If nothing were necessary but to restore the machinery of

government in the states lately in rebellion in point of form,

the movements made to that end by the people of the South might

be considered satisfactory. But if it is required that the

Southern people should also accommodate themselves to the

result of the war in point of spirit, those movements fall far

short of what must be insisted upon....

The emancipation of the slaves is submitted to only in so far

as chattel slavery in the old form could not be kept up. But

although the freedman is no longer considered the property of

the individual master, he is considered the slave of society,

and all independent state legislation will share the tendency

to make him such. The ordinances abolishing slavery, passed by

the conventions under pressure of circumstances, will not be

looked upon as barring the establishment of a new form of

servitude.

Practical attempts on the part of the Southern people to

deprive the negro of his rights as a freeman may result in

bloody collisions, and will certainly plunge Southern society

into restless fluctuations and anarchical confusion. Such evils

can be prevented only by continuing the control of the National

Government in the states lately in rebellion until free labor

is fully developed and firmly established, and the advantages

and blessings of the new order of things have disclosed

themselves. This desirable result will be hastened by a firm

declaration, on the part of the Government, that national

control in the South will not cease until such results are

secured....

The solution of the problem would be very much facilitated by

enabling all the loyal and free-labor elements in the South to

exercise a healthy influence upon legislation. It will hardly

be possible to secure the freedman against oppressive class

legislation and private persecution, unless he be endowed with

a certain measure of political power.

It is fitting to notice here a letter written by Hon. J. L. M. Curry, of

Alabama, to Senator Doolittle and read by him in the Senate on April 6,

1866.

I was [said Mr. Curry] a secessionist, for a while a member of

the Confederate Congress, and afterward in the army, on the

staff of generals, or in command of a regiment. It would be

merest affectation to pretend that I was not somewhat prominent

as a secessionist.... Having laid the predicate for my

competency, I desire to aver, as a gentleman, and a Christian,

I hope, that with large personal intercourse with the people

and those who are suspected of rebel intentions, I never heard

(of course, since the surrender) of any conspiracy or movement

or society or purpose, secret or public, present or

prospective, to overthrow the United States Government, to

resist its authority, to _reenslave the negroes_, or in any

manner to disturb the relations that now exist between the

Southern States as constituent elements of the Federal

Government and that Government, until I read of such intentions

recently in Northern newspapers. With perfect certainty as to

the truth of my affirmation, I can state that there is not a

sane or sober man in Alabama who believes or expects that

African slavery will be reestablished. As unalterable facts,

the people accept the abolition of slavery, the extinction of

the right of secession, and the supremacy of the Federal

Government. It is as idle, a thousand times more so, to speak

of another contemplated resistance to Federal authority as to

anticipate the overthrow of the British Government by the

Fenians.[83]

Mr. Curry's words were true, but at the time when they were written the

weight of testimony available at Washington and in the North generally

was of a contrary sort, and Mr. Curry counted for no more at the

national capital than any other disarmed secessionist. At a later period

he became known to the North as one of the great benefactors of his time

and country, especially noted for his labors in educating and upbuilding

both races in the Southern States.[84]

FOOTNOTES:

[79] "For a man who had 'come from the people,' as he was fond of

saying, and whose heart was always with the poor and distressed, Andrew

Johnson was one of the neatest men in his dress and person I have ever

known. During his three years in Nashville, in particular, he dressed in

black broadcloth frock-coat and waistcoat and black doeskin trousers,

and wore a silk hat. This had been his attire for thirty years, and for

most of that time, whether as governor of Tennessee, member of Congress,

or United States Senator, he had made all of his own clothes." (Benjamin

C. Truman, Secretary to Andrew Johnson, in _Century Magazine_, January,

1913.)

[80] _Cong. Globe_, 1865-66, I, 42, 43.

[81] Vol. III, p. 202.

[82] "It gives me some satisfaction now to say that none of those

statements of fact have ever been effectually controverted. I cannot

speak with the same assurance of my conclusions and recommendations, for

they were matters not of knowledge but of judgment. And we stood at that

time face to face with a situation bristling with problems so

complicated and puzzling that every proposed solution based upon

assumptions ever so just, and supported by reasoning apparently ever so

logical, was liable to turn out in practice apparently more mischievous

than any other. In a great measure this has actually come to pass.... I

am far from saying that somebody else might not have performed the task

much better than I did. But I do think that this report is the best

paper I have ever written on a public matter. The weakest part of it is

that referring to negro suffrage--not as if the argument, as far as it

goes, were wrong, but as it leaves out of consideration several aspects

of the matter, the great importance of which has since become apparent."

(_Reminiscences_, III, 204, 209.)

[83] _Cong. Globe_, 1865-66, p. 1808.

[84] See _Biography of J. L. M. Curry_, by Alderman and Gordon, New

York, 1911.

CHAPTER XVII

THE FREEDMEN'S BUREAU AND CIVIL RIGHTS BILLS

On January 5, 1866, Trumbull introduced two measures which engrossed

public attention during the next three months and enlarged the parting

of the ways between Congress and the President. These were the

Freedmen's Bureau Bill and the Civil Rights Bill. The former was a

measure to continue in force and amend an act of Congress already in

operation, but which would expire by limitation one year after the end

of the war, and which had been passed to provide for needy and homeless

whites, as well as blacks. It embraced also the temporary disposition of

abandoned lands. Under its operation General Sherman had assigned some

thousands of acres of abandoned land to freedmen for the purpose of

giving them employment and enabling them to earn their own living, and

they were in actual possession. Of course, the title to such lands would

revert to the former owners, whenever military rule should come to an

end. The Freedmen's Bureau Bill provided that in places where the

ordinary course of judicial proceedings had been interrupted by the

rebellion, and where any of the civil rights enjoyed by white persons

were denied to other persons by reason of race, color, or previous

condition of servitude, the latter should be under military protection

and jurisdiction, which should be exercised by the Commissioner of the

Freedmen's Bureau under orders of the President of the United States,

and that any person, who, under color of any state or local law or

custom, should infringe such rights, should be punished by fine or

imprisonment or both. The courts authorized to hear and decide such

cases were to consist of the officers and agents of the Bureau, without

jury trial and without appeal; but this jurisdiction should not exist in

any state after it should have been restored to its constitutional

relations to the Union.

The last-mentioned feature of the bill brought up the question whether

Congress had power under the Constitution in time of peace to pass laws

for the ordinary administration of justice in the states. Senator

Hendricks, of Indiana, had doubts on that point. In a debate on the 19th

of January, 1866, he said:

My judgment is that under the second section of the

[thirteenth] constitutional amendment we may pass such a law as

will secure the freedom declared in the first section, but that

we cannot go beyond that limitation.[85]

To this Trumbull replied:

If the construction put by the Senator from Indiana upon the

amendment be the true one, and we have merely taken from the

master the power to control the slave and left him at the mercy

of the state to be deprived of his civil rights, the trumpet of

freedom that we have been blowing throughout the land has given

an uncertain sound, and the promised freedom is a delusion.

Such was not the intention of Congress, which proposed the

Constitutional amendment itself. With the destruction of

slavery necessarily follows the destruction of the incidents of

slavery. When slavery was abolished slave codes in its support

were abolished also.

Those laws that prevented the colored man going from home, that

did not allow him to buy or to sell, or to make contracts; that

did not allow him to own property; that did not allow him to

enforce rights; that did not allow him to be educated, were all

badges of servitude made in the interest of slavery and as a

part of slavery. They never would have been thought of or

enacted anywhere but for slavery, and when slavery falls they

fall also. The policy of the States where slavery has existed

has been to legislate in its interest; and out of deference to

slavery, which was tolerated by the Constitution of the United

States, even some of the non-slaveholding states passed laws

abridging the rights of the colored man which were restraints

upon liberty. When slavery goes, all this system of

legislation, devised in the interest of slavery and for the

purpose of degrading the colored race, of keeping the negro in

ignorance, of blotting out from his very soul the light of

reason, if that were possible, that he might not think, but

know only, like the ox, to labor, goes with it.

Now, when slavery no longer exists, the policy of the

Government is to legislate in the interest of freedom. Now, our

laws are to be enacted with a view to educate, improve,

enlighten, and Christianize the negro; to make him an

independent man; to teach him to think and to reason; to

improve that principle which the Great Author of all has

implanted in every human breast, which is susceptible of the

highest cultivation, and destined to go on enlarging and

expanding through the endless ages of eternity.

* * * * *

If in order to prevent slavery Congress deem it necessary to

declare null and void all laws which will not permit the

colored man to contract, which will not permit him to testify,

which will not permit him to buy and sell, and to go where he

pleases, it has the power to do so, and not only the power, but

it becomes its duty to do so. That is what is provided to be

done by this bill. Its provisions are temporary; but there is

another bill on your table, somewhat akin to this, which is

intended to be permanent, to extend to all parts of the

country, and to protect persons of all races in equal civil

rights.

* * * * *

I hope that the people of the rebellious states themselves will

conform to the existing condition of things. I do not expect

them to change all their opinions and prejudices. I do not

expect them to rejoice that they have been discomfited. But

they acknowledge that the war is over; they agree that they can

no longer contend in arms against the Government; they say they

are willing to submit to its authority; they say in their state

conventions that slavery shall no more exist among them. With

the abolition of slavery should go all the badges of servitude

which have been enacted for its maintenance and support. Let

them all be abolished. Let the people of the rebellious states

now be as zealous and as active in the passage of laws and the

inauguration of measures to elevate, develop, and improve the

negro, as they have hitherto been to enslave and degrade him.

Let them do justice and deal fairly with loyal Union men in

their midst, and henceforth be themselves loyal, and this

Congress will not have adjourned till the states whose

inhabitants have been engaged in the rebellion will be restored

to their former position in the Union, and we shall all be

moving on in harmony together.[86]

In short, Trumbull held that it was for Congress to decide what rights

might be established and enforced by federal law, in addition to that of

emancipation. That this was to be a troublesome question was shown a

little later by a colloquy between Trumbull and Henderson. The latter

was of the opinion that the only sure way to protect the freedmen was to

give them the right to vote. Trumbull thought that, for the present

purpose of providing them with food, clothing, and shelter, Dr.

Townsend's Sarsaparilla or any other patent medicine, would be as

effectual as the right of suffrage.[87] Sumner, a little later, thought

that the right to serve on juries and to hold office was among the

essential securities of freedom, and Thaddeus Stevens thought that

land-ownership also was necessary. What could be done under the second

clause of the Thirteenth Amendment was the question, either expressed or

implied, underlying the whole controversy on Reconstruction during the

next ten years.

It was commonly believed that the President would approve the Freedmen's

Bureau Bill; hence, when a veto message came, on the 19th of February,

it was received with consternation by the Republicans in Congress. He

held that the bill was both unconstitutional and inexpedient. It had

been passed in the Senate by yeas 37, nays 10, every Republican voting

for it and every Democrat against it. There were three absentees when

the vote was taken: Cowan and Willey, Republicans, and Nesmith,

Democrat. There was ample margin here for passing the bill over the

veto, if the Republicans could hold together, but when the second vote

was taken, February 20, the yeas were 30, and the nays 18, not two

thirds. So the bill failed. Eight Republicans, Cowan, Dixon, Doolittle,

Morgan, Norton, Stewart, Van Winkle, and Willey, had sided with the

President. There were two absentees: Foot (Rep.), of Vermont, and Wright

(Dem.), of New Jersey, both sick.

The question of negro suffrage had not yet become acute in public

discussions. The state of public opinion in the North was fairly set

forth by Dr. C. H. Ray in a private letter to Trumbull dated Chicago,

February 7, thus:

If he [Johnson] will agree to your bill giving the freedmen the

civil rights that the whites enjoy, and if he halts at that,

and war is made on him because he will not go to the extent of

negro suffrage, he will beat all who assail him. The party may

be split, the Government may go out of Republican hands; but

Andy Johnson will be cock-of-the-walk. The people, so far as I

understand, are of the opinion that the war for the Union is

over.... And as for the negro, they think that when he has the

rights which your bill will give him, he must be contented to

look upon the elective franchise as a something to be earned by

giving evidence of his fitness therefor.

The excitement caused by the veto of the Freedmen's Bureau Bill was

still further intensified by a struggle on a side issue, in which

Trumbull took the leading part, and which involved the seat of the

Democratic Senator Stockton, of New Jersey. He had been chosen by the

Legislature of his state in joint meeting on March 15, 1865. The

Democrats had a majority of five in the legislature, but had been

unable, at first, to agree upon a candidate. Accordingly, the joint

meeting, by a vote of 41 to 40, adopted a rule that any person receiving

a plurality of the votes cast for Senator should be declared elected. In

pursuance of this rule, a vote was taken by roll-call and John P.

Stockton received 40 votes, John C. Ten Eyck received 37 votes, and

there were 4 scattering, the total number being 81. Stockton was

accordingly declared elected without objection, and the joint meeting

adjourned _sine die_.

When Congress assembled in December, Stockton's certificate of election,

in due form, was presented and he was sworn in. A protest, however, had

been signed by all the Republican members of the New Jersey legislature

and this was presented by Senator Cowan by request. It affirmed that

Stockton had not received the votes of a majority of the members, as

required by a law of the state. The protest and credentials were

referred to the Committee on the Judiciary, which consisted of five

Republicans (Trumbull, Harris, Clark, Poland, and Stewart) and one

Democrat (Hendricks).

Trumbull, in behalf of the committee, reported that Stockton was duly

elected and entitled to the seat. All the members concurred except

Clark, of New Hampshire. Regarding the law of the state, which required

a majority to elect, the report said that the state constitution

denominated and recognized the two houses, either in joint session, or

separately, as "The Legislature"; that the legislature, in either

capacity, had the right to make its own rules; and that since a majority

had voted for the plurality rule the subsequent action taken in

pursuance of it was the act of the majority. There was room for an

honest difference of opinion, since the enactment of a law required

action by the two houses separately and a submission of the same to the

governor. On this point, however, Trumbull quoted from "Story on the

Constitution" to the effect that, since the governor had nothing to do

with the choice of Senators, he was eliminated from consideration in any

and all steps leading thereto.

It happened at this time that one Republican Senator, Foot, of Vermont,

and one Democrat, Wright, of New Jersey, were absent by reason of

serious illness. Wright had gone to his home in Newark for treatment,

but, before going, had paired with Morrill, of Maine, on the question of

his colleague's contested election. When the debate was drawing to a

close, severe pressure was put upon Morrill by his radical friends in

the Senate to declare his pair off, and to vote against Stockton. When

the vote was taken, on concurring in the report of the Judiciary

Committee, the yeas were 21 and the nays 20. Stockton himself had not

voted. Twelve of the affirmative votes were Republicans. Before the

result was announced, Senator Morrill, who had withheld his vote, asked

the Secretary to call his name, and then voted in the negative, making a

tie. Then Senator Stockton said that Morrill had been paired with his

colleague on this question, and that Wright had told him before he went

away that he would not go home at all without first obtaining a pair on

this question. Under such circumstances he (Stockton) felt at liberty to

vote in his own behalf. So he directed the Secretary to call his name

and he voted in the affirmative. Morrill admitted that the pair had been

made, but said that when it was made he had not contemplated that it

would run so long (seven weeks), and that he therefore felt at liberty

to vote. He added, with apparent satisfaction, that his vote did not

change the result. This was true, but Stockton's vote did change it to

his own disadvantage.

The result was announced; yeas 22, nays 21. If Stockton had not voted,

the result would have been a tie, and he would have held his seat. His

opponents had exhausted their resources and there was no parliamentary

way of trying the case over again. By casting a vote in his own case he

gave them a weapon with which to renew the fight.

When the Senate reassembled, Sumner moved that the journal be corrected

by striking out Stockton's name from the vote last taken, on the ground

that he had no right to vote in his own case. The subject was thus

brought up again, and the result was a reconsideration of the vote of

the previous day. Trumbull concurred in the view that the question

before the Senate was judicial in its nature and that, therefore,

Stockton could not vote when his own seat was in question.

On the last day of the debate a telegram was received from Senator

Wright requesting a postponement of the vote till the following day,

saying that he would then be in his seat or would not ask further delay.

His request was supported by Reverdy Johnson in a pathetic appeal to the

fraternal feeling and gentlemanly instincts of Senators; but Clark, who

led the opposition, objected strenuously to any postponement, although

two postponements had been previously granted on account of his own

illness.

On the motion to postpone till the following day the vote was, yeas 21,

nays 22. Senator Dixon, a Republican supporter of Stockton, had fallen

sick and was absent. Senator Stewart, another Republican supporter, was

absent when the vote was taken, although he had been in the Senate

Chamber earlier in the day; he had dodged. All the members of the

Judiciary Committee, who had signed the original report in favor of

Stockton, voted for him to the last, except Stewart. If he and Dixon had

been present, the final vote would have been postponed, and in all

probability Stockton would have retained his seat, although Morgan, of

New York, who had voted for postponement, changed on the very last vote,

which was against Stockton, 20 to 23.

An impartial reader of the whole debate, in the calm atmosphere of the

present day, will be apt to conclude that partisan zeal rather than

judicial fairness was the deciding factor in Stockton's case, and that

the heat developed in the contest was due to a desire on the part of the

majority to gain a two-thirds vote in order to overcome the President's

vetoes.

* * * * *

Consideration of the Civil Rights Bill began on the 29th of January, on

an amendment proposed by Trumbull which provided that all persons of

African descent born in the United States should be citizens thereof,

and there should be no discrimination in civil rights or immunities

among the inhabitants of any state or territory on account of race,

color, or previous condition of slavery. The question was not merely

whether this provision was just, but whether Congress had power under

the Constitution to pass laws for the ordinary administration of justice

in the states. On this point Trumbull said:

Under the constitutional amendment which we have now adopted,

and which declares that slavery shall no longer exist, and

which authorizes Congress by appropriate legislation to carry

this provision into effect, I hold that we have a right to pass

any law which, in our judgment, is deemed appropriate, and

which will accomplish the end in view, secure freedom to all

people in the United States. The various state laws to which I

have referred,--and there are many others,--although they do

not make a man an absolute slave, yet deprive him of the rights

of a freeman; and it is perhaps difficult to draw the precise

line, to say where freedom ceases and slavery begins, but a law

that does not allow a colored person to go from one county to

another is certainly a law in derogation of the rights of a

freeman. A law that does not allow a colored person to hold

property, does not allow him to teach, does not allow him to

preach, is certainly a law in violation of the rights of a

freeman, and being so may properly be declared void.

Without going elaborately into this question, as my design was

to state rather than to argue the grounds upon which I place

this bill, I will only add on this branch of the subject that

the clause of the Constitution, under which we are called to

act, in my judgment vests Congress with the discretion of

selecting that "appropriate legislation" which it is believed

will best accomplish the end and prevent slavery.

Then, sir, the only question is, will this bill be effective to

accomplish the object, for the first section will amount to

nothing more than the declaration in the Constitution itself

unless we have the machinery to carry it into effect. A law is

good for nothing without a penalty, without a sanction to it,

and that is to be found in the other sections of the bill. The

second section provides:

"That any person, who under color of any law, statute,

ordinance, regulation, or custom, shall subject or cause to be

subjected any inhabitant of any state or territory to the

deprivation of any right secured or protected by this act, or

to different punishment, pains, or penalties on account of such

person having at any time been held in a condition of slavery

or involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, or by reason

of his color or race, than is prescribed for the punishment of

white persons, shall be deemed guilty of a misdemeanor, and on

conviction shall be punished by fine not exceeding $1000, or

imprisonment not exceeding one year, or both, in the discretion

of the court."

This is the valuable section of the bill so far as protecting

the rights of freedmen is concerned. That they are entitled to

be free we know. Being entitled to be free under the

Constitution, that we have a right to enact such legislation as

will make them free, we believe; and that can only be done by

punishing those who undertake to deny them their freedom. When

it comes to be understood in all parts of the United States

that any person who shall deprive another of any right, or

subject him to any punishment in consequence of his color or

race, will expose himself to fine and imprisonment, I think all

such acts will soon cease.[88]

Senator Saulsbury, of Delaware, contended that the Thirteenth Amendment

of the Constitution had given no power to Congress to confer upon free

negroes rights and privileges which had not been conceded to them by the

states where they resided. He said that in Maryland about one half of

the colored population were free before the Thirteenth Amendment was

adopted, that in Delaware the free negroes largely outnumbered the

slaves, and that in Kentucky the free negroes were a large part of the

population. All that the Thirteenth Amendment did was to put the slave

population on the same footing on which the free negroes already stood.

Congress had no power to legislate on the status of free negroes in the

several states before the Civil War. But the powers of Congress in this

respect had not been enlarged by anything in the Thirteenth Amendment.

That amendment had merely said that the condition of slavery--the

condition in which one man belongs to another, which gives that other a

right to appropriate the profits of his labor to his own use and to

control his person--should no longer exist. Those who voted for the

amendment might have contemplated a larger exercise of power by Congress

than mere emancipation, but they did not avow it on the floor of the

Senate when the measure was pending. He continued:

The honorable Senator from Illinois has avowed that he does not

propose by this bill to confer any political power. I have no

doubt the Senator is perfectly honest in that declaration, and

that he personally does not mean to give any political power,

for instance, the right of voting, not only to the freedmen,

but to the whole race of negroes; but the intention of the

Senator in framing this bill will not govern its construction,

and I have not the least doubt that, should it be enacted and

become a law, it will receive very generally, if not

universally, the construction that it does confer a right of

voting in the states; and why do I say so? Says the Senator,

"It confers no political power; I do not mean that." The

question is not what the Senator means, but what is the

legitimate meaning and import of the terms employed in the

bill. Its words are, "That there shall be no discrimination in

civil rights or immunities." What are civil rights? What are

the rights which you, I, or any citizen of this country enjoy?

What is the basis, the foundation of them all? They are

divisible into two classes; one, those rights which we derive

from nature, and the other those rights which we derive from

government. I will admit that you may divide and subdivide the

rights which you derive from government into different

classifications; you may call some, for the sake of convenience

and more definiteness of meaning, political; you may call

others civil.

* * * * *

What is property? It has been judicially decided that the

elective franchise is property. Leaving out the question of

voting, however, as a question of property, is it not true

that, under our republican form and system of government, the

ballot is one of the means by which property is secured? Your

bill gives to these persons every security for the protection

of person and property which a white man has. What is one means

and a very important means of securing the rights of person and

property? It is a voice in the Government which makes the laws

regulating and governing the right of property. Under our

system of government--mark you, I do not say that it is so

under all governments--one of the strongest and most efficient

means for the security of person and property is a

participation in the selection of those who make the laws. It

was therefore that I thought that the honorable Senator when he

framed this bill meant to give to these persons the right of

voting; and I should still think so but for his personal

disclaimer of any such object.

Senator Van Winkle (Unionist), of West Virginia, contended that negroes

were not citizens of the United States and could not be made such by act

of Congress, or by anything short of constitutional amendment. He was

opposed to the introduction of inferior races into the ranks of

citizenship, but if the Constitution should be changed in the mode

provided for its amendment so as to introduce negroes, Indians, Chinese,

and other alien races to citizenship, he would endeavor to do his whole

duty toward them by recognizing them as citizens in every respect.

Senator Cowan held that the second clause of the Thirteenth Amendment of

the Constitution was limited to the breaking of the bond by which the

negro slave was held by his master. It was not intended to revolutionize

all the laws of the various states. The bill under consideration would

not only repeal statutes of Pennsylvania, but would subject the judges

of her courts to criminal prosecution, for enforcing her own laws. He

(Cowan) was willing to vote for an amendment of the Constitution giving

Congress the power to secure to all men of every race, color, and

condition their natural rights to life, liberty, and property, but the

bill under consideration was an attempt to do, without any power, that

which it was very questionable whether we ought to do, even if we had

the power. Cowan concluded by arguing that Congress ought not to enact

laws affecting the Southern States so radically, when they were not

represented in Congress.

Senator Howard, of Michigan, supported the bill in a speech of great

force from the humanitarian point of view, but did not dwell upon the

constitutional question, except to affirm that he, as a member of the

Judiciary Committee which had reported the Thirteenth Amendment, had

intended, by the second clause thereof, to empower Congress to enact

such measures as the pending Civil Rights Bill.

Garrett Davis, of Kentucky, contended that negroes could not be made

citizens of the United States under the power granted to Congress to

pass naturalization laws, since naturalization applied only to

foreigners. Negroes born in this country were not foreigners.

Trumbull replied that free negroes were citizens under the fourth

article of the Confederation, prior to the adoption of the Constitution

and that an attempt to exclude them from citizenship on the 25th of

June, 1778, received only two votes in the Congress of the

Confederation. He quoted a decision of Judge Gaston, of North Carolina,

that free negroes born in that state were citizens of the state and that

slaves manumitted there became citizens by the fact of manumission.

Reverdy Johnson held that it was as competent for Congress to strike out

the word "white" from our naturalization law as it had been for a former

Congress to insert that word. In that case a negro migrating from Africa

to the United States might be made a citizen exactly like an immigrant

from Europe.

Garrett Davis denied this, saying:

This is a government and a political organization by white

people. It is a principle of that Government and that

organization, before and below the Constitution, that nobody

but white people are or can be parties to it.

The colloquy between Senators Johnson and Davis continued until the

latter affirmed that the making of negroes citizens by any process

whatsoever was "revolutionary," as destructive to our Government as

would be a bill establishing a monarchy, or declaring that the President

should hold office for life.[89]

The debate continued till February 2, Senators Guthrie, Hendricks, and

Cowan opposing the bill and Trumbull, Fessenden, and Wilson supporting

it. The vote was then taken and resulted, yeas 33, nays 12, absent 5. It

went to the House, where it encountered unexpected opposition from

Bingham, of Ohio, a radical Republican, who said:

Now what does this bill propose? To reform the whole civil and

criminal code of every State Government by declaring that there

shall be no discrimination between citizens on account of race

or color in civil rights, or in the penalties prescribed by

their laws. I humbly bow before the majesty of justice, as I

bow before the majesty of that God whose attribute it is, and

therefore declare that there should be no such inequality or

discrimination even in the penalties for crime, but what power

have you to correct it? That is the question. You further say

that in the courts of justice of the several states there

shall, as to the qualifications of witnesses, be no

discrimination on account of race or color. I agree that as to

persons who appreciate the obligation of an oath--and no others

should be permitted to testify--there should be no such

discrimination. But whence do you derive power to cure it by

congressional enactment? There should be no discrimination

among citizens of the United States, in the several states, of

like sex, age, and condition, in regard to the franchises of

office. But such a discrimination does exist in nearly every

state. How do you propose to cure all this? By a congressional

enactment? How? Not by saying in so many words (which would be

the bold and direct way of meeting this issue) that every

discrimination of this kind, whether existing in state

constitution or state law, is hereby abolished. You propose to

make it a penal offence for the judges of the states to obey

the constitution and laws of their states, and for their

obedience thereto to punish them by fine and imprisonment as

felons. I deny your power to do this. You cannot make an

official act done under color of law and without criminal

intent and from a sense of duty, a crime.[90]

The only Republican member of the House, from the non-slaveholding

states, who sided with Bingham, was Raymond, of New York. The House

passed the bill by yeas 111, nays 38.

On the 27th of March, the President returned the bill to the Senate

without his approval. He vetoed it on grounds of inexpediency and

unconstitutionality. His arguments were substantially the same as those

of Senators Saulsbury and Cowan.

Trumbull replied to the veto message in a speech of great power which

occupies five pages of the _Congressional Globe_. He took up and

answered the President's objections _seriatim_. These details need not

now be repeated. There was one of a personal character, however, which

calls for notice. He said that he had endeavored to meet the President's

wishes in the preparation of both the bills, and had called upon him

twice and had given him copies of them before they were introduced and

asked his cooeperation in order to make them satisfactory. In short, he

had done everything possible to avoid a conflict between the executive

and legislative branches of the Government, and since he had been

assured that the President's aims, like his own, were in the direction

of peace and concord, he was amazed when they were vetoed. At the

conclusion of his speech he referred briefly to the constitutional

objection to the bill saying:

If the bill now before us, which goes no further than to secure

civil rights to the freedmen, cannot be passed, then the

constitutional amendment proclaiming freedom to all the

inhabitants of the land is a cheat and a delusion.

The floor and galleries of the Senate Chamber were crowded during the

delivery of the speech and the roll-call followed immediately,

resulting: yeas 33, nays 15, more than two thirds. The closing scene was

thus described in a Washington letter to the _Nation_, April 12:

After three days of extremely ardent debate signalized by a

speech of singular cogency and power from Senator Trumbull, the

father of the bill, the vote was reached about 7 o'clock on

Friday evening. When the end of the roll was reached and

Vice-President Foster announced the result, nearly the whole

Senate and auditory were carried off their feet and joined in a

tumultuous outburst of cheering such as was never heard within

those walls before.

The veto of the Civil Rights Bill and the struggle over its passage the

second time precipitated the exciting contest at the polls in the autumn

of 1866. In that campaign Trumbull held the foremost position in the

Republican column. Whether it was possible to avoid the conflict we

cannot now say. It was most desirable that the party in power should

march all one way, and hence that the President should respond to the

friendly overtures of the leaders in Congress. When he found that he

could not approve the two bills that the Senator had placed in his hands

for examination, he ought to have sent for him and pointed out his

objections and at all events expressed regret that he could not concur

with him in the particulars where they disagreed. Then there might have

been mutual concessions leading to harmony. In any event, there would

have been no sting left behind, no hard feeling, no sense of injury, and

perhaps no rupture in the party. That was not Johnson's way. He lacked

_savoir faire_. He was combative by nature. He not only made personal

enemies unnecessarily, but he alienated thousands who wished to be his

friends.[91] "Many persons," says a not unfriendly critic, "whose

feelings were proof against the appeals made on behalf of the freedmen

and loyalists were carried over to the side of Congress by sheer

disgust at Johnson's performances. The alienation, by the President, of

this essentially thoughtful and conservative element of the Northern

voters was as disastrous and inexcusable as the alienation of those

moderate men in Congress whom he had repelled by his narrow and

obstinate policy in regard to the Freedmen's Bureau and Civil Rights

Bills. It was again demonstrated that Andrew Johnson was not a statesman

of national size in such a crisis as existed in 1866."[92]

On the other hand, it must be admitted that Johnson was within his

constitutional right in vetoing the bills without previously consulting

anybody in Congress.

The Civil Rights Act came before the Circuit Court of the United States

twice, soon after it was enacted, and in both instances was held to be

constitutional. The circuit courts were then presided over by Justices

of the Supreme Court. In the case of United States _v._ Rhodes, Seventh

Circuit, District of Kentucky, 1866, before Justice Swayne, the act was

pronounced constitutional in all its provisions, and held to be an

appropriate method of exercising the power conferred on Congress by the

Thirteenth Amendment.

The other case was the Matter of Turner, Fourth Circuit, Maryland,

October Term, 1867, before Chief Justice Chase. This case was submitted

to the court without argument. The Chief Justice expressed regret that

it was not accompanied by arguments of counsel, but he decided that the

act was constitutional and that it applied to all conditions prohibited

by it, whether originating in transactions before, or since, its

enactment.[93]

If either of these cases had been taken to the Supreme Court on appeal,

at that time, the Civil Rights Act of 1866 would doubtless have been

upheld by that body; yet in October, 1882, the court held by unanimous

vote that none of the latest amendments of the Constitution (the

Thirteenth, Fourteenth, and Fifteenth) did more than put prohibition on

the action of the states. No state should have slavery; no state should

make any law to abridge the privileges and immunities of citizens of the

United States; no state should deny the right of voting by reason of

race, color, or previous condition of servitude. The power of Congress

to go into the states to enforce the criminal law against individuals

had not been granted in any of these amendments. It could not be

affirmed that the second section of the Thirteenth Amendment gave power

to Congress to legislate for the states as to other matters than actual

slavery. But the Civil Rights Act applied to all the states--to those

where slavery had never existed as well as to those where it had been

recently abolished.[94]

The act which the court in October, 1882, pronounced unconstitutional

was the Anti-Ku-Klux Act of 1871. Trumbull himself spoke and voted

against that act believing it to be unconstitutional, as we shall see

later. He drew the line somewhere between the two acts. The judges

participating in the decision in the Harris case were Chief Justice

Waite and Associate Justices Miller, Bradley, Woods, Gray, Field,

Harlan, Matthews, and Blatchford.

One year later the court held that the Equal Rights Act of March 1,

1875, which gave to all persons full and equal enjoyment of

accommodations and privileges of inns, public conveyances, theatres, and

other places of public amusement, common schools and public

institutions of learning or benevolence supported in whole or in part by

general taxation, was unconstitutional. The Supreme Court still

consisted of the Justices above named.[95] It held that the Thirteenth

Amendment of the Constitution related only to slavery and its incidents

and that the Fourteenth Amendment was merely prohibitory on the states;

that is, that it did not confer additional powers upon Congress, but

merely forbade discriminating acts on the part of the states. The

opinion of the court was delivered by Justice Bradley. The only

dissenting opinion was given by Justice Harlan, of Kentucky, who held

that the Thirteenth Amendment of the Constitution was not restricted to

the prohibition of slavery, but that it conferred upon Congress the

power to make freedom effectual to the former victims of slavery. He

said:

The Thirteenth Amendment, it is conceded, did something more

than to prohibit slavery as an institution resting upon

distinctions of race and upheld by positive law. My brethren

admit that it established and decreed universal civil freedom

throughout the United States. But did the freedom thus

established involve nothing more than the exemption from actual

slavery? Was nothing more intended than to forbid one man from

owning another as property? Was it the purpose of the nation

simply to destroy the institution and then remit the race,

theretofore held in bondage, to the several states for such

protection in their civil rights, necessarily growing out of

freedom, as those states in their discretion might choose to

provide? Were the states, against whose protest the institution

was destroyed, to be left free, so far as national interference

was concerned, to make or allow discriminations against that

race, as such, in the enjoyment of those fundamental rights

which by universal concession inhere in a state of freedom? Had

the Thirteenth Amendment stopped with the sweeping declaration

in its first section against the existence of slavery and

involuntary servitude, except for crime, Congress would have

had the power by implication, according to the doctrines of

Prigg _v._ Commonwealth of Pennsylvania, repeated in Strauder

_v._ West Virginia, to protect the freedom established and

consequently to secure the enjoyment of such civil rights as

were fundamental in freedom. That it can exert its authority to

that extent is made clear, and was intended to be made clear,

by the express grant of such power contained in the second

section of the Amendment.

The question whether the Civil Rights Act of 1866 was or was not

constitutional never came squarely before the Supreme Court on a test

case, but, as we have seen, other acts analogous to it did come before

that tribunal in such a way that the authority of the court must be

construed as adverse to it. My own thought is that the dissenting

opinion of Mr. Justice Harlan above quoted is worth more than all the

other literature on this subject that the books contain.

The autumn elections of 1866 returned a larger majority in Congress

against President Johnson than had been there before. The result in

Illinois was the reelection of Trumbull as Senator by the unanimous vote

of the Republican legislative caucus, although there were three

major-generals of the victorious Union army (Palmer, Oglesby, and Logan)

competing for that position, all of whom reached it later.

Trumbull sustained Johnson until the latter vetoed the Civil Rights

Bill. He believed that the freedom of the emancipated blacks was put in

peril by this action of the President, and he gave all of his energies

to the task of passing the bill over the veto and sustaining it before

the people. In this he was successful, but the avalanche of public

opinion thus started did not stop with the defeat of Johnson in the

election of 1866. It carried the control of the Union party out of the

hands of the conservatives and gave the reins of leadership to Sumner,

Stevens, and the radical wing. Trumbull followed this lead till the

impeachment of Johnson took place, when he halted and saved Johnson at

the expense of his own popularity, and he never regretted that he had

done so.

A distant echo of the Civil Rights controversy reached the Illinois

Senator from the state of Georgia, where he had been a school-teacher

thirty years earlier. The correspondence is introduced here as a

corrective, in some part, of the erroneous opinion that Trumbull was a

man of cold and unfeeling nature:

MORGAN [Ga.], May 17th [1866].

HON. LYMAN TRUMBULL:

DEAR SIR: Truth seems strange, but, stranger still appears the

fact, that after a lapse of thirty years, I should offer you a

feeble acknowledgment of the gratitude, and high respect I have

ever cherished for you. It was my good fortune to enjoy, in

Greenville, for nearly three years, the advantage of your

profound teachings; and, in later life, when adverse

circumstances compel me to impart those lessons, and the

hallowed influence of that instruction, to others, I award to

you the full meed of praise. You cannot imagine the

satisfaction I experience, when my eye turns to the many

eloquent addresses you deliver before Congress; but as there

lurks beneath the most beautiful rose, thorns that inflict deep

wounds, so your avowed animosity to us casts a gloom over those

delightful emotions. Is there no delightful thrill of

association still lingering in your bosom, when memory reverts

to your sojourn among us? Is there no period in that long

space, around which fond retrospection can joyfully flutter her

wings, and crush out the large drops of gall that have been

distilled into your cup? I think you, and you alone, have the

power and influence to arrest the mighty tide that threatens to

overwhelm us. Can you not forget our past delinquencies, to

which, I confess, we have been too prone, and remember only the

little good you discovered? I often make special inquiries

after you, and was much interested in an account given by an

old Southern member. As I had still in my mind's eye your tall

and erect form, my surprise was great, indeed, to be told that

your form was not so straight, and that you used spectacles. I

have failed in the proper place to mention my name, "Fannie

Lowe," the most mischievous girl of the school. I married a

gentleman from Mobile, who lived eight years after the union.

He fell a victim to cholera, fourteen years since, during its

prevalence in New Orleans. It was my great misfortune to lose

my daughter, just as the flower began to expand and promise

hope and comfort for my old age. In conclusion, I will be

delighted to hear from you, and by all means send me your

photograph. My kindest regards to your dear ones, and accept

the warmest wishes of

MRS. F. C. GARY.

MORGAN, CALHOUN CY., GEORGIA.

UNITED STATES SENATE CHAMBER,

WASHINGTON, June 27, 1866.

MY DEAR MRS. GARY: I was truly grateful to receive yours of the

17th ult., and to know that after the lapse of thirty years I

was not forgotten by those who were my pupils. I remember many

of them well, and for all have ever cherished the kindest of

feelings and the best of wishes. It pains me, however, to think

that you and probably most of those about you, including those

once my scholars, should so misunderstand me and Northern

sentiments generally. How can you, my dear child,--excuse the

expression, for it is only as a school-girl I remember Fannie

Lowe,--how can you, I repeat, accuse me of entertaining

feelings of "animosity" and of the bitterness of "gall" towards

you or the South?... Towards the great mass of those engaged in

the rebellion the North feels no animosity. We believe they

were induced to take up arms against the Government from

mistaken views of Northern sentiment brought about by ambitious

and wicked leaders, and those political leaders we do want, at

least, to exclude from political power, if nothing more, till

loyal men are protected and loyalty is respected in the

rebellious districts. It is in the power of the Southern people

to have reconstruction at once, and the restoration of civil

government, complete, if they will only put their state

organizations in loyal hands, elect none but loyal men to

office, and see that those who were true to the Union, during

the war, of all classes, are protected in their rights. I ask

you, in all candor, till the disloyal of the South are willing

to do this, ought they to complain if they are subjected to

military control? I enclose you, as requested, a couple of

photographs, which you will hardly recognize as of the young

man whom you knew thirty years ago. The one without a beard was

taken three or four years since; the other, this year. My

family consists of a wife and three boys, the eldest twenty

years of age.

Please remember me to any who once knew me at Greenville, for

all of whom I cherish a pleasant remembrance; and believe me

your sincere friend,

LYMAN TRUMBULL.

FOOTNOTES:

[85] _Cong. Globe_, 1866, p. 319.

[86] _Cong. Globe_, 1866, p. 322.

[87] _Cong. Globe_, 1866, pp. 745-46.

[88] _Cong. Globe_, 1866, p. 475.

[89] _Cong. Globe_, 1866, p. 530.

[90] _Cong. Globe_, 1866, p. 1293.

[91] "Doolittle tells me he wrote the President a letter on the morning

of the 22d of February, knowing there was to be a gathering which would

call at the White House, entreating him not to address the crowd. But,

said D., he did speak and his speech lost him two hundred thousand

votes." (_Diary of Gideon Welles_, II, 647.)

[92] W. A. Dunning, _Reconstruction_, p. 82.

[93] Both of these cases are reported in the first volume of Abbott's

Circuit Court Reports.

[94] United States _v._ Harris, 106 U.S. 629.

[95] Civil Rights Cases, 109 U.S. 3.

CHAPTER XVIII

THE FOURTEENTH AMENDMENT

While the events in the preceding chapter were transpiring, a joint

committee on Reconstruction were making an inquiry into the condition of

the ex-Confederate States in order to determine whether they or any of

them were entitled to immediate representation in Congress. It consisted

of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson,

and Representatives Stevens, Washburne, of Illinois, Morrill, of

Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator

Reverdy Johnson and Representatives Rogers and Grider were Democrats.

All the others were Republicans. There was a preponderance of

conservatives on the committee. Senator Fessenden was the chairman, and

his selection for the place marked him as _princeps senatus_ in the

estimation of his colleagues.

While the Civil Rights Bill was pending in the House, we have seen that

Bingham, of Ohio, made a speech against it and voted against it, holding

it to be unconstitutional. He had supported the Freedmen's Bureau Bill

because it applied only to states in the inchoate condition which then

existed. It was to be inoperative in any state, when restored to its

constitutional relations with the Union. The Civil Rights Bill, on the

other hand, was to apply to the whole country, North and South, without

limit as to time, and to affect the civil and criminal code of every

State Government. He held that there was no constitutional warrant for

this, either in the Thirteenth Amendment or elsewhere. In order to cure

the supposed defect, Bingham proposed to the Reconstruction Committee a

new constitutional amendment in these words:

The Congress shall have power to make all laws which shall be

necessary and proper to secure to the citizens of each state

all privileges and immunities of citizens in the several

states, and to all persons in the several states equal

protection in the rights of life, liberty, and property.

This was agreed to by the committee, but before it was reported to the

House, Stevens presented a series of amendments consisting of five

sections which had been prepared by Robert Dale Owen, a distinguished

publicist, who was not a member of the Congress. This series had met

Stevens's approval, and after some delay and some changes it was adopted

by the committee. Bingham then withdrew his own proposed amendment and

offered the following in place of it, which was adopted as section one:

No state shall make or enforce any law which shall abridge the

privileges and immunities of citizens of the United States, nor

shall any state deprive any person of life, liberty, or

property without due process of law, nor deny to any person

within its jurisdiction the equal protection of the laws.

The difference between this provision and the first one proposed by

Bingham was the whole difference between giving Congress power to pass

laws for the administration of justice in the states and merely

prohibiting the states from making discriminations between citizens.

There was no definition of citizenship in the amendment as reported by

the joint committee. Apparently they relied upon the Civil Rights Act,

which had been passed over the President's veto, to supply that

definition, but shortly before the final vote was taken in the Senate,

Howard, who had charge of the measure in the temporary illness of

Fessenden, proposed the following words to be placed at the beginning of

the first section.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside.

The reason for adopting this clause was to validate the corresponding

part of the Civil Rights Act and put it beyond repeal, in the event that

the Republicans should at some future time lose control of Congress.

In addition to the first section, as shown above, the amendment provided

that Representatives should be apportioned among the several states

according to population, but that when the right to vote was denied in

any state to any of the male inhabitants who were twenty-one years of

age and citizens of the United States, except for rebellion or other

crime, the representation of such state in Congress and the Electoral

College should be proportionately reduced. Also that no person should

hold any office under the United States or any state who, having

previously taken an oath to support the Constitution of the United

States, had engaged in insurrection or rebellion against the same, but

that Congress might, by a two-thirds vote, remove such disability. Also

that the validity of the public debt of the United States should not be

questioned, but that no debt incurred in aid of insurrection or

rebellion should ever be paid by the United States or any state. The

concluding section provided that Congress should have power to enforce

by appropriate legislation the provisions of the article.

The Fourteenth Amendment passed the Senate June 8, by 33 to 11, and the

House June 13, by 138 to 36. Sumner had opposed it bitterly in debate

because it dodged, as he said, the question of negro suffrage; but when

the vote was taken he recorded himself in the affirmative.

The report of the committee giving the reasons for their action was

submitted on the 18th of June. It held that the seceding states, having

withdrawn from Congress and levied war against the United States, could

be restored to their former places only by permission of the

constitutional power against which they had rebelled acting through all

the cooerdinate branches of the Government and not by the executive

department alone.

If the President [it said] may, at his will and under his own

authority, whether as military commander, or chief executive,

qualify persons to appoint Senators and elect Representatives,

and empower others to elect and appoint them, he thereby

practically controls the organization of the legislative

department. The constitutional form of government is thereby

practically destroyed, and its powers absorbed by the

Executive. And while your committee do not for a moment impute

to the President any such design, but cheerfully concede to him

the most patriotic motives, they cannot but look with alarm

upon a precedent so fraught with danger to the Republic.

This conclusion was logical but misleading. The danger to the Republic

lay not in the absorption of powers by the Executive, but in the

prolongation of chaos, in dethroning intelligence, and arming ignorance

in the desolated districts of the South.[96]

Stevens also reported a bill "to provide for restoring the states lately

in insurrection to their full political rights." It recited that

whenever the Fourteenth Amendment should become a part of the

Constitution, and any state lately in insurrection should have ratified

it and conformed itself thereto, its duly elected Senators and

Representatives would be admissible to seats in Congress. This bill was

not acted on, but lay on the table of each house awaiting the action of

the Southern States on the proposed amendment.

On July 23, the two houses adopted a preamble and joint resolution

admitting Tennessee to her former relations to the Union. The preamble

recited that that state had ratified the Thirteenth and Fourteenth

Amendments to the Constitution. There were only four negative votes on

the Tennessee bill: Brown and Sumner, Republicans, and Buckalew and

McDougall, Democrats. The President signed the bill, but he added a

brief message explaining that his reason for doing so was that he

desired to remove every cause of further delay, whether real or

imaginary, to the admission of the Representatives of Tennessee, but he

affirmed that Congress could not rightfully make the passage of such a

law a condition precedent to such admission in the case of Tennessee, or

of any other state.

The next event of importance in the controversy over Reconstruction was

the National Union Convention held in Philadelphia on the 14th of

August. It was composed of delegates from all the states and

territories, North and South, who sustained the President's policy and

acquiesced in the results of the war, including the abolition of

slavery. This came to be known as the "Arm-in-Arm Convention" as the

procession leading to the platform was headed by two delegates, one from

Massachusetts and one from South Carolina, walking together with their

arms joined. The signers of the call embraced the names of A. W.

Randall, ex-governor of Wisconsin, Senators Cowan, Doolittle, Fowler,

Norton, Dixon, Nesmith, and Hendricks, and ex-senator Browning, then

Secretary of the Interior. The convention itself was eminently

respectable in point of numbers and character. It was presided over by

Senator Doolittle, and the chairman of its Committee on Resolutions was

Senator Cowan. The resolutions adopted were ten in number and were

faultless in principle and in expression. They were conveyed to the

President by a committee of seventy-two persons. The effect of this

dignified movement was offset and neutralized in large part by one

paragraph of the President's reply to the presentation speech, namely:

We have witnessed in one department of the Government every

endeavor to prevent the restoration of peace, harmony, and

union. We have seen hanging upon the verge of the Government,

as it were, a body called, or which assumed to be, the Congress

of the United States, while in fact it is a Congress of only a

part of the states. We have seen this Congress pretend to be

for the Union when its every step and act tended to perpetuate

disunion and make the disruption of the states inevitable.

Instead of promoting reconciliation and harmony its legislation

has partaken of the character of penalties, retaliation, and

revenge. This has been the course and policy of your

Government.

This impeachment of the legality of Congress was followed by a battle in

the political field, which raged with increasing fury during the whole

remainder of Johnson's term of office and projected itself into the two

terms of President Grant and the beginning of that of President Hayes,

embracing the episodes of the impeachment trial and the Liberal

Republican movement of 1872. All of this turmoil, and the suffering

which it brought upon the South, would, probably, have been avoided if

Lincoln, with his strong hold upon the loyal sentiment of the country

and his readiness to conciliate opponents, without surrendering

principle, had not been assassinated. They became possible if not

inevitable when the presidential chair was taken, in a time of crisis,

by a man of combative temper, without prestige in the North, and devoid

of tact although of good intentions and undoubted patriotism.

The Southern States refused to agree to the Fourteenth Amendment. To

them the insuperable objection was the clause excluding from the

office-holding class those who had taken an oath to support the

Constitution of the United States and had afterwards engaged in

insurrection against the same. The common people refused to accept

better terms than were accorded to their leaders. This was true chivalry

and is not to be condemned, but the consequence was an increase of the

power of the radicals in the North. It disabled conservatives like

Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward

Beecher, and William C. Bryant, influential in other walks in life, from

making effective resistance to the measures of Sumner and Stevens. If

the Fourteenth Amendment had been ratified by any of the other

ex-Confederate States, such states would have been admitted at once as

Tennessee was. Both Wade and Howard, hot radicals as they were, refused

to go with Sumner when he insisted that further conditions should be

exacted. When he offered an amendment looking to negro suffrage, Howard

said that the Joint Committee on Reconstruction had maturely considered

that question and had carefully abstained from interfering with "that

very sacred right"--the right of each state to regulate the suffrage

within its own limits. He argued that it was inexpedient in a party

point of view to do so, and predicted that if the rebel states were

coerced to adopt negro suffrage by an act of Congress, or by

constitutional amendment, they would rid themselves of it after gaining

admission.[97]

FOOTNOTES:

[96] Trumbull did not take an active part in the framing of the

Fourteenth Amendment. A minute and unbiased history of it has been

written by Horace Edgar Flack, Ph.D., and published by the Johns Hopkins

Press, Baltimore, 1908. It is impossible to resist the conclusion of

this writer, that partisanship was a potent factor in the framing and

adoption of it.

[97] _Cong. Globe_, February 15, 1867, p. 1381.

CHAPTER XIX

CROSSING THE RUBICON

On the 17th of December, 1866, the Supreme Court rendered its decision

in the Milligan case, which had reached that tribunal on a certificate

of disagreement between the two judges of the United States Circuit

Court for Indiana. Milligan, a citizen, not in the military or naval

service, had been arrested in October, 1864, by General A. P. Hovey,

commanding the military district of Indiana, for alleged treasonable

acts, had been tried by a military commission, found guilty, and

sentenced to be hanged on the 19th day of May, 1865. He petitioned the

court for a discharge from custody under the terms of the Habeas Corpus

Act passed by Congress March 3, 1863. He affirmed that, since his

arrest, there had been a session of the grand jury in his district and

that it had adjourned without finding an indictment against him. The act

of Congress provided that the names of all civilians arrested by the

military authorities in places where the courts were open should be

reported to the judges within twenty days after their arrest, and that

if they were not indicted at the first term of court thereafter they

should be set at liberty.

This question had been pretty thoroughly thrashed out in the

Vallandigham case, but it had been imperfectly understood; President

Lincoln had gone astray in that labyrinth, and judges on the bench had

differed from each other in their interpretation of an unambiguous

statute. The most commonly accepted opinion was that the act of 1863

was not applicable to Copperheads, or, if it was, that it ought not to

be obeyed.

The Supreme Court was unanimous in the opinion that Milligan must be

discharged, since the law was plain and unequivocal, but there was a

division among the nine judges of the court as to the power to try

persons not in the military service, by military commission. Five judges

held that Congress could not abolish trial by jury in places where the

courts were open and the course of justice unimpeded. Four judges

maintained that Congress might authorize military commissions to try

civilians in certain cases where the civil courts were open and freely

exercising their functions, although Congress had not actually done so.

The five judges constituting the majority were Davis (who wrote the

opinion of the court), Clifford, Nelson, Grier, and Field. The four who

dissented from the argument, but not from the judgment, were Chief

Justice Chase (who wrote the minority opinion), and Judges Wayne,

Swayne, and Miller. Davis's opinion is not surpassed in argumentative

power or in literary expression by anything in the annals of that great

tribunal.

The logical consequences of the decision were tremendous, or would have

been, if the public mind had been in a condition to appreciate its

gravity. Not only did it follow logically that the trial and execution

of Booth's fellow conspirators, Payne, Atzerodt, Herold, and Mrs.

Surratt, were, in contemplation of law, no better than lynching, but

that Andrew Johnson's endeavor to put an end to government by military

commissions, as soon as possible, was right, and that the contrary

design, by whomsoever held, was wrong.

The radicals in Congress, however, were only angered by the decision.

They were not in the least disconcerted by it, but the court itself was

very much so. If it had been necessary to pass a law reorganizing the

court, in order to reap the fruits of the victory won in the recent

elections, a majority could have been obtained for it.

Under date of January 8, 1867, the "Diary of Gideon Welles" tells us

that there was a Cabinet meeting at which the President said that he

wished to obtain the views of each member on the subject, already

mooted, of dismantling states and throwing them into a territorial

condition. A colloquy ensued which is reported as follows:

Seward was evidently taken by surprise. Said he had avoided

expressing himself on these questions; did not think it

judicious to anticipate them; that storms were never so furious

as they threatened; but as the subject had been brought up, he

would say that never, under any circumstances, could he be

brought to admit that a sovereign state had been destroyed, or

could be reduced to a territorial condition.

McCulloch was equally decided, that the states could not be

converted into territories.

Stanton said he had communicated his views to no man. Here, in

the Cabinet, he had assented to and cordially approved of every

step which had been taken, to reorganize the governments of the

states which had rebelled, and saw no cause to change or depart

from it. Stevens's proposition he had not seen, and did not

care to, for it was one of those schemes which would end in

noise and smoke. He had conversed with but one Senator, Mr.

Sumner, and that was one year ago, when Sumner said he

disapproved of the policy of the Administration and intended to

upset it. He had never since conversed with Sumner nor any one

else. He did not concur in Mr. Sumner's views, nor did he think

a state would or could be remanded to a territorial condition.

I stated my concurrence in the opinions which had been

expressed by the Secretary of War, and that I held Congress had

no power to take from a state its reserved rights and

sovereignty, or to impose terms on one state which were not

imposed on all states.

Stanbery said he was clear and unqualifiedly against the whole

talk and theory of territorializing the states. Congress could

not dismantle them. It had not the power, and on that point he

would say that it was never expedient to do or attempt to do

that which we had not the power to do.

Browning declared that no state could be cut down or

extinguished. Congress could make and admit states, but could

not destroy or extinguish them after they were made.[98]

This extract is rather astounding for what it tells us of Stanton's

position. Simultaneously, or nearly so, Congress passed an act virtually

making the General of the Army independent of the President, and

prohibiting the President from assigning him to duty elsewhere than in

Washington City without the consent of the Senate, except at his own

request. Congressman Boutwell, of Massachusetts, tells us that this

provision was privately suggested to him by Stanton and that he

(Boutwell) wrote it down at the War Department as dictated by Stanton,

and took it to Thaddeus Stevens who incorporated it in an appropriation

bill.[99]

If the radicals were elated by the result of the elections, the

conservatives were correspondingly depressed. It was no longer possible

to prevent Stevens and Sumner from taking the lead, which they did

forthwith. They crossed the Rubicon with the whole army. The

Reconstruction policy initiated by Lincoln was now for the first time

definitely abandoned by the Union party. In the month of February,

Stevens carried through the House a bill declaring that there were no

legal governments in the ten rebel states, and providing that the

existing governments should be superseded by the military authority. It

provided for no termination of such military government. Amendments were

added by the Senate providing for constitutional conventions in those

states, to be elected by the male citizens twenty-one years old and

upward, of whatever race or color, except those disfranchised for

participation in rebellion. It was provided further that when the

constitutions so framed should contain clauses giving the elective

franchise to all persons entitled to vote in the election for delegates,

and when the constitutions should be ratified by a majority of the

people, and when such constitutions should have been submitted to and

approved by Congress, and when the states should have ratified the

Fourteenth Amendment and it should have been adopted, then the states so

reorganized should be entitled to representation in Congress, provided

that no persons disfranchised by the Fourteenth Amendment should vote at

the election or be eligible to membership of the conventions. The clause

making negro suffrage a permanent condition of Reconstruction was

adopted in a senatorial caucus on the motion of Sumner by a majority of

two, after it had been rejected almost unanimously by the Senate

committee to which it had been referred.[100]

Trumbull, Fessenden, and Sherman voted against Sumner's motion, but

after it became the policy of the party they supported it. And here they

made a mistake, for this was the act which placed the governments of ten

states in the hands of the most ignorant portion of the community and

disfranchised the most intelligent, entailing the direful consequences

of the succeeding ten years.

The road which the dominant party had now taken was, however, taken

conscientiously. Congress and the Northern people sincerely believed

that slavery would be reestablished in some form unless the negroes had

the right to vote and the assurance that their votes would be counted,

and that, in that case, the war would have to be fought over again. Of

course, party spirit and the greed of office had a place among the

impelling motives at Washington, but these considerations would not have

availed had not the opinion been deep-seated that a Democratic victory

won by the votes of the solid South and a minority of the North would

endanger the Union.

Senator Cullom, of Illinois, who was then a member of the House, said,

forty-four years later, that "the motive of the opposition to the

Johnson plan of Reconstruction was a firm conviction that its success

would wreck the Republican party and, by restoring the Democracy to

power, bring back Southern supremacy and Northern vassalage."[101]

Montgomery Blair apprehended another revolution or rebellion and said

that there might be two opposing governments organized in Washington.

Maynard, of Tennessee, a stanch loyalist, believed that Senators and

Representatives from all the states would soon make their appearance at

the national capital and that those from the rebel states would join

with the Democratic members from the loyal states, constitute a

majority, organize, repeal the test oath, and have things their own way.

Welles, while recording these opinions, held the sounder one that the

South was too exhausted and the Northern Democrats too timid for such a

step.[102]

The Reconstruction Bill passed both houses on the 20th day of February,

1867, was vetoed by the President on the 2d of March, and was repassed

on the same day by more than two-thirds majority in each house,

Trumbull voting in the affirmative.

It was followed by a supplementary bill even more drastic, providing for

a registration of voters, and requiring each person, before he could be

registered, to take an oath that he had not been disfranchised for

participation in any rebellion, or civil war, against the United States,

and had never held any legislative, executive, or judicial office and

afterwards engaged in rebellion against the United States, or given aid

or comfort to the enemies thereof. The President was not slow to

perceive the monstrosity of these provisions. In his veto message he

dwelt on the absurdity of expecting every man to know whether he had

been disfranchised or not, and what acts amounted to "participation" or

fell short of it, and what constituted the giving of aid and comfort to

the enemies of the United States. With genuine pathos he added:

When I contemplate the millions of our fellow citizens of the

South with no alternative left but to impose upon themselves

this fearful and untried experiment of complete negro

enfranchisement, and white disfranchisement (it may be) almost

as complete, or submit indefinitely to the rigor of martial law

without a single attribute of freemen, deprived of all the

sacred guaranties of our Federal Constitution, and threatened

with even worse wrongs, if any worse are possible, it seems to

me their condition is the most deplorable to which any people

can be reduced.

This bill was passed over the veto on the 23d of March, Trumbull voting

in the affirmative. These votes, however, did not prevent him from

publishing in the Chicago _Advance_ of September 5, the same year, a

carefully written article denying the power of Congress to regulate the

suffrage in the states, concluding with the following paragraphs:

If the views expressed are correct, it follows that there are

but two ways of securing impartial suffrage throughout the

Union. One is, for the states themselves to adopt it, which is

being done by some already; and now that the subject is being

agitated and its justice being made apparent, it is to be hoped

it will soon commend itself to all: the other is, by an

amendment to the Constitution of the United States, adopting

impartial suffrage throughout the Union, which to become

effective must be ratified by three fourths of the States.

Amendments of the constitutions of Ohio, Kansas, and Minnesota for that

purpose were then pending, but they were all voted down by the people in

October and November, 1867.

Congress continued to pass supplementary Reconstruction measures at

short intervals. One such authorized the commanders of the military

districts to suspend or remove any persons holding any office, civil or

military, in their districts and appoint other persons to fill their

places and exercise their functions subject to the disapproval of the

General of the Army of the United States. It was declared to be the duty

of the commanders aforesaid to remove from office all persons disloyal

to the United States and all who should seek to hinder, delay, or

obstruct the administration of the Reconstruction Acts. Section eight of

this act made members of boards of registration removable in like

manner. Section eleven provided that "all the provisions of this act,

and of the acts to which it is supplementary, should be construed

liberally." This bill was vetoed by the President July 19, 1867, and was

passed over the veto by both houses the same day. Still another

supplementary act was passed on the 11th of March, 1868, relating to the

election of members of Congress in the rebel states.

Under this harness of militarism constitutional conventions were held

and constitutions adopted by all of said states, except Texas and

Mississippi, during the year 1868, and all the rest of them were

admitted to the Union except Virginia, subject, however, to the

condition that their constitutions should never be amended, or changed,

so as to deprive any citizen, or class of citizens, of the right to

vote, except as a punishment for crimes of the grade of felonies at

common law.

Delays having occurred in the course of procedure in Virginia,

Mississippi, and Texas, there was opportunity to apply new conditions to

their readmission and this chance was eagerly seized by the radicals.

Trumbull, on the 13th of January, 1870, reported from the Judiciary

Committee a simple resolution reciting that Virginia, having complied

with all the requirements, was entitled to representation in Congress.

This was amended on motion of Drake, of Missouri, by a proviso that it

should never be lawful for the state to deprive any citizen of the

United States, on account of race, color, or previous condition of

servitude, of the right to hold office. Trumbull said in the debate on

this proposition that Congress had no authority to enact it and that it

would not be binding on the state. Yet it was adopted by a majority of

one vote, 30 to 29. Wilson then moved as an amendment that the state

constitution should never be so changed as to deprive any citizen or

class of citizens of school privileges, and this was adopted by 31 to

29, Trumbull in the negative. In addition to these a long section was

added prescribing a new form of oath to be taken by all state officers

and members of the legislature, which was adopted by 45 to 16, Trumbull

voting no. In the final vote on the Bill, however, he voted in the

affirmative. The same conditions were applied to Mississippi and Texas.

In the debate on the Virginia Bill there was a passage-at-arms between

Trumbull and Sumner which came near to overstepping parliamentary rules

on both sides and which caused widespread newspaper comment. It was

generally believed that a rupture had taken place between them which

would never be healed; yet a year later, when the decree went forth

(presumably from the White House) that Sumner must be deposed from the

chairmanship of the Committee on Foreign Relations, Trumbull was one of

his strongest supporters in the fight which ensued.

Following close after the reconstruction of Virginia came the

re-reconstruction of Georgia. That state ratified her _post-bellum_

constitution on the 11th of May, 1868, and elected Rufus P. Bullock,

governor. He represented the radicals, but the conservatives at the same

time carried the state legislature. A few negroes had been elected as

members, and these were expelled on the ground that the right to hold

office had not been conferred upon them by the new constitution. The

supreme court of the state a few months later decided that since the

rights of citizenship and of voting had been conferred upon them, the

right to hold office belonged to them also unless expressly denied. In

addition to unseating the blacks, the conservatives had admitted certain

members who could not take the oath prescribed in the Fourteenth

Amendment of the Constitution. Governor Bullock needed a legislature

different from the one which had been elected, in order to accomplish

certain ends which he had in view, and he seized upon these

irregularities as a means of overturning the majority. He then raised an

outcry, which he knew would stir the north,--that the blacks in Georgia

were still terrorized by the Ku-Klux Klans.

President Grant soon thereafter recommended that Congress take Georgia

again in hand. This was done promptly. An act was passed directing

Governor Bullock to call the legislature together and directing the

legislature to reorganize itself in accordance with the oaths of office

heretofore prescribed, including that of the Fourteenth Amendment; to

exclude all persons who could not lawfully take those oaths and to admit

all who had been expelled on account of color; also requiring Georgia to

ratify the Fifteenth Amendment before her Representatives and Senators

should be admitted to seats in Congress. The seventh section of the act

authorized Governor Bullock to call for the services of the army and

navy of the United States to enforce the provisions of the act. Under

this authority, exercised by General Terry, twenty-four conservatives

were expelled from the legislature and their places were filled by

radicals, and the negroes formerly excluded were returned to their

places. Even this did not satisfy Bullock. He went to Washington with a

troop of carpet-baggers and a pocketful of money and railroad bonds and

persuaded General Butler, who was chairman of the House Committee on

Reconstruction, to bring in a bill for the restoration of Georgia

similar to that of Virginia, with a proviso extending for two years the

term of office of the present legislature, which would otherwise expire

in November, 1870. Butler reported such a bill from his committee, but

Bingham, of Ohio, offered an amendment to require a new election of the

legislature at the time fixed in the state constitution, and this

amendment was agreed to, in spite of Butler's opposition, by 115 to 71.

The Georgia Bill was the subject of an exciting battle in the Senate

where Trumbull supported the Bingham proviso against the efforts of

Morton, Howard, Drake, Stewart, Sumner, Wilson, and all of the new

Senators from the South, two of whom (those of Texas) were hastily

admitted in time to vote on the Georgia question. The first vote was on

the motion of Williams, of Oregon, to prolong the life of the existing

legislature till November, 1872. One effect of so doing would be to

save a seat in the United States Senate for a man who had been elected

unlawfully. The vacancy would occur on March 4, 1871, and could be

lawfully filled only by the legislature chosen next preceding that date.

Williams's motion was voted down April 14, by a majority of one. On the

19th of the same month, Trumbull made one of the great speeches of his

public career, filling twelve columns of the _Congressional Globe_, on

the Georgia question, demolishing the Bullock case and stirring public

opinion strongly. The struggle was protracted till July 8, when the bill

passed, as Trumbull desired, with the Bingham proviso.

An editorial in the _Nation_ of May 26, 1870, tells, in brief compass,

what took place while the Georgia Bill was the matter of chief concern

in the Senate:

Our readers may remember that when Mr. Trumbull, some weeks

ago, made his severe summing up of the "Georgia difficulty," he

hinted in very plain terms that the patriots of the Bullock

faction had been guilty of both corruption and intimidation in

trying to get their "Reconstruction" bill through, installing

them in office for two years. By many people this charge was

ascribed partly to Mr. Trumbull's hatred of the black man, and

partly to his hostility to the pure and good of all colors, and

doubtless some asked themselves, as they asked themselves when

the Traitor Ross refused to give up his chair to Senator

Revels, for the sake of the dramatic unities: "What else can we

expect of a man who voted No on the Eleventh Article?"

[A committee of the Senate, appointed to look into the matter,

had taken a mass of testimony and submitted a report.] Their

finding is--and we blush to write it--that Bullock and his

friends have been for a long time in Washington, complaining of

the Ku-Klux Klan, and asking fresh guarantees for "the

persecuted Unionists" of Georgia; that somehow or other, while

there, they have had a great deal of money and railroad bonds,

which they seemed to have no particular use for, themselves;

that they tried unsuccessfully to purchase the votes of

Senators Carpenter and Tipton against the Bingham amendments;

that harrowing reports of "outrages" in Georgia were actually

prepared to order, like boots or dinners, furnished to them and

paid for; that the writing of threatening letters to Senators

was procured in the same manner; that $4000 was paid to that

good and great man, Colonel Forney, of the Washington

_Chronicle_, for "advertising and printing speeches and

documents," the Colonel's editorial denunciations of the

opponents of the Georgia Bill, we suppose, being thrown into

the bargain. The Washington correspondent of the Boston

_Advertiser_--a wicked fellow--adds that some of the witnesses

when first examined "were very loath to tell what they knew,

and indulged in the tallest kind of lying." The report of the

committee is unanimous.

The result of this expose probably will be that the Georgia

question will at last, after a year's delay, filled with this

lying and intrigue and corruption, be settled at the outset, by

handing the State Government back to the electors on the same

terms as Virginia, and letting the "Bullock faction" go home

and find some means of gaining an honest livelihood.... We

cannot pass from this affair, however, without bearing hearty

testimony to the services which Mr. Trumbull has, by his

attitude in it from the very beginning, rendered to truth,

justice, good government, and civilization. He has made every

honest man, North and South, his debtor, not for being able,

for this he cannot help, but for being bold, and hitting hard.

"By Time," says Hosea Biglow, "I du like a man that ain't

afeared!"

FOOTNOTES:

[98] _Diary of Gideon Welles_, III, 10-12.

[99] Boutwell, _Reminiscences_, II, 108.

[100] This was the second time that Sumner had shunted the nation in the

direction he desired it to go; the first time was when he filibustered

the Louisiana Bill to death at the end of the Thirty-ninth Congress.

Edward L. Pierce, his biographer and eulogist, writing in the early

nineties, says rather dubiously: "For weal or woe, whether it was well

or not for the black race and the country, it is to Sumner's credit or

discredit as a statesman that suffrage, irrespective of race or color,

became fixed and universal in the American system." (_Memoir and

Letters_, I, 228.)

[101] _Fifty Years of Public Service_, by Shelby M. Cullom, p. 146.

[102] _Diary of Gideon Welles_, II, 484.

CHAPTER XX

IMPEACHMENT

Early in 1867, Congress passed an act, originating in the Senate, to

prevent the President from removing, without the consent of the Senate,

any office-holders whose appointment required confirmation by that body.

In its inception it was not intended to include members of the Cabinet,

but merely to protect postmasters, collectors, and other appointees of

that grade, whom the President, in his stump speech at St. Louis, had

declared his intention to "kick out." Accordingly a clause was inserted

excluding Cabinet officers from the operation of the measure.

When the bill came before the House, a motion was made to strike out

this exception, and it was at first negatived by a majority of four.

Subsequently the motion was renewed and carried, but the Senate refused

to concur. The differences between the two houses were referred to a

committee of conference of which Sherman was a member. He had been

extremely resolute heretofore in opposing the attempt to include members

of the Cabinet, because he held that no gentleman would be willing to

remain a member after receiving an intimation from his chief that his

services were no longer desired. To this Senator Hendricks replied that

it was not a question of getting rid of a _gentleman_, but of a man of

different stamp, who might be in the Cabinet and desire to stay in. "The

very person who ought to be turned out," he said, "is the very person

who will stay in." The Conference Committee reported the following

proviso, which was adopted by both houses:

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 for one month thereafter, subject to removal by

and with the advice and consent of the Senate.

Senator Doolittle, who opposed the bill _in toto_, pointed out that it

did not accomplish what it aimed at: that is, it did not prevent the

President from removing the Secretary of War. He showed that Stanton had

never been appointed by Johnson at all. He was merely holding office by

sufferance. The term of the President by whom he was appointed had

expired and the "one month thereafter" had also expired; therefore, the

proviso reported by the Conference Committee was futile to protect him.

Sherman replied that the proviso was not intended to apply to a

particular case or to the present President, and that Doolittle's

interpretation of the phrase as not protecting Stanton in office was the

true interpretation. He added that if he supposed that Stanton, or any

other Cabinet officer, was so wanting in manhood and honor as to hold

his office after receiving an intimation that his services were no

longer desired, he (Sherman) would consent to his removal at any time.

This declaration committed Sherman in advance to a definite opinion as

to the President's right to remove Stanton whenever he pleased.

The bill passed with the clause above quoted, all the Republican

Senators present voting for it except Van Winkle and Willey, of West

Virginia. Trumbull was recorded in the affirmative.

At the first Cabinet meeting of February 26, the bill was considered,

and all the members thought that it ought to be vetoed. "Stanton was

very emphatic," says Welles, "and seemed glad of an opportunity to be in

accord with his colleagues." (He had previously given his sanction to

the Stevens Reconstruction Bill in opposition to his colleagues.) The

President said he would be glad if Stanton would prepare a veto or make

suggestions for one. Stanton pleaded want of time. The President then

turned to Seward, who said that he would undertake it if Stanton would

help him. This was agreed to, and the veto (based on the ground of

unconstitutionality) was prepared and submitted by them at the Cabinet

meeting of March 1. Stanton must have been aware of the colloquy between

Sherman and Doolittle in which his name was mentioned, and he probably

agreed with them in the opinion that he was not protected by the

Tenure-of-Office Act. If he had thought differently he would hardly have

favored the veto, or joined with Seward in writing it. The veto message

was sent in on March 2, 1867, and the bill was passed by two thirds of

both houses the same day.

Few persons at the present time believe that there was any substantial

ground for the impeachment of Andrew Johnson. The unsparing condemnation

of history has been visited upon the whole proceeding, and the commonly

received opinion now is that if the Senate had voted him guilty as

charged in the articles of impeachment a precedent would have been made

whereby the Republic would have been exposed to grave dangers. Trumbull

was one of the so-called "Seven Traitors" who prevented that

catastrophe.

The first session of the Fortieth Congress began on March 4, 1867. The

radical wing of the Republican party had been muttering about

impeachment even earlier, and a resolution had been passed by the House

on the 7th of January preceding, authorizing the Judiciary Committee to

inquire into the official conduct of the President and to report whether

he had been guilty of acts designed or calculated to "overthrow,

subvert, or corrupt the Government of the United States, or any

department or office thereof." On the 28th of February, the committee

reported that it had examined a large number of witnesses and collected

many documents, but had not been able to reach a conclusion and that it

would not feel justified in making a final report upon so important a

matter in the expiring hours of this Congress, even if it had been able

to make an affirmative one. On the 29th of March following, the

committee was instructed to continue its investigation.

It accordingly continued its work and voted on the 1st of June, by 5 to

4, that there was no evidence that would warrant impeachment; but at the

earnest solicitation of the minority it kept the case open during the

recess which Congress took from July to November. In this interval one

member of the committee changed his vote and this change made the

committee stand 5 to 4 in favor of impeachment. The report of the

committee was presented by Boutwell, of Massachusetts, November 25,

accompanied by a resolution that Andrew Johnson, President of the United

States, be impeached for high crimes and misdemeanors. James F. Wilson,

of Iowa, chairman of the committee, submitted a minority report adverse

to impeachment, and the House on the 7th of December sustained Wilson

and rejected the majority report by a vote of 57 to 108. Among those

voting against impeachment were Allison, Bingham, Blaine, Dawes, Poland,

Spalding, and Washburne, of Illinois. On the other side were Thaddeus

Stevens, B. F. Butler, and John A. Logan. On the 5th of August, the

President sent to Stanton a note of three lines saying that his

resignation as Secretary of War would be accepted. Stanton replied on

the same day declining to resign before the next meeting of Congress.

The President thereupon decided to remove him regardless of

consequences, but he felt the necessity of finding somebody to take the

office who would be acceptable to the country. His choice fell upon

General Grant, who was perhaps the only person whose appointment under

the circumstances would not have caused a disturbance. No plausible

objection could be raised against him in any quarter, not even by

Stanton himself. Grant reluctantly consented to accept the place.

Accordingly one week after Stanton had refused to resign, the President

suspended him and appointed Grant Secretary _ad interim_ and so notified

Stanton. The latter had undoubtedly made plans for retaining the office

in defiance of the President and was chagrined to find that a man had

been appointed whom he could not resist. Although a few months earlier

he had advised the President that the Tenure-of-Office Law was

unconstitutional and had assisted in writing the message vetoing it on

that ground, he now denied the President's power to suspend him without

the consent of the Senate, but said that he yielded to superior force.

He then surrendered his office to Grant. Although the usual expressions

of confidence and esteem were exchanged between himself and his

successor, a residue of asperity remained in the breast of the retiring

Secretary, who felt that the head of the army ought not to have enabled

the President to get the better of him. But as a matter of fact Grant

did not want the office. He accepted it only because he feared that

trouble might follow from the appointment of somebody less familiar than

himself with conditions prevailing in the South.

On the 13th of January, 1868, the Senate, having considered the reasons

assigned by the President for the suspension of Stanton from office,

non-concurred in the same and sent notice to this effect to the

President and to Grant. The latter considered his functions as Secretary

_ad interim_ terminated from the moment of receipt of the notice and so

notified the President, at the same time locking the door of his room

and handing the key to the person in charge of the Adjutant-General's

office in the same building.

Under the terms of the Tenure-of-Office Law, Stanton returned and

resumed his former place.

On the 27th of January, a motion was made by Mr. Spalding in the House

of Representatives that the Committee on Reconstruction be authorized to

inquire what combinations had been made to obstruct the due execution of

law and to report what action, if any, was necessary in consequence

thereof. This resolution was adopted by a vote of 99 to 31. A few days

later, on the motion of Thaddeus Stevens the evidence taken by the

Committee on the Judiciary on the impeachment question was referred to

the Committee on Reconstruction. Certain correspondence that had passed

between General Grant and President Johnson relating to the retirement

of the former from the War Office was also sent to the same committee.

The correspondence between General Grant and the President here referred

to gives a fresh illustration of Andrew Johnson's want of tact in

dealing with men and events. He first made an accusation that Grant had

failed to keep a promise that he had previously given that "if you

[Grant] should conclude that it would be your duty to surrender the

department to Mr. Stanton, upon action in his favor by the Senate, you

were to return the office to me, _prior to a decision by the Senate_, in

order that if I desired to do so I might designate somebody to succeed

you." This letter was dated January 31, 1868. Grant replied (February

3) denying that he had made any such promise, and saying that the

President in making this accusation had sought to involve him in a

resistance to law and thus to destroy his character before the country.

Several other letters followed, including one from each member of the

Cabinet, who was present when the matter was talked of between the two

principals, all confirming the President's statements. The letters of

Browning and Seward, however, tended to show that the President's desire

was to make up a case for the Supreme Court, to decide whether he had a

right under the Constitution to remove a Cabinet officer or not, and

that he supposed that Grant had promised to cooeperate with him to

promote that end; but that whatever Grant might have promised, the

sudden action of the Senate led him to believe that he could not delay

his retirement without subjecting himself to the chance of fine and

imprisonment under the Tenure-of-Office Law.[103]

The quarrel between Johnson and Grant did not, however, help the

impeachers, who were voted down in the Committee on Reconstruction,

February 13, by 6 to 3, Stevens being in the minority.

Stanton was now in a position of great embarrassment, being a member of

the Cabinet by appointment of the Senate, but unable to attend Cabinet

meetings. He was endowed with sufficient assurance for most purposes,

but not enough to go to the White House and take a seat among gentlemen

who would have looked upon him as an intruder and a spy. Johnson was

advised by General Sherman and others to leave him severely alone.[104]

If this advice had been followed, Stanton would have been exposed to

ridicule ere long and the Senate could not have helped him to ward it

off. But Johnson came to his rescue by making a fresh attempt to oust

him. Eight days after Thaddeus Stevens's impeachment resolution had been

voted down, two to one, in his own committee, the President sent a note

to Edwin M. Stanton saying that he had removed him from the office of

Secretary of War and appointed Lorenzo Thomas, the Adjutant-General of

the Army, as Secretary of War _ad interim_. The new appointee

immediately presented himself at the War Office and showing his

authority demanded possession, which Stanton refused to yield.

The tables were instantly turned. Stanton was no longer looked upon as

holding an office with nothing to do except to draw his salary, but as a

champion of the people defending them against a law-breaking President.

Grant had warned Johnson months before that the public looked upon the

Tenure-of-Office Law as constitutional until pronounced otherwise by the

courts, and that although an astute lawyer might explain it differently

the common people would "give it the effect intended by its framers,"

that is, to protect Stanton.[105]

This was sound advice. The revulsion in the public mind was electrical

in suddenness and strength. The House of Representatives, which, on the

7th of December, by nearly two to one had rejected an impeachment

resolution recommended by its Judiciary Committee, now (February 24)

adopted the same resolution by 128 to 47. Every Republican member who

was present, including James F. Wilson, voted in the affirmative. A

committee of seven was appointed to prepare articles of impeachment and

present them to the Senate. Nine such articles were reported to the

House on the 2d of March and two additional ones on the following day,

all of which were agreed to, and seven members of the House were

appointed as managers to conduct the impeachment, namely: John A.

Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas

Williams, John A. Logan, and Thaddeus Stevens.

The trial began on the 5th of March, Chief Justice Chase presiding. The

President was represented by Henry Stanbery, Benjamin R. Curtis, William

S. Groesbeck, William M. Evarts, and Thomas A. R. Nelson. The House

managers were overmatched in point of legal ability by the President's

counsel, and still more by the facts in the case. The first eight

articles of impeachment were based upon the President's attempt to

remove Stanton and appoint Thomas as Secretary of War _ad interim_, but

inasmuch as Senator Sherman had publicly declared that Stanton, being an

appointee of Lincoln, was not protected by the Tenure-of-Office Law,

and that he ought to be removed anyhow if he refused to resign at the

President's request, it was deemed best by the impeachers to divide the

offense into two parts. So the first article related only to the removal

of Stanton and the second only to the appointment of Thomas. This, it

was believed, would enable Sherman to vote not guilty on the first, but

guilty on the second. He could vote that the President had a perfect

right to remove his Secretary of War, but no right to fill the vacancy,

and that any attempt on his part to do so would be a high misdemeanor,

punishable by impeachment and removal from office. And so it turned out

as regarded Sherman's vote, and also that of Senator Howe, of Wisconsin,

who shared Sherman's view that Stanton was not protected by the law.

The ninth article charged the President with having a conversation with

General Emory, who commanded the military department of Washington, and

saying to him that that portion of the Army Appropriation Act, which

provided that all orders relating to military affairs should be issued

through the General of the Army, or the officer next in rank, and not

otherwise, was unconstitutional, thus seeking to induce said Emory to

violate the provisions of said act.

The tenth article recited that Andrew Johnson did at certain times and

places make and "deliver with a loud voice certain intemperate,

inflammatory, and scandalous harangues and did therein utter loud

threats and bitter menaces as well against Congress as the laws of the

United States duly enacted thereby, amid the cries, jeers, and laughter

of the multitudes then assembled." Extracts from the speeches were

embodied in this article, "by means whereof the said Andrew Johnson has

brought the high office of President of the United States into

contempt, ridicule, and disgrace, to the great scandal of all good

citizens, whereby said Andrew Johnson, President of the United States,

did commit, and was then and there guilty of, a high misdemeanor in

office." This article was the production of General Butler.

The eleventh article embraced the charge of seeking to prevent Stanton

from resuming his office as Secretary of War, but not that of removing

him from it (this to accommodate Sherman and Howe), and a _melange_ of

all the charges in the preceding articles, ending with a charge that the

President had in various ways attempted to prevent the execution of the

Reconstruction Acts of Congress. Thaddeus Stevens considered it the only

one of the series that was bomb-proof, but the Chief Justice ruled that

the Stanton matter was the only thing of substance in it, the residue

being mere objurgation. The answer filed by the President's counsel set

forth:

First, that the Tenure-of-Office Law, in so far as it sought to prevent

the President from removing a member of his Cabinet, was

unconstitutional; that such was the opinion of each member of his

Cabinet, including Stanton, and that Stanton among others advised him to

veto it;

Second, that even if the law were in harmony with the Constitution the

Secretary of War was not included in its prohibitions, since the term

for which he was appointed had expired before the President sought to

remove him;

Third, that it seemed desirable, in view of the foregoing facts, to

secure a judicial determination of all doubts respecting the rights and

powers of the parties concerned, from the tribunal created for that

purpose; and to this end he had taken the steps complained of, and that

he had committed no intentional violation of law.

In answer to the eleventh article, the defendant said that the matters

contained therein, except the charge of preventing the return of

Stanton to the office of Secretary of War, did not allege the commission

or omission of any act whatever whereby issue could be joined or answer

made. As to the Stanton matter, his answer was already given in the

answer to the first article.

There were two theories rife in the Senate and in the country,

respecting this trial. One was that impeachment was a judicial

proceeding where charges of treason, bribery, or other high crimes or

misdemeanors were to be alleged and proved; the Senators sitting as

judges, hearing testimony and argument, and voting guilty or not guilty.

This opinion was generally accepted at first, both in and out of

Congress, and was the correct one. The other was that impeachment was a

political proceeding which the whole people were as competent to decide

as the Senate. This was the view taken by Charles Sumner and avowed by

him in his written opinion while sitting as one of the sworn judges to

vote guilty or not guilty, and it came to be the opinion prevailing in

the Republican party generally before the case was ended. According to

this view it was a question for the people to decide in their character

as an unsworn "multitudinous jury." No method of arriving at, or of

recording, their verdict was suggested or deemed necessary. To a person

holding this view the trial itself was logically a waste of time, since

a decision could have been reached without a scrap of testimony, or a

single speech, on either side.

The trial lasted from the 5th of March to the 16th of May, and the heat

and fury of the contest both in and out of Congress became more intense

from day to day. The impeachers lost ground in the estimation of the

sober-minded and reflecting classes by their intemperate language, by

their frantic efforts to bring outside pressure to bear upon Senators,

and especially by their refusal to admit testimony offered to show that

the President's intent was not to defy the law, but to get a judicial

decision as to what the law was. The Chief Justice ruled that testimony

to prove intent was admissible, and Senator Sherman asked to have it

admitted, but it was excluded by a majority vote. Testimony to prove

that Stanton advised the President that the Tenure-of-Office Law was

unconstitutional and that he aided in writing the veto message was

excluded by the same vote. Gideon Welles, under date April 18,[106] says

that Sumner, who had previously moved to admit all testimony offered,

absented himself when it was proposed to call the Cabinet officers as

witnesses. Monday, May 11, the case was closed and the Senate retired

for deliberation. The session was secret, but the views of Senators, so

far as expressed, leaked out. "Grimes boldly denounced all the

articles," says Welles, "and the whole proceeding. Of course he received

the indignant censure of all radicals; but Trumbull and Fessenden, who

followed later, came in for even more violent denunciation and more

wrathful abuse."

The vote was not taken until the 16th, and the intervening time was

employed by the impeachers in bringing influence to bear upon Senators

who had not definitely declared how they would vote. There were 54 votes

in all; two thirds were required to convict. There were 12 Democrats,

counting Dixon, Doolittle, and Norton, who had been elected as

Republicans, but had been classed as Democrats since they had taken part

in the Philadelphia Convention of August, 1866. If seven Republicans

should join the twelve in voting not guilty, the President would be

acquitted. Three had declared in the conference of Monday, the 11th, for

acquittal, and they were men who could not be swerved by persuasion or

threats after they had made up their minds. If four more should join

with the three, impeachment would fail. Welles names as doubtful to the

last Senators Anthony and Sprague, of Rhode Island, Van Winkle and

Willey, of West Virginia, Frelinghuysen, of New Jersey, Morgan, of New

York, Corbett, of Oregon, Cole, of California, Fowler, of Tennessee,

Henderson, of Missouri, and Ross, of Kansas. He adds, May 14:

The doubtful men do not avow themselves, which, I think, is

favorable to the President, and the impeachers display distrust

and weakness. Still their efforts are unceasing and almost

superhuman. But some of the more considerate journals, such as

the New York _Evening Post_, Chicago _Tribune_, etc., rebuke

the violent. The thinking and reflecting portion of the

country, even Republicans, show symptoms of revolt against the

conspiracy.[107]

The article in the New York _Evening Post_ of May 14, two days before

the first vote was taken, is a column long. It can only be summarized

here.

So long as the court sat, it says, decency forbade the

discussion of the issue elsewhere. It characterizes the

articles of impeachment in groups and severally, and says

Article XI "reads like a jest, in charging solemn official acts

of 1868 as done in pursuance of an extreme and excited

declaration, made to a crowd, in a political speech almost two

years before...." Impertinent issues were constantly pressed

upon the court from without. The New York _Tribune_ demanded

conviction and removal for breaking the Tenure-of-Office Act,

because, it said, the President was guilty of drunkenness,

adultery, treason, and murder. The investigation is of a sudden

changed in its nature by the advocates of conviction and

becomes a matter of politics, and no longer a judicial concern.

Senator Wilson leads off by violating an absolutely fundamental

principle of the life and law of every free people, i.e., the

principle that an accused man shall have the benefit of a

doubt, and be believed innocent until proved guilty. Wilson

says: "I shall give the benefit of whatever doubts have arisen

to perplex and embarrass me to my country rather than to the

Chief Magistrate." ... Here was a plain confession that to

obtain conviction a "first principle of public law must be

sacrificed; that one prominent judge, at least, would condemn

the accused, however conscientiously, from other than judicial

motives." It describes graphically the pressure brought to bear

upon the court and its shameless character, and quotes from the

New York _Tribune's_ flagrant attack upon Grimes, Trumbull, and

Fessenden, "three of the most honored statesmen and tried

patriots in the land." "Thus," it says, "a prominent party

organ tries to instigate the passions of the multitude to drive

the court to the judgment it desires."

"In a meeting of the Republican Campaign Club on Tuesday evening," it

continues, "Charles S. Spencer said that 'as a man of peace and one

obedient to the laws, he would advise Senator Trumbull not to show

himself on the streets in Chicago during the session of the National

Republican Convention, for he feared that the representatives of an

indignant people would hang him to the most convenient lamp-post.' And

the meeting adopted and ordered to be sent to our Senators in Congress,

a resolution, 'that any Senator of the United States elected by the

votes of Union Republicans, who at this time blenches and betrays, is

infamous, and should be dishonored and execrated while this free

Government endures.'"

The following is from the Chicago _Tribune_, May 14, 1868:

IMPEACHMENT

... The man who demands that each Republican Senator shall

blindly vote for conviction upon each article is a madman or a

knave. Why a Senator, or any number of Senators, should be at

liberty to vote as conscience dictates on any of the articles,

provided there be a conviction on some one of them, and not be

at liberty to vote conscientiously unless a conviction be

secured, is only to be explained upon the theory that the

President is expected to be convicted no matter whether

Senators think he has been guilty or not. We have protested,

and do now protest, against the degradation and prostitution of

the Republican party to an exercise of power so revolting that

the people will be justified in hurling it from place at the

first opportunity. We protest against any warfare by the party

or any portion of it against any Senator who may, upon the

final vote, feel constrained to vote against conviction upon

one, several, or even all of the articles. A conviction by a

free and deliberate judgment of an honest court is the only

conviction that should ever take place on impeachment; a

conviction under any other circumstances will be a fatal error.

To denounce such Senators as corrupt, to assail them with

contumely and upbraid them with treachery for failing to

understand the law in the same light as their assailants, would

be unfortunate folly, to call it by the mildest term; and to

attempt to drive these Senators out of the party for refusing

to commit perjury, as they regard it, would cause a reaction

that might prove fatal not only to the supremacy of the

Republican party, but to its very existence. Those rash papers

which have undertaken to ostracise Senators--men like Trumbull,

Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen,

Fowler, and others--are but aiding the Copperheads in the

dismemberment of our party.

From the _Nation_, May 14, 1868.

... Can any party afford to treat its leading men as a part of

the Republican press has been treating leading Republicans

during the last few weeks? Senators of the highest character,

who, in being simply honest and in having a mind of their own,

render more service to the country than fifty thousand of the

windy blatherskites who assail them, have been abused like

pickpockets, simply because they chose to think. We have,

during the last week, heard language applied to Mr. Fessenden

and Mr. Trumbull, for instance, which was fit only for a

compound of Benedict Arnold and John Morrissey, and all their

colleagues have been warned beforehand, that if they pleaded

their oaths as an excuse for differing from anybody who

happened to edit a newspaper, they would be held up to

execration as knaves and hypocrites. Now, the class of men who

are most needed in our politics just now are high-minded,

independent men, with their hands clean and souls of their own.

Their errors of judgment are worth bearing with for the sake of

their character. Yet this class is becoming smaller and

smaller, falling more and more into disrepute. The class of

roaring, corrupt, ignorant demagogues, who are always on "the

right side" with regard to all party measures, grows apace;

and, if we are not greatly mistaken, if the Republican party

does not make short work with them before long, they will make

short work of it....

When it became known that Grimes, Trumbull, and Fessenden would vote not

guilty, the pressure from outside was redoubled upon others who had been

reckoned doubtful, and especially upon Henderson, Fowler, and Ross.

Even the General Conference of the Methodist Episcopal Church, then in

session at Chicago, was called upon to lend a hand, and a motion was

made on the 13th of May for an hour of prayer in aid of impeachment. An

aged delegate moved to lay that proposal on the table, saying:

My understanding is that impeachment is a judicial proceeding

and that Senators are acting under an oath. _Are we to pray to

the Almighty that they may violate their oaths?_

The motion to lay on the table prevailed. On the following day, however,

Bishop Simpson offered a new preamble and resolution, omitting any

expression of opinion that Senators ought to vote for conviction, but

reciting that "painful rumors are in circulation that, partly by

unworthy jealousies and partly by corrupt influences, pecuniary and

otherwise, most actively employed, efforts were being made to influence

Senators improperly, and to prevent them from performing their high

duty"; therefore, an hour should be set apart in the following day for

prayer to beseech God "to save our Senators from error." This cunningly

drawn resolution was adopted without opposition. It was supposed to have

been aimed at Senator Willey, of West Virginia, rather than at the

Throne of Grace.

Under the rules adopted for the trial each Senator was allowed to file a

written opinion. That of Trumbull was the first one in the list. Among

other things he said:

To do impartial justice in all things appertaining to the

present trial, according to the Constitution and laws, is the

duty imposed on each Senator by the position he holds and the

oath he has taken, and he who falters in the discharge of that

duty, either from personal or party considerations, is unworthy

his position, and merits the scorn and contempt of all just

men.

The question to be decided is not whether Andrew Johnson is a

proper person to fill the presidential office, nor whether it

is fit that he should remain in it, nor, indeed, whether he has

violated the Constitution and laws in other respects than those

alleged against him. As well might any other fifty-four persons

take upon themselves by violence to rid the country of Andrew

Johnson, because they believed him a bad man, as to call upon

the fifty-four Senators, in violation of their sworn duty, to

convict and depose him for any other causes than those alleged

in the articles of impeachment. As well might any citizen take

the law into his own hands and become its executioner as to ask

the Senate to convict, outside of the case made. To sanction

such a principle would be destructive of all law and all

liberty worth the name, since liberty unregulated by law is but

another name for anarchy.

He then took up the articles of impeachment _seriatim_ and showed that

they all hinged upon the removal of Stanton and the _ad interim_

appointment of Thomas.

But even if a different construction could be put upon the law

[he continued], I could never consent to convict the Chief

Magistrate of a high misdemeanor and remove him from office for

a misconstruction of what must be admitted to be a doubtful

statute, and particularly when the misconstruction was the same

put upon it by the authors of the law at the time of its

passage.

As to the charge that he (Trumbull) had already voted that the President

had no authority to remove Stanton, he said:

Importance is sought to be given to the passage by the Senate,

before impeachment articles were found by the House of

Representatives, of the following resolutions: "Resolved by the

Senate of the United States, That under the Constitution and

laws of the United States the President has no power to remove

the Secretary of War and designate any other officer to perform

the duties of that office _ad interim_" as if Senators, sitting

as a court on the trial of the President for high crimes and

misdemeanors, would feel bound or influenced in any degree by a

resolution introduced and hastily passed before adjournment on

the very day the orders to Stanton and Thomas were issued. Let

him who would be governed by such considerations in passing on

the guilt or innocence of the accused, and not by the law and

the facts as they have been developed in the trial, shelter

himself under such a resolution. I am sure no honest man could.

He concluded with these words:

Once set the example of impeaching a President for what, when

the excitement of the hour shall have subsided, will be

regarded as insufficient cause, and no future President will be

safe who happens to differ with a majority of the House and two

thirds of the Senate on any measure deemed by them important,

particularly if of a political character. Blinded by partisan

zeal, with such an example before them they will not scruple to

remove out of the way any obstacle to the accomplishment of

their purpose, and what then becomes of the checks and balances

of the Constitution so carefully devised and so vital to its

perpetuity? They are all gone. In view of the consequences

likely to flow from this day's proceedings, should they result

in conviction on what my judgment tells me are insufficient

charges and proofs, I tremble for the future of my country. I

cannot be an instrument to produce such a result, and at the

hazard of the ties even of friendship and affection, till

calmer times shall do justice to my motives, no alternative is

left me but the inflexible discharge of duty.

Gideon Welles, under date May 16, says:

Willey, after being badgered and disciplined to decide against

his judgment, at a late hour last night agreed to vote for the

eleventh article, which was one reason for reversing the order

and making it the first.... Bishop Simpson, a high priest of

the Methodists and a sectarian politician of great shrewdness

and ability, had brought his clerical and church influence to

bear upon Willey through Harlan, the Methodist elder and organ

in the Senate.[108]

So the managers vaulted over ten articles and began the roll-call on the

last of the series. The vote resulted: guilty, 35; not guilty, 19. One

less than two thirds had voted not guilty; so the President was

acquitted on an article, the gravamen of which was the President's

attempt to prevent Stanton from returning to office after the Senate had

non-concurred in his removal. Sherman, Howe, and Willey had voted guilty

on this article, but Henderson, Fowler, Ross, and Van Winkle had voted

not guilty.

The impeachers were stunned, and before they could collect their

thoughts, the Chief Justice, in pursuance of a rule previously adopted,

directed that the vote should now be taken on the first article. He was

interrupted by a motion to adjourn, which he ruled out of order. An

appeal from the decision was taken and sustained by a majority vote, and

the Senate sitting as a court of impeachment adjourned for ten days. The

utmost efforts and direst threats were brought to bear upon Senator Ross

because he was believed to be weak and defenseless, but he remained

firm. When the court reassembled on the 26th of May, the first article

of impeachment, the one which charged the President with the high

misdemeanor of removing Stanton from office, was jettisoned altogether,

and votes were taken on the second and third articles, relating to the

appointment of Thomas as Secretary _ad interim_. On both of these

articles the result was identical in number and personnel with that on

the eleventh article. Impeachment had failed. The court then adjourned

_sine die_.

The opposition to impeachment had some latent strength that was never

officially disclosed. Sprague, of Rhode Island, and Willey, of West

Virginia, attended the meetings of the Republican anti-impeachers and

said they would vote not guilty if their votes should be needed.[109]

The President was assured that Morgan would do the same.[110]

On the same day, Edwin M. Stanton wrote a note to the President saying

that inasmuch as impeachment had failed he had relinquished the War

Department and had left the contents thereof in charge of the senior

Assistant Adjutant-General. He then retired to his own home broken in

health by hard labor and clouded in reputation by his retention of a

place in the Cabinet in defiance of his chief. Not even success in

maintaining his position could excuse such an act. Failure made it a

glaring misdemeanor. An attempt has been made to shift the

responsibility for his action to the shoulders of Sumner and his other

backers in the Senate, who advised him to "stick." Undoubtedly they did

so advise, and undoubtedly they believed, and persuaded him to believe,

that it was a patriotic duty to commit a glaring breach of good manners

and to persist in it for months; but the responsibility for such an act

could not be assumed by other persons. Moreover, if it was a breach of

the Constitution for the Senate to forbid the President to choose his

own cabinet, as Stanton himself had affirmed, it was a breach of the

Constitution for him to cooeperate with the Senate in doing so.

The glory of the trial [says Mr. Rhodes][111] was the action of

the seven recusant Senators.... The average Senator who

hesitated finally gave his voice with the majority, but these

seven, in conscientiousness and delicacy of moral fibre, were

above any average, and in refusing to sacrifice their ideas of

justice to a popular demand, which in this case was neither

insincere nor unenlightened, they showed a degree of courage

than which we know none higher. Hard as was their immediate

future they have received their meed from posterity, their

monument in the admiring tribute of all who know how firm they

stood in an hour of supreme trial.

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