«Реконструкция и конституция, 1866–1876»

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 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 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 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.

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 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 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 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

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 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 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 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 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 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 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

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 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.

ГЛАВА 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.

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 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 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

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.

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 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 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 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

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 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" 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 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 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 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.