The debate on the direct question of Reconstruction did not begin at
so early a date in the Senate as in the House, but kindred topics led
to the same line of discussion as that in which the House found itself
engaged. During the first week of the session Mr. Wilson of
Massachusetts had submitted a bill for the protection of freedman,
designed to overthrow and destroy the odious enactments which in many
of the Southern States were rapidly reducing the entire negro race to
a new form of slavery. Mr. Wilson's bill provided that "all laws,
statutes, acts, ordinances, rules and regulations in any of the States
lately in rebellion, which, by inequality of civil rights and
immunities among the inhabitants of said States is established or
maintained by reason of differences of color, race or descent, are
hereby declared null and void." For the violation of this statute a
punishment was provided by fine of not less than five hundred dollars
nor more than ten thousand dollars, and by imprisonment not less than
six months nor more than five years.
In debating his bill Mr. Wilson declared that he had "no desire to say
harsh things of the South nor of the men who have been engaged in the
Rebellion. I do not ask their property or their blood; I do not wish
to disgrace or degrade them; but I do wish that they shall not be
permitted to disgrace, degrade or oppress anybody else. I offer
this bill as a measure of humanity, as a measure that the needs of
that section of the country imperatively demand at our hands. I
believe that if it should pass it will receive the sanction of
nineteen-twentieths of the loyal people of the country. Men may differ
about the power or the expediency of giving the right of suffrage to the
negro; but how any humane, just and Christian man can for a moment
permit the laws that are on the statute-books of the Southern States
and the laws now pending before their Legislatures, to be executed
upon men whom we have declared to be free, I cannot comprehend."
Mr. Reverdy Johnson replied to Mr. Wilson in a tone of apology for the
laws complained of, but took occasion to give his views of the status
of the States lately in rebellion. "I have now," said Mr. Johnson,
"and I have had from the first, a very decided opinion that they are
States in the Union and that they never could have been placed out of
the Union without the consent of their sister States. The insurrection
terminated, the authority of the Government was thereby re-instituted;
_eo instanti_ they were invested with all the rights belonging to them
originally--I mean as States. . . In my judgment our sole authority for
the acts which we have done during the last four years was the
authority communicated to Congress by the Constitution to suppress
insurrection. If the power can only be referred to that clause, in my
opinion, speaking I repeat with great deference to the judgment of
others, the moment the insurrection was terminated there was no power
whatever left in the Congress of the United States over those States;
and I am glad to see, if I understand his Message, that in the view I
have just expressed I have the concurrence of the President of the
United States."
Mr. Sumner sustained Mr. Wilson's bill in an elaborate argument
delivered on the 20th of December. There was an obvious desire in
both branches of Congress and in both parties--those opposed to the
President's policy and those favoring it--to appeal to the popular
judgment as promptly as possible, and this led to a prolonged and
earnest debate prior to the holidays, an occurrence unusual and almost
unprecedented. Mr. Sumner declared that Mr. Wilson's bill was simply
to maintain and carry out the Proclamation of Emancipation. The pledge
there given was that the Executive Government of the United States,
including the military and naval authority thereof, would recognize
and maintain the freedom of such persons. "This pledge," said Mr.
Sumner, "is without limitation in space or time. It is as extended
and as immortal as the Republic itself, to that pledge we are solemnly
bound; wherever our flag floats, as long as time endures, we must see
that it is sacredly observed. The performance of that pledge cannot
be intrusted to another, least of all to the old slave-masters,
embittered against their slaves. It must be performed by the National
Government. The power that gives freedom must see that freedom is
maintained."
"Three of England's greatest orators and statesmen," continued Mr.
Sumner, "Burke, Canning and Brougham, at successive periods unite in
declaring, from the experience of the British West Indies, that
whatever the slave-masters undertook to do for their slaves was always
arrant trifling; that whatever might be its plausible form it always
wanted the executive principle. More recently the Emperor of Russia,
in ordering the emancipation of the serfs, declared that all previous
efforts had failed because they had been left to the spontaneous
initiative of the proprietors." . . . "I assume that we shall not leave
to the old slave-proprietors the maintenance of that freedom to which
we are pledged, and thus break our own promise and sacrifice a race."
In concluding his speech Mr. Sumner referred to the enormity of the
wrongs against the freedmen as something that made the blood curdle.
"In the name of God," said he, "let us protect them; insist upon
guarantees; pass the bill under consideration; pass any bill, but do
not let this crying injustice rage any longer. An avenging God cannot
sleep while such things find countenance. If you are not ready to be
the Moses of an oppressed people, do not become their Pharaoh."
Mr. Willard Saulsbury of Delaware made a brief reply to Mr. Sumner, not
so much to argue the points put forward by the senator from
Massachusetts, not so much to deny the facts related by him or to
discuss the principles which he had presented, as to announce that
"it can be no longer disguised that there is in the party which elected
the President an opposition party to him. Nothing can be more
antagonistic than the suggestions contained in his Message and the
speeches already made in both Houses of Congress." He adjured the
President to be true and faithful to the principles he had
foreshadowed, and pledged him "the support of two million men in the
States which have not been in revolt, and who did not support him for
his high office."
Mr. Cowan of Pennsylvania, one of the Republican senators who had
indicated a purpose to sustain the President, was evidently somewhat
stunned by Mr. Sumner's speech. He treated the outrages of which Mr.
Sumner complained as exceptional instances of bad conduct on the part
of the Southern people. "One man out of ten thousand," said Mr. Cowan,
"is brutal to a negro, and that is paraded here as a type of the whole
people of the South; whereas nothing is said of the other nine thousand
nine hundred and ninety-nine men who treat the negro well." Mr.
Cowan's argument was altogether inapposite; for what Mr. Sumner and Mr.
Wilson had complained of was not the action of individual men in the
South, but of laws solemnly enacted by Legislatures whose right to act
had been recognized by the Executive Department of the National
Government, and which had indeed been organized in pursuance of the
President's Reconstruction policy,--almost in fact by the personal
patronage of the President. The situation was one very difficult to
justify by a man with the record of Mr. Cowan. He had been not merely
a Republican before his entrance into the Senate but a radical
Republican, taking ground in the campaign of 1860 only less advanced
than that maintained by Mr. Thaddeus Stevens himself.
These debates in both Senate and House, at so early a period of the
session, give a full and fair indication of the temper which prevailed
in the country and in Congress. The majority of the members had not,
at the opening of the session, given up hope of some form of co-operation
with the President. As partisans and party leaders they looked
forward with something of dismay to the rending of all relations
with the Executive, and to the surrender of the political advantage
which comes to the party and to the partisan from a close alliance
between the Executive and Legislative Departments. On the re-assembling
of Congress after the holidays a great change was seen and realized
by all. It was feared by many, even of the most conservative,
that the policy of Congress and the policy of the President might come
into irreconcilable conflict, and that the party which had successfully
conducted the Government through the embarrassments, the trials and
the perils of a long civil war, might now be wrecked by an angry
controversy between two departments of the Government, each owing its
existence to the same great constituency,--the loyal people of the North.
Circumstances suggested the impossibility of a successful contest
against the President and the Democratic party united. Even those
elections which result, in the exuberant language of the press, in
an overwhelming victory on the one side and an overwhelming defeat,
on the other, are often found, upon analysis, to be based on very
narrow margins in the popular result, the reversal of which requires
only the change of a few thousand votes. This was demonstrated in
many of the great States, even in the second election of Mr. Lincoln,
when to the general apprehension he was almost unanimously sustained.
From this fact it was well argued by Republicans in Congress that
great danger to the party was involved in the impending dissension.
Even the most sanguine feared defeat, and the naturally despondent
already counted it as certain. Never before had so stringent a test
of principle been applied to the members of both Houses. The situation
was indeed peculiar. The great statesman who had been honored as the
founder of the Republican party was now closely allied with the
Administration. His colleague who had sat next him in the Cabinet of
Mr. Lincoln, and who, in the judgment of his partial friends, was the
peer of Mr. Seward both in ability and in merit, did not hesitate to
show from the exalted seat of the Chief Justice his strong sympathy
with the President.
The leading commercial men, who had become weary of war, contemplated
with positive dread the re-opening of a controversy which might prove
as disturbing to the business of the country as the struggle of arms
had been, and without the quickening impulses to trade which active
war always imparts. The bankers of the great cities, whose capital
and whose deposits all rested upon the credit of the country and were
invested in its paper, believed that the speedy settlement of all
dissension and the harmonious co-operation of all departments of the
Government were needed to maintain the financial honor of the nation
and to re-instate confidence among the people. Against obstacles so
menacing, against resistance so ominous, against an array of power so
imposing, it seemed to be an act of boundless temerity to challenge the
President to a contest, to array public opinion against him, to
denounce him, to deride him, to defy him.
It is to the eminent credit of the Republican members of Congress that
they stood in a crisis of this magnitude true to principle, firm
against all the power and all the patronage of the Administration. No
unmanly efforts to compromise, no weak shirking from duty, sullied the
fame of the great body of senators and representatives. Even the Whig
party in 1841, with Mr. Clay for a leader, did not stand so solidly
against John Tyler as the Republican party, under the lead of Fessenden
and Sumner in the Senate and of Thaddeus Stevens in the House, now
stood against the Administration of President Johnson. The Whigs of
the country, in the former crisis, lost many of their leading and most
brilliant men,--a sufficient number indeed to compass the defeat of Mr.
Clay three years later. The loss to the Republican party now was so
small as to be unfelt and almost invisible in the political contests
into which the party was soon precipitated. The Whigs of 1841 were
contending only for systems of finance, and they broke finally with the
President because of his veto of a bill establishing a fiscal agency
for the use of the Government,--merely a National Bank disguised under
another name. The Republicans of 1866 were contending for a vastly
greater stake,--for the sacredness of human rights, for the secure
foundation of free government. Their constancy was greater than that
of the Whigs because the rights of person transcend the rights of property.
On the 12th of December Mr. Cowan had submitted a resolution requesting
the President to furnish to the Senate information of "the condition of
that portion of the United States lately in rebellion; whether the
rebellion has been suppressed and the United States again put in
possession of the States in which it existed; whether the United-States
post-offices are re-established and the revenues collected therefrom;
and also, whether the people of those States have re-organized their
State governments; and whether they are yielding obedience to the laws
and Government of the United States." Mr. Sumner moved an amendment,
directing the President to furnish to the Senate at the same time
"copies of such reports as he may have received from the officers or
agents appointed to visit this portion of the Union, including
especially any reports from the Honorable John Covode and Major-General
Carl Schurz." The President's message, sent to the Senate a week
later, in response to this resolution, was brief, being simply a
statement of what had been accomplished by his Reconstruction policy,
with an expression of his belief that "sectional animosity is surely
and rapidly merging itself into a spirit of nationality; that
representation, connected with a properly adjusted system of taxation,
will result in a harmonious restoration of the relations of the States
to the National Union." He transmitted the report of Mr. Schurz
and also invited the attention of the Senate to a report of
Lieutenant-General Grant, who had recently made a tour of the
inspection through several of the States lately in rebellion.
The President evidently desired that General Grant's opinions
concerning the South should be spread before the public. From the high
character of the General-in-Chief and his known relations with the
prominent Republicans in Congress, the Administration hoped that great
influence would be exerted by the communication of his views. His
report was short and very positive. He declared his belief that "the
mass of thinking men of the South accept the present situation of
affairs in good faith." At the same time he thought that "four years
of war have left the people possibly in a condition not ready to yield
that obedience to civil authority which the American people have been
in the habit of yielding, thus rendering the presence of small
garrisons throughout these States necessary until such time as labor
returns to its proper channels and civil authority is fully established."
It was General Grant's opinion however that acquiescence in the
authority of the General Government was so universal throughout the
portions of the country he visited, that "the mere presence of a
military force, without regard to numbers, is sufficient to maintain
order." He urged that only white troops be employed in the South.
The presence of black troops, he said, "demoralizes labor" and
"furnishes in their camps a resort for freedmen." He thought there was
danger of collision from the presence of black troops. His
observations led him to the conclusion that "the citizens of the
Southern States are anxious to return to self-government within the
Union as soon as possible;" that "during the process of reconstruction
they want and require protection from the Government;" that "they are
in earnest, and wishing to do what they think is required by the
Government, not humiliating to them as citizens;" and that "if such a
course were pointed out they would pursue it in good faith." "The
questions," continued General Grant, "heretofore dividing the people
of the two sections--slavery and the right of secession--the Southern
men regard as having been settled forever by the tribunal of arms. I
was pleased to learn from the leading men whom I met that they not
only accepted the decision as final, but now that the smoke of battle
has cleared away and time has been given for reflection, that this
decision has been a fortunate one for the whole country." He suggested
that the Freedmen's Bureau be put under command of military officers in
the respective departments, thus saving the expense of a separate
organization. This would create a responsibility that would secure
uniformity of action throughout the South. His general
characterization of the Bureau was, that it tended to impress the
freedman with the idea that he would not be compelled to work, and that
in some way the lands of his former master were to be divided among
the colored persons.
The supporters of the Administration considered General Grant's report
a strong justification of their position towards the South, and they
used it with some effect throughout the country. The popularity of
the Lieutenant-General was boundless, and of course there was strong
temptation to make the most of whatever might be said by him. Mr.
Sumner immediately demanded the reading of the report of Mr. Schurz.
He likened the message of the President to the "whitewashing" message
of President Pierce with regard to the enormities in Kansas. "That,"
said he, "is its parallel." Mr. Doolittle criticized the use of the
word "whitewashing," and asked Mr. Sumner to qualify it, but the
Massachusetts senator declared that he had "nothing to modify, nothing
to qualify, nothing to retract. In former days there was one Kansas
that suffered under a local power. There are now eleven Kansases
suffering as one: therefore, as eleven is more than one so is the
enormity of the present time more than the enormity of the days of
President Pierce." Later in the debate, Mr. Sumner indirectly
qualified his harsh words, saying that he had no reflection to make on
the patriotism or the truth of the President of the United States.
"Never in public or in private," said he, "have I made such reflection
and I do not begin now. When I spoke I spoke of the document that had
been read at the desk. I characterized it as I though I ought to
characterize it." The distinction he sought to make was not clearly
apparent, the only importance attaching to it being that Mr. Sumner had
not yet concluded that a bitter political war was to be made upon the
President of the United States.
The character of Mr. Schurz's report at once disclosed the reason of
Mr. Sumner's anxiety to have it printed with the report of General
Grant. It was made after a somewhat prolonged investigation in the
States of South Carolina, Georgia, Alabama, Mississippi, and the
Department of the Gulf. Mr. Schurz's conclusions were that the loyalty
of the masses and of most of the leaders in the South "consists of
submission to necessity." Except in individual instances, he found
"an entire absence of that national spirit which forms the basis of
true loyalty and patriotism." He found that "the emancipation of the
slaves is submitted to only in so far as chattel-slavery in the old
form could not be kept up; and although the freeman 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 the pressure of circumstances, will not be
looked upon as barring the establishment of a new form of servitude."
"Practical attempts," Mr. Schurz continued, "on the part of the
Southern people to deprive the negro of his rights as a freedman may
result in bloody collision, and will certainly plunge Southern society
into resistless fluctuations and anarchical confusion."
These evils, in the opinion of Mr. Schurz, "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. 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." It was Mr.
Schurz's judgment that "it will hardly be possible to secure the
freedman against oppressive legislation and private persecution
unless he be endowed with a certain measure of political power." He
felt sure of the fact that the "extension of the franchise to the
colored people, upon the development of free labor and upon the
security of human rights in the South, being the principal object in
view, the objections raised upon the ground of the ignorance of the
freedmen become unimportant."
Mr. Schurz made an intelligent argument in favor of negro suffrage. He
was persuaded that the Southern people would never grant suffrage to
the negro voluntarily, and that "the only manner in which the Southern
people can be induced to grant to the freemen some measure of
self-protecting power, in the form of suffrage, is to make it a condition
precedent to re-admission." He remarked upon the extraordinary
delusion then pervading a portion of the public mind regarding the
deportation of the freedmen. "The South," he said, "stands in need of
an increase and not a diminution of its laboring-force, to repair the
losses and disasters of the last four years. Much is said of importing
European laborers and Northern men. This is the favorite idea among
planters, who want such emigrants to work on their plantations, but
they forget that European and Northern men will not come to the South
to serve as hired hands on the plantations, but to acquire property for
themselves; and even if the whole European emigration, at the rate of
two hundred thousand a year, were turned into the South, leaving not
a single man for the North and West, it would require between fifteen
and twenty years to fill the vacuum caused by the deportation of
freedmen."
Mr. Schurz desired not to be understood as saying that "there are no
well-meaning men among those who are compromised in the Rebellion.
There are many, but neither their number nor their influence is strong
enough to control the manifest tendency of the popular spirit."
Apprehending that his report might be antagonized by evidence of a
contrary spirit shown in the South by the action of their conventions,
Mr. Schurz declared that it was "dangerous to be led by such evidence
into any delusion." "As to the motives," said Mr. Schurz, "upon which
the Southern people acted when abolishing slavery (in their
conventions) and their understanding of the bearings of such acts, we
may safely accept the standard they have set up for themselves." The
only argument of justification was that "they found themselves in a
situation where _they could do no better_." A prominent Mississippian
(General W. L. Brandon) said in a public card, according to Mr. Schurz,
"My honest conviction is that we must accept the situation until we
can once more get control of our own State affairs. . . . I must submit
for the time to evils I cannot remedy." Mr. Schurz expressed his
conviction that General Brandon had "only put in print what a majority
of the people say in more emphatic language."
The report of Mr. Schurz was quoted even more triumphantly by the
opponents of the President's policy than was General Grant's by its
friends. It was a somewhat singular train of circumstances that
produced the two reports, while the sequel, so far as the authors were
involved, was quite as remarkable as the contradictory character of
the views set forth. In the early summer (1865) when Mr. Johnson had
yielded many of his preconceived views of reconstruction to the
persuasions of Mr. Seward, but was still adhering tenaciously to some
exactions which the Secretary of State deemed unwise if not cruel, it
had occurred to the President to procure an accurate and intelligent
report of the Southern situation by a man of capacity. Mr. Johnson
held at that particular time a middle ground, measuring from the
original point of his extreme antagonism towards the Southern rebels
to the subsequent point of his extreme antagonism towards the Northern
Republicans. His selection of Mr. Schurz for the special duty was
deemed significant, because at that period of a political career
consistent only in the frequency and agility of its changes Mr. Schurz
happened to take an extreme position on the Southern question--one
that was in general harmony with the views entertained and avowed by
Mr. Sumner. Mr. Schurz, according to his own declaration, had
communicated his "views to the President in frequent letters and
conversations," and added an assurance, the truth of which all who
know Mr. Schurz will readily concede--"I would not have accepted the
mission had I not felt that whatever preconceived opinions I might
carry with me to the South I should be ready to abandon or modify, as
my perception of facts and circumstances might command their
abandonment or modification."
Mr. Schurz started on his mission in the early part of July, and was
engaged in traveling, observing and taking copious notes until the
middle of the ensuing autumn. His report did not reach the President
until the month of November. In the intervening months Mr. Johnson
had been essentially and rapidly changing his views,--growing more and
more favorable to the Southern leaders, less and less in harmony with
the Republican leaders. He had gone far beyond the balancing-point of
impartiality, where he stood when he was willing to intrust the task
of Southern investigation to a man of the radical views which Mr.
Schurz then professed. He was now altogether unwilling to submit the
report of Mr. Schurz to Congress as an _ex cathedra_ exposition. If
not in some way counterbalanced it would necessarily be considered
authoritative, and in a certain sense accredited by the Administration.
It was the President's desire to neutralize the effect of Mr. Schurz's
representations, which led to the report of General Grant, the chief
points of which have been already quoted. The Commander of the Army
was necessarily in close relations with the Executive Department,
and was recognized by the President as possessing an extraordinary
popularity in the Northern States. During the months that had passed
since the war closed General Grant had been received, wherever he
had been induced to visit, with a display of enthusiasm never surpassed
in our country. The people looked upon him simply as the illustrious
soldier who had led the armies of the Union to victory. They
attributed to him no political views except those of undying loyalty
to his country, and they sought no party advantage from the use of
his name. He had indeed made no partisan expressions, either during
the war or since its close, on any subject whatever, except the
necessity of maintaining the Union--and this was a partisan question
only in consequence of the evil course pursued by the Democratic party
during the closing years of the war.
On the civil and political aspects of the situation General Grant had
not deemed it necessary to mature his views. He desired above all
things the speedy restoration of the Southern States to the Union as
the legitimate result of the victories in the field. But so far as
action or even the exertion of any positive influence was involved, he
confined himself strictly to his duties as Commander of the United-States
Army. President Johnson saw an opportunity for turning the
_prestige_ of General Grant to the benefit of his Administration.
Towards the close of November the general was starting South on a tour
of military inspection "to see what changes were necessary in the
disposition of the forces, and to ascertain how they could be reduced
and expenses curtailed." The President requested him "to learn during
his tour, as far as possible, the feelings and intentions of the
citizens of the Southern States towards the National Government,"--a
request with which the general complied in a perfunctory manner,
giving merely the impressions formed in the rapid journey of a few
days. He left Washington on the 27th of November and passed through
Virginia "without conversing or meeting with any of its citizens." He
spent one day in North Carolina, one in South Carolina and two in
Georgia. This was the whole extent of the observation upon which
General Grant had innocently given his views, without the remotest
suspicion that his brief report was to figure largely in the
discussions of Congress upon the important and absorbing question of
reconstruction.
The divergent conclusions which were thus made to appear between the
authors of the conflicting reports did not cease with this single
exhibition. It was soon perceived that in the President's anxiety to
parry the effect of Mr. Schurz's report he had placed General Grant in
a false position,--a position which no one realized more promptly than
the General himself. Further investigation led him to a thorough
understanding of the subject and to a fundamental change of opinion.
It led him to approve the reconstruction measures of the Republican
party, and in a subsequent and more exalted sphere to continue the
policy which these measures foreshadowed and implied. Mr. Schurz, on
the other hand, received new light and conviction in the opposite
direction, and from the point of extreme Republicanism he gradually
changed his creed and became, first a distracting element in the ranks
of the party, and afterwards one of its malignant opponents in a great
national struggle in which General Grant was the leader,--the aim of
which struggle was really to maintain the views which Mr. Schurz had,
with apparent sincerity, endeavored to enforce in his report to
President Johnson. These changes and alternations in the position of
public men are by no means unknown to political life in the United
States, but in the case under consideration the actors were
conspicuous, and for that reason their reversal of position was the
more marked.
An interesting and important case, relating to the mode of electing
United-States senators, came up for decision at this session and led to
a prolonged debate, which was accompanied with much personal feeling
and no little acrimony.--In the winter and spring of 1865 the
Legislature of New Jersey was engaged in the duty of choosing a senator
of the United States to succeed John C. Ten Eyck, whose term was about
to expire. After many efforts at election it had been found that no
candidate was able to secure "a majority of the votes of all the
members elected to both Houses of the Legislature," which was described
in the rule adopted by the joint convention of the two Houses as the
requisite to election. On the 15th of March the convention rescinded
this stringent rule and declared that "any candidate receiving a
plurality of votes of the members present shall be declared duly
elected." The Legislature was composed of a Senate with twenty-one
members and an Assembly with sixty members. The resolution giving to
a plurality the power to elect was carried in the joint convention by
a majority of one--forty-one to forty. In this vote eleven senators
were in the affirmative and ten in the negative, and of the members of
the House thirty were in the affirmative and thirty in the negative.
It was therefore numerically demonstrated that the resolution could not
have been carried with the two Houses acting separately. There would
have been a majority of one in the Senate and a tie in the House.
Proceeding to vote under this new rule, John P. Stockton, the
Democratic candidate, received forty votes, John C. Ten Eyck, the
Republican candidate, thirty-seven votes, and four other candidates
one vote each. Forty-one votes were thus cast against Mr. Stockton,
but as he had secured a plurality he was duly elected according to the
rule adopted by the joint convention.--Mr. Stockton was thirty-nine
years of age at the time of his election. His family had been for
several generations distinguished in the annals of New Jersey. His
great-grandfather Richard Stockton was a member of the Continental
Congress and was a signer of the Declaration of Independence; his
grandfather Richard Stockton was a senator of the United States under
the administrations of Washington and John Adams; his father was the
well-known Commodore Robert F. Stockton, who was conspicuously
effective as a naval officer in the conquest of California, and
afterwards a senator of the United States. Mr. Stockton entered the
Senate, therefore, with personal _prestige_ and a good share of
popularity with his party.
On the 20th of March, five days after the alleged election of Mr.
Stockton, seven senators and thirty-one members of the Assembly
forwarded to the Senate of the United States a protest against his
admission, for the reason that he was not elected by a majority of the
votes of the joint meeting of the Legislature. The substantial ground
on which the argument in the protest rested, was that a Legislature
means at least a majority of what constitutes the Legislature as
convened at the moment of election. This had been, as they set forth
at length, the undoubted law and the unbroken usage of New Jersey, and
an election falling short of this primary requirement was necessarily
invalid. "The Constitution of the United States direct," said this
memorial, "that a senator must be chosen by the Legislature, and a
minority does not constitute the Legislature." They illustrated the
wrongfulness of the position by the _reductio ad absurdum._ "The
consequences which are possible," argued the protestants, "from
admitting the right to elect by a plurality vote, furnish a conclusive
argument against it. If two members vote for one person and every
other member, by himself, for different individuals, the person having
two votes would have a plurality. Can it be that in such a case he
would be senator? This indeed is an extreme case, but such cases test
the propriety of legal doctrine, and many equally unjust but less
extreme may easily be offered."
Mr. Stockton took his seat on the first day of the ensuing session
(December 4, 1865) and was regularly sworn in. At the same time the
protest was presented by Mr. Cowan of Pennsylvania and referred to the
Judiciary Committee. That committee was composed of five Republicans
and two Democrats, and was therefore politically biased, if at all,
against Mr. Stockton. On the 30th of January, after a patient
examination of nearly two months, the committee, greatly to the
surprise of the Republican side of the chamber, reported that "Mr.
Stockton was duly elected and entitled to his seat." The report was
said to have been approved by every member of the committee except
Mr. Clark of New Hampshire. The validity or invalidity of the election
hinged upon the ability of the joint convention of the two branches to
declare a plurality sufficient to elect. The committee decided that
the convention possessed that power, and the report, drawn by Mr.
Trumbull, argued the point with considerable ingenuity.
The subject came up for consideration in the Senate on the 22d of March
(1866), Mr. Clark, the dissenting member of the committee, leading off
in debate. He was ably sustained by Mr. Fessenden, who left little to
be said, as was his habit in debating any question of constitutional
law. He maintained that "the Legislature, in the election of a
United-States senator, is merely the agent of the Constitution of the
United States to perform a certain act. It is therefore under the
control of no other power. No provision of the Constitution of New
Jersey, directing the mode in which a senator shall be elected, or the
course that shall be taken, or the rules of the proceeding, would bind
in any way the Legislature which is to perform the act. Nor would any
law of a previous Legislature have binding force. The existing
Legislature is independent of every thing except the Constitution of the
United States; but while it is thus independent and may disregard those
provisions, being the mere agent of the Federal Constitution, still it
must necessarily act as a Legislature in the performance of that duty.
There must be a _legislative_ act. . . . Whatever is done in relation
to the election of a senator, must be done as a consequence of
legislative action, otherwise it is no election by the Legislature.
They vote to form a convention for the purpose of choosing a senator,
and when they meet in convention that choice may be made. If there is
legislative action previously that is sufficient. The convention can
choose a senator because there has been legislative action which
authorizes them to choose a senator in that form. The Legislature,
when it votes to go into a convention of the two branches, may provide
the mode of election. If it desires to change the ordinary and
received law on the subject it may provide how the election shall be
made. It may say that a plurality shall elect if it pleases. It may
make any provision that it pleases, but it must be done by the
Legislature. It must be the legislative body which gives the power
that is to settle the mode of action. Now what are the facts in this
case? There was no provision whatever made by the Legislature of the
State of New Jersey as to the mode in which the senator should be
chosen. The legislative action which authorized the convention was
perfectly silent upon that subject. What then had the Legislature the
right to conclude? Was it not this, and this only?--that when it
authorized a body other than itself, though constituted of the same
members, a convention to choose a senator, that body must proceed in
the choice of a senator according to the universally received
Parliamentary and common law upon the subject of elections. But this
convention in New Jersey, without any legislative act, without any
such authority conferred upon it, without any thing done on the subject
by the Legislature which formed the body, undertook to say that they
would change the received and acknowledged Parliamentary and common law
in their mode of proceedings, and instead of acting according to that
law, as the Legislature must have intended that it should do, would
elect in a totally different manner from that prescribed by law,
namely, by a plurality vote, for which they had no legislative sanction
and for which there was no authority but their own will."
There was a long debate on the question, but the argument submitted
by Mr. Fessenden was never refuted by his opponents, and it was
practically repeated by every one who concurred in his general views.
Mr. Stockton made an able presentation of his own case, perhaps
better than any made for him, but he was never able to evade the point
of Mr. Fessenden's argument, or even to dull it. The case came to a
vote on the 23d of March, the first test coming upon an amendment to
the committee's report, which declared Mr. Stockton "not entitled to
a seat." This amendment was defeated--_yeas_ 19, _nays_ 21. The
vote was then taken on the direct question of declaring him entitled
to his seat. At the conclusion of the roll-call the _yeas_ were 21,
the _nays_ 20, when Mr. Morrill of Maine rose and asked to have his
name called. He voted in the negative and produced a tie. Thereupon
Mr. Stockton rose and asked to vote. No objection being interposed
his vote was received. The result was then announced 22 _yeas_ to 21
_nays_, thereby confirming Mr. Stockton in his seat. Mr. Stockton,
disclaiming any intention to reflect upon Mr. Morrill, intimated that
he was under the obligation of a pair with Mr. William Wright (the
absent colleague of Mr. Stockton) and therefore should not have voted.
The two had undoubtedly been _paired_, but Mr. Morrill considered that
the time had expired and acted accordingly. He was not only a
gentleman of scrupulous integrity, but in this particular case he had
taken counsel with his colleague, Mr. Fessenden, and with Mr. Sumner,
safe mentors, and was advised by both that he had a clear right to
vote. It cannot be denied however that Mr. Morrill's action created
much ill-feeling on the Democratic side of the Senate.
Mr. Stockton's determination to vote must have been taken very hastily,
without due reflection on his own part and without the advice of his
political associates, who should have promptly counseled him against
his unfortunate course. The Parliamentary position of the question,
at the moment he committed the blunder of voting, was advantageous to
him on the record. The Senate had defeated by a majority of two the
declaration that he was not entitled to a seat, and the declaration
in his favor, even after Mr. Morrill's negative vote, stood at a tie.
Nothing therefore had been done to unseat him, and if he had left it
at that point he would still have remained a member by the _prima
facie_ admission upon his regular credentials.
These proceedings took place on Friday and the Senate adjourned until
Monday. Meanwhile the obvious impropriety of Mr. Stockton's vote upon
his own case had deeply impressed many senators, and on Monday,
directly after the Journal was read, Mr. Sumner raised a question of
privilege and moved that the Journal of Friday be amended by striking
out the vote of Mr. Stockton on the question of his seat in the Senate.
He did this because, being on the defeated side, he could not move a
reconsideration; but Mr. Trumbull and Mr. Poland, who had sustained
Mr. Stockton's right to a seat, both offered to move a reconsideration,
because they believed that he had no right to vote on the question.
Mr. Poland made the motion and it was unanimously agreed to. Then,
instead of urging the correction of the Journal of Friday, Mr. Sumner
proposed a resolution declaring that "the vote of Mr. Stockton be not
received in determining the question of his seat in the Senate," which
was agreed to without a division. The original resolution being again
before the Senate, Mr. Clark renewed his amendment declaring that John
P. Stockton was not elected a senator from New Jersey, on which the
_yeas_ were 22 and the _nays_ 21. As thus amended the resolution
passed by 23 _yeas_ to 20 _nays_. Mr. Riddle of Delaware voted with
the majority for the purpose of moving a reconsideration on a
succeeding day--a privilege from which he was excluded by the action
of Mr. Clark of New Hampshire, who made the motion at once with the
object of securing its defeat and thereby exhausting all power to
renew the controversy. Mr. Clark of course voted against his own
motion, and with its rejection Mr. Stockton ceased to be a member of
the Senate.
More than half of those who sustained Mr. Stockton's right to his seat
were Republicans, or had, until the current session of Congress, acted
with the party. The majority of a single vote by which he was ejected
would have been neutralized if Mr. Stockton's colleague could have
been present. Mr. Wright was ill at his home in Newark and
contradictory reports were made as to the time when he could probably
be present. Some of the Republicans justified their urgent demand for
a final vote on the belief entertained by them that Mr. Wright would
never appear in the Senate again. As matter of fact he resumed his
seat eight days after the decision of Mr. Stockton's case. His vote
would have changed the result. The haste with which the question was
brought to a decision can hardly be justified, and is a striking
illustration of the intense party-feeling which had been engendered by
the war. In a matter so directly affecting the interests and the
feelings of the people of New Jersey it was certainly a hardship that
the voice of the State was not heard. With one senator excluded from
voting by parliamentary law and the other absent by reason of physical
disability, Mr. Stockton had good ground for declaring that the Senate
had not treated him with magnanimity or generosity. It is due to Mr.
Stockton to say that under very trying circumstances he bore himself
with moderation and dignity.
In the decision itself, however, there has been general acquiescence,
and it led to an important reform in the manner of choosing United-States
senators. The well-known Act of July 26, 1866, "regulating the
time and manner of holding elections for senators in Congress," was
the direct fruit of the Stockton controversy. Though it may not be
perfect in all its details that law has done much to insure the fair
and regular choice of senators. It has certainly accomplished a great
deal by preventing various objectionable devices, which prior to its
enactment had marked the proceedings of every senatorial election
where the Legislature was almost equally divided between political
parties. The reluctance to interfere with the supposed or asserted
rights of States had too long delayed the needful exercise of National
power. The Constitution provides that "the times, places and manner of
holding elections for senators and representatives in Congress shall be
prescribed in each State by the Legislature thereof; _but the Congress
may, at any time, by law, make or alter such regulations, except as to
the places of choosing senators._"
There was a reluctance in the early administration of the Federal
Government to assume any function which had been given alternatively
to the States. It thus came to pass that many methods were developed
in different States for choosing senators,--methods that widely
differed in their essential characteristics. Hence there was variety,
and even contrariety, where there should have been only unity and
harmony. These divergent practices had been allowed to develop for
seventy-seven years of the nation's life, when, admonished by the
Stockton case of the latitudinary results to which loose methods might
lead, Congress took jurisdiction of the whole subject. The exercise
of this power was a natural result of the situation in which the
nation was placed by the war. Previous to the civil conflict every
power was withheld from the National Government which could by any
possibility be exercised by the State Government. Another theory and
another practice were now to prevail; for it had been demonstrated to
the thoughtful statesmen who then controlled the Government, that
every thing which may be done by either Nation or State may be better
and more securely done by the Nation. The change of view was important
and led to far-reaching consequences.
Alexander G. Cattell succeeded Mr. Stockton and served in the Senate
with usefulness and high credit until March 4, 1871. He had been all
his life engaged in commercial affairs, but had taken active part in
politics and had held many positions of trust in his native State.
In 1844, at twenty-eight years of age, he was a member of the
Constitutional Convention of New Jersey and made his mark in its
proceedings. His upright character, his recognized ability and his
popular manners had given him a strong hold upon the people of his
State.
William Wright, the colleague of Mr. Stockton, who was unable from
illness to vote on his case, died the ensuing November (1866) at
seventy-two years of age. He served two terms (1843-47) in the House
of Representatives from the Newark district as a Whig, and was a
zealous supporter of Mr. Clay in 1844. He was a wealthy manufacturer,
largely engaged in trade with the South, and the agitation of the
slavery question became distasteful to him. In 1850 he united with the
Democratic party and was sent to the Senate in 1853.
Frederick Theodore Frelinghuysen was chosen as Mr. Wright's successor.
He was in his fiftieth year when he entered the Senate, but was known
as a distinguished member of the New-Jersey bar and had served as
Attorney-General of his State. His grandfather, Frederick
Frelinghuysen, was a senator during the first term of Jackson and ran
for Vice-President on the ticket with Mr. Clay in 1844. The family
came with the early emigration from Holland and soon acquired a hold
upon the confidence of the people of New Jersey which has been long
and steadily maintained.--Mr. Frelinghuysen soon attained prominence
in the Senate, and grew in strength and usefulness throughout his
service in that body.