
It is no subject of surprise or wonder that, confronted with these
frightful results of radical Republican policy and administration in
The revolt in the
Republican party.
the South, such Republicans as Horace Greeley, Charles Francis Adams,
Lyman Trumbull, David Davis, Carl Schurz, Gratz Brown, Stanley
Matthews, George Hoadly, J. R. Spaulding, George W. Julian, Horace
White, David A. Wells, and the like, turned with disgust from the
nauseating transactions and resolved to do what was in their power to
put an end to it all. Even the radical, but honest, Sumner gave his
adherence to the movement for a change of the Administration, as the
only way to check the terrible corruption which was creeping over the
land. Sumner, it is true, had been made to feel personally the heavy
hand of the Administration. He had been dropped, the preceding year,
from the chairmanship of the Committee on Foreign Relations at the
requirement of the Administration, because he had so strongly and
successfully opposed the Santo Domingo policy of the President and his
"aide-de-camp." But he had opposed that because he saw in it
corruption, robbery and bloodshed.
The Liberal Republicans were bolters, of course, from the regular
organization, and there was no sufficient opportunity for them to
The Liberal Republican
convention of 1872.
construct a party organization for themselves in time for the
Presidential election of 1872. A general call for the leaders among
them to meet in mass convention was issued from a "State" convention of
Liberal
[p. 265]
Republicans in Missouri, and the meeting took place at
Cincinnati on the 1st day of May, 1872.
The platform which it presented to the people demanded the removal, at
once, of all political disabilities from the white men of the South,
Their platform.
the maintenance of impartial suffrage and of equal civil rights, the
cessation of military rule in the South and the supremacy of civil over
military power, the reform of the civil service, and a speedy return to
specie payments. Many of the Liberal Republicans were inclined toward a
much more moderate tariff policy, but out of respect for the opinions
of those among them who were strong protectionists, they abandoned
their attempt to insert any doctrine on this subject in the platform.
The protectionists were equally considerate, and so the new party went
to the country uncommitted upon this very important question.
It was at first supposed that the choice of the convention for the
Presidency would lay between Judge David Davis of Illinois, Charles
Their nominees.
Francis Adams of Massachusetts and Senator Lyman Trumbull of Illinois.
But an unexpected hostility of a very bitter nature soon developed
between the supporters of Davis and Adams, and rendered the nomination
of either of them impossible. This was evident on the first ballot, on
which Mr. Greeley, Senator Trumbull and Gratz Brown each received more
votes than Judge Davis, and together more votes than Mr. Adams. It was
thus manifest that the Western men would not take Mr. Adams and the
Eastern men would not take Judge Davis. The compromise was quickly made
upon Greeley, and Gratz Brown was put with him upon the ticket. It was
an unfortunate selection. The country did not want any brilliant
experiments at the moment. It wanted to settle down to business. And it
was to be
[p. 266]
foreseen that it would not be willing to make a
newspaper man President at such a juncture.
But stranger than the fact that the prince of protectionists was now
running for the presidency on a platform which ignored protection, was
Acceptance of the
Liberal Republican
candidates by the
Democrats.
the fact that the Democratic party, strengthened again by its Southern
wing, now accepted the platform of the Liberal Republicans, and in
convention at Baltimore, in July following the Cincinnati meeting,
nominated the Liberal Republican candidates for the presidency and the
vice-presidency as its own candidates. The action of the Democrats,
both as to the platform and the candidates, was almost unanimous, and
it would be ungracious to express any suspicion of its sincerity. The
change of profession on the part of the Southern Democrats was very
great indeed, so great as to be surprising, but they had evidently come
to the conclusion that it was useless to contend with the North any
longer against the civil and political rights of the freedmen, and that
it was best for all concerned to accept the inevitable, and try to put
themselves in the most advantageous position possible for adjusting the
relations of their section to it.
Mr. Greeley was, indeed, in strange company, but the company had come
to him. He had not gone to them. He welcomed their support, and became
Mr. Greeley and
the Democrats.
contaminated by it in the eyes of a vast majority of the people of the
North. His own great ambition to be President also caused him to say
and to do some imprudent and undignified things. More than all, the
time had not yet come for the great change. The country was fast
approaching a financial crisis, and any shock would bring it on with
such sudden violence as to make it widespread and disastrous.
[p. 267]
As the last move, the "straight-out" Democrats bolted the ticket in
September, and at a convention held in Louisville, Kentucky, nominated
Division in the
Democratic Party.
Charles O'Conor of New York for President, and John Quincy Adams of
Massachusetts for Vice-President.
The September and October elections in Vermont, Maine, Pennsylvania,
Ohio, and Indiana demonstrated the hopelessness of the opposition to
The Republican
platform and
nominees.
the radical Republicans. They had held their convention in Philadelphia
in the early part of June, had issued a platform which simply asserted
the righteousness of what they had done and the determination to
persist in the course heretofore followed, and had nominated General
Grant for re-election to the presidency with Senator Henry Wilson, of
Massachusetts, for his running mate.
In the election, they swept all of the Northern "States" by heavy
popular majorities, and with their election machinery in the Southern
The Republican
triumph.
"States" they captured a majority of these also. In those Southern
"States" which were free from carpet-bag negro rule the Greeley
electors were chosen, that is in Maryland, Kentucky, Missouri,
Tennessee, Georgia and Texas. In the North, a very large number of
Democrats had failed to go to the polls. They could hardly have elected
Greeley, however, had they all voted for him. They were pretty sure of
this, and they took the opportunity of administering a rebuke to their
chiefs for not nominating candidates who were members of their own party.
While there is no doubt that the re-election of General Grant, and the
election of a strong Republican majority in Congress, quieted the mind
The effect of the
triumph of the
Republicans.
of the North, there is also no doubt that they caused great
[p. 268]
discouragement among the white people of the South, since they operated
as an encouragement to the adventurers and the negroes to persevere in
their corrupt and conscienceless management of the "State" governments.
In several of the reconstructed "States" the Democrats had made strong
efforts to secure control of the "State" governments. The Amnesty Act
of May 22d, 1872, had removed the disqualifications of the Fourteenth
Amendment from all the Southern leaders, except such as had been
members of the Thirty-sixth and Thirty-seventh Congresses, or had held
judicial, military, naval, or diplomatic office under the United
States, or had been heads of departments in ministerial office. A large
number of these leaders had thus been placed in a position to
participate as candidates for office and legislative position in the
election, and to aid greatly in the work of rescuing their "States"
from negro Republican rule. In Alabama and Louisiana they had very
nearly succeeded. In Alabama they had elected the Governor and a
majority of the members to the lower house of the legislature in the
autumn of 1870, and in 1872 they claimed to have elected a majority of
the members to both houses.
In Alabama, the Democratic members-elect of the legislature convened in
the capitol, and the Republican members-elect in the court-house. The
Events in
Alabama.
Democratic Governor, Lindsay, recognized the Democratic legislature,
and the Democratic legislature then canvassed the votes for Governor
and declared the Republican candidate, D. P. Lewis, elected. Lewis then
recognized the Republican legislature, and telegraphed to Opelika for
United States soldiers to come to Montgomery. They arrived by the next
train, and, backed by these, the Governor and his friends, in and
[p. 269]
out of the legislature, succeeded in constituting a legislature with a
small Republican majority in both houses; and the whites fell back
again under black rule, discouraged and exhausted by the exertions and
the failure to escape from it.
In Louisiana the events were far more extraordinary and violent.
Warmoth's rule was approaching its end, and his Republican enemies,
Events in
Louisiana.
what was known as the Custom House faction, the United States
officials, were fairly panting to get at him. To foil them, he went
over to the Democrats and promised to give them a fair chance to elect
their candidate for Governor and their candidates for the legislature.
For this he expected protection from them against the Custom House
gang, to whom he had denied what they had conceived to be their proper
share of the public plunder, and who, if in possession of the "State"
government, would make him answer for it. Warmoth supposed he was able
with his election machinery to give the "State" to the Democrats
whether the voters should do so or not. The election took place at the
same time as the presidential election, November 4th, 1872. The returns
were sent by the supervisors and commissioners of elections to Warmoth,
and he delivered them to his Returning Board, consisting of himself,
the Secretary of State, F. J. Herron, and one John Lynch; the other two
members of the Board as constituted by the legislature, by the act of
1870, viz., Lieutenant-Governor Pinchback and one Anderson, being
disqualified from serving, since both of them were candidates for
office at this election. The Governor had his suspicions aroused about
the loyalty of both Herron and Lynch to him before the count took
place, and having the legal power to remove Herron, he did so at once
and appointed one John Wharton, a friend upon whom he could rely, in
[p. 270]
Herron's place. Lynch now refused to act with them, and Herron
denied the power of the Governor to dismiss him from the Secretaryship
of State, and from his
ex officio membership in the Returning Board.
Warmoth and Wharton proceeded, however, to supply the place of Lynch,
as they might do under the law, and Herron and Lynch proceeded to
supply the place of Warmoth.
The Warmoth Board had the returns, and it was also generally felt that
the Democratic candidate for Governor, John McEnery, had been chosen by
the voters. Moreover, the right of Herron to retain the office of
Secretary of State was immediately brought before the supreme court of
the "State," and the court gave its decision against Herron's
contention. It seemed now certain that the Warmoth Returning Board
would declare McEnery to have been elected Governor. But the Republican
candidate, W. P. Kellogg, then a Senator from Louisiana in Congress,
was watchful and resourceful. He secured from United States District
Judge Durell an injunction which forbade the Warmoth Board to do
anything except in the presence of the Lynch Board, and forbade McEnery
from claiming his election under the returns which might be given out
by the Warmoth Board.
Warmoth met this by a move which was equally a
coup de surprise. The
legislature had at its last session passed a law vesting the power to
Warmoth
and Durell.
select the members of the Returning Board in the senate. The Governor
had not signed this bill, and probably never intended to sign it, since
it proposed to take the control of the Board out of his hands, but it
now seemed to furnish him a way of escape from Durell's order. He
hastily signed the bill and promulgated it as law, and as the senate
was not in session, proceeded to appoint the members of the new Board
himself, under the power of the Governor to make temporary appointments
[p. 271]
to office when the senate was not in session. He appointed one
Dr. Feriet chairman of the Board, and put the election returns in his
hands. This Board declared that McEnery had been elected Governor and
that the Greeley electors had been chosen. The Governor published these
decisions officially on the 5th day of December, and the affair seemed
to have been closed. But to the surprise of everyone concerned, and of
the whole country, in the middle of the night following, Judge Durell
issued an order to the United States Marshal, S. B. Packard, to take
possession of the capitol and hold it at the pleasure of the Judge
against all unlawful bodies attempting to convene therein. The Judge
claimed that Warmoth had committed a contempt against his court in the
Returning Board proceeding, and he declared that the Lynch Board was
the legal body. His order furthermore required the commander of the
United States troops to furnish a detachment of soldiers to sustain the
United States marshal in taking possession of the capitol, and in
enforcing the Lynch Board's canvass and decision.
A more palpable outrage upon the lawful powers of a "State" could
hardly have been conceived. The Judge had not a scintilla of authority
upon which to rest his proceeding. It is claimed that he was drunk when
he made the order. But this can hardly have been true, that is he could
not have been any more than ordinarily drunk, since the order was not
withdrawn when he became ostensibly sober again, but was made the basis
of a proceeding which lasted through many days, and the results of
which were the counting in of Kellogg and of a Republican legislature
by the Lynch Board, the immediate instalment of the Lynch Board
legislature, the almost immediate impeachment of Warmoth by it and his
removal from the governorship, the installation of the
[p. 272]
Lieutenant-Governor, the negro Pinchback, in his seat, the recognition
of the Lynch Board legislature and of Pinchback by the President of the
United States as the lawful legislature and executive of Louisiana, and
the inauguration of Kellogg as Governor at the end of the
Warmoth-Pinchback term. If this was all the work of a drunken spree, it
must have been a very long one, and there must have been many
participants in it besides the Judge.
The Warmoth Board Governor and legislature undertook to set up
government also, sustained as they undoubtedly were both by the law,
and by public opinion in Louisiana and probably throughout the country,
and partially organized a militia force. It was the fighting between
this militia and the metropolitan police in the streets of New Orleans
which occasioned the suppression of the McEnery government at last by
United States soldiers.
For two years more now the government of the adventurers, based on
negro support, continued in the "States" south of the Tennessee line,
The downward
course between
1872 and 1874.
The elections
of 1874.
except Georgia. Property was decreasing in amount and value; taxes were
being doubled; and new bond issues were being made, and the bonds sold
at a great reduction upon their face value, or stolen outright. But the
day of deliverance was coming. The conscience of the Nation had been
aroused, and in the elections of 1874 the voters throughout the country
delivered a stunning rebuke to the party responsible for the hideous
situation in the South. It is true that other issues were influential
in producing the
bouleversement of 1874, especially the financial
panic of 1873 and the corruption in the circles of the Federal
Administration itself, the Whiskey ring frauds, and the Indian agent
peculations. We must also
[p. 273]
remember that at this very election
several of the Southern "States" relieved themselves of Republican rule
and sent solid, or almost solid, Democratic delegations to Congress.
But with all proper allowance for the effect of these things, there
still remained, as the chief cause of the change of view in the North,
the revolt of the popular conscience against being any longer dragooned
into the support of the policy of the Republican party in the Southern
"States," and the popular disgust at the everlasting "waving of the
bloody shirt" whenever the dominance of that party seemed anywhere
threatened. At any rate, it was a clean sweep, and from a majority of
two-thirds in the Forty-third Congress, the Republicans found
themselves in possession of only about one-third of the seats in the
Lower House of the Forty-fourth Congress.
Moreover, three more of the Southern "States" freed themselves, at this
time, from "Black Republican" rule. In Alabama, the respectable whites
The change in Alabama,
Arkansas and Texas.
had now about all gone into the Democratic ranks, and with the election
of George S. Houston as Governor, and a legislature in large majority
Democratic, the "State" won at last its self-government. Likewise by a
similar fusion of all the respectable whites into the Democratic party,
A. H. Garland was elected Governor of Arkansas and a legislature with a
large Democratic majority was chosen, and from that time forward the
"State" government has been in the hands of its own citizens. The same
result was reached in Texas, where the union of the respectables of all
parties upon the Democratic candidates elected Richard Coke Governor
and a legislature of reputable white men.
Even South Carolina very nearly escaped her thraldom, and came near to
electing a white Democrat Governor. As it was, she got a moderate
The status in South
Carolina in 1874.
Governor
Chamberlain.
Republican for
[p. 274]
Governor, Mr. D. H. Chamberlain, a Northerner
indeed, but a man of great ability and undoubted honesty, who did
everything in his power to redeem the "State" from the miserable
condition into which the errors and crimes of his predecessors had
brought it. He naturally soon found himself in conflict with some of
the leaders of his own party in the "State" and at Washington, and was
greatly impeded by them in carrying out his own purposes. At last, in
1875, the break between him and the members of his party in the
legislature was completed by the act of the legislature in electing the
notorious F. J. Moses, Jr., and the negro, W. J. Whipper, "State"
judges. The Governor was so incensed at this act of downright depravity
that he refused to commission the two judges-elect to the judicial
offices to which they had been chosen. Whipper threatened to use force
to gain possession of the office, and the Governor issued his
proclamation threatening to arrest every person who should give Whipper
any aid or support in this attempt as disturbers of the public peace.
The Governor triumphed and protected the "State" against the terrible
degradation which impended over it, but his brave attitude ruined him
with the radical and base elements of his party.
The day of complete deliverance was now, however, rapidly approaching.
The election of 1875 in Mississippi showed that the domination of the
The day of
complete
deliverance.
The status in
Mississippi
in 1875.
"Black Republicans" in the Southern "State" governments could last no
longer. Here was a "State" in which the negro population exceeded the
white very largely, but in the election of 1875 the whites finally got
together and what they could not accomplish in one way they did in
another. The whites organized themselves into rifle clubs, attended the
Republican
[p. 275]
meetings and insisted upon a division of the time
between their own speakers and the Republican speakers at these
meetings. A great deal of fraud and intimidation was practised, and
some violence was exercised, but always in such a manner as not to
provoke the calling of United States troops to the scene. The immediate
occasion of these desperate movements on the part of the whites was the
treatment accorded the petition made by the taxpayers' convention of
the "State" to the legislature for relief from the intolerable burdens
under which the taxpayers were suffering. This petition of the 4th of
January, 1875, recited that between the years 1869 and 1874 the rate of
"State" taxation had been raised from ten cents on the hundred dollars
of assessed value of lands to one dollar and forty cents, and that in
many cases the increase in the rate of the county levies had been even
greater, so that the whole product of the soil was hardly sufficient to
pay the taxes. The negro legislature laughed at these representations,
and did not deign to consider them, much less to do anything to satisfy
the frightful grievances complained of. It was now a choice between
complete destruction and the employment of any means necessary to
escape from it. There was no use in talking about observing the letter
of the law at such a moment. The law was iniquitous and it was rapidly
destroying all that was left of prosperity, civilization, morality and
decency. If it would not yield, it had to be broken. The movement was
successful. It was really a revolution. It resulted in the election of
a Democratic legislature in November of 1875, the disruption of the
Republican party in the "State," the framing of an impeachment against
the Republican Governor, Ames, his resignation and departure from the
"State," and the accession of the
[p. 276]
Democrat, John M. Stone, to the gubernatorial office.
It was thus that the eventful year 1876 was introduced, and it was an
earnest of the relief which was now to come to the remaining "States"
of the South suffering under the rule of the adventurers and their
negro allies.
While the Republican party had step by step, and almost unconsciously,
involved itself in the support of dishonest and oppressive government
Fiat money and
the resumption of
of specie payments.
at the South, it was, on the other hand, fighting the battle for
financial honesty in the Nation at large against the fiat money heresy
and the schemes of repudiation invented and supported by the national
Democracy. Its Congressional majority had passed the Refunding Acts of
July 14th, 1870, and January 20th, 1871, for refunding the debt of the
United States in coin bonds bearing five, four and one-half and four
per centum interest. These acts authorized the issue of eighteen
hundred millions of dollars in these new bonds, five hundred millions
payable after ten years, and bearing five per centum interest, three
hundred millions payable after fifteen years and bearing four and
one-half per centum interest, and one thousand millions payable after
thirty years and bearing four per centum interest. By the Act of March
18th, 1869, the Republican Congress had declared that all of the
obligations of the United States should be paid in coin or its
equivalent, unless otherwise specifically stipulated in the law
authorizing the obligation. This Act was made applicable to past, as
well as future, obligations. It rested on the principle that debts must
be paid in the best money of the country unless otherwise agreed to in
the contract. This is, of course, the sound principle both of morals
and finance, and no act of Congress pronouncing
[p. 277]it would have
been considered necessary, except for the great fact that the
Democratic party, in its campaign of 1868, had espoused the opposite
doctrine and had fought the campaign largely under that issue. The Act,
however, might of course be repealed, and in that case the question as
to whether the principal sum of the greater part of the national
indebtedness should be paid in coin would be again opened, since the
laws authorizing the incurring of these obligations provided only for
the payment of the interest upon them in coin. It was in order to
forestall the possibility of a repeal of the Act of March 18th, 1869,
as well as in order to make a large saving in the interest charge, that
these Refunding Acts were passed.
After the panic of 1873 had resulted in such a depression of business
and depreciation of values throughout the country as to create greater
discontent with the existing political management, and this discontent
had manifested itself so distinctly in the elections of 1874,
announcing to the Republican party that after March 5th, 1875, a
Democratic majority would prevail in the House of Representatives, it
was manifest to the Republican leaders, in Congress and out of
Congress, that if anything was to be done in regard to the resumption
of specie payment, anything for bringing the paper currency of the
United States up to a coin value, it must be done speedily, and on the
21st of December, 1874, Mr. Sherman reported a bill from the Finance
Committee to the Senate for this purpose, which became a law on the
14th day of January following, and which provided for the redemption of
the fractional currency with silver coins of the value of ten,
twenty-five and fifty cents, so rapidly as these coins could be minted;
abolished the charge of one-fifth of one per centum on the coinage of
gold, making the coinage of gold at the mints of the
[p. 278]United
States free; repealed the law limiting the aggregate amount of the
circulating notes of the national banking associations, and the law for
the withdrawal of national-bank currency from, and its redistribution
among, the several "States" and Territories; ordered the Secretary of
the Treasury in issuing new circulating notes to the national banking
associations to retire United States legal tender notes to the amount
of eighty per centum of such issues, until the United States legal
tender notes should be reduced to three hundred millions of dollars,
and after January 1st, 1879, to redeem these legal tender notes in coin
on their presentation at the office of the Assistant Treasurer of the
United States in the city of New York, in sums of not less than fifty
dollars; and, to enable the Secretary of the Treasury to do this,
authorized him to use any unappropriated surplus revenue which might
be, from time to time, in the Treasury, and to sell bonds of the
description mentioned in the Act of July 14th, 1870, in such amounts as
he should find necessary to accomplish the purpose.
It is true that the Republican majority in Congress had not taken this
high ground concerning the public credit and sound money without some
wavering. The President himself had become frightened by the panic of
the autumn of 1873, and in his annual message of December 1st following
had made recommendations that might be regarded as favorable to an
inflation of the existing body of paper money. His party friends in
The inflation bill
of 1874 and the
veto of it by the
President.
Congress very soon produced a bill which, among other things, provided
for the increase of the United States notes and the national bank notes
to the extent of about one hundred millions of dollars, and passed it.
But the President had either thought the question out more fully, or
had been in receipt of some very sound
[p. 279]advice, after he wrote the
message of December 1st, 1873. On the 22d of April, 1874, he sent a
special message to Congress vetoing the bill. This stand of the
President recalled the Republicans in Congress from their economic
aberrations, and set them again upon the course which led to the Act of
the 14th of January, 1875.
While at the moment this law for the resumption of specie payments in
the short period of four years, or rather less, from the time of its
enactment seemed a rather hazardous, not to say desperate, move on the
part of the Republicans, it soon became manifest that they could have
done nothing so calculated to strengthen the hold of the party upon the
solid and conservative men of the country as just this very thing. Many
of these men who had usually voted with the Republicans disapproved of
the Southern policy of the party, and were on the point of turning
against it. With the Resumption Act the financial policy of the
Republican party, and of the country, was dragged to the front, and the
Southern policy was forced backward, and made to constitute a less
prominent issue in the campaign of 1876. This was not only wise party
management, but it was also a fortunate thing for the entire country.
The country was not yet in a position to endure a Democratic
administration, and, on the other hand, it was surfeited with
reconstruction Republican administrations. It wanted a sound money
Republican administration, which would devote itself to the development
of the economic interests of the whole people, and would let the
"State" governments in the South have a chance to work out their own
salvation. And this was just what it got in the election of 1876, and
in the administration of President Rutherford B. Hayes.
[p. 280]
CHAPTER XIII
THE PRESIDENTIAL ELECTION OF 1876 AND ITS CONSEQUENCES
The Republican National Convention of 1876—The
Platform—The Nominees—The
National Democratic Convention of 1876—The Platform—The
Nominees—The Campaign and the
Election—The Count and the
Twenty-second Joint Rule—Views in Regard to the Power to Count the
Electoral Vote—The Republicans in Advantage in the Count of the
Vote—The Electoral Commission
Bill—The Passage of the Bill—The
Members of the Commission—The Fifth
Justice—Justice David Davis—The
Counting of the Electoral Vote by Congress—The Double Returns from
South Carolina, Florida, Louisiana and Oregon—The Counsel before the
Commission—The Republican
Position—The Democratic Position—The
Decisions of the Commission—Mr. Hayes Declared
President—The Truth in
Regard to the Election—Mr. Hayes's Southern
Policy—The Result of His
Policy—Reconciliation between the North and the South.
When the managers of the Republican party met in National nominating
convention at Cincinnati, on the 14th of June, 1876, they rightly
The Republican
National
Convention
of 1876.
The platform.
divined the policy which alone could lead them to victory in the
elections of the following autumn. They constructed their platform in
such a way as to place the financial issue in the foreground, with the
pledges of the party to uphold the public credit, and to place the
currency of the country on a coin basis. They also declared the
pacification of the South to be a sacred duty, and pledged the
[p. 281]
party to a thoroughgoing reform of the civil service. Connected
therewith were, of course, the usual platitudes about the civil and
political liberty and equality of every American citizen and of
everybody else.
While there was no name before the convention commanding universal
popular assent, as had been the case at the second nomination of
The nominees.
Lincoln and the two nominations of Grant, still there was one which, in
so far as its possessor was known, inspired strong, if not
enthusiastic, confidence. It was not pronounced in the first balloting
so loudly as that of the brilliant Blaine, or the stolid Morton, or the
arrogant Conkling, but, as the voting continued, more and more of the
ballots contained it, and at last on the seventh round, it received a
majority of the votes. The choice was a wise one. Mr. Hayes had been a
good soldier, a valuable member of the National legislature, and an
excellent Governor of his native "State," in which office he was
serving for a third term at the time of his nomination for the
Presidency. He was a man of sound sense, unimpeachable character,
generous feeling, pleasing manners, and resolute will. There was a
tendency at first on the part of the friends of some of the
disappointed aspirants to belittle his qualities, and to represent him
as a weak man, and his conciliatory methods were often mistaken for
weakness by those who were not his rivals or his enemies, or the
friends of his rivals or his enemies; but as history sets his character
and his work in their proper perspective they both stand out more and
more strongly, and make his Administration appear to be one of the most
important in American annals. Especially does it honor him for his
earnest, faithful and successful battle for sound money and the
maintenance of the public faith, and for his determination to put an
end to the support by Federal
[p. 282]
bayonets of the "carpet-bag," negro
"State" governments of the South.
A fortnight after the nomination by the Republican convention of
Rutherford B. Hayes for President and William A. Wheeler for
The National
Democratic
Convention
of 1876.
The platform.
Vice-President, the Democratic leaders met at St. Louis for the purpose
of issuing the campaign creed of their party and choosing its candidate
for the chief magistracy of the Nation. The platform put forward by
them was remarkable for its length, its language of fierce
vituperation, and its loud calls for reform. Its specific propositions
were the reduction of the duties on foreign imports to a revenue basis,
and the repeal of the Resumption Act of 1875, on the strange ground
that it obstructed the return to specie payments.
Their candidate had virtually been determined on before they met. It
could be nobody else than the popular Governor of New York, Samuel J.
The nominees.
Tilden, shrewd in business, rich, the most successful political manager
New York had produced since Van Buren, greatly heralded as the very
archpriest of reform, the hope of the young men in politics; but not a
statesman in the highest sense of the word, nor a demagogue in the
lowest sense of that word—a genuine American politician of the first
order. He was nominated on the second ballot, and by a unanimous vote.
With him was placed as candidate for the second place the popular Mr.
Hendricks of Indiana. It was a strong ticket, and it was generally
believed that it would win. Mr. Tilden himself felt sure of the
electoral votes of all the Southern "States" and of New York, Indiana,
New Jersey and Connecticut.
Mr. Tilden quietly managed his own campaign, while Mr. Hayes left his
political interests in the hands of the
[p. 283]very astute chairman of
The campaign
and the election.
the National committee of the Republican party, Senator Chandler of
Michigan. There was not much doubt on the morning following the
election, the morning of the 8th November, that the Democrats had
triumphed. Almost all of the Republican newspapers conceded it. But the
Republican managers knew that they could do what they pleased with the
electoral votes of South Carolina, Florida and Louisiana, through their
canvassing boards in these "States," with the power in these boards to
throw out the returns from any place where, in their opinion, there had
been any violence, intimidation, fraud or bribery exercised or
attempted; and when the managers found that they were pretty sure of
the electoral votes of all of the Northern Commonwealths, except
Connecticut, New York, New Jersey and Indiana, they simply added to the
one hundred and sixty-six electoral votes of which they were
practically sure the nineteen votes of Louisiana, Florida and South
Carolina, of which they were absolutely sure, if needed, and sent out
from their head-quarters the positive announcement that Hayes and
Wheeler had been elected by a majority of one electoral vote.
But the final count of the electoral vote must be in the presence of
the two Houses of Congress assembled in one place, and the Democrats
The count and the
twenty-second
joint rule.
were in majority in one of the Houses, and the twenty-second joint
rule, as it was called, which had been applied since the count of
the electoral vote of 1864 for the ascertainment of the result of the
returns to Congress, ordained that the electoral vote of any "State"
might be thrown out by either House. If this rule should be considered
as still in force, and be applied in the impending count, the
Democratic House of Representatives could reject the returns of the
[p. 284]
Republican authorities in South Carolina, Florida and Louisiana,
and thus secure the election of Mr. Tilden. This rule, however, was not
necessarily binding upon this Congress, as it had not been re-enacted
by the Houses composing it. That is, either House could lawfully refuse
to acquiesce in its further application. The Republicans now repudiated
it, although it was their predecessors who had created it.
Some of the Republicans now claimed that the Constitution vested the
Vice-President, or rather the President of the Senate, with the power
Views in regard to
the power to count
the electoral vote.
to count the electoral votes. The language of the Constitution was, and
still is, "the President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the
votes shall then be counted." No President of the Senate had, however,
ever ventured to determine whether a disputed return, in case any such
had been received by him, was to be counted, and Mr. Ferry, the
President of the Senate, gave his Republican friends to understand that
he did not feel like assuming any such responsibility.
Nevertheless, the Republicans were in decided advantage. They had the
President of the United States to execute by force whatever they might
The Republicans in
advantage in the
count of the vote.
resolve upon, and they had the President of the Senate, whose scruples
the Democrats had not discovered, and, of course, they had one House of
the Congress, the Senate.
The Democrats felt that they must make an effort to change the
situation. They, therefore, quickly seized upon a suggestion made by a
The Electoral
Commission Bill.
Republican member of the Judiciary Committee of the House of
Representatives, Mr. G. W. McCrary, and voted a measure in the House
for the appointment of
[p. 285]
members to a joint committee of the two
Houses, which committee should immediately report a proposition for
counting the electoral votes. This was the 14th of December, 1876. The
Senate agreed to this measure on the next day. Three Republicans and
four Democrats were appointed by the House, and four Republicans and
three Democrats by the Senate, and the committee so constituted
reported, on the 18th of January, 1877, the famous Electoral Commission bill.
The essential provisions of the bill were, first, the creation of a
Commission composed of five members of the House of Representatives,
five members of the Senate, and five Justices of the Supreme Court of
the United States, the members from the House to be chosen by the
House, the members from the Senate to be chosen by the Senate, while
the Justices of the Supreme Court from the first, third, eighth and
ninth circuits were designated in the bill, and they were authorized to
select a fifth from among the other members of the Court; second, the
fixing of the rule that the electoral vote of any "State" from which
only a single return had been received should be counted unless
both
Houses should decide otherwise, and of the other rule that when more
than one return had been received from any "State," the Commission
should forthwith decide which return should be counted, and this return
should be counted unless
both Houses should reject the decision, or
order otherwise; and third, the reservation of any right existing under
the Constitution and laws to question before the courts of the United
States the titles of the persons who should be declared elected
President and Vice-President to these respective offices. The bill was
The passage
of the Bill.
subjected to a most thorough discussion in
both Houses. It passed the
Senate on the 24th of January by a vote of forty-seven to seventeen.
Twenty-one
[p. 286]
Republicans and twenty-six Democrats voted in favor of
it, and sixteen Republicans and one Democrat voted against it. It
passed the House on the 26th by a vote of one hundred and ninety-one to
eighty-six. Thirty-three Republicans and one hundred and fifty-eight
Democrats voted for it, and sixty-eight Republicans and eighteen
Democrats voted against it. It is certainly fair, therefore, to call it
a Democratic measure. The President signed the bill, nevertheless, on the 29th.
The Senate immediately chose Messrs. Edmunds, Frelinghuysen and Morton,
Republicans, and Messrs. Bayard and Thurman, Democrats, to represent it
The members of
the Commission.
upon the Commission, and the House chose Messrs. Garfield and Hoar,
Republicans, and Messrs. Abbott, Hunton and Payne, Democrats. The
Justices of the Supreme Court designated by the bill as members of the
Commission were Messrs. Clifford, Strong, Miller and Field. Strong and
Miller were understood to be Republicans, and Clifford and Field
Democrats. Upon these four the duty was imposed to select the fifth Justice.
Since without the fifth Justice the Commission would consist of seven
Republicans and seven Democrats, it was evident that this Justice would
The fifth
Justice.
be the umpire in every question of disputed returns which the two
Houses could not themselves settle by concurrent agreement. The
responsibility which this Justice would have to bear would be one of
the most onerous and solemn duties ever imposed upon any mortal. It
could be no less than the making of a President, and it might be the
determination of the question whether there should be another civil
war. It was not a responsibility to be courted, but no man upon whom it
might fall could, with honor, refuse to accept it.
It was the general feeling throughout the
[p. 287]discussion of the bill
that the man who would be chosen was Judge David Davis. He had been a
Republican and a close personal friend of Lincoln, but had latterly
inclined toward the Democracy, and, it was thought, had favored the
election of Mr. Tilden. He was regarded as the man of least political
prejudice among a set of men of very little political prejudice. The
Democrats, however, were entirely willing to risk their cause in his
hands, because they believed it was strong enough on its merits to
convince any unprejudiced mind, and there is little question that the
Republicans were afraid to risk their cause in his hands, because they
knew that they must win on every point or lose altogether, and they
hesitated to take such desperate chances unless whatever political
prejudice might exist in the mind of the umpire should be on their side.
But to the apparent surprise of everybody and to the consternation of
the Democrats, Justice Davis was chosen by the Illinois legislature, on
Justice David Davis.
the 25th of January, the day after the bill passed the Senate, and the
day before it passed the House, United States Senator, and a few days
after the bill passed the House, he accepted the position, which act
involved his resignation at an early day of his judicial office; and as
he was now to leave the bench and go into the political branch of the
Government, as a Democratic Senator, elected by the Democrats of the
Illinois legislature, there appeared to him an evident impropriety in
his acting on the Commission as a representative of the unpolitical
branch of the Government, and especially as that member upon whom the
weightiest responsibility would fall, and who would, therefore, be
expected to act with greatest political impartiality, and with an eye
single to public justice. Whether Justice Davis sought this election to
the senatorship at this juncture or not,
[p. 288]in order to escape the
great responsibility that was about to fall upon him, we do not know.
He was not a particularly brave man. He was a big, fat man, a good
liver, and loved his ease. Ordinarily men will not exchange the high
and life-long office of a Justice of the Supreme Court of the United
States for a seat in the Senate. Unless he had his eye upon the
Presidency of the United States, it would be very hard to explain his
action in exchanging his high judicial position for the senatorship on
any other ground than his desire to escape the terrible responsibility
of deciding whether Tilden or Hayes should be President. It is even
more difficult to account for the action of the Democrats in the
legislature of Illinois. They certainly did not intend to harm the
chances of Mr. Tilden by this act. The Republicans might have invented
such a scheme for disposing of the Justice, but for Democrats to have
been concerned in any such movement is incredible. It is probable that
it was simply a blunder on their part. They did not appreciate the
incompatibility between the position of a Democratic Senator-elect and
membership on the Electoral Commission as a judicial representative.
They thought that as the Justice would not take his seat in the Senate
until after the 4th of March he would remain a member of the Supreme
Court until then, and as such would be fully qualified for the place on
the Commission. The legislature at Springfield had no such delicate and
discriminating sense of official proprieties as obtained in Washington,
and throughout the more fastidious East.
The Democrats in the House of Representatives learned of the election
of Justice Davis to the Senate on the morning of the day they were to
vote on the passage of the Electoral Commission bill. Even they did not
fully realize that it meant that the Justice
[p. 289]would not serve on
the Commission. Moreover, they had gone to such lengths with the bill
that it was too late to turn back. So far as is known the Justice did
not inform them or anybody else of his intention to accept the
senatorship, or of his scruples about being a member of the Commission,
until after the bill became law. When he did do so, the correctness of
his position was so clear that the four Justices named in the Act
immediately selected Justice Joseph P. Bradley as the fifth judicial
member of the Commission. Bradley was a Republican, as were the other
three members of the court, Waite, Hunt and Swayne. That is, after
Justice Davis was disposed of there remained only Republicans to choose
from, and Bradley being regarded as the least partisan, and the most
learned in the law, was selected. He fully realized the vast
responsibility which had been thus unexpectedly thrust upon him, but he
accepted it bravely and without flinching, and discharged it with honor
and success.
The Houses of Congress, and also the Electoral Commission, met on the
1st day of February to count the electoral vote. The Democrats still
The counting of
the electoral vote
by Congress.
felt sure of success, since they would win the election, if successful
upon a single point, while the Republicans, to be successful, must win
upon every point. On the other hand, the hopes of the Republicans had
been raised by gaining the majority of the Commission.
When the returns were opened by the President of the Senate two sets of
returns were found from each of the four "States," Florida, Louisiana,
The double returns
from South Carolina,
Florida, Louisiana
and Oregon.
South Carolina, and Oregon. In the case of Florida the electors voting
for Hayes and Wheeler sent with their votes the certification of the
"State" Canvassing Board and of the Governor to their election. The
case of South Carolina was the same.
[p. 290]In the case of Louisiana the
electors voting for Hayes and Wheeler sent with their votes the
certification of Governor Kellogg and of the "State" Canvassing Board
acting with him to their election, and the electors voting for Tilden
and Hendricks sent the certification of John McEnery, claiming to be
Governor, and the Canvassing Board acting with him, to their election.
The Oregon case was more complicated. The three Republican electors
received the highest number of votes, as reported by the Secretary of
State, who by the laws of Oregon was the "State" canvassing officer, to
the Governor. But one of them, Watts, held the office of postmaster in
a small place at the time of his election, and the Constitution of the
United States provides that "no Senator or Representative, or person
holding any office of trust or profit under the United States, shall be
appointed an elector." The Democratic Governor of Oregon decided in his
own mind that Watts was not eligible, and made out his certification to
include, beside the two Republican electors who were eligible, one
Cronin, the Democrat receiving the highest number of votes for elector,
although the number received by him was a minority of all the votes
cast for the electoral tickets. This certificate was attested by the
Secretary of State, and was given to Cronin. When the day for the
meeting of the electors came around Cronin presented himself holding
the Governor's certificate, the only certificate which had been issued
to the electors by Governor Grover. But in spite of the fact that he
had this technical advantage, the two Republican electors, whose names
were included in the Governor's certificate, refused to act with him,
and he refused to let them have the certificate to attach to their
return of the electoral vote to the President of the Senate of the
United States unless they should so act. Both parties persisted
[p. 291]
in their refusals. Whereupon Cronin selected one J. N. Y. Miller and
one John Parker to fill up the electoral college of Oregon and these
three cast two electoral votes for Hayes and Wheeler and one for Tilden
and Hendricks, and, after attaching the Governor's certification to the
record of their vote in due form, sent this return to the President of
the Senate of the United States, as required by the Constitution. At
the same time the two Republican electors, Odell and Cartwright, met to
cast the electoral vote of the Commonwealth. Watts was also present. He
had resigned his office of postmaster, and now he resigned his position
as elector. The other two accepted his resignation, and immediately
chose him an elector. The three then cast the electoral vote of the
Commonwealth for Hayes and Wheeler. As we have seen, they did not have
the certification of their election by the Governor to attach to their
votes, as required by the law of the United States, but they procured
from the Secretary of State a certified copy of the canvass of the
votes for the electors, which showed the election of the three
Republican candidates, and sent this, and also a copy of their
proceedings in accepting the resignation of Watts, and then electing
him an elector, along with their report of the vote of the electors for
President and Vice-President, to the President of the Senate.
Both the Republicans and the Democrats were represented by most able
counsel before the Electoral Commission. William M. Evarts, Stanley
The counsel before
the Commission.
Matthews, E. W. Stoughton, and Samuel Shellabarger were pitted against
a formidable array both as to ability and numbers on the other side,
Judge J. S. Black, Matthew H. Carpenter, Charles O'Conor, J. A.
Campbell, Lyman Trumbull, Ashbel Green, Montgomery Blair, George
Hoadly, William C. Whitney, R. T. Merrick and A. P. Morse.
[p. 292]
The Republicans took their stand at the outset upon the principle that
Congress could not go behind the returns of the "State" Canvassing
The Republican
position.
Board or officer, in counting the electoral vote from any "State." They
contended that in the election of the President and Vice-President, the
Constitution had separated the procedure into two distinct parts, and
had assigned the first part to the control of the several "States"
exclusively, and the second part to the control of Congress
exclusively; that up to the completion of the election of the electors
the exclusive control of the "States" respectively extended, but that
all control after that point had been reached was in Congress, and that
Congress had no power whatever, under the Constitution, to revise,
interfere with, or examine into, that part assigned by the Constitution
to the "States" respectively, and, on the other hand, that Congress was
bound to disregard any act of the "States," or of any of the officers
or agents of the "States," in that part assigned exclusively by the
Constitution to its own control. There is no question that this was all
sound constitutional law and that the Democrats would have to abandon
entirely their old "States'" rights doctrine and go over to the most
extreme nationalism in order to combat it.
It did not appear to them necessary to do this in order to win their
case. One single electoral vote from any one of the four "States," from
The Democratic
position.
which double returns had been received, would elect Tilden and
Hendricks. It did not seem to them that the line between the powers of
the "States" and those of Congress over the election of the President
and Vice-President could under the existing facts be drawn anywhere
without giving them at least this one vote. If the returns as certified
to by the Governors and the "State" canvassing officer, officers, or
boards, of these four
[p. 293]
"States" should be received and counted
they would have this one vote from Oregon. If, on the other hand, the
popular vote for the electors as it came into the hands of the "State"
canvassing officers or boards was to be received and counted, then they
would have the electoral votes of at least Louisiana, Florida, or South
Carolina, and perhaps of all of them. But the Republicans contended
that the line between "State" control and Congressional control was to
be drawn between the Governor's certification and the report of the
"State" canvassing officer, officers, or board to the Governor of the
result of the vote for the electors. The certification issued by the
Governor, they held, was ordered by Congressional law and was under
Congressional control, even when the "State" canvassing officer,
officers, or board should join with the Governor in the certification
of the persons chosen electors. The report of the vote for the electors
by the "State" canvassing officer, officers, or board to the Governor
was thus the final act under "State" control, was the final act in the
election of the electors. This was unquestionably sound constitutional
law. But it would give all the electoral votes from all four of the
"States," from which double returns had been received, to Hayes and
Wheeler, and would elect them by one vote.
The view of the counsel for the Republican candidates prevailed with a
majority of the Commission. By a majority of a single vote the
The decisions of
the Commission.
Commission gave all the electoral votes of the four "States" from which
double returns had been received to Hayes and Wheeler, and since the
decisions of the Commission were final unless negatived by both Houses
of Congress, and the Republican Senate, of course, sustained the
decisions of the Commission, there was nothing for the Democrats to do
but submit or have recourse to violence. Threats were freely expressed
of having
[p. 294]
Mr. Tilden take the oath of office, and then conducting
him, under the support of a large armed body, to the White House and
installing him there. But it was observed that the Southern Democrats
did not participate in these menacing declarations, and it was soon
learned that Mr. Tilden himself would not lend himself to any such
desperate movement. Moreover, the existing President had, with his
usual promptness and decision, prepared himself to meet all exigencies,
and had let it be known that he would uphold the decisions to which
Congress and its Commission might come by any power necessary to
accomplish the result.
In the early morning of March 2d, the count was completed, and Hayes
and Wheeler were proclaimed by the presiding officer of the Senate, Mr.
Mr. Hayes
declared
President.
Ferry, elected President and Vice-President of the United States by a
majority of one electoral vote. The popular vote for the electors was
about eight millions three hundred thousand. Of this vast number the
Tilden electors had received the majority by about two hundred and
fifty thousand, according to the Republican count, and by about three
hundred thousand, according to the Democratic count. It must be
remembered, however, that it is quite possible for the candidate of one
party to receive a popular majority throughout the whole country, and
the candidate of the other to receive a majority of the electoral
votes, simply because the popular vote is counted, in electing the
electors, by "States" and not in the aggregate.
The truth in regard to the whole transaction of the election probably
is that the Democrats did in some places in the South intimidate
The truth in
regard to
the election.
voters; that the Republican "State" canvassing officers, making this a
justification, or an excuse, did throw out votes that ought to have
been counted; and that the existing law of
[p. 295]elections,
administered by Republicans, was capable of being so interpreted as to
give legal warrant to all that was done by them. A perfectly fair
election in the "States" of Louisiana, Florida, and South Carolina,
with the law of suffrage then obtaining, would probably have resulted
in a popular majority for the Republican candidates for electors.
Accepting the law of suffrage as then existing for the basis of our
reasoning, it will have to be conceded that the Republicans were in the
right both morally and legally, and that the title of Hayes and Wheeler
to the offices of President and Vice-President was entirely sound and
unimpeachable. They were inaugurated on the 5th day of March, 1877,
without any attempt at resistance or disturbance from any quarter.
During the counting of the electoral vote it was suspected that the
friends of Mr. Hayes were giving some assurances to the Southerners in
Mr. Hayes's
Southern policy.
Congress in regard to what the policy of his Administration would be
concerning the "State" governments in the South. The unwillingness of
the Southern Democrats to join with their party associates of the North
in any revolutionary projects was attributed partly to this. While
there is no evidence that Mr. Hayes ever pledged himself to the
Southerners in regard to anything, still it is probably true that his
views concerning the unwisdom of the employment of the military power
of the United States in upholding the negro-Republican "State"
governments in the South were imparted to them by his friends. At any
rate, he announced in his inaugural address that he considered the
re-establishment of local self-government in these "States" to be one
of the prime objects of his Administration, and he speedily withdrew
the support of the military power of the United States from the three
[p. 296]
negro-Republican "State" governments, and left them to their own resources.
The result was that, although the Republican candidates for Governor
and for the members of the legislature in these three "States" received
The result of
his policy.
about the same vote as the Republican presidential electors, and in
January of 1877 actually assumed power, the Democratic candidates
ousted them from the offices, and in sufficient number from the
legislative seats, and established at last Democratic white rule in all
the "States" of the South. In Florida the Republican, M. L. Stearns,
gave way to the Democrat, George F. Drew, in the gubernatorial office;
in South Carolina D. H. Chamberlain gave way to Wade Hampton, and in
Louisiana, S. B. Packard gave way to Francis T. Nicholls.
Order and peace were quickly established everywhere, and the plundered
and impoverished South could at last take hope and feel courage to make
a new effort to recover some degree of prosperity and some measure of
domestic content. For ten years the dark night of domination by the
negro and adventurer had rested upon the unhappy section, until it had
been reduced to the very abomination of desolation. Broken in health
and fortune, sick at heart, conscious of the terrible degradation which
had been imposed upon them, and politically ostracized, the better part
of the white population of the South had staggered and groped through
the hideous experiences of this period, and such of them as had not
perished during the awful passage had now at last been relieved of the
frightful scourge, and half dazed, as if just recovering from a
terrible nightmare, found themselves again in the places of power and
responsibility. But they brought with them, as their dominant passion,
undying hatred of the Republican party as the author of all their woes,
and as their
[p. 297]
dominant policy, the stern and unbending resolve to
stand together as one man against every movement which had even the
slightest tendency toward a restoration of the hated conditions from
which they had escaped. No sane mind can wonder at "the solid South,"
or at the Democratic South. Life, property, happiness, honor,
civilization, everything which makes existence endurable demanded that
the decent white men of the South should stand shoulder to shoulder in
defending their families, their homes and their communities from any
return of the vile plague under which they had suffered so long and so
cruelly; and human instinct determined that this should be done in
connection with that party which was hostile to the Republican party.
The differences which lead to a fair fight and the wounds which are
received in it are easily healed, but indignities heaped upon a fallen
foe create a bitterness of heart that lasts so long as life endures.
Slavery was a great wrong, and secession was an error and a terrible
blunder, but Reconstruction was a punishment so far in excess of the
Reconciliation between
the North and the South.
crime that it extinguished every sense of culpability upon the part of
those whom it was sought to convict and convert. More than a quarter of
a century has now passed since the blunder-crime of Reconstruction
played its baleful part in alienating the two sections of the country.
Until four years ago little progress had been made in reconciling them.
It is said now that the recent war with Spain, in which men from the
North and men from the South marched under the same banner to battle
and to victory, has buried the hatchet forever between them. But they
had done this many times before, and yet it did not prevent the attempt
to destroy the Union. It cannot be in this alone that the South feels
increased security against the doctrines and the
[p. 298]policies and
interferences of the Republican party with regard to the negro
question, the great question which has made and kept the South solidly
Democratic. It is something far more significant and substantial than
this. It is to some the pleasing, though to others startling, fact,
that the Republican party, in its work of imposing the sovereignty of
the United States upon eight millions of Asiatics, has changed its
views in regard to the political relation of races and has at last
virtually accepted the ideas of the South upon that subject. The white
men of the South need now have no further fear that the Republican
party, or Republican Administrations, will ever again give themselves
over to the vain imagination of the political equality of man. It is
this change of mind and heart on the part of the North in regard to
this vital question of Southern "State" polity which has caused the now
much-talked-of reconciliation.
[p. 299]
CHAPTER XIV
INTERNATIONAL RELATIONS OF THE UNITED STATES BETWEEN 1867 AND 1877
The Purchase of Alaska—The
Contention of the House of Representatives
in Regard to its Power over Treaties—The Senate's Position and the
Compromise—Irritation of the American People against Great
Britain—The Johnson-Clarendon
Treaty—President Grant's Statements in
His First Annual Message and in His Second Annual Address—Sir John
Rose's Mission to the United States—The Joint High Commission—The
Treaty of Washington—The Alabama Claims and the Geneva
Convention—Triumph of the Diplomacy of the United
States—Organization
of the Tribunal and Filing of the Cases—The Controversy between Mr.
Fish and Lord Granville—The Filing of the Counter Cases and the
Argument—Obstacles—Decision of the Tribunal in Regard to National and
Indirect Damages—The Decision of the Tribunal in the Case of the
Florida—The Decision in the Case of the
Alabama—The Decision in
the Case of the Shenandoah, and other Vessels—International
Principles Settled by the Geneva Tribunal—The Northwest Boundary
Question—The Fisheries
Question—The Halifax Commission and Award—The
Burlingame Treaty with China—The Attempt to Annex the Dominican
Republic to the United States—The
Treaty—The Treaty before the
Senate—Its
Rejection—The President's Attempt to Renew
Negotiations—The Committee of
Inquiry—The Report of the
Committee—The Abandonment of the Scheme.
The two chief products of American diplomacy in the decade between 1867
and 1877 were the purchase of Alaska, and the treaty of Washington with
Great Britain.
The purchase of Alaska, the northwest corner of the North American
continent, together with the islands
[p. 300]adjacent thereto, a vast
The purchase
of Alaska.
region of some five hundred thousand square miles in extent, inhabited
chiefly by a few savage tribes, was effected by a treaty, negotiated by
Mr. Seward and the Russian diplomatist, Baron Stoeckl, and ratified by
the Senate of the United States on the 30th of March, 1867.
The proposition came from the side of Russia, and it appeared that
Russia was more eager to sell than the United States was to buy. The
The reasons
for and against
the purchase.
price agreed on was seven millions two hundred thousand dollars in
gold, and most people in the United States thought, at the time, that
this great sum was being paid for nothing but a barren area of snow and
ice. The country was declared to be utterly worthless by some of the
best informed men in Congress, and a man of no less ability and
influence than Mr. Shellabarger opposed the purchase on the ground that
it involved an extension of territory dangerous to the existence of the Republic.
On the other hand, such men as General Banks and Mr. Stevens contended
that from the point of view of a business transaction alone it was
worth the money; and Mr. Higby, of California, told his colleagues that
they were mistaken in regard to the climate of the region. The
consideration, however, which seems to have had most weight was
gratitude toward Russia, whose government had manifested the most
friendly feeling for the Union in the struggle against the giant
rebellion, and had even threatened interference in behalf of the Union
against interference in behalf of the Confederacy by any other European
state. That acute observer of political opinion, Mr. Blaine, affirmed
that a like offer from any other European government would most
probably have been declined.
[p. 301]
It is, however, almost certain that Mr. Seward had another very
profound reason for making the purchase, one which he could not very
A real political
reason for
the purchase.
well proclaim from the housetops, especially as the feeling on his
part, and on the part of the Government and of the people of the North,
was most kindly toward Russia. It was this: The United States would in
this way and at a comparatively small cost rid herself forever of any
danger of Russian colonization on the North American continent, and of
the danger of any complications between Russia and Great Britain upon
this continent. This was a most important political consideration, one
which much overbalanced the price paid for the territory and the cost
of its administration.
When the bill for making the appropriation to pay for Alaska came
before the House of Representatives, that body raised the question of
The contention of the
House of Representatives
in regard to its power
over treaties involving
the payment of money
by the United States.
the power of the House over treaties involving the payment of money by
the United States, by asserting in the preamble of the bill that its
consent was necessary to the validity of such treaties. It did so on
the ground that as an independent legislative body it could refuse any
appropriation at its own discretion, and that as all foreign countries
were bound to know this from the wording of the Constitution, no
foreign country could consider a treaty with the United States,
involving financial obligations by the United States, as completed
until the House of Representatives should have voted the appropriation
of the amount stipulated in the agreement.
The Senate, on the other hand, repudiated this doctrine, and rejected
the bill with the preamble containing it as it came from the House of
The Senate's position
and the compromise.
Representatives.
[p. 302]
The bill then went to a conference committee of
the two Houses, and this committee invented a preamble which read:
"Whereas the President has entered into a treaty with the Emperor of
Russia, and the Senate thereafter gave its advice and consent to said
treaty, and whereas said stipulations cannot be carried into full force
and effect, except by legislation to which the consent of both Houses
of Congress is necessary; therefore be it resolved," etc. Both Houses
adopted the bill in this form and it became law July 27th, 1868.
The contention of the House was good political science, but it is still
doubtful whether it is the constitutional law of the United States or
not. The more recent constitutions of even the European states, such as
those of Germany and France, make the consent of both houses of the
legislature necessary to the validity of all treaties involving the
appropriation of money, or the assumption of any financial obligation.
This is as it should be; and the Constitution of the United States
ought to be so amended as to establish clearly the same principle.
We have, in the preceding volume of this series, followed the history
of the relations of the United States with Great Britain down to the
Irritation of the
American people
against Great Britain.
close of the rebellion, and have referred to the general irritation on
the part of the loyal people of the United States against the British
government for its attitude in regard to the acts of its subjects in
furnishing warships and munitions to the Confederates. There were many
who favored turning the great military power with which the United
States emerged from the Civil War against Great Britain, and forcing a
settlement of those difficulties by the trial of arms; but Seward
remained in the direction of the foreign affairs of the Union, and he
had had enough of war. Moreover, he
[p. 303]foresaw a change of
government in Great Britain, and with it he hoped for a change of
sentiment on the part of the new government on the international
Change of Ministry
and Parliamentary
majority in 1867.
question. This event happened in consequence of the parliamentary
election of 1867. The Minister of Foreign Affairs in Mr. Gladstone's
cabinet was first Lord Stanley, and then the Earl of Clarendon, both of
them very different in character from Lord John Russell. From the
outset each of them manifested a sincere desire to reach an amicable
settlement of all differences with the United States. The trouble at
this juncture seems to have been the extravagance of the claims of the
United States. Mr. Adams, whose patience had become much worn, talked
about private damages, national damages and an apology. The British
Ministers thought this too preposterous to be seriously meant.
Before, however, the discussion had fairly begun Mr. Adams returned to
the United States, and Mr. Reverdy Johnson was sent out to the British
The Johnson-Clarendon treaty.
Court. Mr. Johnson yielded much of the ground assumed by Mr. Adams in
reference to claims for national injury, and in January of 1869
concluded an agreement with the Earl of Clarendon for submitting to
arbitration the claims for direct damage to property rights.
The Senate of the United States promptly rejected the treaty with much
feeling, because it did not contain proper provision, in its view, for
the reparation of wrongs to the Nation. The feeling among the people of
President Grant's
statement in his
first Annual Message.
both countries ran so high that the Governments deemed it wise to
cease, for a time, negotiations upon the subject. The new President,
Grant, in his Message of December 6th, 1869, described the situation in
the following language:
"Toward the close of the last Administration a convention was
signed in London for the settlement of all outstanding claims between
Great Britain and the United States, which failed to receive the advice
and consent of the Senate to its ratification. The time and the
circumstances attending the negotiation of that treaty were unfavorable
to its acceptance by the people of the United States, and its
provisions were wholly inadequate for the settlement of the grave
wrongs that had been sustained by this Government, as well as by its
citizens. The injuries resulting to the United States by reason of the
course adopted by Great Britain during our late Civil War in the
increased rates of insurance, in the diminution of exports and imports
and other obstructions to domestic industry and production, in its
effect upon the foreign commerce of the country, in the decrease and
transfer to Great Britain of our commercial marine, in the prolongation
of the war and the increased cost, both in treasure and lives, of its
suppression, could not be adjusted and satisfied as ordinary commercial
claims which continually arise among commercial nations; and yet the
convention treated them as such ordinary claims, from which they differ
more widely in the gravity of their character than in the magnitude of
their amount, great even as is that difference. Not a word was found in
the treaty, and not an inference could be drawn from it, to remove the
sense of the unfriendliness of the course of Great Britain in our
struggle for existence, which had so deeply and universally impressed
itself upon the people of this country. Believing that a convention
thus misconceived in its scope and inadequate in its provisions would
not have produced the hearty, cordial settlement of pending questions,
which alone is consistent with the relations which I desire to have
firmly established [p. 305]
between the United States and Great Britain, I
regarded the action of the Senate in rejecting the treaty to have been
wisely taken in the interests of peace and as a necessary step in the
direction of a perfect and cordial friendship between the two
countries. A sensitive people, conscious of their power, are more at
ease under a great wrong wholly unatoned than under the restraint of a
settlement which satisfies neither their ideas of justice nor their
grave sense of the grievance they have sustained. The rejection of the
treaty was followed by a state of public feeling on both sides which I
thought not favorable to an immediate attempt at renewed negotiations.
I accordingly so instructed the Minister of the United States to Great
Britain, and found that my views in this regard were shared by Her
Majesty's Ministers. I hope that the time may soon arrive when the two
Governments can approach the solution of this momentous question with
an appreciation of what is due to the rights, dignity and honor of
each, and with the determination not only to remove the causes of
complaint in the past, but to lay the foundation of a broad principle
of public law which will prevent future differences and tend to firm
and continued peace and friendship."
The President's
statement in his
second annual message.
For another year things drifted, and the views of the two Governments
seemed to be getting wider apart, when President Grant wrote in his
Message of December 5th, 1870:
"I regret to say that no conclusion has been reached for the adjustment
of the claims against Great Britain growing out of the course adopted
by that Government during the Rebellion. The Cabinet of London, so far
as its views have been expressed, does not appear to be willing to
concede that Her Majesty's Government was guilty of any negligence, or
did or permitted any act during the War
[p. 306]by which the United
States has just cause of complaint. Our firm and unalterable
convictions are directly the reverse. I therefore recommend to Congress
to authorize the appointment of a commission to take proof of the
amount and the ownership of these several claims, on notice to the
representative of Her Majesty at Washington, and that authority be
given for the settlement of these claims by the United States, so that
the Government shall have the ownership of the private claims, as well
as the responsible control of all the demands against Great Britain. It
cannot be necessary to add that whenever Her Majesty's Government shall
entertain a desire for a full and friendly adjustment of these claims
the United States will enter upon their consideration with an earnest
desire for a conclusion consistent with the honor and dignity of both nations."
This was what is now called "a twist of the lion's tail." It was
something of a twist, although it was accompanied with the offer of the
olive branch, instead of the sword. It was effective, even more
effective for the conciliatory tone of the final paragraph. Moreover,
with the German armies encamped around Paris and throughout France, the
affairs of Continental Europe were too unsettled and precarious for
Great Britain to run the risk of any serious complications with the
United States.
Accepting the President's message as an invitation to renew
negotiations, the British Government, at the beginning of the next year
Sir John Rose's
mission to the
United States.
(1871), sent Sir John Rose to Washington to sound the President in
regard to the matter. The President greeted his advances with great
cordiality, and on the 26th of the month (January), Sir Edward
Thornton, the British Minister to the United States, formally proposed
to the Hon. Hamilton Fish, the Secretary of State, the appointment of a
The Joint High
Commission.
Joint High
[p. 307]
Commission, to consist of five persons representing
each Government, to sit at Washington, for the purpose of settling the
questions between the two Governments relative to Great Britain's North
American possessions. Mr. Fish immediately expressed the willingness of
his Government to enter upon the negotiation, provided the differences
growing out of the events of the Civil War should be included among the
subjects to be considered. The British Government accepted Mr. Fish's
proviso, and the respective Governments proceeded to appoint the
members of the Commission. President Grant designated Hamilton Fish,
Ebenezer R. Hoar, Justice Samuel Nelson, Robert C. Schenck and George
H. Williams. Her Majesty selected Earl de Grey and Ripon, Sir John
Macdonald, Sir Stafford Northcote, Sir Edward Thornton and Professor
Mountague Bernard. These eminent gentlemen proceeded immediately upon
their momentous undertaking, and on the 8th of May (1871) concluded the
treaty between the two Governments, known as the Treaty of Washington,
which was duly ratified, and on the 4th of July proclaimed to the world.
The first eleven articles of this agreement relate to the claims for
damages arising from the incidents of the Civil War, known as the
The Treaty of
Washington.
Alabama Claims. This was the subject of transcendent importance in the
Treaty; this was the subject which was, by these articles, referred to
the Court of Arbitration to sit at Geneva.
They contain, in the first place, an expression of regret for the
escape of the Confederate vessels from British ports and for the
depredations committed by them.
They provide, secondly, for a tribunal of arbitration, composed of five
members, one of whom should be
[p. 308]
named by the President of the
United States, one by Her Britannic Majesty, one by the King of Italy,
one by the President of the Swiss Confederation, and one by the Emperor
of Brazil; and, in case either of these last three mentioned should
fail to name an arbitrator, they provide that one should be named by
the King of Sweden and Norway; and finally, that one agent should be
named by each of the high contracting parties to represent it generally
in all matters connected with the arbitration.
They provide, in the third place, that "the Arbitrators shall meet at
Geneva, in Switzerland, at the earliest convenient day after they shall
The Alabama claims and
the Geneva convention.
have been named, and shall proceed impartially carefully to examine and
decide all questions that shall be laid before them on the part of the
Governments of the United States and Her Britannic Majesty
respectively," and that "all questions considered by the Tribunal,
including the final award, shall be decided by a majority of all the
arbitrators."
They provide, in the fourth place, that each of the two high
contracting parties should deliver his written or printed case,
together with all the evidence in support of it, to each of the
arbitrators and to the agent of the other party, as soon as possible
after the organization of the Tribunal, and within a period not
exceeding six months from the 17th of June, 1871; that within four
months after the delivery on both sides of the case, each party might
put in a counter case, with additional evidence, in reply to the case
of the other party; that the arbitrators might extend the time, under
certain circumstances, for delivering the counter case; that "within
two months after the expiration of the time limited for the delivery of
the counter case on both sides," the agent of each party should deliver
to each of
[p. 309]
the arbitrators "and to the agent of the other party a
written or printed argument showing the points and referring to the
evidence upon which his Government relies"; and that the arbitrators
might require further argument by counsel, giving to each party an
equal chance to be heard.
They provide, in the fifth place, that the Tribunal should consider the
case of each vessel separately; that it might, however, award a gross
sum, or that in case it did not award a sum in gross, the high
contracting parties should appoint two members of a board of assessors,
and request the Italian Minister at Washington to appoint a third,
which board should determine the amounts due in the cases in which the
arbitrators had pronounced responsibility.
They provide, in the sixth place, that in deciding the matters
submitted the arbitrators should be governed by the following rules:
"A neutral government is bound, first, to use diligence to prevent the
fitting out, arming, or equipping, within its jurisdiction, of any
vessel which it has reasonable ground to believe is intended to cruise
or to carry on war against a Power with which it is at peace; and also
to use like diligence to prevent the departure from its jurisdiction of
any vessel intended to cruise or carry on war as above, such vessel
having been specially adapted, in whole or in part, within such
jurisdiction, to warlike use. Secondly, not to permit or suffer either
belligerent to make use of its ports or waters as the base of naval
operations against the other, or for the purpose of the renewal or
augmentation of military supplies or arms, or the recruitment of men.
Thirdly, to exercise due diligence in its own ports and waters, and, as
to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties."
[p. 310]
They provide, in the seventh place, that the high contracting
parties would "agree to observe these rules as between themselves in
the future, and to bring them to the knowledge of other maritime
powers, and to invite them to accede to them."
And they provide, finally, that the result of the proceedings of the
Tribunal and the Board of Assessors, in case such board should be
appointed, should be accepted as a final settlement of all the claims
known as the Alabama Claims, and should be a bar to any further
proceedings in regard to them.
It will be seen that the Government of the United States had in this
Treaty substantially won all of the points for which it had contended.
Triumph of the
diplomacy of the
United States.
The Queen's Government had apologized. It had agreed that the general
principles of international law in regard to the duties of neutrals
toward belligerents should take precedence over municipal statutes, and
should not be limited by municipal statutes. And it had agreed that the
Tribunal of Arbitration should decide
all questions laid before it by
the Governments of the United States and of Her Britannic Majesty
respectively.
It is true that Her Majesty's Government qualified its acceptance of
the rules to be applied in determining its responsibility by inserting
an explanation in the Treaty of the following tenor: "Her Britannic
Majesty has commanded her High Commissioners and Plenipotentiaries to
declare that Her Majesty's Government cannot assent to the foregoing
rules as a statement of principles of international law which were in
force at the time when the claims mentioned in Article I. arose, but
that Her Majesty's Government, in order to evince its desire of
strengthening the friendly relations between the two countries and of
making satisfactory provision for the
[p. 311]future, agrees that, in
deciding the questions between the two countries arising out of those
claims, the Arbitrators should assume that Her Majesty's Government had
undertaken to act upon the principles set forth in these rules."
And it is also true that, while, according to the letter of the Treaty,
the United States Government was left unfettered as to the character of
the claims which it might lay before the Arbitrators, Her Majesty's
Government had been led to expect more moderation in this respect than
the popular sentiment in the United States seemed to indicate.
The two Governments and the high personages invited by them proceeded
in due time to appoint the Arbitrators. The President of the United
The arbitrators,
agents and counsel.
States appointed Mr. Charles Francis Adams; Her Majesty named Chief
Justice Alexander Cockburn; the Italian King designated Count Frederic
Sclopis; the President of the Swiss Confederation designated Mr. Jacob
Staempfli, and the Emperor of Brazil named the Baron d'Itajubá.
The President of the United States also appointed Mr. J. C. Bancroft
Davis as the agent of the United States before the Tribunal, and Mr.
Caleb Cushing, Mr. William M. Evarts and Mr. Morrison R. Waite as counsel.
Her Majesty's Government also appointed Lord Tenterden as the agent of
Great Britain before the Tribunal, and Sir Roundell Palmer as chief counsel.
On the 15th of December, 1871, the Arbitrators organized the Tribunal
at Geneva with Count Frederic Sclopis in the chair as presiding
Organization of
the Tribunal and
filing of the cases.
officer, and with Mr. Alexander Favrot as secretary. The printed case
of each of the high contracting parties was filed immediately by the
agent of each, and the Tribunal ordered the counter cases to be filed
[p. 312]
on or before the 15th day of the following April. The Tribunal
then adjourned to June 15th following, unless sooner called together by
the secretary.
The contents of the case of the United States became immediately known
to the British Ministers, but not for some weeks to the British people.
The Ministers were not apparently disturbed in mind about it, although
they discovered at once that it contained claims for national damages
and indirect damages as well as for direct damages to individuals; but
as soon as the newspapers got hold of this fact, they raised a
tremendous hue and cry, and accused those who had prepared the case of
taking an unfair advantage of the wording of the treaty. The Minister
of the United States in London, General Schenck, informed Mr. Fish by
cable of the agitation in London over the subject and of the demand of
the newspapers that the claim for national and indirect damages should
be withdrawn. Mr. Fish replied firmly that "there must be no withdrawal
of any part of the claim presented." At this moment the session of
Parliament opened and the Queen's speech contained a criticism of the
extravagance of the claims of the United States in the case submitted
to the Tribunal. The matter was warmly debated in Parliament, and on
The controversy
between Mr. Fish
and Lord Granville.
February 3d the British Foreign Minister, Lord Granville, opened a
diplomatic discussion with Mr. Fish upon the subject. Mr. Fish,
however, held his ground with great courage and ability, insisting that
the claims of every character should be disposed of by the Tribunal in
order to remove them from the domain of further controversy and in
order to establish perfect harmony in the relations of the two countries.
Before this discussion terminated the day arrived for the filing of the
counter cases. They were both
[p. 313]
promptly filed with a reservation
The filing of the
counter cases
and the argument.
of all rights by each of the high contracting parties. The diplomatic
discussion culminated in an attempt to make a supplemental treaty,
which should provide that the Government of the United States should
withdraw its claims for national losses and indirect losses, on the
condition that no such losses should be claimed by either Government in
the future. But the day arrived for the filing of the arguments before
anything was effected. The agent of the United States filed his
argument on the day fixed, the 15th of June, but the British agent only
filed a statement setting forth the differences between the two
Governments in the interpretation of the Treaty in respect to claims
for national and indirect damages, and the late negotiations and
discussions between the two Governments concerning these differences.
The British agent also expressed the hope that, if time were given,
these negotiations would prove fruitful, and asked the Arbitrators to
adjourn for eight months.
It looked as if the work of the commissioners, who had framed the
Treaty, and of the Arbitrators, who had now given six months of their
Obstacles.
time to its execution, would go for naught, and that the Governments
and the people of the two countries would be thrown back into the
relations existing during the years 1869 and 1870, with intensified
feelings of hostility. The Arbitrators realized the seriousness of the
situation and did not yield to the request of the British agent. They
adjourned to the 19th of the month, that is for four days only, in
order to deliberate upon the proposition. When they reassembled on the
Decision of the
Tribunal in regard
to national and
indirect damages.
19th the President of the Tribunal announced that the Arbitrators had
decided to inform the two high contracting parties, at that
[p. 314]
juncture, that the Arbitrators did not consider the claims for national
and indirect damages to be a good foundation in international law "for
an award of compensation or computation of damages between nations;"
but were unanimously of the opinion that such claims should "be wholly
excluded from the consideration of the Tribunal in making its award,
even if there were no disagreement between the two Governments as to
the competency of the Tribunal to decide them." The President said
further, that the Arbitrators made this announcement in order that the
Government of the United States might consider if it would adopt some
course in reference to these claims, which would relieve the Tribunal
from deciding upon the request of the British agent for an adjournment.
The President of the United States was duly informed of this
announcement by the Tribunal, and, upon the advice of the learned
counsel for the United States, he instructed the agent of the United
States to make the following reply to the Tribunal:
"The declaration made by the Tribunal, individually and collectively,
respecting the claims presented by the United States for the award of
the Tribunal for, first, the losses in the transfer of the American
commercial marine to the British flag, second, the enhanced payment of
insurance, and, third, the prolongation of the war and the addition of
a large sum to the cost of the war and the suppression of the
Rebellion, is accepted by the President of the United States as
determinative of their judgment upon the important question of public
law involved."
This reply was read to the Tribunal on the 25th of June, and on the
27th the British agent, under instructions from his Government,
withdrew his request for an adjournment and filed his argument.
[p. 315]
It was supposed by the Americans that the whole case on both
sides was now in, and that, unless the Arbitrators should require
further argument or statement in reference to specific points, the
Tribunal would now proceed to make its decisions. But the British
counsel and the British agent immediately petitioned the Tribunal to be
allowed to prepare and present another argument, and to have six weeks'
time in which to do it, and even the member of the Tribunal appointed
by the British Government exerted himself to secure this delay and this
new opportunity for the British agent and his counsel. The Tribunal
felt, however, that it was in possession of the evidence and the
argument necessary for determining the question before it, and refused
the request.
The Tribunal now adjourned to the 15th of July, in order to give its
members time and opportunity to study the cases. On the 15th, the
arbitrators reassembled and invited the agent and counsel of each of
the high contracting parties to sit with them in their conferences. To
all others, however, the doors were closed. They spent some two days
discussing the order of the procedure which they should follow, and
finally adopted the order proposed by Mr. Staempfli, and also indicated
in the Treaty itself, which was to take up the case of each vessel
separately, and allow each Arbitrator to express a provisional opinion
upon it, which opinion, however, should not be conclusive even on the
Arbitrator himself who gave it.
On the 17th of the month (July), the Tribunal proceeded to take up the
case of the
Florida and to hear the opinions of the Arbitrators upon
The decision of the
Tribunal in the
case of the Florida.
it. Four of the five Arbitrators were of the opinion that the British
Government had failed to exercise due diligence in the discharge of its
neutral duties toward the United States in this case. Sir Alexander
[p. 316]
Cockburn alone disagreed with this view. The four also held that
the tenders of the
Florida should follow the lot of their principal.
The reading of the opinion in the case of the
Florida was finished on
the 22d, and the Tribunal adjourned to the 25th.
Upon the reassembly of the arbitrators, Baron d'Itajubá called on the
British counsel for a statement or an argument on the questions of due
diligence, and of the effect of commissions held by Confederate war
vessels which had entered British ports, and of the legitimacy of coal
supplies to Confederate vessels in British ports. Of course the counsel
of the United States would be permitted to reply.
The Tribunal approved the proposition, and then proceeded to the case
of the
Alabama. The Arbitrators agreed unanimously in their views of
The decision in the
case of the Alabama.
this case, holding the Government of Great Britain guilty of a lack of
due diligence. The case of the tender to the
Alabama was viewed in
the same light.
The Tribunal then took up the case of the
Shenandoah. The Arbitrators
were unanimously of the opinion in this case that the British
The decision in the
case of the Shenandoah,
and other vessels.
Government had not failed in due diligence anterior to the time when
the vessel entered the port of Melbourne. On the other hand, three of
the Arbitrators, Count Sclopis, Mr. Adams and Mr. Staempfli, held that
the British Government was responsible for all the acts of this vessel
committed after leaving Melbourne.
In regard to all the other vessels mentioned in the case of the United
States, excepting only the
Retribution, the Arbitrators were
unanimous in the opinion that the British Government had not failed in
due diligence in the discharge of its duties as a neutral, and in
regard
[p. 317]
to the
Retribution three of the five Arbitrators held
the like opinion. After hearing the additional arguments called for,
the Tribunal closed the doors on the 26th of August, and, without the
presence even of agents or counsel, deliberated upon the momentous
questions submitted to it. On the 9th of September the decision was
adopted. The Tribunal then adjourned to the 14th, upon which day the
decision was to be proclaimed to the world.
The public session of the Tribunal on the 14th was a solemn and an
imposing affair with nothing to mar the satisfaction of those who
participated in it, except the discourtesy of Sir Alexander Cockburn,
who not only kept the assembly waiting for his appearance long past the
appointed hour, but departed with unseemly haste at the close of the
valedictory pronounced by the president, Count Sclopis.
The award followed the line of the opinions already recited. It
convicted the British Government of a lack of due diligence in the
discharge of its neutral duties in the cases of the Alabama and the
Florida and their respective tenders, and also in the case of the
Shenandoah from the time she left the port of Melbourne, but
exonerated it in all other cases.
The award also repeated the decision announced by Count Sclopis, on the
19th of June, excluding the claims for national and indirect damages,
and then fixed the amount due to the United States from Great Britain
in the gross sum of "fifteen millions five hundred thousand dollars in
gold, as the indemnity to be paid by Great Britain to the United States
for the satisfaction of all the claims referred to the consideration of
the Tribunal." Sir Alexander Cockburn refused to sign the award, and
filed a statement of his reasons for his dissent. The other four
members of the Tribunal signed
[p. 318]
it, and as the majority rule had
been provided for in the Treaty, both of the high contracting parties
were duly bound, and so regarded themselves.
As to principles decided by the entire procedure of the commissioners
and of their Governments in the formation of the Treaty, and of the
International
principles settled
by the Geneva
Tribunal.
Arbitrators in making the award, we may say, first, that all questions
of damages resulting from the lack of due diligence on the part of a
neutral in the fulfilment of the duties of neutrality were regarded as
proper subjects for arbitration, and that the determination of the
question whether the claims presented, or any of them, are a good
foundation for an award of compensation was also regarded as a proper
question for arbitration; second, that due diligence to be exercised by
neutral governments is diligence "in exact proportion to the risks to
which either of the belligerents may be exposed from a failure to
fulfil the obligations of neutrality on their part"; third, that the
fact that a commission was only subsequently given by a belligerent to
a vessel constructed, equipped or armed for the belligerent in the port
of the neutral does not heal the violation of the duties of neutrality
by the neutral in not using due diligence to prevent such construction,
equipment or armament in its ports; fourth, that the privilege of
ex-territoriality accorded to vessels of war can never be appealed to
for the protection of acts done in violation of neutrality; fifth, that
no neutral can excuse itself from the due discharge of the duties of
neutrality on account of imperfections in its own laws and government;
and sixth, that the cost to the belligerent of pursuing vessels, which
have been enabled to operate against the belligerent on account of the
dereliction of the neutral, and all indirect loss resulting therefrom,
do not constitute a "good foundation for an
[p. 319]award of compensation
or computation of damages between nations."
Two other questions of great importance were placed in course of
solution by the Treaty of Washington. One was the contention between
The Northwest
boundary question.
the two high contracting parties concerning the boundary line between
the United States and British Columbia from the point where the
forty-ninth parallel of north latitude intersects the middle of the
channel which separates the continent from Vancouver's Island to the
Pacific Ocean. The contention on the part of Great Britain was that
this line should run, according to the stipulations of the Treaty of
June 15th, 1846, through the Rosario Straits, and on the part of the
United States that it should run through the Canal de Haro. The high
contracting parties agreed, in the thirty-fourth article of the Treaty
of Washington, to submit this question to the arbitration and award of
His Majesty the German Emperor, whose decision thereon should be final
and without appeal. The German Emperor, William I., accepted this duty;
and on the 21st of October, 1872, announced his award, upholding the
contention of the United States.
The other question was that which related to the common rights of
fishing to be enjoyed by the citizens and subjects of the two high
The Fisheries
question.
contracting parties along the Atlantic coast. The eighteenth article of
the Treaty provided that the inhabitants of the United States should
have for the term of twelve years, in common with the subjects of Her
Britannic Majesty, the right to take sea fish "of every kind, except
shell-fish, on the sea-coasts and shores, and in the bays, harbors, and
creeks, of the Provinces of Quebec, Nova Scotia, and New Brunswick, and
the colony of Prince Edward's Island, and of the several islands
[p. 320]
thereunto adjacent, without being restricted to any distance from the
shore, with permission to land upon the said coasts and shores and
islands, and also upon the Magdalen Islands, for the purpose of drying
their nets and curing their fish." By article nineteenth the same right
was accorded to British subjects, in common with the citizens of the
United States, along "the eastern sea-coasts and shores of the United
States north of the thirty-ninth parallel of north latitude, and on the
shores of the several islands adjacent thereunto, and in the bays,
harbors and creeks of the said sea-coasts and shores of the United
States and of the said islands." Finally, by article twenty-first free
trade between Canada and Prince Edward's Island and the United States
in the produce of their respective sea-fisheries was established.
The contention on the part of Great Britain in regard to this subject
was that the rights and privileges accorded to the citizens of the
The Halifax
commission
and award.
United States by these articles were more valuable than those conceded
to the subjects of Great Britain by the United States, and that a sum
of money should be paid to Great Britain by the United States in offset
thereof. The United States denied the British assumption, and the two
high contracting parties agreed, in the twenty-third article of the
Treaty, to leave this matter to the arbitration and award of three
commissioners, one to be appointed by the President of the United
States, one by Her Britannic Majesty, and a third by the President and
the Queen conjointly, provided they could agree upon a person within
three months from the date when the Treaty should take effect and, if
not, then by the Austro-Hungarian Ambassador at the Court of St. James.
The President named, as the representative of the United States, the
Hon. Ensign H. Kellogg. The Queen
[p. 321]appointed, as her
representative, Sir Alexander T. Galt. And the two high contracting
parties not being able to agree upon the third member of the
commission, the Austro-Hungarian Ambassador to the Queen named Maurice
Delfosse, the Belgian Minister Plenipotentiary to the United States.
Delfosse had been proposed by the British Government to the Government
of the United States as the third commissioner, and the President had
objected to him as being the representative of a country whose
interests were too nearly allied with those of Great Britain. It was
naturally understood by the President that this had disposed of
Delfosse, and the Government at Washington was taken by surprise when
the Austro-Hungarian Ambassador at London, Count Beust, made it
manifest that he should name Mr. Delfosse. Mr. Fish, the Secretary of
State, with true diplomatic instinct, immediately accommodated himself,
however, to the situation, and congratulated Delfosse upon his
appointment. Count Beust announced the choice of Delfosse on the 2d of
March, 1877, nearly six years after the Washington Treaty was
negotiated and signed, during which period the fisheries of
Newfoundland were brought under the same agreements as those of Canada,
Prince Edward's Island, and the United States above the thirty-ninth
parallel. The Commission finally met at Halifax in the latter half of
the year 1877 and on November 23d, 1877, made its award, sustaining by
a vote of two to one the contention of Great Britain, and adjudging
that the United States Government should pay the Government of Great
Britain the sum of five millions five hundred thousand dollars in gold.
The representative of the United States, Mr. Kellogg, dissented from
the decision; and it was felt in the United States that the Government
had been overreached in the matter. Considerable delay in the
[p. 322]
payment of the amount thus resulted, and some controversy over it with
Great Britain occurred. But finally, on November 21st, 1878, the draft
for the amount was delivered to the British Government by Mr. Welsh,
the Minister of the United States at the Court of St. James.
Two other events of an international character happened within the
decade between 1867 and 1877 to which brief reference should be made,
viz., the Chinese Treaty of 1868, and the strong and persistent attempt
of President Grant to bring Santo Domingo under the sovereignty of the
United States.
In 1861 Anson Burlingame, a citizen of the United States and a resident
of Massachusetts, was sent as Minister of the United States to China.
The Burlingame
Treaty with China.
He was a diplomatist of much skill, and he succeeded in making such a
deep impression upon the Emperor of China that the latter, on his
resignation as Minister of the United States to China in 1867, made him
Envoy Extraordinary from China to the United States and the European
states for the purpose of securing treaties of amity and commerce
between China and the states of the civilized world. He came
immediately to the United States and negotiated with Mr. Seward, the
Secretary of State of the United States, the Treaty of July 28th, 1868,
whereby freedom of emigration and immigration between China and the
United States was established, upon the principle of the "inherent and
inalienable right of man to change his home and allegiance" expressly
subscribed to by the United States and China in the Treaty; the
residence of Chinese consuls in the ports of the United States, with
the same privileges and immunities as the British and Russian consuls
enjoyed in said ports, was agreed to; and freedom of religion for
citizens of
[p. 323]
the United States in China, and Chinese converts to
the Christian religion in China, and for Chinese subjects in the United
States, was mutually pledged. This Treaty was heralded at the time as
being an immense advance in bringing China into close sympathy with
modern civilization. But very soon the "labor element," as it assumes
to call itself, in the United States, began to find fault with the
liberal provisions upon the subject of emigration and immigration, and
has succeeded in forcing the Government of the United States back from
its ideal position to the old ground of national exclusiveness. The
example set by the United States has been accepted by the Chinese
Government as a justification of its old methods, and as an excuse for
dropping back into them in great measure.
At the moment of General Grant's accession to the presidency there was
civil commotion in the Dominican Republic. Buenaventura Baez was the
The attempt to annex
the Dominican Republic
to the United States.
legal President of the Republic, but he had lost the support of a very
large proportion of the population, who were following a leader named
Cabral. Cabral and his party were so strong that Baez feared the
overthrow of his government, and sought to avert it by proposing
annexation to the United States.
In July of 1869, President Grant sent General Orville E. Babcock to
Santo Domingo with written instructions from the Secretary of State,
Mr. Fish, to inquire into the political situation there and into the
value and resources of the country. Babcock, terming himself
aide-de-camp to the President of the United States, succeeded somehow
The Treaty.
or other in so impressing his importance and authority upon the willing
Baez and his confederates as to move them to sign a treaty for the
annexation of the Dominican Republic to the United States. It appears
that he pledged the
[p. 324]
President of the United States to use
privately all his influence with the members of Congress for the
ratification of the Treaty.
On the 10th of January, 1870, President Grant sent this proposed Treaty
to the Senate for ratification. He must have thought that there would
The Treaty
before
the Senate.
be no difficulty in securing for it the approval of that body, for his
message was only three lines in length and contained no argument. It
was referred to the Committee on Foreign Affairs, and it soon became
manifest that a serious opposition to ratification was developing
itself. The President now procured from the Dominican representative at
Washington an agreement to an extension of the time for ratification,
and in communicating this to the Senate on May 31st he went into an
argument in support of the proposed treaty. He said, among other
things, that the acquisition of this country would cut off one hundred
millions of dollars' worth of the imports of the United States and
largely increase its exports, and would thus enable the United States
to extinguish its large debt abroad; that it would give the United
States military command of the entrance to the Caribbean Sea and "the
Isthmus transit of commerce"; and that it was necessary in order to
maintain the Monroe Doctrine. He declared that the inhabitants of Santo
Domingo yearned "for the protection of our free institutions and laws,
and our progress and civilization." And he affirmed that he had
information that a European Power was standing ready to offer two
millions of dollars for the possession of Samana Bay alone. It would be
difficult to find another message of a President of the United States
which contained an equal amount of such extravagant nonsense.
The Committee on Foreign Affairs thoroughly sifted the subject, and
recommended that the proposed Treaty
[p. 325]be not ratified, and the
Its rejection.
Senate, despite the influence of the Administration, sustained the
Committee. This action of the Senate occurred on the 30th of June. The
President was surprised, mortified and indignant. He was especially
angry with the chairman of the Committee on Foreign Affairs, Senator
Sumner, and was from that moment determined to oust Sumner from that position.
In his next annual message, that of December 5th, 1870, he took up the
matter again, went over all of his old arguments expressed in even more
The President's
attempt to renew
negotiations.
extravagant language than before, and added the prophecy that if the
United States did not take Santo Domingo, European nations would
acquire the Bay of Samana and create there a great commercial city to
which the United States would become tributary without receiving
corresponding benefits, and that then the folly of the rejection of so
great a prize by the United States would be recognized. He then asked
Congress to authorize him to appoint a commission to negotiate a treaty
with the authorities of Santo Domingo for its annexation to the United
States, and suggested that the treaty so negotiated might be ratified
by a joint resolution of the two Houses of Congress, instead of by the
Senate alone.
These recommendations and suggestions and the language in which they
were expressed were felt to be most exasperating by those Senators and
The Committee
of Inquiry.
Representatives who opposed the President's scheme, and the President's
supporters saw quickly that Congress would not sanction any such measure
as he proposed. In place of it, Senator Morton, of Indiana, offered in
the Senate a resolution to empower the President to appoint a
commission, composed of three persons, to go to Santo Domingo and
inquire into the
[p. 326]
political situation and the resources of the
country. This resolution finally passed under strong opposition, and
the House of Representatives concurred in it with the proviso, which
the Senate accepted, that the resolution should not be construed as
committing Congress in any manner or degree to the policy of annexing
Santo Domingo to the United States.
The President appointed as commissioners Benjamin F. Wade, Andrew D.
The report of
the commissioners.
White and Samuel G. Howe. These gentlemen proceeded to Santo Domingo,
made their inquiries, and furnished the President with a report
sustaining his views and recommendations.
On the 5th of April, 1871, the President submitted this report to
Congress, accompanied by a message which contained a justification of
The abandonment
of the scheme.
his own conduct in the whole matter, and an attack upon those who
opposed his policy of annexation, especially upon Senator Sumner. It
was a very undignified, not to say puerile, document, and ought never
to have been written, much less sent. It revealed, however, the fact
that the President understood at last that he must abandon his pet
scheme. He did it, however, with a very bad grace, and in his last
annual message he repeated for the third time his old arguments in
favor of his miserable project, "not," he said, "as a recommendation
for a renewal of the subject of annexation," but in vindication of his
conduct in regard to it. It is needless to add that none of his fearful
predictions about European occupation of Santo Domingo, in case the
United States should fail to seize it, and the destruction of the
Monroe Doctrine, have come to pass. On the other hand, the Monroe
Doctrine has attained an almost monstrous growth which at times appears
as likely to threaten as to preserve the peace of the two
[p. 327]
Americas, and the poor little Dominican Republic, which was incapable
of self-government, still exists and seems to be bettering its
condition by its own efforts, while the great European city in the Bay
of Samana, to which the United States was to become tributary, has not
even the substance of a mirage in the waters upon which the vast
marines of the world were to ride in approaching its docks and
landings. Such has been the fulfilment of the prophecy upon which was
based the supposed necessity of expansion beyond the seas!
[p. 328]
[p. 329]
INDEX
Abbott, Josiah G., on electoral commission, 286
Adams, Charles Francis, joins liberal republicans, 264;
candidate for presidential nomination, 265;
returns from England, 303;
at Geneva arbitration, 311, 316
Adams, John Q., nominated for vice-presidency, 267
Alabama, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
convention and election in, 38;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112;
registration in, 146;
election in, 149;
disfranchisements in, 150;
voting on constitution, 151, 153, 197;
act on admission of members from, 198;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
republicans get control in, 268, 269;
change in character of government, 273
Alabama, the, case of, 316, 317
Alabama claims, 307, 308, 316, 317
Alaska, purchase of, 299-302
Alexandria, Va., Pierpont government at, 13, 224
Alta Vela, matter of claim to, 177, 178
Ames, Adelbert, resigns as governor of Mississippi, 275
Anderson, T. C., in Louisiana politics, 269
Arkansas, in Lincoln's proclamation, 11;
Lincoln's acts toward, 12;
presidential reconstruction in, 15;
congressmen refused seats, 15;
in Lincoln's message, 19;
electoral vote of 1864 rejected, 22;
attitude of Johnson to, 38;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
disfranchisements in, 150;
ratifies constitution, 155, 197;
ratifies fourteenth amendment, 197;
act of June, 1868, as to, 198, 199, 201;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
change in character of government, 273
Ashburn, George W., in convention of 1866, 100
Ashley, James M., action on thirteenth amendment, 29
Austin, Tex., convention at, 229
Babcock, Orville E., mission to Santo Domingo, 323
Baez, Buenaventura, in Dominican politics, 323
Baird, Absalom, New Orleans riot, 94-97
Baltimore, Md., republican convention at, 20;
democratic convention at, 266
Banks, Nathaniel P., appoints election in Louisiana, 14;
views on purchase of Alaska, 300
Bayard, Thomas F., on electoral commission, 286
Bell, John, desertion of the Union cause, 221
Benton, Thomas H., in convention of 1866, 100
Bernard, Mountague, on Joint High Commission, 307
Beust, Count, names Delfosse for Halifax commission, 321
Bingham, John A., on joint committee on reconstruction, 57;
on impeachment committee, 174;
impeachment manager, 175;
approves letter on Alta Vela claims, 177;
offers amendment as to Georgia, 242
Black, Jeremiah S., counsel for Johnson, 176;
his withdrawal, 177, 178;
counsel before electoral commission, 291
Blaine, James G., proposes amendment to reconstruction bill, 115, 116;
approves letter on Alta Vela claims, 177;
in convention of 1876, 281;
views on purchase of Alaska, 300
Blair, Francis P., nominated for vice-presidency, 211;
conduct in the campaign, 211, 212
Blair, Montgomery, in convention of 1866, 99;
counsel before electoral commission, 291
Blow, Henry T., on joint committee on reconstruction, 57
Borie, Adolph E., becomes secretary of the navy, 231;
resigns, 232
Botts, John Minor, in convention of 1866, 100
Boutwell, George S., on joint committee on reconstruction, 57;
on impeachment committee, 174;
impeachment manager, 175;
becomes secretary of the treasury, 232
Bradley, Joseph P., on electoral commission, 289
Brodhead, James O., letter from F. P. Blair, 211
Brown, B. Gratz, joins liberal republicans, 264;
nominated for vice-presidency, 265
Browning, Orville H., enters cabinet, 90;
in convention of 1866, 99
Brownlow, William G., elected governor of Tennessee, 25;
in convention of 1866, 100
Bullock, Rufus B., share in reconstruction of Georgia, 237-239, 241, 244
Burlingame, Anson, treaty with China, 322
Butler, Benjamin F., impeachment manager, 175;
signs letter on Alta Vela claim, 177;
attack on Johnson, 181;
proposes bill as to Georgia, 240;
withdraws his amendment, 242
Cabral, in Dominican politics, 323
Cameron, Simon, in convention of 1866, 100
Campbell, James, in convention of 1866, 99
Campbell, John A., counsel before electoral commission, 291
Canada, the fisheries question, 320-322
Canby, Edward R. S., supersedes Sickles, 143
Carpenter, Matthew H., counsel before electoral commission, 291
Carpenter, testimony as to Ku-Klux, 259
Cartter, David K., action in case against Thomas, 171, 172, 174
Cartwright, J. C., Oregon elector of 1876, 291
Chamberlain, Daniel H., as governor of South Carolina, 274;
retires from the office, 296
Chandler, Zachariah, in convention of 1866, 100;
manages campaign for Hayes, 283
Chase, Salmon P., presides at impeachment of Johnson, 176;
rulings, 181;
puts final question, 191;
candidate for presidential nomination, 210
Cherokee Nation vs. Georgia (5 Peters 1), 144
Chicago, Ill., democratic convention at, 207;
republican convention of 1868, 207
China, the Burlingame treaty, 322
Cincinnati, O., liberal republican convention at, 265;
republican convention of 1876, 280
Civil Rights, state legislation on, 45-52, 62;
bill on, in Congress, 68-70;
the bill criticised, 71;
bill passed over veto, 73
Clarendon, Earl of, treaty negotiated with Johnson, 303
Clements, White vs., 237
Cleveland, O., radical republican convention at, 20;
soldier convention at, 101
Clifford, Nathan, on electoral commission, 286
Cochrane, John, nominated for vice-presidency, 20;
withdraws, 21
Cockburn, Alexander, at Geneva arbitration, 311, 315, 317
Coke, Richard, elected governor of Texas, 249, 273
Colfax, Schuyler, elected Speaker, 42;
appoints committee on impeachment, 174;
nominated for vice-presidency, 207;
character of acceptance, 208
Columbia, S. C., made head-quarters of second military district, 135
Committee of the House on Elections, Georgia case referred to, 223
Committee of the House on Impeachment, appointed, 174;
proceedings, 175 et seq.
Committee of the House on Reconstruction, reports bill, 112;
bill passed, 117;
Covode resolution referred to, 171;
reports impeachment resolution, 173;
reports bill as to Georgia, 240
Committee of the House on the Judiciary, action as to thirteenth amendment, 28;
Blaine moves reference to, 116
Committee of the House on the Rebellious States, 15
Committee of the Senate on Elections, Georgia case referred to, 223
Committee of the Senate on Finance, bill reported from, 277
Committee of the Senate on Foreign Relations, Sumner loses chairmanship of, 264;
opposes Dominican treaty, 324, 325
Committee of the Senate on the Judiciary, action as to thirteenth amendment, 26-28;
proposes Freedmen's Bureau bill, 64;
reports a civil rights bill, 68;
action on bill repealing Tenure-of-Office Act, 233
Committee of the Senate on the Rebellious States, 15
Congress of the United States, power vested in, 3;
action on State perdurance, 5;
power over territories, 6;
relation of its acts to Reconstruction, 12;
legislation on Reconstruction, 15;
action as to electoral vote of 1864, 21, 22;
twenty-second joint rule, 24, 25;
attitude to Tennessee, 26;
meeting of December, 1865, 40;
Johnson's views of powers of, 41;
demand of southerners for seats, 56;
joint committee on reconstruction, 57, 58;
passes Freedmen's Bureau bill, 66;
passes civil rights bill, 70, 73;
the fourteenth amendment, 74-79;
proposal of committee on reconstruction, 80;
reports to, on reconstruction, 84-86;
passage of Freedmen's Bureau bill, 87-90;
relation to campaign of 1866, 98;
attacked by Johnson, 102;
effect of election of 1866, 104;
effect of Johnson's message on, 105;
passes bill for negro suffrage in District of Columbia, 107, 108;
bill vetoed, 107, 108;
bill passed over veto, 109;
vetoes sent to, 126;
encroachment on President's power, 128;
passes supplemental reconstruction bill, 129;
opening of fortieth Congress, 132;
passes bill interpreting Reconstruction Acts, 140;
passes bill over veto, 142;
as to powers of, 147;
attitude of southern whites to acts of, 149;
additional bill as to reconstructed States, 152, 153;
comment on the act, 154;
message to, of December, 1867, 158-160;
admission of Southern members, 198, 202;
action on proclamation of fourteenth amendment, 204;
friction with Johnson, 214;
annual message to, 214;
action on fifteenth amendment, 217;
question as to southern members, 223, 225;
admits members from Virginia, 228;
passes modification of Tenure-of-Office Act, 234;
readmission of Georgia, 235-244;
attitude to the South, 248;
bill to enforce the amendments, 253-255;
control of elections to, 256;
statute on the Ku-Klux, 257, 258;
legislation on finance, 276-279;
electoral count of 1877, 283, 284;
bill for electoral commission, 284, 285;
action as to Santo Domingo, 326.
See House of Representatives;
Senate; Statutes of the United States
Conkling, Roscoe, on joint committee on reconstruction, 57;
in convention of 1876, 281
Connecticut ratifies fourteenth amendment, 203, 204
Constitution of the United States, government provided by the, 2-4;
relation of State government to, 5, 6;
powers of Congress over elections, 22;
eligibility to vice-presidency, 23, 24;
adoption of the thirteenth amendment, 26-30, 55;
the fourteenth amendment, 73-80, 82, 83;
fourteenth amendment in the campaign of 1866, 98;
fourteenth amendment rejected in South, 106, 109;
fourteenth amendment with reference to revival of State functions, 110;
tests of, applied to reconstruction bill, 113;
in reconstruction bill, 120, 121;
interpreted by the Supreme Court, 144;
fourteenth amendment ratified in Arkansas, 197;
ratification of fourteenth amendment completed, 202-205;
action on fifteenth amendment, 217;
fifteenth amendment ratified by Georgia, 240;
provision for enforcement of amendments, 253-255
Covode, John, resolutions on Johnson, 171
Cowan, Edgar, action on the Stevens resolution, 57;
in convention of 1866, 99
Cox, Jacob D., in Pittsburg convention, 102;
becomes secretary of the interior, 231
Creswell, John A. J., in convention of 1866, 100;
becomes postmaster-general, 231
Cronin, E. A., Oregon elector in 1876, 290, 291
Curtin, A. G., in convention of 1866, 100
Curtis, Benjamin R., counsel for Johnson, 176;
argument, 182, 183
Cushing, Caleb, at Geneva arbitration, 311
Custer, George A., in Cleveland convention, 101
Davis, David, joins liberal republicans, 264;
candidate for presidential nomination, 265;
elected Senator, 287;
relation to electoral commission, 288
Davis, Henry Winter, bill on reconstruction, 15-18;
protest against Lincoln's proclamation, 19
Davis, J. C. Bancroft, at Geneva arbitration, 311
Delaware, in election of 1866, 104;
votes for Seymour, 212
Delfosse, Maurice, on Halifax commission, 321
Dennison, William, resignation, 90, 142
District of Columbia, bill for negro suffrage in, 107;
bill vetoed, 108;
bill passed over veto, 109;
bill on colored schools in, 216
Dix, John A., in convention of 1866, 99
Dixon, James, action on the Stevens resolution, 57;
vote on impeachment, 191
Doolittle, James R., action on the Stevens resolution, 57;
in convention of 1866, 99;
view of the Stanton case, 189;
vote on impeachment, 191
Drew, George F., becomes governor of Florida, 296
Durant, Thomas J., in convention of 1866, 100
Durell, E. H., in Louisiana politics, 270, 271
Edmunds, George F., on electoral commission, 286
Electoral Commission, creation, 284, 285;
membership, 286-289;
proceedings, 290-293
Emory, W. H., relations with Johnson, 175, 179, 181
English, James E., in convention of 1866, 99
Evarts, William M., counsel for Johnson, 176;
counsel before electoral commission, 291;
at Geneva arbitration, 311
Ewing, Thomas, in Cleveland convention, 101;
nominated as secretary of war, 173
Farragut, David D., accompanies Johnson to the West, 102
Favrot, Alexander, at Geneva arbitration, 311
Federal government, system of, 1, 2
Ferry, Thomas W., announces result of 1876 election, 294
Fessenden, William P., on joint committee on reconstruction, 57;
theory of reconstruction, 60;
opinion on impeachment, 184;
view of the Stanton case, 189;
vote on impeachment, 191
Field, Stephen J., on electoral commission, 286
Fish, Hamilton, becomes secretary of state, 232;
negotiations with Great Britain, 306, 307;
controversy with Granville, 312;
congratulates Delfosse, 321
Fisheries Question, the, 320-322
Flanders, Benjamin F., elected to House of Representatives, 14
Florida, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
convention in, 38;
adopts thirteenth amendment, 39;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
ratifies constitution, 155, 197;
act on admission of members from, 198;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
contest as to election returns of 1876, 283, 289;
change of administration, 296
Florida, the, case of, 315-317
Fowler, Joseph S., vote on impeachment, 191
Freedmen's Bureau, created, 44, 45;
Grant's opinion of its officers, 63;
bill of 1866, 64-67;
bill passed over veto, 87-90.
See Statutes of the United States
Frelinghuysen, Frederick T., on electoral commission, 286
Frémont, John C., nominated for presidency, 20;
withdraws, 21
Galt, Alexander T., on Halifax commission, 321
Garfield, James A., approves letter on Alta Vela claims, 177;
on electoral commission, 286
Garland, Augustus H., elected governor of Arkansas, 273
Geneva Arbitration, 307, 308, 311-318
Georgia, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
convention and election in, 38;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112;
case of Georgia vs. Stanton, 146, 195;
registration in, 147;
election in, 148;
election in, 149;
ratifies constitution, 155, 197;
controversy in, 155;
act on admission of members from, 198, 199;
reconstruction declared complete, 202;
ratification of fourteenth amendment, 205;
votes for Seymour, 212;
question in Congress as to representation of, 224;
question of representation of, 235-237;
military government in, 238, 239;
fifteenth amendment ratified, 240;
admission delayed, 241, 242;
finally restored to federal relations, 243, 244;
escape from negro rule, 247, 248;
election of 1872 in, 267
Gerry, Elbridge, in convention of 1866, 100
Gillem, A. C., arrest of McCardle, 196
Granger, Gordon, in Cleveland convention, 101
Grant, Ulysses S., report on conditions at the South, 63;
accompanies Johnson to the West, 102;
acting Secretary of War, 143, 158;
injunction against sought, 146;
appointed acting secretary of war, 163;
his action thereon, 164, 165;
relations with Johnson, 166-168;
nominated for presidency, 207;
character of acceptance, 208;
attitude to reconstruction, 223;
proclamation as to Virginia, 227;
orders as to Mississippi and Texas, 229, 230;
policy characterized, 230, 231;
attitude to Tenure-of-Office Act, 231-234;
first annual message, 234;
suggestion as to Georgia, 235;
message of March, 1871, 257;
proclamation of March, 1871, 258;
proclamation of May, 1871, 259, 260;
proclamations of April and November, 1871, 260, 261;
relations with Sumner, 264;
nominated for second term, 267;
elected, 267;
veto of inflation bill, 279;
messages on relations with Great Britain, 303-306;
policy as to Santo Domingo, 323-326
Granville, Lord, controversy with Fish, 312
Great Britain, change in ministry, 303;
Grant's messages on relations with, 304-306;
the Geneva arbitration, 307-318;
the British Columbia boundary, 319;
the fisheries question, 320-322
Greeley, Horace, in convention of 1866, 100;
joins liberal republicans, 264;
nominated for presidency, 265, 266;
defeated, 267
Green, Ashbel, counsel before electoral commission, 291
Grey and Ripon, Earl de, on Joint High Commission, 307
Grider, Henry, on joint committee on reconstruction, 57
Grimes, James W., on joint committee on reconstruction, 57;
view of the Stanton case, 189;
vote on impeachment, 191
Groesbeck, William S., counsel for Johnson, 177
Habeas Corpus, writ of, privileges suspended in District of Columbia, 39
Hahn, Michael, elected to House of Representatives, 14;
elected Governor of Louisiana, 14
Halifax, N. S., fisheries commission at, 320, 321
Hamlin, Hannibal, count of electoral votes, 24
Hampton, Wade, in convention of 1868, 211;
becomes governor of South Carolina, 296
Hancock, Winfield Scott, supersedes Sheridan, 143;
in convention of 1868, 210
Harlan, James, resignation, 90, 142
Harris, Ira, on joint committee on reconstruction, 57
Hawley, Joseph R., in republican convention of 1866, 207
Hayes, Rutherford B., significance of his election, 279;
nominated for presidency, 281, 282;
the campaign, 283 et seq.;
election formally declared, 294;
policy toward the South, 295, 296
Henderson, John B., introduces amendment abolishing slavery, 26, 27;
vote on impeachment, 191
Hendricks, Thomas A., candidate for presidential nomination, 210;
nominated for vice-presidency, 282
Herron, Francis J., in Louisiana politics, 269, 270
Higby, William, views on purchase of Alaska, 300
Hill, Benjamin H., enters Senate from Georgia, 244
Hoadly, George, joins liberal republicans, 264;
counsel before electoral commission, 291
Hoar, Ebenezer R., becomes attorney-general, 231;
on Joint High Commission, 307
Hoar, George F., on electoral commission, 286
Hood, John B., near Nashville, 23
House of Representatives of the United States, admits members from Louisiana, 14;
refuses seats to members from Arkansas, 15;
action on thirteenth amendment, 28-30;
elects Colfax Speaker, 42;
the Stevens resolution, 42-44;
speech by Stevens, 58;
passes Freedmen's Bureau bill, 66;
passes civil rights bill, 73;
representation in, 74;
election of 1866, 98;
effect of election of 1866, 104;
attempt to impeach Johnson, 109;
bill on reconstruction before the, 112-118;
resolution on confiscation act, 122;
tenure-of-office bill in, 125;
bill on reconstructed States, 153;
action on dismissal of Stanton, 171;
proceedings of impeachment against Johnson, 173 et seq.;
passes bill repealing Tenure-of-Office Act, 232, 233;
democrats secure control of, 253, 273;
jurisdiction over treaties, 301, 302.
See Congress of the United States; Statutes of the United States
Houston, George S., elected governor of Alabama, 273
Howard, Jacob M., on joint committee on reconstruction, 57;
illness delays vote on impeachment, 190
Howe, Samuel G., commissioner to Santo Domingo, 326
Hunt, Ward, 289
Hunton, Eppa, on electoral commission, 286
Illinois, ratifies fourteenth amendment, 203, 204;
Davis elected Senator from, 287
Indiana, election of 1886 in, 103;
ratifies fourteenth amendment, 203, 204;
election of 1872 in, 267
Iowa, election of 1866 in, 103;
ratifies fourteenth amendment, 203, 204
d'Itajubá, Baron, at Geneva arbitration, 311, 316
Jenkins, Charles J., institutes suit against Stanton, 145;
removed by Meade, 155
Johnson, Andrew, elected vice-president, 21;
calls Tennessee convention, 23;
proclamation of Feb. 25, 1865, 25;
becomes president, 30;
plan and acts as to reconstruction, 31-41;
proclamation of May 29, 1865, 33, 34;
identity of his plan with Lincoln's, 36;
proclaims federal law in force in Virginia, 37;
proclamations as to civil government, 39;
message of Dec., 1865, 40;
relation to congressional views of reconstruction, 61;
sends Grant and Schurz through the South, 63;
veto of Freedmen's Bureau bill, 66, 67;
speech of Feb. 22, 1866, 67;
veto of civil rights bill, 70, 71;
effect of it, 72;
veto overridden, 73;
as to fourteenth amendment, 80;
message as to Tennessee, 83;
veto of Freedmen's Bureau bill overridden, 88-90;
relations with Stanton, 90, 91;
changes in cabinet, 90;
relation to New Orleans riot, 95, 96;
endorsed by convention of 1866, 99;
criticized by conventions of 1866, 101, 102;
takes part in campaign of 1866, 102;
proclamation declaring war ended, 103;
message of Dec., 1866, 104, 105;
vetoes bill as to negro suffrage in District of Columbia, 107, 108;
bill passed over his veto, 109;
first attempt at impeachment, 109;
vetoes resolution on confiscation act, 122;
influence of Seward on, 124;
vetoes reconstruction bill and tenure-of-office bill, 126;
encroachment on his power, 128;
veto of supplemental reconstruction bill, 132, 133;
orders under the statutes, 135, 136, 138;
vetoes bill interpreting reconstruction acts, 140, 141;
distrust of Stanton, 140;
veto overridden, 142;
suspends Stanton, 142, 143;
Mississippi vs. Johnson, 145, 195;
supersedes Pope with Meade, 152;
the attempt to impeach, 157-194;
message on suspension of Stanton, 160-163;
relations with Grant, 164-168;
supersedes Stanton with Thomas, 169, 170;
Covode resolution, 171;
action of House on impeachment, 173 et seq.;
vetoes overridden, 197, 199, 202;
proclaims reconstruction completed, 202;
conduct in campaign of 1868, 213;
last annual message, 214;
proclamation of Dec., 1868, 215;
veto of colored school bill, 216;
retirement, 218, 219;
relations with republicans, 219-221;
policy compared with Grant's, 230
Johnson, James, appointed governor of Georgia, 37
Johnson, Reverdy, on joint committee on reconstruction, 57;
report on reconstruction, 86;
in convention of 1866, 99;
offers bill on reconstruction, 117;
negotiates treaty with Clarendon, 303
Joint Committee on Reconstruction, 57, 58;
recommendation on representation, 74;
proposes bill, 80;
its bill rejected, 82;
final report of, 84-86
Joint High Commission, 307
Julian, George W., on impeachment committee, 174;
joins liberal republicans, 264
Kansas ratifies fourteenth amendment, 203, 204
Kellogg, Ensign H., on Halifax commission, 320, 321
Kellogg, William P., in Louisiana politics, 270-272;
certificate in 1876 election, 290
Kendall vs. United States (12 Peters 524), 144
Kentucky, reconstruction in, 7, 13;
in Lincoln's message, 20;
in election of 1866, 104;
votes for Seymour, 212;
election of 1872 in, 267
Kenzie, Lewis M., in convention of 1866, 100
Kernan, Francis, in convention of 1868, 209
Koontz, William H., approves letter on Alta Vela claims, 177
Ku-Klux, the, 250-252, 255;
act of April, 1871, 257, 258;
trials, 261
Lawrence, William B., in convention of 1866, 99
Lewis, D. P., elected governor of Alabama, 268
Liberal Republicans, convention of 1872, 264, 265;
in campaign of 1872, 266
Lincoln, Abraham, views and acts as to reconstruction, 8-30;
his proposed oath of allegiance, 10;
attitude to the Pierpont government, 13;
course toward Louisiana, 14, 15;
proclamation of July 8, 1864, 18, 19;
message of Dec. 6, 1864, 19, 20;
renominated, 20;
re-elected, 21;
message of Feb. 8, 1865, 22;
views of powers of Congress, 24;
attitude to Brownlow's administration, 26;
nature of acts as to abolition, 26;
signs resolution on thirteenth amendment, 29;
assassinated, 30;
his cabinet retained by Johnson, 32;
identity of plan of reconstruction with Johnson's, 36
Lindsay, Robert B., course as governor of Alabama, 268
Logan, John A., on impeachment committee, 174;
impeachment manager, 175;
approves letter on Alta Vela claim, 177
Louisiana, in Lincoln's proclamation, 11;
Lincoln's acts toward, 12;
presidential reconstruction in, 14, 15;
in Lincoln's message, 19;
electoral vote of 1864 rejected, 21, 22;
attitude of Johnson to, 38;
vote on thirteenth amendment, 55;
contest for control of state government, 92-98;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
disfranchisements in, 150;
ratifies constitution, 155, 197;
act on admission of members from, 198;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
votes for Seymour, 212;
corruption in, 263;
contest for political control in, 269-272;
contested electoral vote of 1876, 283, 289, 290;
change of administration, 296
Louisville, Ky., democratic convention at, 267
Loyal League, the, 250, 252
Luther vs. Borden, (7 Howard 1), 144
Lynch, John, in Louisiana politics, 269-272
Macdonald, John, on Joint High Commission, 307
McCardle, William H., case of, 195, 196
McClellan, George B., nominated for presidency, 20;
electoral votes, 21
McClernand, John A., in Cleveland convention, 101
McCrary, George W., suggests electoral commission, 284
McEnery, John, in Louisiana politics, 270-272;
certificate in 1876 election, 290
Maine, election of 1866 in, 103;
ratifies fourteenth amendment, 203, 204;
election of 1872 in, 267
Marvin, William, appointed governor of Florida, 37
Maryland, in Lincoln's message, 20;
in election of 1866, 104;
votes for Seymour, 212;
election of 1872 in, 267
Massachusetts ratifies fourteenth amendment, 203, 204
Matthews, Stanley, in convention of 1866, 100;
joins liberal republicans, 264;
counsel before electoral commission, 291
Meade, George G., supersedes Pope, 152;
report on Alabama election, 153;
removes Jenkins, 155;
proclamation of June, 1868, 238, 239
Merrick, Richard T., counsel before electoral commission, 291
Michigan ratifies fourteenth amendment, 203, 204
Miller, J. N. Y., Oregon elector of 1876, 291
Miller, Samuel F., on electoral commission, 286
Miller enters Senate from Georgia, 244
Minnesota ratifies fourteenth amendment, 203, 204
Mississippi, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
convention in, 38;
rejects thirteenth amendment, 39;
law on vagrancy, etc., 46-52, 62;
opinion of this legislation, 53;
in the reconstruction bill, 112;
Mississippi vs. Johnson, 145;
registration in, 147;
election in, 149;
disfranchisements in, 151;
constitution rejected in, 156;
arrest of McCardle in, 196;
martial law in, 202;
no share in election of 1868, 212;
ratification of constitution, 229;
restored to federal relations, 229;
negro rule in, 249;
political conditions in 1875, 274, 275
Mississippi vs. Johnson (4 Wallace 475), 145, 193, 195
Missouri, Reconstruction in, 7, 13;
in Lincoln's message, 20;
ratifies fourteenth amendment, 203, 204;
liberal republicans in, 265;
election of 1872 in, 267
Monroe, John T., as mayor of New Orleans, 94
Montgomery, Ala., made head-quarters of third military district, 135
Moorhead, James K., approves letter on Alta Vela claims, 177
Morgan, Edwin D., vote on Freedmen's Bureau bill, 67
Morrill, Justin S., on joint committee on reconstruction, 57
Morse, Alexander P., counsel before electoral commission, 291
Morton, Oliver P., in convention of 1866, 100;
in convention of 1876, 281;
on electoral commission, 286;
resolution on Santo Domingo, 325
Moses, F. J., connection with South Carolina corruption, 262
Moses, F. J., Jr., judge-elect of South Carolina, 274
Nashville, Tenn., convention at, 236
National Nominating Conventions, radical republican of 1864, 20;
democratic of 1864, 20;
republican of 1864, 20;
of 1866, 99-102;
republican of 1868, 207;
democratic of 1868, 208;
liberal republican of 1872, 264, 265;
democratic of 1872, 266;
republican of 1868, 267;
republican of 1876, 280, 281;
democratic of 1876, 282
Nebraska ratifies fourteenth amendment, 203, 204
Nelson, Samuel, on Joint High Commission, 307
Nelson, Thomas A. R., counsel for Johnson, 176
Nevada ratifies fourteenth amendment, 203, 204
New Hampshire ratifies fourteenth amendment, 203, 204
New Jersey, ratifies fourteenth amendment, 203, 204;
withdrawal of ratification, 203, 205, 206;
votes for Seymour, 212
New Orleans, La., convention at, 14;
riot at, 92-98;
head-quarters of fifth military district, 135
New York, ratifies fourteenth amendment, 203, 204;
votes for Seymour, 212
New York, N. Y., democratic convention of 1868 at, 208
New York Tribune prints protest of Wade and Davis, 19
Niblack, William E., motion in House, 43
Nicholls, Francis T., becomes governor of Louisiana, 296
North Carolina, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 35;
convention in, 38;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
ratifies constitution, 155, 197;
act on admission of members from, 198;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
recovery from negro rule, 249
Northcote, Stafford, on Joint High Commission, 307
Northwest Ordinance, 27
Norton, Daniel S., action on the Stevens resolution, 57;
vote on impeachment, 191
O'Conor, Charles, nominated for presidency, 267;
counsel before electoral commission, 291
Odell, W. H., Oregon elector of 1876, 291
Ohio, election of 1866 in, 103;
vote on negro suffrage in, 148;
ratifies fourteenth amendment, 203, 204;
withdrawal of ratification, 203, 205, 206;
election of 1872 in, 267
Ord, Edward O. C., in fourth military district, 135
Oregon, ratifies fourteenth amendment, 203, 204;
votes for Seymour, 212;
contested electoral returns of 1876, 289-291
Packard, S. B., takes possession of Louisiana capitol, 271;
retires from office of governor, 296
Palmer, Roundell, at Geneva arbitration, 311
Parker, John, Oregon elector of 1876, 291
Parsons, Lewis E., appointed governor of Alabama, 37
Paschal, George W., in convention of 1886, 100
Patterson, David T., vote on impeachment, 191
Payne, Henry B., on electoral commission, 286
Pendleton, George H., nominated for vice-presidency, 21;
candidate for presidential nomination, 208
Pennsylvania, election of 1866 in, 103;
ratifies fourteenth amendment, 203, 204;
election of 1872 in, 267
Perry, Benjamin F., appointed governor of South Carolina, 37
Philadelphia, Penn., conventions of 1866 at, 99, 100;
republican convention of 1872 at, 267
Phillips, Wendell, characterized by Johnson, 67
Pierpont, Francis H., attitude of Lincoln to, 13;
supported by Johnson, 37, 224
Pinchback, P. B. S., in Louisiana politics, 269, 272
Pittsburg, Penn., soldier convention at, 101
Poland, Luke P., connection with Thomas case, 174
Pope, John, in third military district, 136;
injunction sought against, 146;
election orders, 151;
recalled, 152
Preston, William, in convention of 1868, 210
Pulaski, Tenn., place of origin of Ku-Klux, 250
Randall, Alexander W., appointed postmaster-general, 90;
accompanies Johnson to the West, 102
Rawlins, John A., becomes secretary of war, 232
Raymond, Henry J., views on reconstruction, 59;
vote on fourteenth amendment, 87;
in convention of 1866, 99
Reconstruction, theory of, 1-7;
Lincoln's views and acts as to, 8-30;
Seward's view of, 12;
in Louisiana, 14;
the Wade-Davis bill, 15-18;
relation of party conventions to, 20;
in Tennessee, 23, 25;
Johnson's plan as to, 31-41;
in North Carolina, 35;
in the several States, 37, 38;
views of House on, 43;
attitude of republicans, 44;
joint committee on, 57;
views of Stevens, 58;
views of Raymond and Shellabarger, 59;
theory of Sumner, 60;
reports of congressional committee, 84-86;
as an issue in the campaign of 1866, 98;
Johnson's defence of his policy as to, 102;
bill in the House, 112-114;
the Blaine amendment, 115, 116;
the Sherman bill, 117;
the bill as finally passed, 118-122;
vetoed by Johnson, 126;
republican motives in, 127;
supplemental bill on, 129-131;
vetoed, 132;
acts on, criticised, 133, 134;
application of acts on, 135-137;
congressional interpretation of acts on, 138;
bill interpreting the statutes on, 140;
application of statutes on, 146 et seq.;
process of, declared completed, 202;
attitude of Grant toward, 223;
end of legislation on, 244;
reconstruction characterized, 297.
See Statutes
Republican party, schism threatened in, 20;
attitude to reconstruction, 44;
attitude to southern legislation, 52, 54;
feeling toward southern congressmen, 56;
attitude to views of Stevens, Raymond and Shellabarger, 59;
attitude to presidential reconstruction, 60, 61;
position on civil rights, 62;
attitude to Freedmen's Bureau bill, 89;
attitude to Stanton, 90, 91;
in campaign of 1866, 99, 101;
convention of 1866, 104;
in election of 1866, 104;
views on reconstruction, 110, 111;
motives in Reconstruction, 127;
interpretation of Johnson's message, 160;
action in vote on impeachment, 191;
effect of McCardle case on, 197;
convention of 1868, 207;
criticism of views of, 217;
relations with Johnson, 219-221;
control of Grant, 257;
revolt in the party, 264, 265;
convention of 1872, 267;
get control of Alabama legislature, 268, 269;
lose control in Congress, 273;
financial policy, 276;
convention of 1876, 280, 281;
campaign of 1876, 283 et seq.;
views as to powers of Congress, 292
Retribution, the, case of, 316
Rhode Island ratifies fourteenth amendment, 203, 204
Richmond, Va., made head-quarters of first military district, 135;
convention at, 226, 227
Robeson, George M., becomes secretary of the navy, 232
Rogers, Andrew J., on joint committee on reconstruction, 57
Rose, John, mission of, 306
Ross, Edmund G., vote on impeachment, 191
Rousseau, Lovell H., in Cleveland convention, 101
Russia, purchase of Alaska from, 300-302
Safford, M. J., in convention of 1866, 100
St. Louis, Mo., Johnson's speech at, 102
Samana Bay, 324, 327
Santo Domingo, Sumner's position as to, 264;
attempt to annex to United States, 323-327
Schaffner law, the, 249
Schell, Augustus, in convention of 1868, 209
Schenck, Robert C., in convention of 1866, 100;
on Joint High Commission, 307;
at London, 312
Schofield, John M., assigned to first military district, 135, 226;
nominated as secretary of war, 190;
confirmed, 192;
retained by Grant, 231;
resigns, 232
Schriver, General, in Stanton-Thomas incident, 169,
170, 172, 173
Schurz, Carl, report on conditions at the South, 63;
in convention of 1866, 100;
joins liberal republicans, 264
Sclopis, Frederic, at Geneva arbitration, 311, 316, 317
Scott, R. K., views of Ku-Klux, etc., 259
Senate of the United States, refuses seats to members from Arkansas, 15;
adopts thirteenth amendment, 26-28;
the Stevens resolution, 43, 44, 57;
passes Freedmen's Bureau bill, 66;
passes civil rights bill, 70, 73;
effect of election of 1866, 104;
passes reconstruction bill, 118;
tenure-of-office bill in, 122, 125;
passes resolution on confiscation act, 122;
bill on reconstructed States, 153;
action on suspension of Stanton, 162, 163;
action on dismissal of Stanton, 170;
acts as court of impeachment, 176 et seq.;
vote on impeachment, 190, 191;
confirms Schofield, 192;
resolution on the amnesty proclamation, 215, 216;
confirms Grant's nominees, 232;
admits members from Georgia, 244;
currency bill in, 277;
ratifies treaty with Russia, 300;
rejects Johnson-Clarendon treaty, 303;
rejects Dominican treaty, 324, 325.
See Congress of the United States; Statutes of the United States
Seward, William H., views on reconstruction, 12;
sends thirteenth amendment to states, 29;
retained by Johnson, 32;
calculation as to thirteenth amendment, 52, 55, 56;
announces adoption of thirteenth amendment, 55;
action on fourteenth amendment, 80;
accompanies Johnson to the west, 102;
influence on Johnson, 124;
proclaims ratification of fourteenth amendment, 202;
procedure as to the proclamation, 203-205;
negotiates purchase of Alaska, 300-301;
negotiates treaty with China, 322;
instructions to Babcock, 323
Seymour, Horatio, nominated for presidency, 210;
defeated, 212
Shaffer, J. W., secures letter on Alta Vela claims, 177
Sharkey, William L., appointed governor of Mississippi, 37;
institutes suit against Johnson, 145
Shellabarger, Samuel, theory of reconstruction, 59-61;
counsel before electoral commission, 291;
opinion of purchase of Alaska, 300
Shenandoah, the, case of, 316, 317
Shepley, George F., military governor of Louisiana, 14
Sheridan, Philip H., New Orleans riot, 94, 97;
in fifth military district, 135;
superseded by Hancock, 143
Sherman, John, offers bill on reconstruction, 117;
father-in-law of Ewing, 173;
reports currency bill, 277
Sickles, Daniel E., in second military district, 135;
superseded by Canby, 143
Sinclair, John G., in convention of 1866, 99
Skinner, J. B. L., postmaster-general ad interim, 186, 188
Slavery, adoption of the thirteenth amendment, 26-30
South Carolina, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
convention and election in, 38;
law on vagrancy, 46;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
character of convention in, 150;
ratifies constitution, 155, 197;
act on admission of members from, 198;
reconstruction declared complete, 202;
ratifies fourteenth amendment, 203, 204;
request of governor for troops, 258;
proclamations of president as to, 260, 261;
corruption in, 262;
conditions in 1874, 274;
contested electoral returns of 1876, 283, 289;
change of administration, 296
Spaulding, J. R., joins liberal republicans, 264
Speed, James, resignation, 90, 142;
in convention of 1866, 100, 101
Staempfli, Jacob, at Geneva arbitration, 311, 315, 316
Stanbery, Henry, appointed attorney-general, 90;
in case of Mississippi vs. Johnson, 145;
in case of Georgia vs. Stanton, 146;
arrest of Thomas, 172;
counsel for Johnson, 176
Stanley, Lord, secretary for foreign affairs, 303
Stanton, Edwin M., attitude to Johnson, 90, 91;
as to the New Orleans riot, 95, 96;
dissents from instructions on reconstruction, 136;
distrusted by Johnson, 140;
suspended, 142, 143, 158;
case of Georgia vs. Stanton, 146, 195;
message on suspension of, 160-162;
action of Senate as to, 162, 163;
superseded by Thomas, 169-172;
removal discussed before Senate, 178, 179;
power to remove, 185;
his violations of law, 189;
abdication, 192
Statutes of the United States, of Aug. 7, 1789, 184;
of May 8, 1792, 186, 187;
of Feb. 13, 1795, 179, 186, 187;
of July 31, 1861, 175;
of Feb. 20, 1863, 187, 188;
of Mar. 3, 1865, 44, 64, 65, 89;
of April 9, 1866, 68-73;
of July 16, 1866, 87-90;
of Feb. 5, 1873, 197;
of Mar. 2, 1867 (on reconstruction),
112-121, 126,
136, 159,
160, 175,
179, 193,
197, 215,
235, 239,
243, 245,
247, 250-253;
of Mar. 2, 1867 (on tenure-of-office),
122-126, 160-163,
165, 166,
174, 178,
181, 184,
185, 188,
189, 214, 231-234;
of Mar. 11, 1867, 155;
of Mar. 23, 1867, 129-133,
136, 159,
160, 193,
197, 235,
245, 247,
250-253;
of June 22, 1868, 198;
of June 25, 1868, 202, 241, 249;
of June 28, 1868, 198;
of July 26, 1868, 302;
of Mar. 18, 1869, 276, 277;
of April 10, 1869, 229;
of Dec. 22, 1869, 239;
of May 31, 1870, 255, 256;
of July 14, 1870, 276, 278;
of July 15, 1870, 244;
of Jan. 20, 1871, 276;
of Feb. 28, 1871, 256;
of April 20, 1871, 257, 260, 261;
of May 22, 1872, 268;
of Jan. 14, 1875, 279, 283
Stearns, M. L., retires as governor of Florida, 296
Stephens, Alexander H., seeks seat in Congress, 56
Stevens, Thaddeus, proposes substitute thirteenth amendment, 28;
resolution on representation, 42-44, 57;
view of Mississippi legislation, 53;
on committee on reconstruction, 57;
views of reconstruction, 58;
characterized by Johnson, 67;
view as to effect of secession, 81;
introduces bill on reconstruction, 112;
refuses to accept the Blaine amendment, 115, 116;
on impeachment committee, 174;
impeachment manager, 175;
approves letter on Alta Vela claims, 177;
views on purchase of Alaska, 300
Stewart, Alexander T., nominated for secretary of treasury, 231;
declines, 232
Stockton, John P., in convention of 1866, 99
Stoeckl, Baron, negotiates treaty for sale of Alaska, 300
Stone, John M., elected governor of Mississippi, 276
Stoughton, E. W., counsel before electoral commission, 291
Strong, William, on electoral commission, 286
Sumner, Charles, theory of reconstruction, 60, 61;
characterized by Johnson, 67;
joins liberal republicans, 264;
relations with Grant, 264, 325
Supreme Court of the United States, relation of dicta to reconstruction, 12;
decisions, 144-146, 179, 195, 196
Swayne, Noah H., 289
Tennessee, in Lincoln's proclamation, 11;
in Lincoln's message, 20;
electoral vote of 1864 rejected, 21, 22;
Reconstruction in, 23, 25;
civil government established in, 25;
ratifies thirteenth amendment, 30;
attitude of Johnson to, 38;
vote on thirteenth amendment, 55;
ratifies fourteenth amendment, 82, 83;
ratifies fourteenth amendment, 203, 204;
election of 1872 in, 267
Tenterden, Lord, at Geneva arbitration, 311
Tenure-of-Office Bill, the, introduced, 122, 123;
contents, 124, 125;
vetoed, 125;
case of Stanton, 162 et seq.
See Statutes
Terry, Alfred H., modifies Virginia vagrant act, 225, 226;
resumes military control in Georgia, 239
Texas, in Lincoln's proclamation, 11;
electoral vote of 1864 rejected, 22;
war declared ended in, 103;
in the reconstruction bill, 112;
registration in, 147;
election in, 149;
martial law in, 202;
no share in election of 1868, 212;
restored to federal relations, 229, 230;
escape from negro rule, 247-249;
election of 1872 in, 267;
change in character of government, 273
Thomas, George H., in third military district, 135;
transferred, 136
Thomas, Lorenzo, appointed to supersede Stanton, 169-173;
his position discussed before Senate, 179, 181;
law as to appointment of, 186
Thornton, Edward, negotiations at Washington, 306, 307
Thurman, Allen G., on electoral commission, 286
Tilden, Samuel J., in convention of 1866, 99;
in convention of 1868, 209;
nominated for presidency, 282;
the campaign, 283 et seq.
Townsend, E. D., orders from Stanton, 170;
in temporary charge of war department, 192
Trumbull, Lyman, reports thirteenth amendment, 26;
in convention of 1866, 100;
opinion on impeachment, 184;
view of the Stanton case, 189;
vote on impeachment, 191;
proposal as to Tenure-of-Office Act, 233;
joins liberal republicans, 264;
candidate for presidential nomination, 265;
counsel before electoral commission, 291
Twenty-second joint rule of Congress, 24, 25
Union Leagues, formation of, 250, 252
Vallandigham, Clement L., in convention of 1866, 99
Van Winkle, Peter G., view of the Stanton case, 189;
vote on impeachment, 191
Vermont, election of 1866 in, 103;
ratifies fourteenth amendment, 203, 204;
election of 1872 in, 267
Vicksburg, Miss., made head-quarters of fourth military district, 135
Virginia, reconstruction in, 7;
omission from Lincoln's proclamation, 13;
electoral vote of 1864 rejected, 22;
reconstruction in, 37;
vote on thirteenth amendment, 55;
in the reconstruction bill, 112, 122;
registration in, 147;
election in, 149;
disfranchisements in, 151;
martial law in, 202;
no share in election of 1868, 212;
question in Congress as to representation, 224;
partition of, 224;
the vagrant act, 225, 226;
a military district, 226, 227;
restored to federal relations, 228;
escape from negro rule, 247, 248
Wade, Benjamin F., bill on reconstruction, 15-18;
protest against Lincoln's proclamation, 19;
opinion of Johnson, 32;
commissioner to Santo Domingo, 326
Waite, Morrison R., 289;
at Geneva arbitration, 311
Walker, Robert J., in case of Mississippi vs. Johnson, 145
War Department, Freedmen's Bureau organized in, 44
Ward, Hamilton, on impeachment committee, 174
Warmoth, Henry C., connection with Louisiana corruption, 263;
contest for control in Louisiana, 269-272
Washburne, Elihu B., on joint committee on reconstruction, 57;
becomes secretary of state, 231;
resigns, 232
Washington, treaty of, 299, 307-310, 319
Watts, John W., Oregon elector in 1876, 290, 291
Welles, Gideon, accompanies Johnson to the west, 102
Wells, David A., joins liberal republicans, 264
Wells, J. Madison, in contest for control of Louisiana, 93
Welsh pays Halifax award, 322
West Virginia ratifies fourteenth amendment, 203, 204
Wharton, John, in Louisiana politics, 269, 270
Wheeler, William A., nominated for vice-presidency, 282;
election formally declared, 294
Wheeling, W. Va., government at, 224
Whipper, W. J., judge-elect of South Carolina, 274
Whiskey ring, 272
White, Andrew D., commissioner to Santo Domingo, 326
White, Horace, joins liberal republicans, 264
White vs. Clements, 237
Whitney, William C., counsel before electoral commission, 291
William I., Emperor, award as to northwest boundary, 319
Williams, George H., offers bill on reconstruction, 117;
introduces tenure-of-office bill, 122;
impeachment manager, 175;
motions, 191;
on Joint High Commission, 307
Wilson, Henry, theory of reconstruction, 60;
on impeachment committee, 174;
impeachment manager, 175;
elected vice-president, 267
Windom, William, introduces thirteenth amendment in House, 28
Winthrop, Robert C., in convention of 1866, 99
Wisconsin ratifies fourteenth amendment, 203, 204
Wood, Fernando, in convention of 1866, 99
Wool, John E., in Cleveland convention, 101
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