«Реконструкция и конституция, 1866–1876»

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

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.

ГЛАВА 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 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, 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

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 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 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.

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 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 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 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

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 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 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 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 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 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 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 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.

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 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.

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 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.

ГЛАВА 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 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 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 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, 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 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.

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