«Реконструкция и конституция, 1866–1876»

But the Congress was not then in a mood to hear anything from Mr. Johnson. Two days later, July 20th, the President vetoed the joint

Congress and

the President.

resolution passed by the two Houses, excluding from the electoral college in the coming presidential election the votes of "States" lately in rebellion which should not have been reorganized under the Reconstruction Acts of Congress. In this veto he went over his whole argument once more against the constitutionality of these Acts and in favor of his own method of Reconstruction. But the Congress treated the message with contempt and promptly repassed the resolution.

On the 9th of December President Johnson sent his last annual Message to Congress. It was a grave, dignified and statesmanlike document both

The President's last

annual Message.

in form and content. In it he told Congress plainly and respectfully that its Reconstruction policy had arrayed the races against each other at the South, had impaired, if not destroyed, the kindly relations that had previously existed between them, and had given mortal offence to the civilized race by placing the uncivilized race in domination over it; and he urged that legislation which had produced such baleful consequences ought to be abrogated. He also told Congress that it had seriously impaired the power of the President to exact the necessary accountability of the public officers by its Tenure-of-Office Act, and had embarrassed the Executive in the exercise of his constitutional military functions by the Act of March 2d, 1867; and he urged the repeal of both of these measures. He also gave a most serious and startling account of the condition of the public finances, and of the consumption of the wealth of the Nation by the bondholders, officials and pensioners. He pointed out that the public debt, which in 1860 was 64,000,000 dollars, had become 2,527,129,552 dollars; that the annual expenditure, which was, in 1860, 63,000,000 dollars, had become 336,000,000 dollars and more, and that the expenditure per capita, which was two dollars in 1860, had become nearly ten dollars. And he suggested the ways in which this threatening condition might be relieved, viz., by a refunding of the bonds at a lower interest, by a speedy resumption of specie payment, by a reduction of the army and of the horde of Reconstruction officials in the South, and by a strict accountability of the revenue officials to their superiors and of these latter to the President. From the point of view of sound political science, good public policy and true patriotism all of these suggestions were at least worth consideration, but Congress took no more notice of them than it did of the distant murmurs of the waters of the Potomac.

Only once again did the Congress break over its apparent resolve to ignore the President, and that was upon the occasion of his issue of

The President's

amnesty proclamation

of December 25th, 1868.

his universal and unconditional pardon and amnesty to all persons who had participated, either directly or indirectly, in the rebellion, with the restoration of all their rights, privileges and immunities under the Constitution and the laws made in pursuance thereof. The date of this document was December 25th, 1868. On the 5th of January, 1869, the Senate called him to account for this by a resolution calling upon him "to transmit to the Senate a copy of any proclamation of amnesty made by him since the last adjournment of Congress, and also to communicate to the Senate by what authority of law the same was made." The President replied on the 18th, sending a copy of his proclamation of December 25th, 1868, and declaring that he issued it by authority of the second section of Article second of the Constitution, which vested in the President the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, and in accordance with precedents established by his predecessors in office, Washington, Adams, Madison and Lincoln. The Senate did not say that he had no right to claim any constitutional prerogative, and that he was not worthy to act under precedents set by Washington, Adams, Madison, and Lincoln, but most of the Senators evidently so thought. The proclamation had no effect upon the qualifications for suffrage in the face of the Reconstruction Acts and the "State" constitutions framed and established in accordance with them. It was little more than the bull against the comet.

As a sort of final stroke the President vetoed the bill concerning the transfer of the control of the colored schools in the District of

The President's veto of

the Bill in regard to the

colored schools in the

District of Columbia.

Columbia, and the bill for raising the duties on imported copper and copper ores. He gave excellent reasons for both of these vetoes, but Congress had long ceased to be guided by reason in matters which related to the President.

On its side it was busy with a project which, though not intended as a blow at him particularly, was not in accordance with his view that the

The Fifteenth Amendment.

regulation of the suffrage within the "States" was, and should be, left to the "States" respectively, and exclusively, viz., the proposed Fifteenth Amendment to the Constitution. Reference has already been made to the inconsistent doctrine, we might almost say the timorous subterfuge, of the Republican platform on the matter of negro suffrage, and to the growing conviction on the part of the Republicans during the campaign that this question must be settled for the entire country alike, and by a constitutional amendment. At the opening of Congress in December, and during the first days of the session, the proposition was presented which finally took on the form given it by the conference committee of the two Houses in the words: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation." It was passed by both Houses with the requisite two-thirds majority on the 26th of February and sent to the legislatures of the "States" for ratification. The Republicans had at last come to the view that the emancipation of the freedmen involved their civil equality with the whites, and that such equality could not be maintained unless they possessed the elective franchise, and that it was cowardly for the "States" of the North to force negro suffrage on the South without accepting it for themselves.

It is certainly true that full freedom implies civil liberty and civil equality, but there was another way, and a better way, to have secured

Criticism of the

Republican view.

these than by the immediate and universal suffrage of the newly emancipated in all their ignorance, immorality and poverty, and that was by the nationalization of civil liberty, and its protection and enforcement by the United States courts. Most of the Republicans believed, at that moment, that that had been secured by the Fourteenth Amendment; and there can be little question that a very important consideration with such was the fear that after Reconstruction should be accomplished, the Southern "States" might amend negro suffrage out of their "State" constitutions, and thus destroy the Republican party in these "States," unless the Constitution of the United States should be so amended as to prevent it. The most radical among them were no doubt moved chiefly by the extravagant humanitarianism of the period, which had developed in their minds to the point of justifying not only the political equality of the races, but the political superiority, at least in loyalty to the Union, the Constitution and republican government, of the uncivilized negroes over the whites of the South; but that this conviction was not very strong among the masses of them can be readily concluded from the fact that that party is to-day the party which is following the European idea of the duty of civilized races to impose their political sovereignty upon uncivilized, or half civilized, or not fully civilized, races anywhere and everywhere in the world. No party can, in so short a time, so completely change its fundamental principle of political ethics when it is really and conscientiously believed in by the masses of the party.

This proposed Fifteenth Amendment was not sent to the President for his approval, but went, according to custom, to the Secretary of State, to

Johnson's retirement

from the presidency.

be submitted to the "State" legislatures. The President was now within a very few days of the end of his term. His sun had fairly set, and the disrespect felt for him by the members of the dominant party in Congress and out of Congress was expressed in the rude and quite unprecedented refusal of General Grant to sit in the same carriage with him in the procession from the White House to the Capitol, on the 4th of March, for the ceremonies of the inauguration of the new President. Discredited, despised, and scoffed at, as a traitor to his party, to his political creed, and to his country, Mr. Johnson stepped down from the high office which he had occupied during one of the two most critical periods in American history since the establishment of the present Constitution.

And yet it is certainly true that the Republican party had left him rather than that he had left the party. This party began simply as a

The President and

the Republican party.

Union party and an anti-slavery extension party. Mr. Johnson, an original Democrat, joined with the Republicans upon this basis, and he never left it. On the other hand, when the necessities of the war for the Union made it evident that the slaves within the Southern communities which had declared secession, and were engaged in rebellion, must be proclaimed free, Mr. Johnson still went with the Republicans in the justification of this measure. And when, finally, the war was ended and the Union was preserved, and the Republicans decided that the legitimate outcome of the victory was the prohibition of slavery everywhere within the United States by an amendment to the Constitution, Mr. Johnson still marched with them, at the head of the column. It was only when they became more and more radical in their policy, and insisted upon transforming rather than restoring the "States" of the South, by placing civil rights under national protection instead of "State" protection, disfranchising the whites of the South, and enfranchising the negroes, and upon overcoming the Executive's objections to these movements not simply by overriding the veto, but by generally subordinating the Executive to Congress—it was only then that he separated from them and fell back naturally on such support as he could get, which was chiefly from the Democratic party.

No fair mind can claim that the Republicans in their quarrel with the President had not departed from their solemn declaration made in Congress assembled in those dark July days of 1861, just after the first great defeat of the Union arms, "That this war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of the Southern States, but to defend and maintain the supremacy of the Constitution, and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired." And it was upon the basis of this understanding that the Democrats in Congress, Mr. Johnson among them, stood with the Republicans in the prosecution of the war. It is indeed a serious question of political casuistry as to how far declarations of policy are binding upon a political party. They are certainly not like agreements entered into between sovereign states, and the law of development rather than the law of contract must be the constructive force in party creed. But this, at least, must be held, viz., that a man originally not of a given political party, but acting with it upon the basis of a given creed, cannot be accused of being an apostate from that party if he does not continue with it when it adopts a new creed in many respects the very opposite of that given creed, except in the most groveling sense of machine politics; and that when he and it do part company, more by its own departures from the given creed than by his, he is certainly not on that account to be necessarily considered as a traitor to his country. The truth is, that while all men who occupy high station are peculiarly subject to wanton, as well as ignorant, assaults upon their purposes and their conduct, few men that have occupied so high a station have ever been so unreasonably slandered and vilified as Andrew Johnson. His own unfortunate and irritating manners and methods will account for a good deal of the misunderstanding of his character, but the violence of the times was the occasion of a great deal more of it. The true Union men of Tennessee will, however, never forget the hope, and encouragement, and support which he gave to them, when they were left in the lurch by their own natural leader, John Bell; and the Nation should for this, if nothing else, write his name in the book of its heroes.

ГЛАВА XI

PRESIDENT GRANT AND RECONSTRUCTION

The Situation at the Moment of Grant's Accession to Power—The Georgia Question—The Attitude of the New President toward Reconstruction—The Virginia Case—Grant's Message to Congress of April 7th, 1869, and His Proclamation of May 14th—Ratification of the Virginia Constitution and Election of "State" Officers under it—The Restoration of Virginia to Her Federal Relations—Ratification of the Mississippi Constitution and Election of "State" Officers and Legislative Members under it—The Restoration of Mississippi to Her Federal Relations—Ratification of the Texas Constitution and Election of "State" Officers and Legislative Members under it—Restoration of Texas to Her Federal Relations—Grant and the Tenure-of-Office Act—Congress and the Tenure-of-Office Act after Grant's Accession to the Presidency—The Modification of the Tenure-of-Office Act—The President's Dissatisfaction with the Measure—The Facts in the Georgia Case—New Conditions Imposed on Georgia—The Final Restoration of Georgia to Her Federal Relations—Negro Rule in the South from the Point of View of Political Science and Ethnical Principle.

At the moment of Grant's accession to power, four of the Southern communities were still denied recognition as "States" upon the floor of

The situation at the

moment of Grant's

accession to power.

Congress. Three of the four had not yet adopted "State" constitutions, viz.: Virginia, Mississippi and Texas; and the fourth, Georgia, the representatives from which to the lower House of Congress had been admitted in December of 1868, was still unrepresented in the Senate, for the reason that the legislature of Georgia, after electing United States Senators, had rejected the negro members-elect of that body on the ground that negroes were not eligible to legislative seats in Georgia.

When the news of this procedure reached Washington, the Senate held back from admitting the Senators-elect from Georgia to seats and did

The Georgia

question.

not admit them during the last session of the Fortieth Congress; and at the opening of the Forty-first Congress, on March 4th, 1869, the day of Grant's inauguration, one of the first acts of the respective Houses was to refuse admittance to the representatives from Georgia to either House, and to refer their credentials to the Committee of each House on Elections.

In his inaugural Address the new President made no reference to these questions, but he had hardly been one month in the presidential office

The attitude of the

new President toward

Reconstruction.

before he recognized the difficulties with which his predecessor had been beset, and asked and almost demanded of Congress relief from them. On the 7th day of April he addressed a message to Congress requesting that body to provide for submitting to the voters of Virginia the "State" constitution drafted and adopted by a constitutional convention at Richmond nearly a year before, and recommending that "a separate vote be taken upon such parts as might be thought expedient," and that the constitution, "or such parts thereof as shall have been adopted by the people," should be submitted to Congress on the first Monday of the following December, and that the officers provided for under the said constitution should be chosen at the same election.

The President also suggested that the constitution framed by the convention in Mississippi and rejected by the voters might be resubmitted in the same way. The events in Mississippi culminating in the rejection of the proposed State constitution by the voters in June of 1868 have been already related.

The case of Virginia, on the other hand, which differed in several material respects from that of any of the others, has not been as yet

The Virginia case.

sufficiently stated for a clear understanding of the President's meaning in his recommendations to Congress of April 7th. It will be remembered that a loyal government of Virginia, with its seat first at Wheeling and then at Alexandria, existed during the entire period of the Civil War, and that from 1861 to 1864 Virginia, under this government, had been represented in Congress, and that it was this government which consented to the partition of Virginia recognized by Congress. On the 23d day of May, 1865, this government transferred itself from Alexandria to Richmond, having been recognized by President Johnson on May 9th as the true government of Virginia. The legislative department of it met in session on the 20th of June following. The Governor, Mr. Pierpont, recommended, in his message to that body, that a constitutional amendment should be drafted, and proposed by it to the voters for ratification, which would enfranchise, and qualify for office, a much larger proportion of the people than was the case under the revised constitution of Virginia of 1864, adopted by the loyal convention at Alexandria. The legislature followed the Governor's advice and proposed an amendment to the voters which granted suffrage and eligibility substantially to the old ante-bellum electorate and eligibles on the condition of future loyalty to the United States. This proposition was voted on at the elections held on the 12th of October for the choice of members of the legislature and of the lower House of Congress, and was ratified by a large majority. The election was held in every county and the result was fairly representative of the people. There was lacking but one thing more for the complete restoration of the "State" to its federal relations, viz., the admission of the Senators and Representatives from it to seats in Congress. They presented themselves at the opening of the Congressional session on the first Monday of December following, and were excluded, along with the Senators and Representatives from the other "Johnson States," by the Stevens resolution.

For more than a year, however, this government continued to act as the "State" government of Virginia, under the limitations placed upon it by the presence of the military of the United States, and the interference of the commanding general in behalf of the freedmen. On January 15th,

The Vagrant Act.

1866, the legislature chosen at the October elections of the preceding year passed the vagrant act, which defined as vagrants "all persons who, not having wherewith to maintain themselves and their families, live idly and without employment, and refuse to work for the usual and common wages given to the laborers in the like work in the place where they are," and which authorized the condemned vagrant to be hired out, and his wages applied to his own use or the use of his family, and, in case of his running away from the hirer, to be apprehended on the warrant of a justice and returned to the hirer, who should have one month of service extra, and without wages, for the interruption of the service contracted for, and other trouble and expense, and should also have the right, by permission of the justice, to work the returned vagrant with ball and chain, in order to prevent a repetition of his flight. On the 24th, just nine days after the passage of the act,

General Terry's

order setting

aside the

Vagrant Act.

General Terry, the military commander at Richmond, issued an order setting aside this measure as to the freedmen. He based his order on the tendency of the statute to influence employers to combine for the purpose of lowering the wages of the freedmen to a point that would pauperize them and drive them into vagrancy, and create thus the very situation which, under the operation of the measure, would lead to a species of servitude worse than the old domestic slavery. He had no reliable facts of experience upon which to base his theory. It was a bit of political and economic prophecy on his part. It was sufficient, however, to call down maledictions from the Congress at Washington and the people of the North upon the legislature at Richmond and the people of Virginia and of the South generally.

Congress, however, gave this legislature one more opportunity to redeem itself. The proposed Fourteenth Amendment to the Constitution of the United States was submitted to it for ratification in June of 1866. After long deliberation upon it, the legislature rejected it on the 9th of January, 1867. This act sealed the fate of that legislature. Virginia was brought, with the other Southern communities which had rejected or not adopted the proposed Amendment, under the Reconstruction Acts of March, 1867, and became the first military

Virginia made a

Military District.

district under those Acts, with General Schofield as commander. Schofield ordered the election for delegates to a constitutional convention, by the voters designated in the Reconstruction Acts, to be held in November of 1867, and ordered the delegates so elected to assemble in Richmond on the 3d of the following December. These orders were successfully executed under the supervision and control of the military. Schofield himself appeared in the convention, and urged the delegates to be moderate in the propositions for the disfranchisement and disqualification of those who had participated in rebellion. But the delegates elected under the Reconstruction Acts, and by the electorate created through them, were not only radical, but bent upon retaliation. They would not listen to the wise counsel of Schofield, but drafted and adopted such provisions in regard to suffrage qualifications and eligibility to office and mandate as would have put the "State" government, based on such a constitution, in the hands of negroes, "scalawags" and "carpet-bag" adventurers. The opposition to these provisions on the part of the commander and the Administration at Washington was, however, sufficiently effective to delay indefinitely the submission of the constitution to the voters. Near the end of the year 1868, a conference of prominent Virginians assembled at Richmond and appointed a committee, and sent its members to Washington to petition Congress to allow the disfranchising and disqualifying clauses, and the clauses in reference to county organization, to be voted on separately from the other parts of the proposed constitution. This committee proceeded to Washington in January of 1869, and argued their case before committees of both of the Houses of Congress, and also presented the same to the new President-elect, General Grant.

It was in consequence of such representations and prayers, that President Grant sent his message of April 7th to Congress, requesting

Grant's message to

Congress of April

7th, 1869, and

his proclamation

of May 14th.

authority to accede to the petition of the Virginians, and that Congress immediately conferred the authority upon him. Armed with this authority, the President issued a proclamation on the 14th day of May, 1869, commanding the "State" constitution framed for Virginia by the convention which assembled on December 3d, 1867, at Richmond, to be submitted to the voters, on July 6th, 1869, for ratification or rejection, and also commanding that those provisions disqualifying persons from voting and holding office who had in any way aided the rebellion against the United States should be separately submitted.

Ratification of the

Virginia Constitution.

At the election ordered by the President, the constitution without these clauses was ratified, and the conservative Republican candidates for office and legislative membership were elected.

At the next session of Congress, in December of 1869, the Senators and Representatives presented themselves for admission. Their claims were

The restoration of

Virginia to her

Federal relations.

sustained by the President, who reported to Congress that Virginia had fulfilled all of the conditions required of her for readmission to her full privileges as a member of the Union, having among other things ratified by legislative acts both the Fourteenth and Fifteenth Amendments to the Constitution of the United States, and urged the admission of the Senators and Representatives from the "State" to Congress. After a good deal of discussion and some wrangling, the bill for the accomplishment of this object was passed, and, in the last days of January of 1870, Virginia was restored to her proper federal relations, on the conditions that the constitution of the "State" should never be so amended as to deprive any person enfranchised therein of the suffrage, or any citizen or class of citizens of the United States of the educational rights and privileges provided therein, or any citizen of the United States of the equal right to hold office, on account of race, color or previous condition of servitude, or of the school rights provided in the constitution of the "State." The Congressional Act also undertook to purge the new "State" legislature by requiring that every member must take an oath that he was not disqualified by the Fourteenth Amendment to the Constitution of the United States, or that, if he had been, he had also been

relieved by the Congressional Act authorized for the case in the Amendment.

The Act of Congress of April 10th empowered the President to deal with the question of Reconstruction in Mississippi in the same manner as in Virginia. By virtue of this power, the President issued a proclamation, on the 13th of July, 1869, commanding the resubmission to the voters of the constitution adopted by the Mississippi convention, on the 15th of May, 1868, and rejected by the voters as stated on a previous page, and designating the 30th day of November, 1869, as the date of the

Ratification of the

Mississippi constitution.

election. As in the case of Virginia, the President ordered a separate vote to be taken upon the disfranchising and disqualifying clauses of the constitution which prohibited any person from voting or holding office who had given any aid or comfort to persons in rebellion.

The result of the vote on the constitution was the same as in Virginia.

The restoration of

Mississippi to her

Federal relations.

The constitution was ratified without these clauses; and on the 23d of February, 1870, the bill for the restoration of Mississippi and the admission of the Senators and Representatives from the "State" to Congress, on the same conditions as those exacted of Virginia, became law.

The Act of April 10th, 1869, also invested the President with the power of ordering the submission of the constitution framed and adopted by the convention at Austin, Texas, in June of 1868, to the voters for ratification. By virtue of this authority, the President ordered a vote to be taken upon this instrument on the 30th day of November, 1869. This proposed constitution did not contain any such disfranchising and disqualifying clauses as those which rendered the Virginia and Mississippi instruments obnoxious to the intelligence of these

Ratification of the

Texas Constitution.

Restoration of

Texas to her

Federal relations.

communities, and the vote was, therefore, ordered to be taken upon the entire constitution at once. The result was ratification; and on the 30th of March, 1870, the Congressional measure for the complete restoration of Texas to her proper federal relations, upon the same fundamental conditions as those required of Virginia and Mississippi, became law.

Thus while the new President did not, as his predecessor had done, dispute the power of Congress to direct and control the reconstruction of the disrupted Southern communities as "States" of the Union, he appealed to Congress for the authority to relieve some of them still suffering under military rule from the hard alternative of negro domination, and when Congress gave him the power requested, he used it for the amelioration of the situation. This was true statesmanship. If President Johnson had done this instead of insisting upon his constitutional power to reconstruct, independently of Congress, these communities, and repeating continually his unsound, though specious, arguments in support of his view, it is quite possible that he might have maintained his influence, in some degree at least, with the Republican majority, and at the same time, and in consequence thereof, might have accomplished something in the interest of a true conservatism in Reconstruction. This is not, however, certain. Johnson had none of Grant's vast popularity with the people of the North whereby to overawe Congress, and there is no doubt, deny it as we may to conscious reflection, that down below consciousness there was a sort of distrust of a Southern Union man on the part of a large portion of the people of the North. Mr. Johnson had to suffer under the influence of this feeling, like all others of his class, and whenever he suggested any moderate course in the treatment of former rebels, he fell under the suspicion of masking sympathy with their sentiments under a pretence of Unionism. He was, thus, rather an object of Congressional distrust from the first, and could probably never have done so much as Grant succeeded in doing for conservatism in Virginia and Mississippi, even though he had recognized the power of Congress in the work of reconstruction, and had preferred respectful requests, instead of asserting presidential prerogatives.

Likewise the new President found, as soon as he began the work of administration, that the Tenure-of-Office Act was an unendurable

Grant and the

Tenure-of-Office Act.

hindrance to the efficient discharge of his duties. None of Mr. Johnson's Secretaries, it is true, gave him any trouble by attempting to hold on to office for the one month allowed them after the expiration of Mr. Johnson's term. The men nominated by President Grant for his Cabinet of chiefs and advisers were immediately confirmed, and, with one exception, inducted into office. These men were E. B. Washburne, of Illinois, as Secretary of State; A. T. Stewart, of New York, as Secretary of the Treasury; A. E. Borie, of Pennsylvania, as Secretary of the Navy; J. D. Cox, of Ohio, as Secretary of the Interior; E. R. Hoar, of Massachusetts, as Attorney-General; and J. A. J. Creswell, of Maryland, as Postmaster-General. No immediate nomination was made for the Secretaryship of War, and General Schofield remained for a few days at the head of the Department. The President soon found that Mr. Stewart, being a large importer of foreign goods, was disqualified by statute from holding the office of Secretary of the Treasury. He first suggested to the Senate the removal of the disability by a joint resolution of Congress, and, on objection being made to the introduction of a bill repealing the disqualifying statute, he withdrew the suggestion. Mr. Stewart then relieved the situation by sending in his declination, and the President nominated Mr. G. S. Boutwell of Massachusetts for the office, which nomination was immediately confirmed, and Mr. Boutwell took immediate charge of the Department. Mr. Washburne, the Secretary of State, resigned the office within a few days, and Mr. Hamilton Fish, of New York, was nominated and appointed to succeed him. General Schofield next resigned the War Office, and was succeeded by General John A. Rawlins of Illinois. Finally, Mr. Borie resigned in June the Secretaryship of the Navy, and was succeeded by Mr. G. M. Robeson of New Jersey. The Senate put nothing in the way of these changes. But President Grant made up his mind in a very few days after his inauguration not to have his hands tied in regard to any of the officers for whose acts he was responsible. He gave the Republican leaders in Congress to understand that he would allow the existing incumbents of the offices to remain in office, unless they should commit some such offence as would call for their suspension, so long as the Tenure-of-Office Act should remain on the statute book. The Republicans were hungry for a new distribution of the spoils. They called it a righteous desire for the "cleaning of the Augean stables." Whatever it was, they were thrown into a great state of trepidation by this covert threat of the President not to clear the way for their friends.

On the 9th day of March, less than a week after the accession of the new President to power, a bill was introduced into the House of

Congress and the

Tenure-of-Office Act

after Grant's accession

to the presidency.

Representatives providing for the immediate repeal of the Tenure-of-Office Act, and was passed, immediately and without debate, by a vote of 138 to 16. These 16 were naturally Republicans. The Democrats voted for the repeal on principle. When the bill reached the Senate it was sent to the Judiciary Committee. This Committee quickly reported to the Senate a substitute for the bill of the House. This substitute provided that the Tenure-of-Office Act should be suspended from operation until the next session of Congress. No more shameless piece of partisanship was ever advanced on the floor of the Senate than this. It simply meant, suspend the Act when the Republicans wanted to get the offices, and keep it in force when they might be in danger of being put out. The Senate itself could not be brought to vote this proposition of its Judiciary Committee. It was withdrawn by the committee, and Mr. Trumbull proposed to supersede the existing law with a measure which would allow the President to suspend from office without assigning any cause for the same to the Senate, or even reporting the suspension to the Senate, and to nominate to the Senate a person to fill the vacancy, and in case of rejection by the Senate to nominate another person; and only when the session of the Senate should come to a close without a ratification should the suspended officer be restored.

It was pretty clear that the President would not find any trouble with such a measure as this, but it seemed to the House that the Senate was trying to cling to a certain control over the Executive, and the House refused concurrence in the bill. The matter was finally referred to a

The modification of the

Tenure-of-Office Act.

conference committee, and this committee speedily matured and reported a measure, which allowed the President, during a recess of the Senate, to suspend any civil officer appointed by and with the consent of the Senate, except judges of the United States courts, until the end of the next session of the Senate, and to designate some other person to discharge the duties of the vacant office in the meantime, and made it the duty of the President simply to nominate to the Senate, within thirty days from the beginning of its next session, some one to succeed to the office permanently, and in case the Senate should refuse to ratify the nomination, to nominate another person. Both Houses accepted the recommendation of the Committee and the bill agreed upon by its members became law April 5, 1869.

The President's

dissatisfaction

with the measure.

Still the President was not satisfied with it. He thought that any control whatever of the Senate over dismissal from office was not warranted by the Constitution, and he regarded the attempt of the Senate to cling to any shadow of such a power as a personal affront to himself.

In his first annual Message, that of December 6th, 1869, he earnestly recommended the total repeal of the Tenure-of-Office Acts, and declared them both unconstitutional, and inconsistent with "a faithful and efficient administration of the Government." His recommendation was probably an effective warning to Congress against any attempt to hamper him by claiming any power under them to control his dismissals and suspensions, but they still remained on the statute book for nearly two decades longer. The glaring inconsistency of a bare and bald repeal of the Acts was too great even for the partisan Congress. It was willing to make them practically null and void, but it wanted a shadow with which to cover its nakedness. At any rate, the position taken by President Grant toward them was a complete vindication of President Johnson's views concerning them, and, in no small degree, of his deeds also.

At the date of this Message all of the Southern communities had completed the acts required by Congress for their restoration as "States" of the Union, but the result of the elections held in Mississippi were not known in Washington. The President simply expressed the hope that the constitutions submitted in these communities to the voters would be ratified, and "thus close the work of Reconstruction." As we have seen, the elections resulted as the President hoped, and these communities were restored, on the basis of the "State" constitutions adopted, to their proper federal relations.

The case of Georgia still remained, however, unsettled, and the President suggested that Congress should enact a law authorizing the

The facts in the

Georgia case.

Governor of Georgia, Mr. Bullock, "to convene the members originally elected to the legislature, requiring each member to take the oath prescribed by the Reconstruction Acts, and none to be admitted who were ineligible under the third clause of the Fourteenth Amendment." The situation was briefly as follows: The Senators and Representatives from Georgia had been refused admission to seats in Congress at the first session of the Forty-first Congress which convened the 4th of March, 1869, because the legislature of Georgia had expelled the colored men elected to that body as ineligible, and had rejected the proposed Fifteenth Amendment to the Constitution of the United States. It is true that the Senators from Georgia had been elected by the legislature before the colored members were expelled, and that the Representatives had been admitted to seats in the House during the last session of the Fortieth Congress, and that the ostensible reason for not admitting the members to the lower House of the Forty-first Congress was that they had not been elected to the Forty-first Congress. However, Georgia had no representation in either House of Congress at the date of President Grant's first annual Message in December of 1869. Her "State" government seems, therefore, to have been considered by Congress as being still only provisional, despite the fact that by the Act of June 25th, 1868, she had been declared entitled to admission to representation in Congress upon conditions which she had subsequently fulfilled.

A bill had been introduced into Congress soon after the opening of the session beginning March 4th, 1869, dealing with the subject. It was claimed in the preamble of this bill that the Georgia legislature had not purged itself of disloyal members as required by the Fourteenth Amendment to the Constitution of the United States, that it had violated the constitution of Georgia and the Constitution of the United States and the fundamental principles of the Reconstruction Acts by expelling the negro members for ineligibility, and that the civil authorities in the "State" could not, or did not, protect the loyal citizens in the enjoyment of their rights and liberties or even in their persons. The bill proposed to meet these difficulties by providing that the Governor of Georgia should reconvene the originally elected members of the legislature, reseat the expelled negro members, and expel such members as could not swear that they were not disqualified by the Fourteenth Amendment to the Constitution of the United States. It may be remarked here in passing that the Fourteenth Amendment does not disqualify anybody, in express language, from being a member of a "State" legislature. It disqualifies all persons who have engaged in rebellion after having taken an oath, as a member of Congress or of a "State" legislature, or as a United States or a "State" officer, to support the Constitution of the United States, from holding a seat in Congress or from being an officer of the United States or of a "State," but not from holding a seat in a "State" legislature. The word officer in the public jurisprudence of this country does not include membership in a legislative body. But to return to the bill. It provided finally for making United States troops in Georgia subject to the Governor's call for assistance. This bill was so seriously opposed by the Democrats and the conservative Republicans that it did not pass, and during this session Congress did nothing further for the restoration of Georgia.

On the other hand, the conservatives in Georgia undertook to do something for themselves. They got up a test case in the Supreme Court

The case of

White and

Clements.

of the "State" to determine the rights of negroes to hold office. The case was that of White and Clements, and the office involved was a county court clerkship. Of course the decision was not binding upon the legislative houses in judging of the eligibility of their members, but it was thought that it would have an influence upon their views. The court decided that under the new constitution of Georgia and the code of Georgia negroes could hold office, since the constitution of 1868 declared that all persons born or naturalized in the United States and residents in Georgia were citizens of Georgia, and the code declared that among the rights of citizens was the right to hold office. Of course the legislature could abolish or amend the code. After the rendering of this decision the conservative members of the legislature requested the Governor, Mr. Bullock, who was a radical Republican, and a New Yorker by birth, to reconvene the legislature for the purpose of reseating the expelled negro members. The Governor refused, apparently not desiring to anticipate the action of Congress in the case. The attempt of the conservatives to help themselves thus came to naught, and the unhappy community drifted on toward anarchy and violence, according to the report now made by General Terry to the President, who declared it to be his opinion that the United States Government must intervene anew in order to preserve it against that fate.

It was then with a good deal of irritation that Congress came to consider the subject of Reconstruction in Georgia again in the session

New conditions

imposed on Georgia.

of 1869-70, and the determination soon became manifest to impose additional and harder conditions upon this community than upon the others. Moreover, as matters appeared at that juncture, the ratification of the Fifteenth Amendment by the legislature of Georgia would be necessary to make out the required three-fourths majority. It was in this temper, and under the pressure of this supposed necessity, that Congress, acting promptly upon the general suggestion in the President's Message, passed a bill which provided that the Governor of Georgia should forthwith summon the persons declared by the proclamation of General Meade, of the date of June 25th, 1868, to be members-elect of the legislature, to assemble at Atlanta; that every such person should take an oath or affirmation that he had never, after having been a member of Congress or of a "State" legislature, or an officer of the United States or of a "State" "engaged in insurrection or rebellion against the United States, or given any aid or comfort to its enemies, or rendered, except in consequence of direct physical compulsion, any support or aid to any insurrection, or rebellion against the United States, or held any office under, or given any support to, any government of any kind acting in hostility to the United States, or levying war against the United States," or should make oath or affirmation that, if he had so acted, he had been relieved by Congress from any disability attaching to such act in the manner provided in the Fourteenth Amendment to the Constitution; that in case any person claiming to be a member of the legislature should fail to make such an oath or affirmation he should be excluded from a seat in the body; that no member-elect should be excluded on account of race, color or previous condition of servitude; that, on application of the Governor, the President should employ the military power of the United States to enforce the provisions of the Act; and that the legislature of Georgia should ratify the proposed Fifteenth Amendment to the Constitution of the United States before Senators and Representatives from Georgia should be admitted to seats in Congress. This bill was approved by the President on the 22d of December, 1869.

So great was the opposition to Reconstruction, under these hard conditions, on the part of the white people in Georgia, that the

Resumption of military

government in Georgia.

Governor was obliged to call for the military of the United States to aid him, and finally to step aside for General Terry, who by an order from the President, dated January 4th, 1870, was authorized to resume the powers in Georgia of the commander of a military district, as provided under the Reconstruction Act of March 2d, 1867. The General found a number of members in the legislature recognized by General Meade's proclamation who could not take either of the oaths or affirmations prescribed. These he caused to be removed from their seats in very arbitrary ways. This procedure put the Republicans in the legislature in majority, and they filled these vacancies by admitting persons who had received the next highest number of votes to those cast for the expelled members in the election, and who could take one or the other of the oaths or affirmations prescribed in the Act of the 22d of December, 1869.

The legislature as thus reconstructed was approved by the military authorities, and it now proceeded to fulfil the final condition

Ratification of the

Fifteenth Amendment by

the Georgia legislature.

required of Georgia, viz., the ratification of the proposed Fifteenth Amendment to the Constitution of the United States. It also ratified the Fourteenth Amendment. This was, from a legal point of view, entirely superfluous, since the Fourteenth Amendment was, at the moment, already a part of the Constitution, as much so as any other Article, and in resuming the status of a "State" in the Union, Georgia was, of course, subject to all parts of the Constitution alike. The legislature might, with equal reason, have ratified specially any other part of the Constitution. The idea seems to have been to correct any possible defects in the ratification of this amendment which the Georgia legislature had voted on July 21st, 1868.

This purified legislature now elected United States Senators, both of them Republicans, of course. All these things were done in the latter

Further delay in

the admission of

representatives

from Georgia.

part of January and the early part of February of 1870, and as the Congress was in session, there was reason to expect that Georgia would be, at once, fully restored as a "State" of the Union. A bill was reported in the House of Representatives on the 25th of February from the Committee on Reconstruction for this purpose. It was nearly identical in its provisions and language with the Virginia and Mississippi bills, but it dragged along through nearly five months of debate and partisan wrangling before it became law. The reason of this delay was that, on March 4th, General Butler proposed an amendment to the bill which provided: "That the power granted by the constitution of Georgia to the general assembly to change the time of holding elections, and prescribe the day of meeting of the general assembly, shall not be so exercised as to postpone the election of the next general assembly beyond the Tuesday after the first Monday in November in the year 1872, nor shall such power ever be by any future legislature so exercised as to extend the term of any office beyond the regular period named in said constitution; and the said general assembly shall by joint resolution consent to this condition before this Act shall take effect."

This language was at once taken to mean that Congress would undertake to empower the legislature of Georgia to extend the terms of the members of the Georgia legislature and of the Governor, elected in April of 1868, by two years, on the ground that the "State" government of Georgia was still provisional, and would so remain until the passage of this Act, and that these terms would, therefore, not really begin until the passage of this Act. The conservative Republicans as well as the Democrats repudiated this interpretation of the powers of Congress to extend, or to authorize the "State" legislature to extend, the terms of the members of the legislature and of "State" officers as an unprecedented usurpation. Some of them repudiated the idea that there could be a provisional "State" government, and declared that any further legislation in regard to the reconstruction of Georgia was unnecessary, since the Act of June 25th, 1868, had restored Georgia to her position as a "State" of the Union, along with North Carolina, South Carolina, Louisiana, Alabama, and Florida, upon certain conditions, all of which Georgia had fulfilled, just as the others had done, and since all the others had been admitted to the enjoyment of all of their rights and privileges as "States" of the Union without any further legislation than the Act of June 25th, 1868.

There is no doubt that the Butler amendment meant, and was intended by its author to mean, just what was charged by the conservatives. General Butler at last acknowledged and avowed it, and attempted to justify it. But he was unable to rally a majority to sustain it, and he withdrew it in the face of an amendment offered by Mr. Bingham on the 7th, which provided that nothing contained in the bill should be construed either to vacate any of the "State" offices in Georgia, or to extend the terms of the present holders of them beyond the time provided in the "State" constitution, or deprive the people of Georgia of the right under their "State" constitution of electing members of their legislature in the year 1870.

This amendment was passed on the 8th of March, and the bill as thus amended was passed by the House of Representatives, and sent to the Senate on the same day. It was immediately referred to the Judiciary Committee of that body and on the next day, the 9th, it was reported back to the Senate by this committee, without amendment. The Senate now considered it in committee of the whole from this time to April 19th, and when it was reported to the Senate it had been changed to a bill which declared the existing government of Georgia to be provisional and subject to the provisions of the Reconstruction Acts of 1867; ordered an election in Georgia on the 15th day of November, 1870, for members of the "State" legislature as provided for in the "State" constitution of 1868; ordered the assembly of this legislature on the 13th of December, 1870, and its organization preparatory to the admission of the "State" to representation in Congress; declared that the powers and functions of the members of the existing legislature should cease on the 13th day of December, 1870; and made it the duty of the

President of the United States, in case of domestic violence in any municipality in the "State," reported to him by the legislature or Governor of the State, to suppress by military power such domestic violence, and "to exercise all such powers and inflict such punishments as may by the laws, or the rules and articles of war be exercised or inflicted in case of insurrection or invasion." The Senate concurred in the recommendations of the committee of the whole, and added a provision repealing that part of the Act of March 2d, 1867, which prohibited the organizing of any militia force in Georgia.

In this form and with this content the bill was returned to the House. Here it was again debated, off and on, until June 24th, when it was

The final restoration

of Georgia to her

Federal relations.

finally agreed upon with the following contents: "That the State of Georgia having complied with the Reconstruction Acts, and the Fourteenth and Fifteenth Articles of Amendment to the Constitution of the United States having been ratified in good faith by a legal legislature of said State, it is hereby declared that the State of Georgia is entitled to representation in the Congress of the United States. But nothing in this act contained shall be construed to deprive the people of Georgia of the right to an election for members of the general assembly of said State, as provided for in the constitution thereof," and "That so much of the Act of March 2d, 1867, as prohibits the organization, arming, or calling into service of the militia forces in the States of Georgia, Mississippi, Texas and Virginia be, and the same is, hereby repealed."

The Senate disagreed to the bill in this form and with these contents, and asked for a conference committee. The House agreed and appointed members. The conference committee agreed upon the bill as

perfected by the House with the addition to the second section of these words: "And nothing in this or any other Act of Congress shall be construed to affect the term to which any officer has been appointed or any member of the general assembly elected, as prescribed by the constitution of the State of Georgia." Both the Senate and the House accepted and concurred in the recommendations of the committee, and the bill, as thus perfected, became law on the 15th day of July, 1870. This bill terminated the era of Reconstruction legislation by Congress, and at the next session of Congress, the session of 1870-71, the Senators and Representatives from Georgia were admitted to their seats, the Senate admitting those chosen to that body in July of 1868, Messrs. Hill and Miller. The attempt of Governor Bullock to prolong the terms of the members of the legislature and of the officers of the "State" government was decidedly disapproved of by President Grant's Administration, and an election was held for members and county officers and for Representatives in Congress in December of 1870. The white residents of the "State" stood well together, and carried the election by a large majority against the Republicans. So soon as the result was known Governor Bullock, whose term had still two more years to run, abandoned his office and left the "State," and Georgia was thus early rescued from negro domination, or rather "carpet-bag" domination through negro suffrage. Her harder experiences during the years from 1868 to 1870 had worked out to her advantage, in that it brought the respectable and capable portion of her white citizens together earlier than was the case in the other reconstructed Commonwealths similarly situated.