CHAPTER VII.

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.

Twenty Years of Congress, Volume 2 From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860 · 第 7 / 30 章