«Реконструкция и конституция, 1866–1876»

Judge Curtis was so influenced by the consideration that to claim such a power for the President would give him a double veto upon all of the acts of Congress, a veto when acting as a part of the legislature in the enactment of law, and then a purely executive veto which could be overcome only by an adverse judicial decision, that he expressed his contention on the subject in very cautious language. He declared that the President claimed no such general power as that, but he said "when a question arises whether a particular law has cut off a power confided to him by the people through the Constitution, and he alone can raise that question, and he alone can cause a judicial decision to come between the two branches of the Government to say which of them is right, and after due deliberation, with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law, it remains to be decided by you, Senators, whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully decided."

The great lawyer refused thus to commit himself upon this fundamental question of constitutional law. And well he might, for to recognize any such power in the President would be to enable him to rule with such arbitrariness as to upset the principles and practices of all free government. The President can constitutionally defend his prerogatives with the veto power, a power which nothing short of a two-thirds majority of both Houses of Congress can overcome, and he has no other power of defence confided to him by the Constitution. He must execute the laws passed over his veto upon matters which in his opinion touch his executive prerogatives, just the same as upon all other matters, and if persons not connected with the administration of the laws do not call such measures in question before the courts, the remedies provided by the Constitution for the people of the United States are either the election of members of Congress who will repeal the enactments, or else the amendment of the Constitution so as to repeal them. It was, however, a question whether, in showing the sole purpose of making an issue before the courts, the President would not clear himself of any criminal intent. Happily his case did not require this, as was demonstrated by his counsel and by Senators Trumbull and Fessenden in their opinions.

The law governing the President's case was perfectly clear to anyone who could divest himself of political prejudice and of personal

The law in

the case.

hostility. It was briefly this. By an Act of the First Congress, of the date of August 7th, 1789, Congress interpreted the Constitution as giving the President the power to remove any officer of the United States, except judges of the United States courts, at his discretion, as an incident of his sole executive responsibility, and in an especial sense recognized this constitutional power as belonging to the President in the case of the heads of the governmental departments, the members of the Cabinet, as they afterwards came to be called, since these persons stood, and must stand, in a peculiarly confidential relation to the President, as his official advisers. This interpretation of the Constitution as to the President's power of removal and the practice built upon it remained untouched by the Congress until the 2d of March, 1867, when, as we have seen, Congress enacted, "that every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall be hereafter appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and one month thereafter, subject to removal by and with the advice and consent of the Senate."

It will be remembered that in the Tenure-of-Office bill as it originated in the Senate the members of the Cabinet were entirely excepted from its operation; that the House in passing the bill included them; that the Senate would not agree to their inclusion; that the bill was then sent to a conference committee; that this committee invented the compromise contained in the proviso; that this proviso was understood to give to each President the power to choose his own Cabinet officers once during his term, and therefore to remove any Cabinet officer not originally appointed by him, but holding under a commission from a former President, and remaining in office only by the sufferance of the existing President; that this was especially the true meaning of the proviso in regard to those Cabinet officers then in office, but who had been appointed and commissioned by Mr. Lincoln during his first term to hold during the pleasure of the President; and that it was upon this explanation of the meaning of the proviso that the Senate voted the resolution of the conference committee.

From all this it is entirely clear that the President had the legal power to remove Mr. Stanton, no matter whether the Tenure-of-Office Act was constitutional or not, simply because his case was excepted by the proviso in the first article in the Act from the operation of the Act, and was left to the operation of the laws in existence at the time the Act was passed. There is little question now that that Act was not in accordance with a fair interpretation of the Constitution, but it was not at all necessary to hold that view in order to clear the President of the accusation of having violated the Constitution and the laws of the land.

The law in reference to the ad interim appointment, or designation, of General Thomas was equally plain to the impartial eye. The Constitution provides only for vacancies that may happen during the recess of the Senate, and empowers the President to fill all such by granting commissions which shall expire at the end of its next session. By an act of May 8th, 1792, Congress empowered the President, in case of the death, sickness, or absence from the seat of government, of the Secretary of State, the Secretary of the Treasury, or the Secretary of War, whether these events should occur during a session, or a recess, of the Senate, "to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness should cease."

Another act of Congress of February 13th, 1795, empowered the President, in case of vacancy from any cause in the offices of Secretary of State, Secretary of the Treasury, or Secretary of War, happening either during a recess or a session of the Senate, "to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled," provided, however, that no one vacancy should be supplied in that manner for a longer time than six months.

It will be seen that neither of these statutes provided for the temporary filling of vacancies in any of the Departments, except those of State, the Treasury, and War. In practice, however, the Presidents have followed the analogies of the law of 1795, when it became necessary, in their opinion, to make a temporary designation in the other Departments. On the 22d of September, 1862, President Lincoln appointed J. B. L. Skinner Postmaster-General ad interim. It was Mr. Lincoln himself who called the attention of Congress to the fact that he had no literal legal authority for this, and who on January 2d, 1863, asked Congress to extend the Act of May 8th, 1792, so as to cover the cases of the other Departments, and empower the President to make ad interim appointments to fill vacancies in these Departments happening on account of death, sickness, or absence from the seat of government. Why the President did not ask for the extension of the Act of February 13th, 1795, which covered all vacancies happening from whatever cause, instead of the Act of 1792, which covered those only which might happen from death, sickness, or absence from the seat of government, we do not know. We only know that in January, 1863, both the President and Congress were greatly pressed by the exigencies of the war, and did things generally in haste and without much consideration. In answer to the President's suggestion, Congress passed the Act of February 20th, 1863, extending the Act of 1792 so as to cover all the executive Departments in the cases of vacancy provided for in that Act, viz., by cause of death, sickness, or absence from the seat of Government—adding resignation—and limiting the President, however, in these appointments to persons already officers in one or the other of the Departments, and providing that no one vacancy should be so supplied for a longer period than six months. The vacancies which might happen from expiration of term or by removal were not at all provided for by the Act of 1863; and as the Act of 1863 did not expressly repeal the Act of 1795, but only declared that "all acts and parts of acts inconsistent with this act are hereby repealed," the Act of 1795 remained in force as to all vacancies caused by expiration of term or by removal, whether happening during a recess or a session of the Senate.

Neither did the Tenure-of-Office Act of 1867 repeal the Act of 1795 in regard to first vacancies happening among the Secretaries of Departments by other causes than those provided for in the Act of 1863, either expressly or by implication, since these first vacancies were expressly excepted from the operation of the Act of 1867, by the proviso attached to the first article. And even if it should be held that the Act of 1867 did repeal that of 1795 entirely, yet, in that it did not forbid the President to make ad interim appointments in the cases where a Secretary's term expired, or a Secretary was lawfully removed by him, the President's designation of Thomas could not be considered as a violation of law but only as an act without warrant of law, the very kind of an act committed by Mr. Lincoln in his appointment of Skinner as Postmaster-General ad interim in 1862, and committed by other Presidents in other cases.

The managers made much of the argument that the President had recognized the validity of the Tenure-of-Office Act in suspending Stanton the preceding August, and reporting his suspension to the Senate, and in notifying the Secretary of the Treasury of the suspension, as provided in the Act, and asserted that he was therefore estopped from denying its constitutionality. But while it can be easily shown that these acts of the President did not at all militate against his claim that other parts of the statute were unconstitutional, still this was not at all necessary to the President's defence, under the view here advanced of the relations between the Acts of 1867, 1863, and 1795. It made no difference, under this view, whether the Act of 1867 was, or was not, constitutional and valid. In either case the President had violated no law, either constitutional or statutory.

The fact is that Mr. Stanton and those who abetted him were the violators of law. Every official act which he committed after receiving

Mr. Stanton's

violation of law.

the notification from the President of his removal, on the 21st of February, was a usurpation of governmental powers by a private citizen, and the gathering of armed men about him with the purpose of sustaining him in holding on to the War Office after his dismissal by the President was treason. It is a question whether his official acts after the 13th of January and down to February 21st were not also usurpations. That depends upon whether the Tenure-of-Office Act was, or was not, constitutional, and whether, if it were, the right of a member of the Cabinet, suspended from office, to resume the functions of the office, after disapproval of the suspension by the Senate, was made, by the Act, to apply to such members of the Cabinet as were excepted from the operation of the first article of the Act by the proviso to that article. The best Republican lawyers in the Senate, Trumbull, Fessenden, Grimes and Doolittle, took the view of the law in the President's case as here explained. They, with one other Republican, Van Winkle of West Virginia, filed, after the vote on impeachment, opinions in the case expressing substantially this view.

It is now known that during the trial some of these men expressed to one of the President's counsel the belief that Mr. Johnson could not be

The nomination of

General Schofield to

be Secretary of War.

convicted upon the law and evidence in the case, and that should the Senate vote to remove him, "it would be done wholly from supposed party necessity," and from fear of what the President might do in case he were acquitted, and that they suggested to this member of the President's counsel the wisdom of the President's sending to the Senate, at that juncture, a nomination for the Secretaryship of War, which would allay all reasonable apprehension that the President would, if acquitted, use the War Department for the accomplishment of any arbitrary purposes, and that they mentioned General Schofield as a man who would be satisfactory. These communications were made about the 20th of April. The President was immediately informed of them, as was General Schofield, and, on April 24th, the President nominated General Schofield to the Senate to be Secretary of War. Whether this move on the part of the President influenced any Senator to vote for acquittal is unknown. It certainly served to allay popular apprehension, if the testimony of the newspapers of the day may be taken on that point.

Fifty-four Senators from the twenty-seven "States" represented constituted the membership of the Court of Impeachment under the

The vote upon

impeachment.

presidency of the Chief Justice. The President must, therefore, have nineteen votes in order to escape conviction. Of these fifty-four, only eight were Democrats. It was practically certain that all of these would vote for acquittal. He needed, therefore, at least eleven Republican votes in his favor. The closing of the case by the prosecution occurred on the 6th of May, and, on the 7th, the court passed the resolution to take the vote of its members upon the articles of impeachment on the 12th. On that day Mr. Chandler of Michigan informed the court that his colleague, Mr. Howard, was too ill to appear, and asked the court to adjourn to the 16th, in order to give Mr. Howard the opportunity to be present. The court agreed to this request. On the 16th, with all the members present, the voting began. The last article, the eleventh, was, by an order of the court, taken first, and the Chief Justice put the question to each Senator: "Mr. Senator—how say you? Is the respondent Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor, as charged in this article?" Thirty-five votes were cast in the affirmative, and nineteen in the negative. So soon as it was known that the President had been acquitted upon this article, a motion was made by Mr. Williams of Oregon to adjourn the court to the 26th. After the announcement of the vote by the Chief Justice, this motion was carried and the court adjourned to the 26th. On that day it reassembled and proceeded to vote upon the second article and then on the third, with the same result as upon the eleventh. Whereupon Mr. Williams moved that the Senate sitting as a Court of Impeachment adjourn sine die, and the motion was carried by a vote of 34 to 16, 4 not voting. The Republicans who voted "not guilty" were Messrs. Dixon of Connecticut, Doolittle of Wisconsin, Fessenden of Maine, Fowler of Tennessee, Grimes of Iowa, Henderson of Missouri, Norton of Minnesota, Patterson of Tennessee, Ross of Kansas, Trumbull of Illinois, and Van Winkle of West Virginia. The country and the Republican party itself were placed under the deepest obligation to these men for their courage and independent action. They saved the country from the direst results of the great political scandal of the age, and they saved the Republican party from the commission of a deed which would have destroyed its hold upon the people.

The truth of the whole matter is that, while Mr. Johnson was an unfit person to be President of the United States—which may be also affirmed

The truth of

the matter.

of some others who have occupied the high place—he was utterly and entirely guiltless of the commission of any crime or misdemeanor. He was low-born and low-bred, violent in temper, obstinate, coarse, vindictive, and lacking in the sense of propriety, but he was not behind any of his accusers in patriotism and loyalty to the country, and in his willingness to sacrifice every personal advantage for the maintenance of the Union and the preservation of the Government. In fact, most of them were pygmies in these qualities beside him. It is true that he differed with them somewhat in his conception of what measures were for the welfare of the country and what not, but the sequel has shown that he was nearer right than they in this respect.

So soon as the Court of Impeachment pronounced its acquittal of the President, Mr. Stanton addressed to the President a letter announcing

The abdication of Stanton.

his relinquishment of the War Department, and his delivery of the papers and properties thereof to General Townsend, subject to the President's directions.

The Senate now confirmed the nomination of General Schofield to be Secretary of War. The General at once accepted the appointment and

Schofield's confirmation

as Secretary of War and

his acceptance of the office.

entered upon the duties of his office, and administered these duties to the end of his term, according to his own testimony, in perfect harmony with the President.

Some of Stanton's friends have tried to make out that but for Stanton's resistance and the impeachment, and its nearness to success, Johnson would have appointed a tool of his own to the War Office and have rode rough-shod over the laws of the land, and that he was frightened out of this purpose, and frightened into an implied agreement with certain Senators and General Schofield that the Reconstruction laws should be executed as Stanton understood them, and not as the President understood them. There is little ground for any such assumptions. There is certainly none in the character of the men whom the President asked to take the War Office, Grant, Sherman and Ewing; and it must be remembered that through Mr. Stanbery, in the case of Mississippi vs. Johnson, he had long before announced to the Southerners that his opposition to the Reconstruction Acts ceased with his unsuccessful veto of them, and that he should execute them both in letter and in spirit. It was Republican Senators who suggested to the President's counsel the nomination of General Schofield, a man entirely friendly with the President and acceptable to him. Neither the President nor the President's counsel approached any Senator with the proposition. It was the Republican Senators who were frightened, rather than the President or his counsel. These Senators knew that the law and the evidence were with the President, and that the Republican party was on trial, as much so as the President; and they knew that, if the Republican Senate should, upon the showing made by the President's counsel of the law and the evidence in the case, convict the President and remove him from office, the party would stand arraigned before the people for having destroyed the constitutional balance between the executive and the legislature in order to gain a partisan end. They recognized the dilemma into which the hot-headed leaders of the party in the House of Representatives had, by their hasty impeachment procedure, brought the party, and they were very much relieved to secure any understanding with the President's counsel whereby the chance of averting the catastrophe to the party, as well as to the country, might be increased. The suspicion that Mr. Stanton was playing his part for the purpose of securing the Republican nomination for the presidency in 1868, rather than from any motives of disinterested patriotism, has about as little foundation as has the theory of salutary terror, produced by the impeachment, controlling the President's subsequent actions against his own preconceived plans and purposes. Both of these speculations are no valid parts of the history of this great transaction. What we have as certain facts are that the judgment was an acquittal, that it was rendered in accordance with law and evidence, and that it preserved the constitutional balance between the executive and the legislature in the governmental system of the country; and that for this the judgment of history coincides with the judgment of the court.

ГЛАВА X

RECONSTRUCTION RESUMED

The McCardle Case—The Congressional Acts Admitting the Senators- and Representatives-elect from the Reconstructed "States" to Seats in Congress—The Veto of these Bills by the President—The Vetoes Overridden—Ratification of the Fourteenth Amendment and the President's Proclamations Declaring Reconstruction Completed—Seward's Proclamation Declaring the Ratification of the Fourteenth Amendment by the Required Number of "States"—The Questions Suggested by Mr. Seward's First Proclamation—The Concurrent Resolution of Congress upon these Questions—The Correct Procedure—The National Conventions of 1868—Platform and Nominees of the Republican Party—Democratic Platform and Nominees—The Election and the Electoral Vote—The Conduct of the President during the Campaign—Congress and the President—The President's Last Annual Message—The President's Amnesty Proclamation of December 25th, 1868—The President's Veto of the Bill in Regard to the Colored Schools in the District of Columbia—The Fifteenth Amendment—Criticism of the Republican View—Johnson's Retirement from the Presidency—The President and the Republican Party.

During the period of the impeachment trial, a case was in progress before the Supreme Court of the United States, which in its final

The McCardle case.

settlement was destined to deprive the President of any hope that a judicial decision in regard to the constitutionality of the Reconstruction Acts could ever be attained. We have seen that in the cases of Mississippi vs. Johnson and of Georgia vs. Stanton the President had resisted the jurisdiction of the Court when aimed directly at the Executive and his immediate agents. This was his duty, and he performed it sincerely and successfully. But it is not to be inferred from this that he would not have welcomed a judicial decision from the Supreme Court of the United States pronouncing these Acts null and void, if it could have been reached through the forms of a proper case, one not involving the executive authority at all.

Such a case had appeared in this Court in the winter term of 1867-68, and the argument as to the jurisdiction of the Court, and the decision of this point in the affirmative, had both been made before the impeachment trial began. One William H. McCardle, arrested and held by the military authorities in Mississippi for trial before a military commission on charge of having published in a newspaper, of which he was editor, libellous and incendiary articles, petitioned the Circuit Court of the United States for a writ of Habeas Corpus. The writ was issued, and return was made by the military commander, General A. C. Gillem, admitting the arrest and detention of McCardle, but contending that these acts were lawful. The Circuit Court, on the 25th of November, 1867, remanded McCardle, who had been held in custody between the time of the return to the writ and this date by the United States marshal, to the custody of General Gillem. McCardle then appealed from this judgment of the Circuit Court to the Supreme Court of the United States. Upon a motion to dismiss the appeal, made by the counsel of the military authorities, this Court decided that under the statute of February 5th, 1867, the Supreme Court of the United States could hear the appeal, and denied the motion to dismiss it.

The question was now before the Supreme Court upon its merits, and it involved the constitutionality of the Reconstruction Acts. It was argued very ably, and the part of the Reconstruction Acts putting the districts of the South under martial law two years after the Civil War had ended, and when the civil authority of the United States was everywhere recognized and enforced, was pretty clearly shown to have been a very serious stretching of its powers by Congress, if not a distinct usurpation. The Republicans in Congress were greatly frightened, and while the case was under advisement in the Court, they hastened to repeal the Act of February 5th, 1867, and to make the repeal apply to appeals already taken under that Act, as well as to such as might be attempted in the future. The repealing bill was vetoed by the President on the 25th of March, but it was immediately repassed by the majority necessary to override the veto, repassed without the slightest regard to the President's very sound and convincing objections. This Act of the 27th of March was intended to prevent any decision upon the constitutionality of the Reconstruction Acts, and did do so most effectively, but it was an abominable subterfuge on the part of Congress and a shameful abuse of its powers.

As will be remembered, seven of the ten Southern communities, viz., North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana, and Arkansas, had already before the close of the impeachment trial ratified the "State" constitutions framed for them by the "carpet-bag, scalawag, negro conventions" held in each for them, had elected "State" officers and legislators, and the legislature of one of them, Arkansas, had ratified the proposed Fourteenth Amendment to the Constitution of the United States, as the legislature of each of them was required to do before it could be admitted to representation in Congress.

Congress now looked upon the work of its hands and pronounced it good, and proceeded to pass the acts, necessary in its conceit, to admit

The Congressional Acts

admitting the Senators-

and Representatives-elect

from the reconstructed

"States" to seats in Congress.

these communities to representation in the legislative houses of the Nation. First came the Act in reference to Arkansas, of the 22d of June, 1868, since, as has been just said, the new legislature of Arkansas had already ratified the proposed Fourteenth Amendment. It provided "that the State of Arkansas is entitled and admitted to representation in Congress, as one of the States of the Union, on the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen, or class of citizens, of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided that any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters."

Three days later, that is on the 25th, Congress provided in a single act for the admission of the Senators and Representatives from the other six reconstructed "States" to the national legislature in the following language: "Be it enacted, &c., That each of the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the Amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as Article XIV., upon the following fundamental conditions: That the constitution of neither of said States shall ever be so amended or changed as to deprive any citizen, or class of citizens, of the United States of the right to vote in said State who are entitled to vote by the constitution thereof, herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided, that any alteration of said constitutions may be made with regard to the time and place of residence of voters." It was also further provided that the legislature of Georgia should, by solemn public act, declare its assent to the fundamental condition that the article of the new constitution of Georgia prohibiting the courts within the "State" from entertaining any suit against any resident of the "State" for any debt existing prior to June 1st, 1865, and prohibiting the judicial and ministerial officers of the "State" from executing any process in reference to such debts, should be considered and treated as null and void.

The President had placed his veto on both of these bills. The veto of the Arkansas bill bears the date of June 20th, and that of the other

The veto of

these bills by

the President.

bill bears the date of June 25th. There are parts of the President's argument which are entirely convincing to any candid mind at the present day. He pointed out that the fundamental condition imposed by Congress, in all these cases, upon the admission of Senators and Representatives to Congress, viz., that no change should ever be made in the suffrage qualifications provided in these "State" constitutions whereby any citizen or class of citizens of the United States having the right to vote under these constitutions should be deprived of such right, was an assumption of power by Congress to regulate a subject, within the "States," which by the existing Constitution of the United States belonged exclusively to the "States," to each "State" for itself.

There can be no question that the President was entirely correct in this contention. The Fifteenth Amendment was as yet no part of the Constitution. It had not even been proposed by Congress to the "States." It is very questionable whether a majority in Congress could have been found, at that time, in favor of making such a proposition, much less the required extraordinary majority of two-thirds. And until the Fifteenth Amendment had been ratified as a part of the Constitution of the United States, Congress had no power to exact such a concession, or anything like it, from any "State" as the price of the admission of representatives from it to the Houses of the National Legislature. And even since the Fifteenth Amendment has become a part of the Constitution, the Government of the United States cannot prohibit such changes in a "State" constitution, unless the deprivation of suffrage is made on account of race, color, or previous condition of servitude.

The President also called attention to the fact that no way was provided in the bills whereby the "States" should signify their acceptance of this "fundamental condition" of admission to representation in Congress, and that no penalty was prescribed for a violation of the condition. Did Congress mean that, in case of any violation of its "fundamental condition," it would throw the "State" back under martial law, and proceed to reconstruct anew? That was a question which might well be asked in view of what Congress had already done; and it was a question which was not calculated to allay uneasiness in the minds of the people in the Southern communities.

Finally, in the veto of the Arkansas bill, the President expressed his very serious doubts whether the new "State" constitution had been ratified by the electorate created by the Acts of Congress for that purpose, since a section in that constitution prescribed that no person would be allowed to vote upon the ratification of the constitution who had not previously taken an oath to the effect "that he accepted the doctrine of the civil and political equality of all men, and agreed not to attempt to deprive any person or persons, on account of race, color, or previous condition, of any political or civil right, privilege or immunity enjoyed by any other class of men," thus adding a new qualification for registration and voting to those prescribed in the Reconstruction Acts of Congress. There is no question that the President was right about this, too. And there is no question that this new qualification was entirely null and void, in so far as it applied to voting upon, and registering to vote upon, the ratification of the constitution itself, unless we ascribe constituent power to the convention which framed the constitution, instead of the power of initiation only. We know that no constitutional convention has, or then had, any such powers in our system. It was nothing more or less than a palpable usurpation of constituent power when the convention in Arkansas presumed to add this qualification to those prescribed by Congress for voting upon the ratification of the constitution itself. Of course it would have been lawful and regular for the "State" constitution to make this additional requirement for voting in all future elections, after the constitution prescribing it should have been adopted by the electorate created by the Congressional Acts, although the requirement itself would have been unreasonable and oppressive. But for the convention, a mere proposing body, to ordain this new qualification for voting on the question of the adoption of the constitution itself was a political outrage of the first order.

The vetoes

overridden.

Congress was not, however, in a state of mind to listen to any suggestions from the President, no matter how correct and important they might be. Both Houses promptly, almost mockingly, passed the two bills over the President's vetoes.

Such of the legislatures created under the new "State" constitutions as were not already in session were quickly summoned to assemble, and by

Ratification of the

Fourteenth Amendment

and the President's

proclamations declaring

Reconstruction completed.

July 21st all of them had ratified the proposed Fourteenth Amendment to the Constitution of the United States, and the legislature of Georgia had also pledged by solemn act that the repudiation article of the new constitution should never be enforced. By July 27th the President had issued his several proclamations, as required by the Act of June 25th, announcing the ratification of the proposed Fourteenth Amendment by these legislatures, and consequently the admission of these "States" to representation in Congress; and so far as the seven "States" of Arkansas, North Carolina, South Carolina, Georgia, Alabama, Florida and Louisiana were concerned the work of reconstruction was now completed. Virginia, Mississippi and Texas still remained under martial law.

On the 28th day of July, Mr. Seward, the Secretary of State, issued his

Seward's proclamation

declaring the ratification

of the Fourteenth

Amendment by the required

number of "States."

proclamation, declaring the ratification of the proposed Fourteenth Amendment to the Constitution of the United States by the legislatures of thirty States of the Union, and its consequent validity as a part of the Constitution of the United States.

Eight days before this proclamation, that is on the 20th, Mr. Seward had issued a proclamation declaring that the legislatures of

The questions

suggested by

Mr. Seward's

first proclamation.

twenty-three States, viz., of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, Nebraska and Iowa, had ratified the proposed Fourteenth Amendment, and that six "newly-constituted and newly-established bodies avowing themselves to be, and acting as, the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama" had also ratified it; that the legislatures of Ohio and New Jersey had subsequently passed resolutions withdrawing their ratification of the Amendment; and that, if these latter resolutions of the legislatures of Ohio and New Jersey should be disregarded, the proposed Fourteenth Amendment had been adopted by the legislatures of twenty-nine of the thirty-seven "States" of the Union and had thus become a valid part of the Constitution of the United States.

Besides the question expressed in this Proclamation, Mr. Seward indicates by his language a further question, viz., whether the six "newly-constituted and newly-established bodies, avowing themselves to be, and acting as, the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama" were genuine "State" legislatures. They were the legislatures established under the Reconstruction Acts of Congress, but as Congress had refused to recognize the "States" for whom these bodies acted as entitled to representation in Congress, that is as "States" having the rights of "States" of the Union, until after these bodies had ratified the proposed Fourteenth Amendment to the Constitution of the United States, it was no wonder that so good a constitutional lawyer and so logical a thinker as Mr. Seward had his doubts as to whether these bodies were genuine "State" legislatures.

In order to quiet these doubts, if possible, the two Houses of Congress passed on the following day, July 21st, the following concurrent

The concurrent

resolution of

Congress upon

these questions.

resolution: "Whereas the legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina and Louisiana, being three-fourths and more of the several States of the Union, have ratified the Fourteenth Article of Amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the Thirty-ninth Congress; therefore, Resolved by the Senate (the House of Representatives concurring), That said Fourteenth Article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." Upon the basis of this resolution, which decided, in so far as Congress can decide, that the consent of the legislature of a "State" to a proposed amendment to the Constitution of the United States cannot be withdrawn when once given, and that the "newly-constituted and newly-established bodies, avowing themselves to be, and acting as, the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama" were genuine "State" legislatures qualified to vote upon the ratification of a proposed amendment to the Constitution of the United States, Mr. Seward issued his proclamation of the 28th of July, above recited. As the Georgia Legislature ratified the proposed amendment on the 21st inst. and also gave its pledge not to allow the repudiation article in its constitution to be enforced, Mr. Seward included Georgia in this last proclamation.

It will be seen that both Mr. Seward and Congress counted all of the Southern communities which had ever been "States" as being "States," making the whole number of "States" thirty-seven, and the number necessary for ratification of the amendment twenty-eight. Upon this basis of calculation two more than the necessary number had ratified at the date of Mr. Seward's final proclamation. It will also be seen that both Mr. Seward and Congress, that is that both the legislative and executive departments of the Government, ignored the attempt of Ohio and New Jersey to withdraw their consent to the amendment, and fixed the precedent in the constitutional practice of the United States that a "State" legislature cannot reconsider its ratification of an amendment to the Constitution of the United States at any time. This means, when scientifically appreciated, that the ratification of an amendment to the Constitution of the United States is not an agreement between the "States," and therefore becomes valid as to each only after three-fourths of the "States," the constitutional number necessary to make the proposed amendment a valid part of the Constitution, shall have ratified it, but that ratification by a "State" legislature, and a fortiori by a convention of the people within a "State," is only an indirect vote of a part of the people of the United States upon a question submitted to the suffrages of the whole people of the United States. When, therefore, this affirmative vote has been once officially announced by the proper authorities within the "State" to the proper authorities of the United States there is no further control over it by the authorities within the "State."

If, however, the votes of Ohio and New Jersey had not been counted in the affirmative, there was still a three-fourths majority of

The correct

procedure.

thirty-seven "States" in favor of ratification. And if the ten Southern communities had been left out of the computation altogether, which would have made the Union to consist, so far as that part of it erected into "States" was concerned, of twenty-seven "States," there would still have been more than a three-fourths majority in favor of ratification, with or without Ohio and New Jersey. The correct procedure, from a scientific point of view, would undoubtedly have been to have computed the necessary majority upon the basis of twenty-seven "States," to have included Ohio and New Jersey among the "States" whose legislatures voted for ratification, and then to have admitted the ten Southern communities as "States" under the Constitution of the United States, with the Fourteenth Amendment as an already established part of it, concerning which they had no more to say than they had in regard to any other part of the Constitution. But, however that may be, no objection can be made to the validity of the Fourteenth Amendment on the ground of the majority by which it was ratified. In whatever way we may compute the whole number of "States" and the majority voting in the affirmative, the Amendment was lawfully ratified.

During these movements in execution of the Reconstruction Acts, the national party conventions for the nomination of candidates for the

The national

conventions

of 1868.

presidency and for the formation of platforms were held. That of the

Republican party assembled first, on the twenty-first day of May in Chicago, at the moment when its radical elements were filled with rage and chagrin at the failure of the impeachment of the President.

It made General Joseph R. Hawley, of Connecticut, its presiding officer; adopted a platform, a large part of which was devoted to

Platform and nominees

of the Republican party.

denunciation of the President, to the promise of bountiful pensions, and to a twist of the British lion's tail on the subject of expatriation; the main principles of which, however, were good faith in the payment of the public debt with sound money, and equal suffrage by Congressional law in the Southern communities; and nominated Grant and Colfax for the presidency and the vice-presidency.

In pronouncing for the guaranty of negro suffrage at the South by Congressional law, the platform attempted to steer clear of the prejudices against negro suffrage at the North by a sort of proviso, which read, "While the question of suffrage in all the loyal States properly belongs to the people of those States." This was certainly inconsistent, not to say hypocritical. Negro suffrage at the North would have been a comparatively harmless thing on account of the fewness of the negroes as compared with the whites in that section, and on account of the superior average intelligence of the negroes of the North when compared with that of those of the South. There was no sound principle in this article of the platform. It was a mean, shuffling bit of partisan politics. The party itself felt it to be so in the course of the campaign, and came out finally for the settlement of the whole question of negro suffrage upon the same basis for the whole country and by means of a constitutional amendment.

The nominees immediately accepted their nominations in characteristic letters, that of General Grant being short, crisp, modest and ending with the now famous sentence: "Let us have peace," and that of Colfax being more lengthy and wordy and containing a rhetorical defence of some of the more questionable parts of the platform.

The Democratic convention assembled in New York on the 4th day of July. It was confronted at the start with the Greenback heresy, and the

Democratic

platform and

nominees.

candidacy of the Greenback champion for the presidency, Mr. George H. Pendleton of Ohio. This heresy was in a sentence the doctrine that all the public debt of the United States not made expressly payable in coin should be paid in United States paper, which Congress might order to be stamped, issued, and made legal tender, to any amount it might please. The shibboleth was, "the same currency for the bondholder and the plough-holder." It had taken firm hold in Ohio, and was rapidly spreading through the valley of the Mississippi. The Eastern Democrats, however, looked upon it with disfavor, and were determined to defeat the nomination of Mr. Pendleton. They were obliged, however, to accept the platform, in so far as it related to this subject, as dictated by their Western compatriots. The third plank in the platform read, "... and where the obligations of the Government do not expressly state upon their face, or the law under which they were issued does not provide, that they shall be paid in coin, they ought in right and in justice to be paid in the lawful money of the United States." The fifth plank also read, "one currency for the Government and the people, the laborer and the officeholder, the pensioner and the soldier, the producer and the bondholder." It is true that the platform did not expressly pronounce in favor of an unlimited issue of paper money with which to pay the bonds, but it was generally understood that this was what was meant. The questions then of sound money and of the faithful discharge of the public obligations were thus put in issue. The Democrats also met squarely the Republican doctrine of Reconstruction. They demanded the "immediate restoration of all the States to their rights in the Union under the Constitution, and of civil government to the American people," with "amnesty for all past political offences, and the regulation of the election franchise in the States by their citizens." And they denounced the Radical party, as they termed the Republicans, "for its disregard of right, and the unparalleled oppression and tyranny which have marked its career," declared the Reconstruction Acts to be unconstitutional, revolutionary and void, and lauded President Johnson for his unflinching resistance to "the aggressions of Congress upon the constitutional rights of the States and the people."

There is no question that the platform of the Democrats, with its paper money doctrine, and its hostility to Reconstruction and universal

Weakness of

the platform.

suffrage, was a shaky foundation for any party to attempt to stand upon at that juncture. Not much conscience and not much sentiment could be aroused with such tenets. Conscience and sentiment were much more amenable to the appeals of the Republican platform upon these points. Moreover, the tremendous popularity of the Republican candidates had to be reckoned with. Where could the Democrats find a candidate who would both match Grant in the popular affection and overbalance also the weakness of the platform? The New Yorkers in the convention, led by Seymour, Tilden, Schell and Kernan, had their man for this emergency, but they dared not reveal at the outset their plan. They were resolved to nominate Chief Justice Chase. They thought that Chase's well-known devotion to the principles of universal suffrage and his career as Secretary of the Treasury would satisfy the Eastern men in regard to the platform, and that his attachment to the principles of civil government versus militarism would, in some degree at least, neutralize the popularity of the military hero. The delegates from Ohio, Mr. Chase's own "State," suspected the purpose of the New Yorkers, and were determined to foil it. If they could not get Pendleton, they were determined not to have Chase. After the first six ballots without result, Pendleton, however, leading, the New Yorkers brought forward Hendricks of Indiana, in order to break down Pendleton's vote. Having succeeded in this after some six more ballots, the name of Chase was brought before the convention by a half vote from California. The purpose was probably to feel of the convention. It was highly successful. The announcement of the half vote was received with enthusiastic applause. Masking themselves behind Hancock, who was at that juncture in the lead, and Hendricks, the New Yorkers now prepared to present Chase; but the Ohioans were too quick for them. They succeeded in withdrawing Pendleton and presenting Seymour himself as their candidate, before the New Yorkers knew what they were about. Seymour, who was occupying the presidency of the convention, declared from his seat that he could not accept, but the Ohioans stuck to their nomination, and the New Yorkers had to assent. They were fairly caught in their own net.

Seymour finally yielded, and the convention addressed itself to the nomination of its candidate for the vice-presidency. The ex-Confederate

The nominees.

General William Preston of Kentucky presented the name of the noted Union General Francis P. Blair of Missouri for the place. The nomination was seconded by the ex-Confederate General Wade Hampton of South Carolina, and was made by acclamation. While General Blair was a noted Union soldier of high ability and undoubted loyalty, he was a fierce enemy of the Reconstruction Acts of Congress, and was for this reason very popular with the ex-Confederates. In an open letter to Colonel J. O. Brodhead of St. Louis, written five days before the assembly of the Democratic convention, he not only denounced the Reconstruction Acts as unconstitutional, but advanced a method for getting rid of them and their effects in case a Democratic President should be elected. He proposed that the new President should "declare these Acts null and void, compel the army to undo its usurpations at the South, disperse the carpet-bag State governments, allow the white people to reorganize their own governments, and elect Senators and Representatives." He said, further, that the House of Representatives would contain a majority of Democrats from the North, who would admit the members elected to that body from the South to seats, and that the House with the President would exert such a pressure on the Senate as to cause the doors of that body to be opened to the members from the Southern "States." When General Blair wrote this letter he was being spoken of as a candidate for the presidency, and this letter was taken as the declaration of what he would do if elected to the position of Chief Magistrate of the nation. After his nomination for the vice-presidency, in his speech and letter of acceptance, he announced the chief issue in the contest to be the relief of the South from martial law and negro domination. The ex-Confederates represented it the same way at the South, and threw themselves into the campaign with great enthusiasm for Seymour and Blair.

On the other hand, the bland, politic and persuasive Seymour pursued a much more moderate and conciliatory course, and when it became evident that General Blair's violent expressions and revolutionary purposes were ruining the Democratic prospects at the North, he went into the campaign personally, and by his diplomatic manners and fine oratory succeeded in stemming the tide which, running against the Democrats from the moment when their platform was proclaimed, had been driven on to a flood by General Blair's indiscretions, to put it very mildly, in speech and conduct. But while some lost ground was regained, it was evident that the hopes of the Democrats had been blasted.

The electoral votes of thirty-four "States" were counted, Virginia, Mississippi and Texas being still regarded by Congress as

The election and

the electoral vote.

unreconstructed. Of these thirty-four, eight cast their votes for Seymour and Blair. These were New York, New Jersey, Delaware, Maryland, Kentucky, Oregon, Georgia and Louisiana. The rest went for Grant and Colfax. The electoral vote stood eighty for Seymour and Blair and two hundred and fourteen for Grant and Colfax. The popular vote stood two millions seven hundred and three thousand two hundred and forty-nine for Seymour and Blair, and three millions and twelve thousand eight hundred and thirty-three for Grant and Colfax. The exclusion of Virginia, Mississippi and Texas from the vote and the inclusion of the suffrages of the "carpet-baggers" and the negroes, under the protection of the military, in the reconstructed "States," had saved the day for Grant and Colfax. If the electorate of the South had been as in 1860, or probably as it was in the years of the Johnson governments, Seymour and Blair would have triumphed. As it was, but for the Greenback plank in the Democratic platform and the indiscretions of General Blair, they might have triumphed. That is to say, if the Reconstruction policy of Congress had been the sole issue, it is quite possible that the Republicans would have lost the election, even with the most popular man in the North as their standard bearer.

Meanwhile the President had continued to ply the Congress with his vetoes and messages and to address the country with his proclamations.

The conduct of

the President

during the

campaign.

He had thought that he ought to be vindicated by being nominated by the Democrats for the presidency, and had actually received sixty-five votes on the first ballot. His failure before the convention ought to have taught him that he was no longer a factor to be reckoned with in the domain of politics, and that his proper course was to execute quietly the functions of his office to the end of his term, and then retire to private life. But he seemed to think that his political opinions were still of great value, and in a very few days after the adjournment of the Democratic convention he addressed a message to Congress advising a most radical change in the structure of the government by means of constitutional amendment. He therein recommended that Congress should propose to the "States" so to amend the Constitution as to provide for the election of the President and Vice-President by a direct vote of the people, for the ineligibility of these officers for a second term, for the designation of the members of the Cabinet in a certain order, beginning with the Secretary of State, as the persons to discharge the duties of the President in case of a vacancy in the presidential office by the death, resignation or removal of both the President and the Vice-President, for the election of the Senators by the direct vote of the people, and for the limitation of the terms of the United States judges to a period of years. There was sound reason for the third of these suggestions, the designation by the Constitution of the Cabinet officers in a certain order as the successors to the powers and duties of the President, when the country might be without both a President and a Vice-President, and it has since then been made law under the form of a statute of Congress.