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.