«Реконструкция и конституция, 1866–1876»

All of the points of the measure have been commented on, except the provision in the fifth section, which makes the adoption of the

The condition that the

proposed Fourteenth

Amendment be ratified

by a sufficient number

of "States" to make it a

part of the Constitution.

proposed Fourteenth Amendment to the Constitution of the United States by a number of "States" sufficient to ratify it a condition precedent to the admission of any one of these so-called "rebel States" to representation in Congress. The adoption of the proposed amendment by the particular "rebel State" seeking representation was not sufficient. It must be ratified by at least three-fourths of all the "States." No matter how speedily and sincerely the legislature of Virginia might ratify the proposed Amendment, and fulfil all the other conditions required by the Act, Virginia must remain under military despotism until a very large number of the Northern "State" legislatures had pleased to ratify the proposed Amendment. This was certainly a pretty hard condition, and it was not a very fair way of forcing the legislatures of the Northern States to adopt the proposed Amendment. It was, however, an efficient weapon, and Congress had the legal power to use it. It was unconscionable, though it was one of the things about this measure which was constitutional.

Hand in hand with this bill went another measure, the purpose of which was to limit the customary power of the President, if not his

The Tenure-of-Office bill.

constitutional power, over the civil official system, the so-called Tenure-of-Office bill. On the first day of the session, December 3d, 1866, Mr. Williams of Oregon introduced this bill in the Senate, while at the same moment a bill was introduced and passed in the House repealing that section of the Confiscation Act of July 17th, 1862, which authorized the President to extend pardon and amnesty by proclamation to persons participating in the rebellion. The Senate passed the latter bill or resolution on the 8th of January, 1867, and the President, not considering that the Congress could either give or take away his power to pardon secured to him by the Constitution, simply pocketed the resolution, and it became a law on and from the 21st of January, having been presented to the President on the 9th.

The propositions contained in the Tenure-of-Office bill were, however, of a very different significance. There was no clause in the Constitution which by express literal grant vested the power to dismiss from office in the President, but the clause which made the President solely responsible for the execution of the laws was interpreted by the first Congress as doing so. Madison took the ground that the President must have this power in order to secure the necessary obedience in his subordinates, and declared that the convention which framed the Constitution so understood it and so intended it. This is certainly sound political science and correct constitutional interpretation. It had also been the practice of the Government from the beginning. The Whigs had undertaken to reverse it in their contest with Jackson, and Webster had given his opinion that good political science required that dismissal from office should be treated as an incident of appointment, and should be effected in the same manner as appointment, i.e., with the concurrence of the Senate, and that the decision of 1789 on this subject was, in his opinion, erroneous from the point of view of a proper interpretation of the Constitution as well. But the Whigs did not succeed, as we have seen, in their attempt to break down Presidential prerogative and introduce parliamentary government, and the practice of the Government on this subject remained, after, as before, the fourth decade of the century, the same.

During the experiences of the years 1865 and 1866 the Republicans feared that the President would use this great power of dismissal from

The reasons for the

Tenure-of-Office bill.

office in order to make the entire official system solid with himself on the subject of Reconstruction, and toward the end of 1866 they suspected and asserted that he was dismissing officers from their positions simply on the ground of a difference of opinion with himself on this subject, and they professed to believe that he would make a clean sweep of all such as soon as Congress should adjourn. There is little doubt that excessive partisan feeling made them exaggerate greatly what the President had done and what he intended to do. The President was guided by Mr. Seward in all public matters except his imprudent speeches, and Seward's conservative and diplomatic disposition and methods were all against any such radical and reckless procedure. Besides, it was the constitutional right of the President to require obedience in their official acts from his subordinates, and to dismiss them when in his opinion their views of policy interfered with the discharge of their official duties as he required them to be discharged. The Thirty-ninth Congress, however, resolved to disregard the precedents set by all of its predecessors and to dispute the President's prerogative of control over the tenure of his subordinates.

The bill drafted for this purpose made the removal of all officers, appointed by and with the consent of the Senate, except only members of

The contents

of the bill.

the President's Cabinet, subject to the consent of the Senate. This consent might be given in the form of a ratification of the nomination of a successor to any officer. It allowed the President, during a recess of the Senate, the power of suspension for misconduct in office, crime, legal disqualification or incapacity, and of making appointment of a suitable person to discharge temporarily the duties of such suspended officer, but it required of the President a report of all such suspensions to the Senate within the first twenty days of the next meeting of the Senate, with the reasons therefor, and reinstated the suspended officer in case the Senate should not concur in the suspension. If the Senate should concur, the President must remove the officer, and appoint, with the advice and consent of the Senate, another person in his place.

From the point of view of the present this would seem, in all conscience, to have been a sufficient usurpation of the President's

Discussion

of the bill.

constitutional powers to have satisfied the most radical and reckless interpretation of the organic law. But the bill had hardly come under discussion when Senator Howe moved to strike out the clause excepting the Cabinet officers from its operation, and although the Senate refused to pass this amendment, the House of Representatives did so when the bill came before it. The Senate, however, refused to concur on the ground, of course, that the intimate and confidential relations which should exist between the President and the members of his Cabinet made it necessary that the President should have only the men of his own choice in these positions. The strenuous insistence of the House, however, forced the Senate to a compromise upon the subject, and the bill was finally made to provide that the members of the Cabinet should "hold their offices, respectively, for and during the term of the President by whom they have been appointed, and for one month thereafter, subject to removal by and with the consent of the Senate." That is, that a Cabinet officer might hold his position against the will of the President who appointed him during the entire term of the President and for one month of the term of his successor unless the Senate should agree to such officer's removal either directly or by ratification of the nomination of a successor.

The bill as finally enacted contained, moreover, the most stringent provisions for its enforcement. It made

The provisions for

enforcing the measure.

the acceptance or exercise of any office or the attempt to exercise any office contrary to the Act a high misdemeanor, punishable by a maximum fine of ten thousand dollars or a maximum imprisonment of five years, or both in the discretion of the court; and it made the removal, appointment, or employment of any officer contrary to the provisions of the Act, or the preparation, signing, sealing, countersigning or issuing of any commission of office or letter of authority in respect to any such appointment or employment high misdemeanors, punishable with the same extreme penalties. Lastly, it forbade the officers of the Treasury and all officers of the United States to pay any money, salary or compensation to any person claiming to hold any office or employment contrary to the provisions of this Act, and made the violation of this order a high misdemeanor, punishable with the same extreme penalties as in the other cases.

This monstrous measure went to the President on the same day with the Reconstruction bill, the 20th of February. It is not to be wondered at

The President's

vetoes of these bills.

that he felt that the Republican chiefs were offering him intentional personal insult, as well as that the legislative department of the Government was attempting an unwarranted encroachment upon the constitutional prerogatives of the Executive. It is rather to be wondered at that, in his message to Congress on these subjects, he succeeded so well in ignoring the personal affronts intended by Congress, and in confining himself so closely to a discussion of the public questions and considerations involved in the measures.

The vetoes of these bills were sent to Congress on the same day, March 2d. To the publicist and historian of this day they are masterpieces of political logic, constitutional interpretation, and official style. If not written by Mr. Seward, they must have been edited and revised by him. These documents showed most convincingly, both from constitutional provisions, opinions of contemporaries, statutes of Congress, judicial decisions, and the uniform practices of the Government, that Congress had no power to establish or re-establish martial law anywhere in the country, except when and where war or armed rebellion existed as a fact, a condition which did not then exist anywhere in the length and breadth of the land; and that Congress had no power to force the President to retain agents and subordinates in office against his judgment and will. No good political scientist and no sound constitutional lawyer will, at this day, disagree with the contention of the President upon these two points, and it is very difficult to understand how the great leaders of the Republican party could, at that day, have differed with him.

Undoubtedly, in some of the baser minds among them, the determination to create Republican party "States" in the South was a very weighty

Republican motives

in Reconstruction.

consideration, but just as undoubtedly the consideration with the majority of them was the conviction that the work of the four years of war might have to be done all over again unless a new political people, a new body of suffrage holders, should be created at the South, whose members had never been disloyal. But even from this point of view again, it is difficult to understand how they could have failed to see that the Constitution required that this should be done through the forms of Territorial civil government, instead of through the forms of martial law. Put the best light upon their conduct that is possible, there is still left the conviction that the fanaticism of extreme partisanship had an undue influence over them all. The contest with the President had blinded their perceptions as to the morality, legality and propriety of the means they were willing to employ in securing the victory over him.

As this contest developed it dwarfed, to say the least, all other considerations. Even as late as when the Reconstruction bill was

Congressional

encroachment

on the President's

military prerogatives.

passed, the majority of the Republicans refused to vote to take the President's military prerogatives from him. In less than a fortnight from this time, however, they voted, in a section of the Army Appropriation bill, "that the head-quarters of the General of the army of the United States shall be at the city of Washington, and all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction in any court of competent jurisdiction."

To the mind of any unprejudiced constitutional lawyer, at the present day, this act must appear as a gross usurpation by Congress of the President's military powers conferred upon him by the Constitution. The Constitution makes the President the Commander-in-Chief of the army and navy, and gives Congress no power whatsoever over the methods or channels by, and through, which he may issue his military commands. Neither does the Constitution give Congress any power to assign any of the officers or troops of the army to any particular position. These are all functions of the commandership-in-chief, and, unless expressly granted by the Constitution to some other department of the Government, belong to the President.

It was not only a usurpation by Congress to pass such an act, but it was a mean thing to do it as a section of an appropriation bill; and there is no escaping the suspicion that it had a sinister purpose, namely, to entrap the President in the commission of what Congress had made a high misdemeanor, and open the way for his impeachment and expulsion from office. The President signed this bill, however, in order to save the appropriations for the support of the army, although he protested strongly against the seizure of his constitutional powers by the Congress.

On the same day that the vetoes of the Reconstruction bill and the Tenure-of-Office bill were sent to Congress, this body passed a bill

The supplementary

Reconstruction bill.

supplementary to the first measure. It was in the nature of an administrative measure for the purpose of carrying out the new plan of Reconstruction. It ordered the commanding generals of the respective districts to cause a registration to be made before September 1st next following of all male citizens of the United States, twenty-one years of age and over, resident in each county or parish in the "State" or "States" included in their respective districts, who were qualified as

prescribed by the Reconstruction Act to vote for delegates to a constitutional convention, and who had taken an oath asserting citizenship and residence, and freedom from disfranchisement on account of participation in rebellion or the commission of felony, and had sworn that they had never engaged in insurrection or rebellion against the United States, or given aid and comfort to the enemies of the United States after having been members of Congress or of a "State" legislature, or officers of the United States or of a "State" of the Union, and that they would henceforth faithfully support the Constitution and obey the laws of the United States and encourage others to do so.

It next made it the duty of the commanding generals to order elections, at such times after the completion of the registrations and at such places as they might choose, for delegates to constitutional conventions in the "States" comprised in their respective districts. It required them to give thirty days' notice of the elections, and it fixed the number of delegates to each convention at the number of members in the lower House of the legislature of the "State" concerned in the year 1860, except in the case of Virginia, where, on account of the separation of West Virginia from the old Commonwealth, the number of deputies to the Virginia convention was made to correspond with the number of members in the lower House of the legislature of 1860, representing the territory not included in West Virginia. The bill further directed the commanding generals to distribute the representation in the conventions among the districts, counties and parishes of the "States" in accordance with the number of registered voters in each.

The bill then provided that at the elections for delegates, the voters should vote on the question as to whether there should be a constitutional convention or not, and that such convention should be held only when a majority of the inscribed electors voted upon this question, and a majority of those voting voted in the affirmative. It then ordered the commanding generals, in case the voters did so decide for conventions and elect delegates thereto, to call such within sixty days from the date of the elections, and to notify the delegates to assemble at a given time and place, and frame constitutions according to the provisions of the bill and of the former Act to which it was supplementary, and, when framed, to submit the same to the registered voters for ratification with a notice of thirty days.

The bill then further provided, that if, at such elections, a majority of the registered voters voted upon the question of ratification, and a majority of those voting voted in favor of ratification, the presidents of the respective conventions should transmit copies of the respective constitutions to the President of the United States, who should transmit them to Congress, and that Congress should declare the respective "States," whose conventions had framed these constitutions and whose voters had adopted them, entitled to representation in Congress, provided Congress was satisfied that there had been perfectly free elections, and that no force, fraud or intimidation had been perpetrated at them, and that the constitutions presented met the approval of a majority of the qualified electors and were in conformity with the requirements of the Reconstruction Act.

Finally, the bill put into the hands of the commanding generals the appointment of the officers of the elections, and the control of the machinery of the elections, only requiring them to hold the elections by ballot, and to proclaim the results of the elections in accordance with the returns made to them by their boards of registration.

Congress had passed a resolution ordering the assembly of the Fortieth Congress so soon as the Thirty-ninth expired, and in accordance

Congress in

permanence.

therewith the newly elected Congress opened its session on the 4th of March, 1867, instead of on the first Monday of the following December. The Congress was, therefore, in position to deal at once with a veto of the supplemental bill to the Reconstruction Act, in case one should be sent in.

On the 23d of March the veto appeared. The President argued that the oath required by the bill from every person before his name could be

The veto of the

supplemental

Reconstruction

bill.

admitted to registration, viz., "that he had not been disfranchised for participation in any rebellion or civil war against the United States," was so entirely uncertain in its meaning that it would prove a most terrible means of oppression in the hands of the military officers and their appointed agents, and declared he could never approve of an election law whose plain and manifest purpose was to disfranchise the great body of respectable white people, and create a new electorate on the basis of universal negro suffrage. He contended that the existing constitutions of the ten "States" to be re-reconstructed conformed to the long-established standards of loyalty and Republicanism, and that the new test of these qualities now set up by Congress, viz., universal negro suffrage, was a gross exaggeration, and would make many of the Northern "States" themselves unrepublican. The President did not expressly say that this bill was unconstitutional, but he quite distinctly implied it. In this, however, he was wrong, unless his doctrine that the rebellious communities remained "States" of the Union throughout the rebellion, or had been reconstructed by his plan, was true, that is, unless these communities were "States" of the Union at the time Congress passed this bill.

On the other hand, from the point of view of the correct legal principle in regard to this subject, the principle which holds that the

Criticism

of the veto.

result of general rebellion within a "State" against the Constitution and laws of the United States is the loss of the "State" form of local government, and brings the territory and population of the former "State" under the exclusive jurisdiction of the central Government, Congress certainly had, and has, the power to create the electorate in such territory at its own discretion, Congress was referred, and is referred, in such a case, only to its own sense of right and policy.

But there is no question, now, that Congress did a monstrous thing, and committed a great political error, if not a sin, in the creation of

Criticism of the

Reconstruction Acts.

this new electorate. It was a great wrong to civilization to put the white race of the South under the domination of the negro race. The claim that there is nothing in the color of the skin from the point of view of political ethics is a great sophism. A black skin means membership in a race of men which has never of itself succeeded in subjecting passion to reason, has never, therefore, created any civilization of any kind. To put such a race of men in possession of a "State" government in a system of federal government is to trust them with the development of political and legal civilization upon the most important subjects of human life, and to do this in communities with a large white population is simply to establish barbarism in power over civilization. The supposed disloyalty, or even the actual disloyalty, of the white population will not justify this. It will justify the indefinite withholding of the "State" form of local government. It will justify the throwing of a "State" of the Union back under the form of a Territory of the Union. It will even justify the establishment of martial law. But it is not to be cured, nor is the welfare of the whole land, or any part of it, to be promoted, by the subjection of the white race to the black race in politics and government. It was a great wrong to the negroes themselves. It made the white men among whom they must live their most bitter enemies, when they most needed them for friends, and it made the negroes trifling and corrupt politicians, when they should have been devoting themselves exclusively to the acquirement of property and education. It was argued, as will be well remembered, that they could not acquire property and education without the ballot. But this is another sophism. The mainstay of property is the courts; and under a Territorial form of local government Congress could have established a system of free schools. It was not at all necessary to have recourse to negro suffrage and negro "State" governments in order to secure the negroes in their personal liberty, and the possession of property, and to aid them in the acquirement of education.

There was another alternative, and a better one. In fact, there were two other conceivable ways of doing these things, either of which would have been better than the one chosen. The one was, as has been already suggested, to establish Territorial civil governments in the late rebellious region and maintain them there until the civil relations between the two races became settled and fixed. The other was to so amend the Constitution of the United States, before the readmission of the "States" which had renounced the "State" form of local

government under the Union, as to give Congress and the national judiciary the power to define and defend the fundamental principles of civil liberty. Neither of these methods would have demanded martial law or universal negro suffrage. It is entirely surprising, from the point of view of to-day, that one or the other of these methods or a combination of both was not resorted to, instead of the monstrous plan that was carried out. There is no way to explain this sufficiently, except upon the reflection that the passions of the men of that day had become so inflamed and so completely dominating that they obscured reason, drowned the voice of prudence, and even dulled the sense of decency. There were a few who favored universal negro suffrage from an exalted and exaggerated humanitarianism, but the mass of the Republicans sustained it as a punishment to the late rebellious whites, and as a means of establishing Republican party "State" governments in the South. Many claimed, indeed, that it was the only alternative to long-continued martial law rule, but they were either very ignorant or very insincere.

In prompt obedience to the requirements of the two Reconstruction Acts, the President issued his general order through the Adjutant-General's

The assignment of the

commanding generals

to the military districts

created by the

Reconstruction Acts.

office, on March 11th, assigning General Schofield to the command of the first military district, as created by these Acts, with his head-quarters at Richmond, Virginia; General Sickles to that of the second, with his head-quarters at Columbia, South Carolina; General Thomas to that of the third, with his head-quarters at Montgomery, Alabama; General Ord to that of the fourth, with his head-quarters at Vicksburg, Mississippi; and General Sheridan to that of the fifth, with his head-quarters at New Orleans, Louisiana. On the 15th this order was so modified as to change the assignment of General Thomas from the command of the third district to that of the Department of the Cumberland, and to substitute General Pope for him in the command of the third district.

These officers betook themselves at once, with the forces attached to their several commands, to their respective stations, and assumed the

The re-establishment of

martial law in the South.

government of their respective districts by martial law. No opposition whatever was made to any of them by the populations thus made subject to their despotic rule.

Very soon, however, the generals found great difficulty in interpreting the Reconstruction Acts, especially in respect to the oath required for

The President's

instructions to

the generals in

interpretation of

the Reconstruction

Acts.

enfranchisement, both as to the persons who might take it and as to its consequences, and in respect to the powers of the boards appointed to superintend the elections. They applied to the President for information upon these points. The President submitted their application to his Attorney-General and to his Cabinet, and with the full concurrence of all the members thereof, except only Mr. Stanton, issued through the Adjutant-General's office in the War Department, on the 20th of June, the following instructions:

First: That the oath prescribed in the second Act defined all the qualifications required for suffrage, and that any person who could take that oath should have his name entered on the list of voters; that the boards of registration provided in that Act could not require any other, or any additional, oath from the person applying for registration, nor "administer an oath to any other person touching the qualification of the applicant or the falsity of the oath taken by him," but that the person taking the oath must be registered as a voter, and if it could be afterward proved that he had sworn falsely, he could be punished for perjury.

Second: That an unnaturalized alien could not take the oath, but a naturalized alien could, and that no other proof of naturalization could be required of him.

Third: That "actual participation in rebellion or the actual commission of a felony" did not amount to disfranchisement, but there must be a law made by competent authority declaring disfranchisement, or a judicial sentence inflicting it, and that no law of the United States had declared the penalty of disfranchisement for participating in rebellion alone.

Fourth: That a person who had engaged in rebellion, but had not theretofore held an office under a "State" or the United States, or not been a member of a "State" legislature or of Congress, and not taken, as such, an oath to support the Constitution of the United States, was not disfranchised or disqualified from voting.

Fifth: That persons who were militia officers in any "State" prior to the rebellion were not disfranchised by participating in the rebellion.

Sixth: That "an act to fix upon the person the offence of engaging in rebellion under this law must be an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose," and that "a person forced into the rebel service by conscription or under a paramount authority which he could not safely disobey, and who would not have entered such service if left to the free exercise of his own will," was not disfranchised or disqualified from voting.

And lastly: That disloyal sentiments, opinions or sympathies, or anything said or written which fell short of an incitement to others to engage in rebellion, did not disfranchise or disqualify from voting.

Some other instructions were given which were concurred in by the entire Cabinet, Mr. Stanton included, but the recital of them is not essential to this narrative. It must be added, however, that the President's view of the relation of the military commanders to the "State" governments created under his direction and with his aid was one which gave these governments a more independent and permanent character than the language of the Reconstruction Acts seemed to warrant.

When, then, the instructions of June 20th to the generals became known,

The Congressional interpretation

of the Reconstruction Acts.

another bill was introduced into Congress and passed which put the Congressional interpretation upon the Reconstruction Acts.

It declared that the true intent and meaning of these Acts was that the civil governments then existing in the "rebel States" of Virginia, North Carolina, etc., were not legal "State governments," and that, if thereafter they should be allowed to continue to exist at all, they must be subject in all respects to the will of the military commanders of the respective districts, and to the paramount authority of Congress; and it provided that the generals in command of the respective districts might suspend or remove any person from any office under these illegal and pretended governments, and detail or appoint some other person to discharge the duties and exercise the powers said to pertain to such office. The acts of the district commanders in regard to these things were made subject to the disapproval of the General of the army, but not to that of the President, and stood until so disapproved. The same powers in regard to these matters were vested, by this bill, in the General of the army as in the district commanders,

but were not accorded by it to the President; and it was made the duty of the General of the army and the district commanders to remove from such pretended offices "all persons who were disloyal to the United States, or who used their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of the Reconstruction Acts."

The bill, furthermore, provided that the boards of registration should have the power, and that it should be their duty, to ascertain the fact as to whether a person applying for registration as a voter was entitled to registration under the Reconstruction Acts, and to refuse registration, if in their judgment he was not, and that the fact that he was willing to take the oath prescribed in the Reconstruction Acts, or had taken it, was not conclusive upon the registration boards in making their inquiries and forming their decisions. And it, finally, declared that the true intent and meaning of the oath prescribed in the Reconstruction Acts for persons who had held office under a "State" government or membership in a "State" legislature, before the rebellion, was that whether such persons were holding such positions at the time of the commencement of the rebellion or at some time prior to the same, and whether they had taken an oath to support the Constitution of the United States or not, they were disqualified from registration and were disfranchised, if, after holding such positions, they had "engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof"; and it gave to the commanders of the districts the power to extend, in their discretion, the time for completing the original registration of the voters, as provided for in the Reconstruction Acts, to October 1st following, and to the boards of registration the power, and imposed upon them the duty, to revise, during the first five of the last fourteen days before any election under the Reconstruction Acts, the registration lists and to strike off any name from said lists which, in their judgment, ought not to be there, and to add any name, which, in their judgment, ought to be there, and required them to disregard any Executive pardon or amnesty as relieving the disability of any person for registration, if such person had committed any act which without such pardon or amnesty would disqualify him.

This bill, it will be readily seen, was a wholesale repudiation of all the instructions given by the President to the generals in command of the districts from which, in the Cabinet council, Mr. Stanton had dissented. The President immediately realized this, of course, and it increased his distrust of Stanton immensely. From that moment forward he regarded him as the spy of Congress upon all his official acts, and he was resolved to remove him upon the first opportunity, that is, so soon as Congress should adjourn.

The bill passed the Houses on the 13th of July, was presented to the President for his signature on the 14th, and on the 19th he returned it

The President's veto of

the bill interpreting the

Reconstruction Acts.

with a veto message to the House of Representatives. The President contended in his argument that this new measure was not simply an interpretation of the existing Reconstruction Acts, but was in many respects a large advance upon them. The existing Acts, he contended, made the reconstructed "State" governments at the South subject to absolute military authority in many important respects, but not in all respects, while the new measure proposed to extend the despotism of the military commanders over everything. Against such a measure, in time of peace, he protested as being in violation of every guaranty of

individual liberty contained in the Constitution. He dwelt upon the unfitness of military officers to discharge the duties and exercise the powers pertaining naturally to civil office, and he pointed out the inconsistency, as he thought, of the declaration of Congress that the ten "State" governments at the South were illegal with the attempt of Congress to carry on these illegal "State" governments by "Federal agency," when Congress had no power to carry on a legal "State" government through "Federal agency"; and he stopped, as he thought, the way of escape from this argument by pointing out that the entire legislation of Congress down to the passage of the Reconstruction Acts distinctly involved the recognition of the ten communities now to be put under absolute military rule in all respects as "States" of the Union.

But the most vigorous and unanswerable part of the message was the protest against the robbery of the constitutional powers of the Executive by the attempt of Congress, in this measure, to confer some of those powers upon other persons. The President expressed himself so warmly upon this point, that the Republicans began to whisper around their suspicions of sinister purposes on his part, just as if such a declaration to Congress itself was not proof to the contrary. He said: "Whilst I hold the chief executive authority of the United States, whilst the obligation rests upon me to see that all the laws are faithfully executed, I can never willingly surrender that trust or the powers given for its execution. I can never give my assent to be made responsible for the faithful execution of laws, and at the same time surrender that trust and the powers which accompany it to any other executive officer, high or low, or to any number of executive officers. If this executive trust, vested by the Constitution in the President, is to be taken from him and vested in a subordinate officer, the responsibility will be with Congress in clothing the subordinate with unconstitutional power and with the officer who assumes its exercise."

The radical Republicans interpreted this language, at once, as meaning that the President proposed to so interfere with the execution of the

Ideas and suspicions

about the meaning

of the message.

Reconstruction Acts as to avoid their intent and destroy their effect. And the talk about impeachment was again revived. The President, however, meant nothing of the kind, and but for exaggerated suspicion and party hatred the language of the message would have been held to mean only an appeal to Congress to desist from its unlawful attempt to rob the Executive of his constitutional powers, and to the people to elect men to Congress who would obey the principles of the Constitution in their legislative acts.

The Houses passed the bill over the President's veto immediately, by an

The veto overridden.

overwhelming majority, and almost in a spirit of derision. The next day, July 20th, Congress adjourned to the 21st of the following November.

The unfortunate relations of Mr. Stanton with the President, and with the other members of the Cabinet were the thing which was destined to produce the catastrophe. He had become unbearable to the President, and to the most of his colleagues. He ought in all decency to have resigned his portfolio as Speed and Harlan and Dennison had done the year before. The President asked him to resign in a note of the 5th of August. Stanton, feeling sure of the support of the large majority in Congress, contemptuously refused. The President could now in the recess of Congress suspend him without violating the provisions of the Tenure-of-Office Act, or raising the question of its constitutionality. The President at last resolved to take the matter into his own hands and rid himself of Stanton's presence in his

The suspension of

Stanton from office.

confidential counsels. On the 12th of August he sent an executive order to Stanton suspending him from the office of Secretary of War, and another to General Grant authorizing and empowering him to act as Secretary of War ad interim. Stanton yielded to this order under protest. He wrote the President that he could not legally suspend him from office and declared that he submitted only to superior physical force. Grant accepted the appointment, although he had, four days before, advised the President against disturbing Stanton. Grant entered upon the duties of the office at once, and Stanton went off to New England to recuperate health, spirits and courage for his battle with the President which was bound to come unless the President should yield and take him back again, so soon as Congress should assemble.

By a series of orders issued during the same month (August) General Hancock was substituted for General Sheridan in the command of the

Changes among the

commanders of the

military districts.

fifth military district and General Canby for General Sickles in the command of the second district. Both of the generals thus relieved were great favorites at the North, especially Sheridan. The President felt that they were too much imbued with the military spirit to make good administrators of civil affairs. But the people of the North saw in these changes only the purpose of the President to place his political friends among the army officers in command of the military districts, and through them to modify the intent of the Reconstruction Acts in the course of their execution.

ГЛАВА VIII

THE EXECUTION OF THE RECONSTRUCTION ACTS

The Attempt to Prevent the Execution of the Reconstruction Acts in Mississippi and Georgia—The Case of Mississippi vs. Johnson—The Case of Georgia vs. Stanton—The Operations of the Commanders—The Registration—The Numbers Registered—The Change in the Electorate in the South—The Elections—Efforts of the Commanders to Get the Vote Out—The Result of the Elections—The Character of the Convention Delegates Chosen—The Work of the Conventions—The Vote upon Ratification—Fraudulent Voting and Unlawful Voting—The Recall of Pope and the Appointment of Meade in His Stead—Rejection of the Constitution in Alabama—The Statute of Congress Changing the Proportion of Votes to Registration in the Ratification of a Constitution—Criticism of the Statute—Ratification in Arkansas—Ratification in North Carolina, South Carolina, Georgia, Florida and Louisiana—Second Attempt in Georgia to Obstruct Reconstruction—Rejection of the Constitution in Mississippi.

Although the Supreme Court of the United States had said, in the case of Kendall vs. the United States, in 1838, that so far as the

The attempt to prevent

the execution of the

Reconstruction Acts in

Mississippi and Georgia.

President's power is derived from the Constitution he is beyond the reach of any other department, except in the mode prescribed by the Constitution, through the impeaching power, and had also indicated, in the cases of the Cherokee Nation vs. the State of Georgia, in 1831, and Luther vs. Borden, in 1849, that it had no jurisdiction over political questions, there still prevailed in many minds the idea that the Court was the ultimate interpreter of the Constitution in all cases of whatever nature, and that no person was exempted from its jurisdiction on account of official station. Under the influence of this idea, W. L. Sharkey, the ex-provisional Governor of Mississippi, appointed by President Johnson in 1865, undertook to obtain from the Supreme Court of the United States an injunction restraining the President of the United States from carrying the Reconstruction Acts of March, 1867, into effect. He was aided in this attempt by the Hon. Robert J. Walker, and their client in the case, as set up by them, was the "State of Mississippi." In a powerful argument, noted for both clearness and frankness, Mr. Johnson's Attorney-General, Mr. Stanbery, demonstrated that the President of the United States cannot be made subject to the jurisdiction of any court, while in office, except only the Senate of the United States, as the constitutional court of impeachment. The plea of Mr. Stanbery is also notable for another thing, viz.: the frank way in which he notified the Southerners that the President's opposition to these laws ceased with their successful passage over his vetoes, and that the President intended to execute them in spirit and letter, as it

The case of

Mississippi

vs. Johnson.

was his sworn duty to do. The Court decided, in 1866, in the case of Mississippi vs. Johnson, that "a bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State."

Under the delusion that this decision was based entirely upon the official exemption from jurisdiction of the person sought to be made

The case of

Georgia

vs. Stanton.

defendant, Hon. Charles J. Jenkins, Governor of Georgia, under the reconstructed constitution of 1865, undertook, as representing the "State of Georgia," to obtain an injunction against Stanton as Secretary of War, Grant as General of the army and Pope as commander of the third military district, restraining them from putting the Reconstruction Acts of March, 1867, into operation. Mr. Stanbery again came forward, in the case of the State of Georgia vs. Stanton, with a most able argument against the jurisdiction of the Court over the question involved, it being, as he contended, a political question pure and simple, and the Court again sustained him, deciding that it possessed no jurisdiction over the subject-matter presented in the bill for relief.

The generals now had free hand to go ahead according, pretty much, to their own discretion. The law gave them, first until September, and

The operations of

the commanders.

then until October, to complete the registration, and they themselves appointed and extended the times of registration at will. They constituted the boards of registry chiefly of army officers, Freedmen's Bureau officers, discharged Union soldiers, and negroes. Where white residents could be found who could take the iron-clad oath, the oath prescribed by Congress July 2d, 1862, they were also used in

The registration.

constituting these boards. The registration was quite successful in bringing out most of those qualified to register. The reason for this was not ready acquiescence on the part of the whites in the Reconstruction Acts, but it was the calculation that by registering and not voting on the question of holding a convention, or on the question of constitutional ratification, one or both of these propositions might be defeated, since the act of March 23d provided, as we have seen, that a majority of the registered voters must vote in order to carry them in the affirmative.

In Alabama the registration reached the number of 165,813, of whom 104,518 were negroes or colored. In

The numbers

registered.

Arkansas it reached the number of 66,831, of whom less than half were known to be colored, although no exact account of the proportion was reported. In Florida it reached the number of 28,003, of whom 16,089 were colored. In Georgia it reached the number of 191,501, of whom 95,168 were colored. In Louisiana it reached the number of 129,654, of whom 84,436 were colored. In Mississippi it reached the number of 139,690, of whom, it was well known, a large majority were colored, although no exact figures giving the proportions were reported. In North Carolina it reached the number of 179,653, of whom 72,932 were colored. In South Carolina it reached the number of 127,432, of whom 80,550 were colored. In Texas it reached the number of 109,130, of whom 49,497 were colored. In Virginia it reached the number of 225,933, of whom 105,832 were colored.

It will thus be seen that of the ten "States" to be reconstructed five were to be recreated through an electorate in which the majority would

The change in

the electorate

in the South.

be negroes and mulattoes, about all of whom had been, three years before, slaves; while in the other five the majority of the constructing electorate would be whites by a comparatively small number. This was a tremendous bouleversement of the political society of these sections. A large majority of the old leaders were disfranchised completely and a goodly number of the old Unionists were deterred by social considerations from taking any part in the work, while negroes, "poor white trash," "carpet-baggers" and a few self-denying respectables formed the new electorate for recreating "State" governments.

There is no doubt that Congress had the constitutional power to do this thing, on the theory, of course, that these communities were not "States" of the Union; but it was a reckless thing, and a monstrous thing. Anybody of common sense and common honesty could, at the time, have foreseen some of the horrible results which were sure to follow.

So soon as the registration was completed, the commanders ordered elections to be held and the vote to be taken, first, upon the question

The elections.

Efforts of the

commanders to

get the vote out.

of convention or no convention, and, at the same time, for the choice of delegates to the conventions. The commanders did their best to get out the vote. They met every device for keeping the negroes away from the polls and foiled it by means of their arbitrary powers, and they kept the polls open for two and three days, and in the case of Georgia, for five days. There is no doubt that there was repeating, although the military authorities exerted themselves most sincerely to prevent it. Their purpose was not, in any case, to permit fraud, but to give every opportunity to the freedmen to vote. Their efforts were aided by the fact that the elections in the Northern "States" during the autumn showed, in most quarters, large Democratic gains, and by the fact that in one of the great Northern "States," Ohio, the proposition to enfranchise negroes by an amendment to the "State" constitution was rejected by a large popular majority. The effect of these facts was to encourage the whites in the South, who had registered with the intention of defeating the proposed reconstruction by abstention from voting, to vote with the hope of securing a majority of the delegates to the proposed conventions.

The result was that in all the communities to be reconstructed as "States" a majority of the registered voters voted on the question of

The result of

the elections.

convention or no convention, and a large majority of those voting voted in every case for the holding of the convention. The figures were as follows: In Alabama, of the 165,813 registered voters, 96,866 voted on the question of convention or no convention, and 90,283 voted for holding the convention. In Arkansas, of the 66,831 registered voters, 41,134 voted on the question, and 27,576 of these voted in favor of holding the convention. In Florida, of the 28,003 registered voters, 14,503 voted on the question, and of these 14,300 voted in favor of holding the convention. In Georgia, of the 191,501 registered voters, 106,410 voted on the question, and of these 102,283 voted in favor of holding the convention. In Louisiana, of the 129,654 registered voters, 79,089 voted on the question, and of these 75,083 voted in favor of holding the convention. In Mississippi, of the 139,690 registered voters, 76,016 voted on the question, and of these 69,739 voted in favor of holding the convention. In North Carolina, of the 179,653 registered voters, 125,967 voted on the question of convention or no convention, and of these 93,006 voted for holding the convention. In South Carolina, of the 127,432 registered voters, 71,046 voted on the question, and of these 68,768 voted for holding the convention. In Texas, of the 109,130 registered voters, 56,129 voted on the question, and of these 44,689 voted for holding the convention. And in Virginia, of the 225,933 registered voters, 169,229 voted on the question, and of these 107,342 voted for holding the convention.

The great mass of those who registered and refrained from voting were the whites who were opposed to the Congressional Acts for

The character of

the Convention

delegates chosen.

Reconstruction, and hence the persons voting were chiefly the newly enfranchised. This was likewise true in the voting for the delegates to the conventions, with the result that radical men were, for the most part, chosen. They were new men to the political society of the South. There were a few of the old Whigs among them, who had remained true to the Union in their sentiments during the rebellion, but the most of them were "carpet-baggers," that is adventurers or new settlers from the North, "poor white trash" and negroes. In the South Carolina convention there were 63 negro delegates to 34 white. No such hideous bodies of men had ever been assembled before upon the soil of the United States for the purpose of participation in the creation of a "State" of the Union, and but for the control exercised over them by the military commanders, and the co-operation between the commanders and the small conservative white element in these bodies, the result of their work would have been the most ghastly travesty of justice, common-sense, and common honesty which the republic had ever been called upon to witness.

During the winter and spring of 1867-68 the work of these conventions went on under the greatest extravagance and incompetence of every kind.

The work of the

conventions.

The constitutions which came from them provided for complete equality in civil rights and, in some cases, in advantages of a social character, such as equal privileges in public conveyances, etc. They also not only established negro suffrage, as in fact was required by the Reconstruction Acts, but they, in most cases, disfranchised those whites whom the proposed Fourteenth Amendment would disqualify from holding office. In Alabama, Arkansas and Louisiana they went even further than this and disfranchised also, in the case of the first two, all who "had violated the rules of civilized warfare," and in the case of the last, all who had voted for secession, or had advocated treason against the United States in the press or the pulpit. It is true

that in most cases ways were provided for removing these disabilities, but they were generally connected with such self-stultifying requirements as to make them worthless.

The restrictions upon eligibility to hold office or mandate were in general the same as those imposed on the exercise of the suffrage, and in some cases they went even further, as in the cases of the Mississippi and Virginia instruments, by both of which anybody who had voluntarily participated in the rebellion, or had voluntarily given aid or comfort to those who had, was disqualified.

The next step in the procedure was the submission of these constitutions to the voters. The registration was effected in the same

The vote upon

ratification.

manner as for the vote on the question of holding the conventions, and the election of the delegates; and the elections were held, as before, under the direction and control of the military commanders. The voting upon the question of ratification came off first in Alabama. General Pope had issued orders that the votes of persons registered in one precinct might be received in another, and that "State" officers and legislative members should be elected at the same election with the vote on ratification, and by the same voters. There is no doubt that the General only desired to secure the freedmen, who were then moving about restlessly, in their right of suffrage under the Reconstruction Acts, and to expedite the process of reconstruction so far as possible. But he undoubtedly opened the door to fraudulent voting by offering

Fraudulent

voting and

unlawful

voting.

unrivalled opportunities for repeating, and he also violated the law and practice under the Constitution of the United States in regard to the qualified electors of "State" officers and legislators. Such officers and legislators could have been constitutionally elected only by the electors designated in the constitution submitted for adoption. The qualifications of the electors who vote upon the question of the adoption of the first "State" constitution are necessarily fixed by Congress, but Congress has no constitutional power to fix the qualifications of the electors of "State" officers and legislators. Neither has the constitutional convention, which frames the first "State" constitution any such power, for the constitution which it frames is only a proposition, and ratification by the electors designated by Congress is necessary to its validity. Furthermore, any resolution which it might pass ordering the election of "State" officers or legislators by the electors designated by the Congressional statute is only a proposition to those electors, which must be accepted by them by a preliminary vote before they can proceed to the election of such officers and legislators. The General certainly did not understand these niceties of constitutional law and practice, and his