CHAPTER XI.

The rejoicing over the result of the elections throughout the free

States had scarcely died away when the Thirty-ninth Congress met in its

second session (December 3, 1866). There was no little curiosity to

hear what the President would say in his message, in regard to the

issue upon which he had sustained so conclusive a defeat. He was known

to be in a state of great indignation, and as he had broken forth

during the campaign in expressions altogether unbecoming his place,

there was some apprehension that he might be guilty of the same

indiscretion in his official communication to Congress. But he was

saved from such humiliation by the evident interposition of a judicious

adviser. The message was strikingly moderate and even conciliatory in

tone. The President re-argued his case with apparent calmness and

impartiality, repeating and enforcing his position with entire

disregard of the popular result which had so significantly condemned

him. After rehearsing all that had been done in the direction of

reconstruction, so far as his power could reach it, and so far as the

Thirteenth Amendment of the Constitution was an essential part of it,

the President expressed his regret that Congress had failed to do its

duty by re-admitting the Southern States to representation.

"It was not," said he, "until the close of the eighth month of the

session that an exception was made in favor of Tennessee by the

admission of her senators and representatives." "I deem it," he

continued, "a subject of profound regret that Congress has thus far

failed to admit to seats loyal senators and representatives from the

other States, whose inhabitants with those of Tennessee had engaged

in the Rebellion. Ten States, more than one-fourth of the whole

number, remain without representation. The seats of fifty members

in the House and twenty members in the Senate are yet vacant, not by

their own consent, nor by a failure of election, but by the refusal of

Congress to accept their credentials. Their admission, it is believed,

would have accomplished much towards the renewal and strengthening of

our relations as one people, and would have removed serious cause for

discontent upon the part of the inhabitants of those States." The

President did not discuss the ground of difference between his policy

and that of Congress, simply contenting himself with a restatement of

the case, in declaratory rather than in argumentative form. He did

not at all seem to realize, or even to recognize, the vantage ground

which Congress had obtained by the popular decision in the recent

elections. He apparently did not understand that every issue dividing

the Executive and Legislative Departments of the Government had been

decided in favor of the latter by the masters of both--decided by those

who select and control Presidents and Congresses.

The President's position in pursuing a policy which had been so

pointedly condemned, excited derision and contempt in the North, but

it led to mischievous results in the South. The ten Confederate States

which stood knocking at the door of Congress for the right of

representation, were fully aware, as was well stated by a leading

Republican, that the key to unlock the door had been placed in their

own hands. They knew that the political canvass in the North had

proceeded upon the basis, and upon the practical assurance (given

through the press, and more authoritatively in political platforms),

that whenever any other Confederate State should follow the example

of Tennessee, it should at once be treated as Tennessee had been

treated. Yet, when this position had been confirmed by the elections

in all the loyal States, and was, by the special warrant of popular

power, made the basis of future admission, these ten States, voting

upon the Fourteenth Amendment at different dates through the winter

of 1866-67, contemptuously rejected it. In the Virginia Legislature

only one vote could be found for the Amendment. In the North-Carolina

Legislature only eleven votes out of one hundred and forty-eight were

in favor of the Amendment. In the South-Carolina Legislature there

was only one vote for the Amendment. In Georgia only two votes out of

one hundred and sixty-nine in the Legislature were in the affirmative.

Florida unanimously rejected the Amendment. Out of one hundred and six

votes in the Alabama Legislature only ten could be found in favor of

it. Mississippi and Louisiana both rejected it unanimously. Texas,

out of her entire Legislature, gave only five votes for it, and the

Arkansas Legislature, which had really taken its action in the

preceding October, gave only three votes for the Amendment.

This course on the part of the Southern States was simply a declaration

of defiance to Congress. It was as if they had said in so many words:

"We are entitled to representation in Congress, and we propose to

resume it on our own terms; and therefore we reject your conditions

with scorn. We will not consent to your Fourteenth Amendment to the

Constitution. We will not consent that the freedom of the negro shall

be made secure by endowing him with citizenship. We demand that

without giving negroes the right to vote, they shall yet be counted in

the basis of representation, thus increasing our political power when

we re-enter Congress beyond that which we enjoyed before we rebelled,

and beyond that which white men in the North shall ever enjoy. We

decline to give any guarantee for the validity of the public debt.

We decline to guarantee the sacredness of pensions to soldiers disabled

in the War for the Union. We decline to pledge ourselves that the

debts incurred in aid of the Rebellion shall not in the future be paid

by our States. We decline, in brief, to assent to any of the

conditions or provisions of the proposed amendment to the Constitution,

and we deny your right to amend it without our consent."

The madness of this course on the part of the Southern leaders was

scarcely less than the madness of original secession; and it is

difficult, in deliberately weighing all the pertinent incidents and

circumstances, to discover any motive which could, even to their own

distorted view, justify the position they had so rashly taken. Strong

as the Republican party had shown itself in the elections, it grew

still stronger in all the free States, as each of the Confederate

States proclaimed its refusal to accept the Fourteenth Amendment as

the basis of their return to representation. The response throughout

the North, in the mouths of the loyal people, was in effect: "If these

rebel States are not willing now to resume representation on the

terms offered, let them stay out until their anger ceases and their

reason returns. If they are not willing to concede the guarantee of

the Fourteenth Amendment, and to give that pledge to the country of

their future loyalty and their common sense of justice, they shall find

that we can be as resolute as they, and we shall insist on the right as

stubbornly as they persist in the wrong." These were not merely the

declamations of statesmen, or of the press, or of the popular speakers

of the Republican party. They came spontaneously, as if by

inspiration, from the mass of the people, and were based on that

instinctive sense of justice which the multitude rarely fails to exhibit.

It was naturally inferred and was subsequently proved, that the

Southern States would not have dared to take this hostile attitude

except with the encouragement and the unqualified support of the

President. He was undoubtedly in correspondence, directly and

indirectly, with the political powers that were controlling the action

of the insurrectionary States, and he was determined that the policy

of Congress should not have the triumph that would be implied in a

ratification of the Fourteenth Amendment by those States. Telegraphic

correspondence clearly establishing the President's position,

subsequently came to light. Governor Parsons of Alabama telegraphed

him indicating that the rejection of the Fourteenth Amendment might be

reconsidered by the Alabama Legislature, if in consequence thereof an

enabling Act could be passed by Congress for the admission of the State

to representation. Johnson promptly replied on the same day: "What

possible good can be obtained by reconsidering the Constitutional

Amendment? I know of none in the present posture of affairs, and I

do not believe the people of the country will sustain any set of

individuals in attempts to change the whole character of our Government

by enabling Acts or otherwise. I believe on the contrary, that they

will eventually uphold all those who have patriotism and courage to

stand by the Constitution and who place their confidence in the people.

There should be no faltering on the part of those who are honest in a

determination to sustain the several co-ordinate Departments of the

Government in accordance with the original design." It was evident

from this disclosure that Johnson's hand was busy throughout the South,

secretly as well as openly, and that he inspired the resolute obstinacy

with which the insurrectionary States resisted the fair and magnanimous

offers of Reconstruction made by Congress. The Rebel element of the

South had gradually come to repose implicit confidence in Johnson, and

this fact increased his power to sow dissension and produce discord.

His stubborn and apparently malicious course at this time, was inspired

in large part by a desire to be avenged on the Northern States and

Northern leaders for the stinging rebuke administered to him in the

recent election.

Sustained by the same popular sentiment which had given offense to the

President, Congress did not doubt its duty or hesitate in its action.

Its course, indeed, was firm to the point of severity. It met the

spirit of defiance on the part of the South with an answer so decisive,

that the misguided people of that section were rapidly undeceived as

to their power to command the situation, even with all the aid the

President could bring. The principal debates for the first two months

of the session related wholly to the condition of the South, and on the

6th of February (1867) Mr. Stevens, from the Committee on

Reconstruction, reported a bill which after sundry amendments became

the leading measure of the Thirty-ninth Congress. In its original form

the preamble declared that "whereas the pretended State governments of

the late so-called Confederate States afford no adequate protection

for life or property, but countenance and encourage lawlessness and

crime; and whereas it is necessary that peace and good order should be

enforced in said so-called Confederate States, until loyal State

governments can be legally established; _therefore_ be it enacted that

said so-called Confederate States shall be divided into military

districts, and made subject to the military authority of the United

States, as hereinafter prescribed; and for that purpose Virginia shall

constitute the first district, North Carolina and South Carolina the

second district, Georgia, Alabama and Florida the third district,

Mississippi and Arkansas the fourth district, and Louisiana and Texas

the fifth district."

It was made the duty of the General of the Army to assign to the

command of each of said districts an officer not below the rank of

Brigadier-general, and to detail a sufficient force to enable such

officer to perform his duties and enforce his authority within the

district to which he was assigned. The protection of life and

property, the suppression of insurrections, disorders, and violence,

and the punishment of all criminals and disturbers of the public

peace, were entrusted to the military authority, with the power to

allow civil tribunals to take jurisdiction and try offenders; and if

that was not sufficient in the officer's judgment, he was authorized

to organize military commissions, "any thing in the constitutions and

laws of these so-called Confederate States to the contrary

notwithstanding." It was further declared that all legislative acts

or judicial processes to prevent the proceedings of such tribunals,

and all interference by "said pretended State governments with the

exercise of military authority under this Act, shall be void and have

no effect." The courts and judicial officers of the United States

were forbidden to issue writs of _habeas corpus_, except under certain

restrictions which further established the military authority over the

people. Prompt trials were guaranteed to all persons arrested, cruel

and unusual punishments were forbidden, and no sentence could be

executed until it was approved by the officer in command of the district.

Mr. Stevens, in his speech upon introducing the bill, did not attempt

to conceal its positive and peremptory character. "It provides," said

he, "that the ten disorganized States shall be divided into five

military districts; that the Commander of the Army shall take charge

of them, through his officers not below the rank of Brigadier-general,

who shall have the general supervision of the peace, quiet and

protection of the people, loyal and disloyal, who reside within those

precincts; and that to do so, he may use, as the law of nations would

authorize him to do, the legal tribunals whenever he may deem them

competent; but these tribunals are to be considered of no validity

_per se_, of no intrinsic force, of no force in consequence of their

origin; the question being wholly within the power of the conqueror,

and to remain until that conqueror shall permanently supply their

place with something else. That is the whole bill. It does not need

much examination. One night's rest after its reading is enough to

digest it."

Mr. Brandegee of Connecticut followed Mr. Stevens in a speech strongly

supporting the measure. "Mr. Speaker, something must be done," said

he. "The American people demand that we shall do something, and

quickly. Already fifteen hundred Union men have been massacred in cold

blood (more than the entire population of some of the towns in my

district), whose only crime has been loyalty to your flag. . . . In

all the revolted states, upon the testimony of your ablest generals,

there is no safety to the property or lives of loyal men. Is this

what the loyal North has been fighting for? Thousands of loyal white

men, driven like partridges over the mountains, homeless, houseless,

penniless, to-day throng this capital. They fill the hotels, they

crowd the avenues, they gather in these marble corridors, they look

down from these galleries, and with supplicating eye ask protection

from the flag that hangs above the Speaker's chair--a flag which thus

far has unfurled its stripes, but concealed the promise of its stars."

--Mr. Le Blond of Ohio declared that "the provisions of this bill

strike down every important provision in the Constitution. You have

already inaugurated enough here to destroy any government that was

ever founded. . . . Now, Mr. Speaker, I do not predict any thing. I

do not declare war, but as one American citizen I do prefer war to

cowardly submission to a total destruction of the fundamental

principles of our Government."

--He was followed by his colleague, Mr. Finck, who declared that "no

member on this floor who understands the Constitution of the United

States, and who is friend of our Government, will pretend to urge that

we have any Constitutional power to pass this bill. . . . I declare it

as my solemn conviction that no government can long continue to be

free when one-third of its people and one-third of the States are

controlled by military power."

--Mr. Bingham of Ohio, speaking for a more conservative type of

republicanism than Mr. Stevens represented, begged gentlemen to "make

haste slowly in the exercise of this highest possible power conferred

by the Constitution upon the Congress of the United States. For

myself, sir, I am not going to yield to the proposition of the

chairman of the committee, for a single moment, that one rood of the

territory within the line of the ten states enumerated in this bill is

conquered territory. The Government of the United States does not

conquer any territory that is under the jurisdiction of the Constitution."

--Mr. William Lawrence of Ohio said, "For myself I am ready to set

aside by law all these illegal governments. They have rejected all

fair terms of reconstruction. They have rejected the Constitutional

amendments we have tendered them. They are engines of oppression

against all loyal men. They are not republican in form or purpose.

Let them not only be ignored as legal governments, but set aside

because they are illegal." Mr. Lawrence suggested some amendments

that would give to all the people the protection of the judiciary

under National authority.

--Mr. Russell Thayer of Pennsylvania argued warmly for the bill, and

said, "This measure will be of brief duration, and will be followed,

as I am informed, by other measures, which will secure the permanent

and peaceful restoration of these States to their proper and just

position in the Union, upon their acceptance of such terms as are

necessary for the future security of the country. When that is done,

and when order is restored, and permanent protection is guaranteed to

all the citizens of that section of the country, this measure will be

abrogated and abandoned."

--Mr. Shellabarger argued in favor of the bill, and said in conclusion,

"This measure, taken alone, is one which I could not support

unaccompanied by provisions for the rapid and immediate establishment

of civil government based upon the suffrages of the loyal people of the

South. I could not support a military measure like this if it was to

be regarded as at all permanent in its character. It is because it is

entirely the initiative, because it is only the employment of the Army

of the United States as a mere police force, to preserve order until

we can establish civil government based upon the loyal suffrages of

the people, that I can support this measure at all. If it stood by

itself, I could not, with my notions of the possibility and

practicability of establishing civil governments in the South, based

upon loyal suffrage, vote for this bill."

--Mr. Dawes made the pertinent inquiry whether, "after the General of

the Army has, under this bill, assigned a competent and trustworthy

officer to the duties prescribed, there is any thing to hinder the

President of the United States, under virtue of his power as

Commander-in-Chief, from removing that officer and putting in his

place another of an opposite character, thus making the very

instrumentality we provide one of terrible evil?"

--Mr. John A. Griswold, who became the Republican candidate for

governor of New York the ensuing year, earnestly opposed the bill. "By

it," said he, "we are proceeding in the wrong direction. For more than

two years we have been endeavoring to provide civil governments for

that portion of our country, and yet by the provisions of this bill

we turn our backs on our policy of the last two years, and by a single

stride proceed to put all that portion of the country under exclusively

military control. . . . For one, I prefer to stand by the overtures

we have made to these people, as conditions of their again

participating in the government of the country. We have already placed

before them conditions which the civilized world has indorsed as

liberal, magnanimous, and just. I regret exceedingly that those very

liberal terms have not been accepted by the South, but I prefer giving

those people every opportunity to exhibit a spirit of obedience and

loyalty."

--Mr. Henry J. Raymond opposed the bill in a vigorous speech. "Because

we cannot devise any thing of a civil nature adequate to the

emergency," said he, "it is urged that we must fly to the most violent

measure the ingenuity of man could devise. Let me remind gentlemen

that this has been the history of popular governments everywhere, the

reason of their downfall, their decadence, and their death."

--Mr. Garfield indicated his support of the measure if it could be

amended. "But," said he, "I call attention to the fact that from the

collapse of the Rebellion to the present hour, Congress has undertaken

to restore the States lately in rebellion by co-operation with their

people, and that our efforts in that direction have proven a complete

and disastrous failure." Alluding to the fact that the Fourteenth

Amendment had been submitted as the basis of reconstruction, Mr.

Garfield continued, "The constitutional amendment did not come up to

the full height of the great occasion. It did not meet all I desired

in the way of guarantees to liberty, but if the rebel States had

adopted it as Tennessee did, I should have felt bound to let them in

on the same terms prescribed for Tennessee. I have been in favor of

waiting to give them full time to deliberate and to act. They have

deliberated. They have acted. The last one of the sinful ten has at

last, with contempt and scorn, flung back in our teeth the magnanimous

offer of a generous nation. It is now our turn to act. They would

not co-operate with us in building what they destroyed. We must remove

the rubbish, and build from the bottom. . . . But there are some words

which I want stricken out of this bill, and some limitations which I

wish added, and I shall at least ask that they be considered."

--Mr. Kasson objected that the bill was too sweeping in its provisions,

that it affected the loyally disposed in the South with the same

severity as it did the disloyally disposed. "Instead of erecting,"

said he, "this great military power over people of some portions of

the South who are, in fact, at peace and observing law and order, our

rule should be so flexible that we may apply martial law wherever

peace and law and order do not prevail, without imposing it upon people

whose subordination to the law renders military rule unnecessary."

--Mr. Boutwell said, "To-day there are eight millions and more of

people, occupying six hundred and thirty thousand square miles of

territory in this country, who are writhing under cruelties nameless

in their character, and injustice such as has not been permitted to

exist in any other country of modern times; and all this because in

this capital there sits enthroned a man who, so far as the Executive

Department of the Government is concerned, guides the destinies of the

Republic in the interest of the rebels; and because, also, in those

ten former States, rebellion itself, inspired by the Executive

Department of this Government, wields all authority, and is the

embodiment of law and power everywhere. . . . It is the vainest

delusion, the wildest of hopes, the most dangerous of all aspirations,

to contemplate the reconstruction of civil government until the rebel

despotisms enthroned in power in these ten States shall be broken up."

--Mr. Banks asked for deliberation and delay in the discussion. He

believed that "we might reach a solution in which the two Houses of

Congress will agree, which the people of this country will sustain,

and in which the President of the United States will give us his

support. And if we should agree on a measure satisfactory to

ourselves, in which we should be sustained by the people, and the

President should resist it, then we should be justified in dropping the

subject of reconstruction, and considering the condition of the country

in a different sense." The allusion of General Banks, though thus

veiled, was understood to imply the possible necessity of impeaching

the President. It attracted attention because General Banks had been

reckoned among the determined opponents of that extreme measure.

--Mr. Kelley of Pennsylvania declared that "the passage of this bill or

its equivalent is required by the manhood of this Congress, to save it

from the hissing scorn and reproach of every Southern man who has been

compelled to seek a home in the by-ways of the North, from every

homeless widow and orphan of a Union soldier in the South, who should

have been protected by the Government, and who, despite widowhood and

orphanage, would have exalted in the power of our country had it not

been for the treachery of Andrew Johnson."

--Mr. Allison of Iowa said, "Believing as I do, that this measure is

essential to the preservation of the Union men of the South, believing

that their lives, property and liberty cannot be secured except through

military law, I am for this bill."

--Mr. Blaine of Maine expressed his unwillingness to support any

measure that would place the South under military government, if it

did not at the same time prescribe the methods by which the people of

a State could by their own action re-establish civil government. He

therefore asked Mr. Stevens to admit an amendment declared that "when

any one of the late, so-called, Confederate States shall have given its

assent to the Fourteenth Amendment of the Constitution, and conformed

its constitution and laws thereto in all respects, and when it shall

have provided, by its constitution, that the elective franchise shall

be enjoyed equally and impartially by all male citizens of the United

States twenty-one years of age and upwards, without regard to race,

color, or previous condition of servitude, except such as may be

disfranchised for participating in the late rebellion, and when such

constitution shall have been submitted to the voters of said State as

then defined, for ratification or rejection, and when the constitution,

if ratified by the popular vote, shall have been submitted to Congress

for examination and approval, said State shall, if its constitution be

approved by Congress, be declared entitled to representation in

Congress, and senators and representatives shall be admitted therefrom

on their taking the oath prescribed by law, and then and thereafter the

preceding sections of this bill shall be inoperative in said State."

--Mr. Blaine added, "It happened, Mr. Speaker, possibly by mere

incident, that I was the first member of this House who spoke in

Committee of the Whole on the President's message at the opening of

this session. I then said that I believed the true interpretation of

the election of 1866 was that, in addition to the proposed

constitutional amendment, impartial suffrage should be the basis of

reconstruction. Why not declare it so? Why not, when you send out

this military police through the lately rebellious States, send with it

that impressive declaration?"

--Mr. Schenck of Ohio earnestly urged that before calling the previous

question, Mr. Stevens would allow a vote upon the amendment offered by

Mr. Blaine. Mr. Stevens declined, and a motion by Mr. Blaine to refer

the bill to the Judiciary Committee with instructions to report back

the amendment, was defeated by _ayes_ 69, _noes_ 94. The bill was

then passed by a vote of 109 to 55. The Republicans who voted against

it were Baker of Illinois, Banks of Massachusetts, Davis of New York,

Defrees of Indiana, Dodge of New York, Kuykendall of Illinois, Loan of

Missouri, Randall of Kentucky, Francis Thomas and John L. Thomas, jun.,

of Maryland.

The bill reached the Senate on the 13th of February. On the 14th Mr.

Williams of Oregon gave notice that he would offer an amendment, which

was almost literally the same as that offered by Mr. Blaine in the

House, but fearing that it might obstruct the passage of the bill he

withdrew it. Mr. Reverdy Johnson of Maryland renewed it, with the

remark that if it should be adopted it would make the bill very much

less objectionable than it then was, and upon the amendment debate

proceeded.

Mr. Stewart of Nevada warmly sustained the amendment, regretting that

the senator from Oregon had changed his mind with regard to it. Mr.

Stewart said that the history of military bills was that they were

always temporary in the beginning. "But suppose the President of the

United States approved it, or the next President, if you please, should

like the bill, and should veto your measure repealing it, or suppose a

bare majority in either House of Congress should like it, then you

could not repeal it. It may be years after you desire to get rid of it

before you can. I say, when you use the military for temporary

purposes you should give the people of the South a chance to comply

with all the requirements which you propose to make. If in the Blaine

Amendment, as it is called, there are not sufficient guarantees, not

enough conditions, then put in more and make it sufficient."

--Mr. Henderson of Missouri said, "If I understand the extent and scope

of this bill, it will simply to give the sanction of Congress to

military administration in the Southern States by the President. If

there is any thing else in it, I desire to have it understood now,

before we proceed any further. I am not exceedingly favorable to

military government anywhere, and if I can get along without it in the

Southern States I am anxious to do so. I am not pleased with it

anywhere." Mr. Henderson expressed the opinion that the President of

the United States could command General Grant in making the assignments

of officers to the respective districts.

--Mr. Willard Saulsbury of Delaware declared that "there is not a

single provision in the bill that is constitutional or will stand the

test in any court of justice."

--Mr. Buckalew and Mr. Hendricks pointed out that the amendment, as Mr.

Johnson had submitted it, made suffrage universal, just as the

amendment had been framed in the House.

--Mr. Johnson explained that he had taken it as prepared by the senator

from Oregon.

--Mr. Howard of Michigan objected to the amendment because it would

permit the increase of representatives in Congress, and of Presidential

electors, from the Confederate States.

--After a prolonged debate on the amendment offered by the senator from

Maryland, it was agreed to lay it aside by common consent, that Senator

Sherman might offer a substitute for the entire bill, the fifth section

of which substantially embodied the amendment offered by the senator

from Maryland and which had been known as the Blaine Amendment in the

House. Mr. Sherman's substitute gave to the President his rightful

power to control the assignment of officers of the army to the command

of the military districts in the South. After debate the substitute of

Mr. Sherman was passed by a party vote,--twenty-nine to ten.

When the bill went to the House it was violently opposed by Mr. Stevens

and Mr. Boutwell. Mr. Boutwell said, "My objection to the proposed

substitute of the Senate is fundamental and conclusive, because the

measure proposes to reconstruct the State governments at once through

the agency of disloyal men."

--Mr. Stevens said, "When this House sent the bill to the Senate it was

simply to protect the loyal men of the Southern States. The Senate has

sent us back an amendment which contains every thing else but

protection. It has sent us back a bill which raises the whole question

in dispute as to the best mode of reconstructing the States, by making

distant and future pledges which this Congress has no authority to make

and no power to execute."

--Mr. Blaine argued against Mr. Stevens's proposition to send the

measure to a Conference Committee, and he begged those "who look to any

measure that shall guarantee a republican form of government to the

rebel states, with universal suffrage for loyal men," to vote for

this bill as it came from the Senate.

--Mr. Wilson of Iowa sustained the bill. "Although it does not

attain," said he, "all that I desire to accomplish, it embraces much

upon which I have insisted, and seems to be all that I can get at

this session. It reaches far beyond anything which the most sanguine

of us hoped for a year ago."

--Mr. Bingham declared that "the defeat of this bill to-day is really

a refusal to enact any law whatever for the protection of any man in

that vast portion of our country which was so recently swept over by

our armies from the Potomac to the Rio Grande."

--General Schenck spoke with great force in favor of the bill,

answering the somewhat reckless objections of Mr. Stevens in the most

effective manner.

--General Garfield replied to those who objected to the Senate

provision giving the command of officers in the South directly to the

President. He said, "I want this Congress to give the command to the

President of the United States, and then, perhaps, some impeachment

hunters will have a chance to impeach him. They will if he does not

obey." He rebuked the gentlemen "who, when any measure comes here

that seems almost to grasp our purpose, resist and tell us that it is

a surrender of liberty. I remember that this was done to us at the

last session, when everybody knows that if the Republican party lived,

it must live by the strength of the Constitutional amendment, and when

we agreed to pass it the _previous question_ was waived to allow

certain gentlemen to tell us that it was too low and too unworthy, too

mean and too unstatesmanlike."

--Mr. Russell Thayer of Pennsylvania supported the bill. He said, "I

see in this provision, as I believe, what the deliberate judgment of

the American people will regard as ample guarantees for the future

loyalty and obedience of the South. Those conditions are: _first_,

that the Southern States shall adopt a constitution in conformity with

the Constitution of the United States; _second_, that it shall be

ratified by a majority of the people of the States, without distinction

of race, color, or condition; _third_, that such constitution shall

guarantee universal and impartial suffrage; _fourth_, that such

constitution shall be approved by Congress; _fifth_, that the States

shall adopt the Fourteenth Amendment to the Constitution; and _sixth_,

that the amendment shall become a part of the Constitution of the

United States. All this is required to be done before representation

is accorded to the States lately in rebellion, and then no

representative presenting himself for admission, can be received

unless he can take the test oath."

--Mr. Eldridge of Wisconsin denounced the whole measure as most wicked

and abominable. "It contains," said he, "all that is vicious, all that

is mischievous in any of the propositions which have come either from

the Committee on Reconstruction or from any gentleman upon the other

side of the House."

--Mr. Elijah Hise of Kentucky declared that, "under such a system as

this bill proposes, the writ of _habeas corpus_ cannot exist, because

even if the civil tribunals are not entirely abolished, they will

exist only at the will of the military tyrant in command."

--Mr. Davis of New York spoke of the danger of suddenly enfranchising

the whole body of rebels. "The State of Kentucky," he said, "has

enfranchised every rebel who has been in the service of the Confederate

States. What to-day is the condition of affairs in that State? Why,

sir, her political power is wielded by rebel hands. Rebel generals,

wearing the insignia of the rebel service, walk the streets of her

cities, admired and courted; while the Union officers with their

wounds yet unhealed, are ostracized in political, commercial and

social life."

--Mr. Niblack of Indiana, one of the leading Democrats of the House,

thought the bill had been much improved by the action of the Senate.

"Though," said he, "it still retains many of the first features to

which I objected when it was before the House for discussion, it is

not now properly a military bill, nor is it properly a measure of

civil administration. It is a most extraordinary attempt to blend the

two principles together."

When a vote was reached, the House rejected the Senate amendment--_ayes_

73, _noes_ 98. This result was effected by a coalition of all the

Democrats with a minority of extreme Republicans. But thirteen

days of the session remained, and it looked as if by a disagreement of

Republicans all legislation on the subject of Reconstruction would be

defeated. Under the pressure of this fear Republican differences were

adjusted, and the Senate and the House found common ground to stand

upon by adding two amendments to the bill as the Senate had framed it.

It was agreed, on motion of Mr. Wilson of Iowa, to add a _proviso_ to

the fifth section, in these words: "that no person excluded from the

privilege of holding office by said proposed amendment to the

Constitution of the United States, shall be eligible as a member of a

convention to frame a constitution for any of said rebellious States,

nor shall any such person vote for members of such convention." It was

also agreed, on motion of Mr. Shellabarger, that "until the people of

said rebel States shall be admitted to representation in the Congress

of the United States, any civil governments which may exist therein

shall be deemed provisional only, and in all respects subject to the

paramount authority of the United States at any time to abolish,

modify, control, or supersede. . . . All persons shall be entitled to

vote, and none others, who are entitled to vote under the fifth section

of this act; and no person shall be eligible to any office under such

provisional government, who shall be disqualified from holding office

under the provisions of the Third Article of such Constitutional

amendment." With these modifications both Senate and House passed the

bill by a party vote. During the discussion in the Senate Mr.

Doolittle moved that "nothing in this act shall be construed to

disfranchise any persons in any of said States from voting or holding

office who have received pardon and amnesty in accordance with the

Constitution and Laws." The proposition received but eight votes. The

bill went to the President for approval on the 20th of February,

leaving but a small margin of time for passage over his veto if as

anticipated he should decline to sign it. The decisive character of

the measure had evoked fierce opposition, and this in turn had

stimulated Republican advocacy to a degree of great earnestness.

On the 2d of March the President sent to the House, in which branch the

bill had originated, a long veto message of very comprehensive

character. He had summed up all the arguments that had been made

against the measure in both Houses, and he arrayed them with greater

strength than when they were originally presented. His argument

against placing the States under military government was cogently

stated. "This bill," said he, "imposes martial law at once, and its

operation will begin as soon as the general and his troops can be put

in place. The dread alternative between its harsh rule and compliance

with the terms of this measure is not suspended, nor are the people

afforded any time for free deliberation. The bill says to them, 'Take

martial law first, and then deliberate.' And when they have done all

that this measure requires them to do, other conditions and

contingencies, over which they have no control, yet remain to be

fulfilled before they can be relieved from martial law. Another

Congress must approve the constitutions made in conformity with the law

of this Congress, and must declare these States entitled to

representation in both branches. The whole question thus remains open

and unsettled, and must again occupy the attention of Congress; and in

the mean time the agitation which now prevails will continue to

disturb all portions of the people."

The President's veto reached the House on the afternoon of Saturday.

On Monday, March 4th, at noon, Congress would expire by Constitutional

limitation. The President had communicated his veto on the last day

permitted by the Constitution, and it was generally believed that his

motive for the postponement was to give the minority in one branch or

the other the power to defeat the bill either by dilatory motions or

by "talking against time." Mr. Le Blond and Mr. Finck or Ohio, and Mr.

Boyer of Pennsylvania, frankly indicated their intention to employ all

means within their power to compass this end. A system of

parliamentary delay was thus foreshadowed, but was prevented by Mr.

Blaine moving that the rules be suspended and a vote immediately taken

on the question required by the Constitution; namely, "_Will the House,

on reconsideration, agree to the passage of the bill, the President's

objection to the contrary notwithstanding?_" The Speaker decided that

the motion in this form cut off all dilatory proceedings. Mr. Finck

appealed from the decision of the Chair, but only four members

sustained him. The rules were suspended, and the House, by a vote of

one hundred and thirty-five _ayes_ to forty-eight _noes_, passed the

bill over the veto of the President. The Senate concurred in the

action of the House by _ayes_ thirty-eight, _noes_ ten; and the famous

Reconstruction law, from which flowed consequences of great magnitude,

was thus finally enacted against every effort of the Executive

Department of the Government.(1)

The successive steps of this legislation have been given somewhat in

detail because of its transcendent importance and its unprecedented

character. It was the most vigorous and determined action ever taken

by Congress in time of peace. The effect produced by the measure was

far-reaching and radical. It changed the political history of the

United States. But it is well to remember that it never could have

been accomplished except for the conduct of the Southern leaders.

The people of the States affected have always preferred as their

chief grievance against the Republican party, that negro suffrage was

imposed upon them as a condition of their re-admission to

representation; but his recital of the facts in their proper sequence

shows that the South deliberately and wittingly brought it upon

themselves. The Southern people knew, as well as the members of

Congress knew, that the Northern people during the late political

canvass were divided in their opinion in regard to the requirements

of reconstruction, but that the strong preponderance was in favor of

exacting only the adoption of the Fourteenth Amendment as the condition

of representation in Congress. It was equally plain to all who cared

to investigate, or even to inquire, that if that condition should be

defiantly rejected, the more radical requirements would necessarily be

exacted as a last resort,--rendered absolutely necessary indeed by the

truculence of the Southern States.

The arguments that persuaded the Northern States of the necessity of

this step were simple and direct. "We are willing," said they, "that

the Southern States shall themselves come gradually to recognize the

necessity and the expediency of admitting the negro to suffrage; we

are content, for the present, to invest him with all the rights of

citizenship, and to except him from the basis of representation,

allowing the South to choose whether he shall remain, at the expense of

their decrease in representation, outside the basis of enumeration."

It was the belief of the North that as the passions of the civil

contest should die out, the Southern States, if not inspired by a sense

of abstract justice, would be induced by the highest considerations of

self-interest to enfranchise the negro, and thus increase their power

in Congress by thirty-five to forty members of the House. It was the

belief that when they should come to realize that the negro had

brought to them this increased power and prestige in the National

councils, they would treat him with justice and with fairness. It was,

therefore, not merely with surprise, but with profound regret, and even

with mortification, that the North found the South in an utterly

impracticable frame of mind. They would do nothing: they would listen

to nothing. They had been inspired by the President with the same

unreasoning tenacity and stubbornness that distinguished his own

official conduct. They believed that, even against the popular verdict

in the North, the President would in the end prevail. They had

unbounded faith in the power of patronage, and they constantly exhorted

the President to turn every opponent of his policy out of office, and

give only to his friends the honors and emoluments of the National

Government. They had full faith that this would carry consternation

to the Republican ranks, and would establish the President's power on

a firm foundation.

Unless, therefore, the Loyal States were willing to allow the Rebel

States to come back on their own terms, in a spirit of dictation to the

Government of the Union, they were under the imperious necessity of

providing some other basis of reconstruction than the one which the

South had unitedly rejected. Congress was charged, in the name of

loyalty, to see that no harm should come to the Republic, and the point

was now reached where three ways were open: _first_, Congress might

follow the Administration, and allow the States to come in at once

without promise, without condition, without guarantee of any kind;

_second_, it might adopt the plan of Mr. Stevens, which had just been

narrowly defeated, and place the Southern States under military

government, with no date assigned for its termination by National

authority, and no condition held out by which the South itself could

escape from it; _third_, it might place the Southern States temporarily

under a military government, for the sake of preserving law and order

and the rights of property, during the prescribed period of

reconstruction--upon the basis that all loyal men, regardless of color

or previous condition of servitude, should take part in the movement.

Reduced to the choice of these three methods, the considerate,

well-pondered, conclusive judgment of the Republican party was in favor

of the last named, and the last named was adopted. If, therefore,

suffrage was prematurely granted to the negro; if, in consequence, harm

came to the Southern States; if hardship was inflicted upon Southern

people, the responsibility for it cannot be justly laid upon Northern

sentiment or upon the Republican party. It is true, and was not

denied, that the vast mass of the negroes thus admitted to suffrage

were without property and without education, and that it might have

been advantageous, if just treatment could have been assured them, that

they should tarry for a season in a preparatory state. While it was

maintained as an abstract proposition that the right of the negro to

vote was well grounded, many thought it desirable, as Mr. Lincoln

suggested, that at first only those who were educated and those who

had served in the Union Army should be enfranchised. But the North

believed, and believed wisely, that a poor man, an ignorant man, and

a black man, who was thoroughly loyal, was a safer and a better voter

than a rich man, an educated man, and a white man, who, in his heart,

was disloyal to the Union. This sentiment prevailed, not without

hesitation, not without deep and anxious deliberation; but in the end

it prevailed with the same courage and with the same determination

with which the party had drawn the sword and fought through a long war

in aid of the same cause, for which the negro was now admitted to

suffrage.

During the civil war the negro had, so far as he was able, helped the

Union cause--his race contributing nearly a quarter of a million troops

to the National service. If the Government had been influenced by a

spirit of inhumanity, it could have made him terribly effective by

encouraging insurrection and resistance on his part against his master.

But no such policy was ever entertained in counsels controlled in the

Cabinet by Seward and Chase and Stanton, or in operations in the field

directed by Grant and Sherman and Sheridan. The negro was left to

raise the crops that supplied the Confederate armies with bread, when

a policy of cruelty, no worse than that of Andersonville and Belle

Isle, might have made him a terror to the Southern population. The

humane policy thus pursued would have been scorned by European warriors

who have become the heroes of the world, but there is not a Northern

man who does not look back with profound satisfaction upon the

philanthropic determination that forbade the encouragement of a single

insurrection, or the destruction of a single Southern life, except

under the recognized and restricted laws of war.

Peace had now come, and the question was, whether the power of these

four and a half millions of men should be continually used against

the Northern States, against the loyalty which had saved the Union.

Only three-fifths of their number, in the day when the Southern States

were true to the Union, were admitted in the basis of representation.

Should the disloyalty of the South which had failed to destroy the

Government only by lack of power, be now rewarded by admitting the

whole number of negroes into the basis of representation, and at the

same time giving them no voice in the selection of representatives?

Surely, if this were conceded, it would offer such a premium upon

rebellion as no government guided by reason should confer; and,

therefore, the question came by the instinct of justice, and with the

precision of logic, to this point--the negro shall not be admitted

into the basis of representation until he is himself empowered to

participate in the choice of the representative. The North had hoped

that the South would cordially accept the justice of this principle,

but whether the South accepted it or not, the North resolved that it

should become part of the organic law of the Republic.

As matter of historical truth which has been ingeniously and

continuously, whether ignorantly or malignantly, perverted, this

point cannot be too fully elaborated nor too forcibly emphasized:--_The

Northern states or the Republican party which then wielded the

aggregate political power of the North, did not force negro suffrage

upon the South or exact it as a condition of re-admitting the Southern

States to the right and privilege of representation in Congress until

after other conditions had been rejected by the South_. The privilege

of representation in Congress had in effect been tendered to the

Southern States, upon the single condition that they would ratify the

Fourteenth Amendment, which provided among other safeguards for the

future, that so long as the negro was denied suffrage, he should not

be included in the basis of Federal enumeration,--in other words, that

the white men of the South should not be allowed to elect thirty-five

or forty representatives to Congress, based on the negro population,

in addition to the representatives duly apportioned to their own

numbers. When all the Southern States--with the exception of Tennessee

--declined to accept this basis of reconstruction by their rejection

of the Fourteenth Amendment, they ought to have measured the

consequences. The imperative question thenceforward was whether the

loyal or the disloyal--the victorious Union or the defeated Confederacy

--should prescribe the terms of Reconstruction.

The Northern States were thus compelled to consider whether they

would unconditionally surrender to the Rebel element of the South or

devise some other plan of reconstruction. At that point, in the order

of time and in the order of events, and not until then, the just

resolve was made by the Republicans to reconstruct the South on the

basis of Loyalty, regardless or race or color. By refusing to

co-operate with the Republicans in the work of rehabilitating their

States, the Southern rebels forced the Northern States to make

impartial suffrage the corner-stone of the restored Union. The South

had its choice, and it deliberately and after fair warning decided to

reject the magnanimous offer of the North and to insist upon an

advantage in representation against which a common sense of justice

revolted. The North, foiled in its original design of reconstruction

by the perverse course of the South, was compelled, under the

providence of the Ruler of Nations, to deal honestly and justly with

the colored people. It was the insane folly of the South, in drawing

the sword against the life of the Nation, that led irresistibly to the

abolition of slavery. In a minor degree the folly was now repeated,

in resisting the mode of Reconstruction first tendered, and thus

forcing Congress to confer civil rights and suffrage upon the

emancipated slave. A higher than human power controlled these great

events. The wrath of man was made to praise the righteous works of

God. Whatever were the deficiencies of the negro race in education,

for the duties and responsibilities of citizenship, they had exhibited

the one vital qualification of an instinctive loyalty, and as far as

lay in their power a steadfast helpfulness to the cause of the National

Union.

As the strife between the Executive and Legislative Departments had

grown in intensity, President Johnson naturally sought to increase his

own prestige by the use of the patronage of the Government. To this

end he had already removed certain conspicuous Republicans from office,

especially those who had been recommended and were now sustained by

senators and representatives prominently engaged in frustrating his

plan of reconstruction. The wonder in the political world was, that

the President had not resorted to this form of attack more promptly,

and pursued it more determinedly. His delay could be explained only

by what was termed his talent for procrastination, and to a certain

indecision which was fatal to him as an executive officer. But as

the breach between himself and Congress widened, as the bitterness

between the partisans of the Executive and of the Legislative

Departments grew more intense, the belief became general, that, as

soon as Congress should adjourn, there would be a removal of all

Federal officers throughout the Union who were not faithful to the

principles, and did not respond to the exactions, of the

Administration. Outside of his Cabinet, the President was surrounded

by the class of men who had great faith in the persuasive power of

patronage, and the pressure upon him to resort to its use was constant

and growing. Inside of his Cabinet, there were men of the same belief,

but their power was somewhat neutralized by the attitude of Mr.

Seward, whose faith always lay in the strength of ideas, and not in the

use of force, or in the temptation of personal advantage. Mr. Seward's

influence had constantly tended to hold the President back from a

ruthless removal of the whole body of officers who declined to take

part against the policy of Congress.

According to long-accepted construction of the Constitution, the

President's power of removal was absolute and unqualified. Appointment

to office could not be made unless the consent of the Senate was

given in each and every case--but the consent of the Senate had not

been held as requisite to the removal of an officer. The Constitution

was silent upon the subject, and the existence or non-existence of

power in the Senate to prevent a removal from office had been matter

of dispute from the foundation of the Government. Those who contended

for the right of the President to remove without consulting the Senate

were fortified by the early legislation of Congress and the early

practice of the Executive. The First Congress of the Union had

provided for officers whose appointment depended upon confirmation by

the Senate as required by the Constitution, but whose removal was left

in explicit terms to the President alone. The decision to that effect

was made after debate in which Madison had strenuously contended for

that construction, and his high authority gave to the conclusion great

weight with subsequent administrations of the Government. But there

was undoubtedly a divided opinion in the Congress that conceded it, and

that division has continued among Constitutional lawyers and statesmen

to this day. In 1835 Mr. Webster, "after considering the question

again and again," made this declaration in the Senate: "I am willing

to say that, in my deliberate judgment, the original decision was

wrong. I cannot but think that those who denied the power in 1789 had

the best of the argument. It appears to me, after thorough and

repeated and conscientious examination, that an erroneous

interpretation was given to the Constitution in this respect by the

decision of the First Congress. . . . I have the clearest conviction

that the Convention which formed the Constitution looked to no other

mode of displacing an officer than by impeachment or the regular

appointment of another to the same place. . . . I believe it to be

within the just power of Congress to reverse the decision of 1789,

and I mean to hold myself at liberty to act hereafter on that question

as the safety of the Government and of the Constitution may require."

Mr. Webster's words would have exerted a far wider influence upon

public opinion if his argument had not been made under the pressure of

a partisan excitement caused by General Jackson's removal of officers

who were not in sympathy with the measures of his Administration. He

was effectively though not directly answered by the venerable

ex-President Madison. In October, 1834, in a letter to Edward Coles,

Mr. Madison said, "The claim of the Senate on Constitutional ground

to a share in removal as well as appointment of officers is in direct

opposition to the uniform practice of the Government from its

commencement. It is clear that the innovation would not only vary

essentially the existing balance of power, but expose the Executive

occasionally to a total inaction, and at all times to delays fatal to

the due execution of the laws." A year later, and only a few months

before his death, Mr. Madison in a letter to Charles Francis Adams

thus repeated his views: "The claims for the Senate of a share in the

removal from office, and _for the Legislature an authority to regulate

its tenure_, have had powerful advocates. I must still think, however,

that the text of the Constitution is best interpreted by reference to

the tripartite theory of Government, to which practice had conformed,

and which so long and uniform a practice would seem to have

established. The face of the Constitution and the journalized

proceedings of the Convention strongly indicate a partiality to that

theory then at the zenith of favor among the most distinguished

commentators on the organization of political power." Chief Justice

Marshall fortified the position of Mr. Madison, by declaring that the

action of the First Congress on this question "has ever been considered

as a full expression of the sense of the Legislature on this important

part of the American Constitution."

Of the thirty-nine members of the Convention of 1787 who signed the

Constitution, thirteen, including Mr. Madison, were members of the

first Congress; Alexander Hamilton was Secretary of the Treasury under

the new Government; and above all, General Washington, who had presided

over the deliberations of the Convention, had attentively listened to

every discussion, and had carefully studied every provision, was

President of the United States. More than one-third of the members of

the Constitutional Convention were therefore engaged in the Executive

and Legislative Departments of the new Government in applying the

organic instrument which they had taken so large a part in creating.

The cotemporaneous interpretation was by those facts rendered valuable

if not authoritative. Cotemporaneous interpretations of organic law

are not always, it is true, to be regarded as conclusive, but they are

entitled to the most careful and respectful consideration, and cannot

be reversed with safety unless the argument therefor is unanswerable

and the motive which suggests the argument altogether patriotic and

unselfish. The familiar rule laid down by Lord Coke is as pertinent

to-day as when first announced: "Great regard ought, in construing a

law, to be paid to the construction which the sages, who lived about

the time soon after it was made, put upon it, because they were best

able to judge of the intention of the makers at the time when the law

was made. _Contemporania exposito est fortissima in legem_."

Against the early decision of the founders of the Government, against

the ancient and safe rule of interpretation prescribed by Lord Coke,

against the repeatedly expressed judgment of ex-President Madison,

against the equally emphatic judgment of Chief Justice Marshall, and

above all, against the unbroken practice of the Government for

seventy-eight years, the Republican leaders now determined to deprive the

President of the power of removing Federal officers. Many were induced

to join in the movement under the belief that it was important to test

the true meaning of the Constitution in the premises, and that this

could be most effectively done by directly restraining by law the power

which had been so long conceded to the Executive Department. To that

end Mr. Williams of Oregon on the first Monday of December, 1866,

introduced a bill "to regulate the tenure of civil offices." It was

referred to the Committee on Retrenchment, and reported back with

amendment by Mr. Edmunds of Vermont, who thenceforward assumed

parliamentary control of the subject.

The bill came up for discussion on the 10th day of January. Its first

section provided that every person _except members of the Cabinet_,

"holding any civil office to which he has been appointed by and with

the advice and consent of the Senate, and every person who shall

hereafter be appointed to such office, shall be entitled to hold such

office until a successor shall have been, in like manner, appointed and

duly qualified, except as herein otherwise provided." The second

section declared that "when any officer shall, during the recess of the

Senate, be shown by evidence satisfactory to the President, to be

guilty of misconduct in office, or crime, or for any reason shall

become legally disqualified or incapable of performing the duties of

his office; in such case, and in no other, the President may suspend

such officer and designate some suitable person to perform temporarily

the duties of such office, until the next meeting of the Senate, and

until the case shall be acted upon by the Senate: and in such case it

shall be the duty of the President, within twenty days after the first

day of such meeting of the Senate, to report to the Senate such

suspension, with the evidence and reasons for the same, and if the

Senate shall concur in such suspension, and advise and consent to the

removal of such officer, they shall so certify to the President, who

shall thereupon remove such officer, and by and with the advice and

consent of the Senate appoint another person to such office; but if

the Senate shall refuse to concur in such suspension, such officer

so suspended shall forthwith resume the functions of his office, and

the powers of the person so performing its duties in his stead shall

cease."

Mr. Howe wished to know why members of the Cabinet should be excepted.

"Each one of those officers," he said, "is created by statute, and

created not for the personal benefit of the Executive, but created for

the benefit of the public service, just as much as a deputy postmaster

or an Indian agent." Mr. Edmunds, in reply to Mr. Howe, said that

the Committee, "after a great deal of consultation and reflection,"

had resolved to except members of the Cabinet from the scope of the

proposed Act. He gave reasons therefor, which from the foundation of

the Government have been considered conclusive--reasons founded on the

personal and confidential relations necessarily existing between the

President and his Constitutional advisers. The reasons did not satisfy

Mr. Howe. He thought "the tenure of Cabinet officers should be under

the control of law and independent of any undue exercise of Executive

influence." He therefore moved to amend the bill so as to put the

members of the Cabinet on the same basis as other civil officers--_not

removable by the President, except with the advice and consent of the

Senate_. But the Senate was decidedly averse to so radical a change

in the practice of the Government, and Mr. Howe secured the votes of

only eight senators to join him in support of his amendment.

Mr. Edmunds moved, subsequently, to amend the bill by the addition of

several clauses, one declaring it a high misdemeanor for "any person,

contrary to the provisions of this Act, to accept any appointment or

employment in office, or to hold or attempt to hold, or exercise, any

office or employment." The signing, sealing, countersealing, or

issuing of any commission, or letter of authority, contrary to the

provisions of the Act, was made punishable by a fine not exceeding ten

thousand dollars, or by imprisonment not exceeding five years, or by

both. Various other provisions of great severity were incorporated,

and were adopted after brief debate.

When the bill reached the House, every provision of it was readily

agreed to except that which excluded Cabinet officers from its

operation. An amendment offered by Mr. Williams of Pennsylvania to

strike that out was defeated--_ayes_ 76, _noes_ 78. Later in the

day, just as the bill was passing its engrossment, Mr. Farquhar of

Indiana, having voted with the majority, moved to reconsider the vote

by which the amendment was rejected. The vote was taken the ensuing

day, and by the zealous work of the intervening night, the motion to

reconsider prevailed--_ayes_ 75, _noes_ 69--and the amendment was at

once adopted. The bill was then passed by a party vote--_ayes_ 111,

_noes_ 38. When it was returned to the Senate, that body refused, by

a decisive vote, to concur in the amendment which placed members of

the Cabinet on the same basis with other officers respecting the

President's power of removal. Upon a conference between the two

branches on this disagreement, a substitute was adopted, declaring

that the members of the Cabinet "shall hold their offices,

respectively, for and during the term of the President by whom they

may have been appointed, and for one month thereafter, subject to

removal by and with the advice and consent of the Senate." Both

Houses agreed to the bill in this form. Mr. Farquhar's change of

mind and his motion to reconsider led to the incorporation in the bill

of the provision whose alleged violation by President Johnson was the

direct cause of his impeachment by the House of Representatives a

year later.

The final action on the measure by the Senate was on the 20th of

February, so that the President had the opportunity to endanger its

passage by postponing the veto, and it was generally anticipated that

he would do so. He communicated it, as in the case of the

Reconstruction Bill, on the 2d of March. In reviewing the measure Mr.

Johnson said: "In effect it provides that the President shall not

remove from their places any of the civil officers whose terms of

service are not limited by law, without the advice and consent of the

Senate of the United States. The bill conflicts, in my judgment, with

the Constitution of the United States. The question, as Congress is

well aware, is by no means a new one. That the power of removal is

constitutionally vested in the President of the United States, is a

principle which has been not more distinctly declared by judicial

authority and judicial commentators, than it has been uniformly

practiced upon by the Legislative and Executive Departments of the

Government. . . . The question has often been raised in subsequent

times of high excitement, and the practice of the Government has

nevertheless conformed in all cases to the decision thus made.

Having at an early period accepted the Constitution, in regard to the

Executive office, in the sense in which it was interpreted with the

concurrence of its founders, I have found no sufficient grounds in the

arguments now opposed to that construction, or in any assumed necessity

of the times, for changing those opinions. . . . For these reasons, I

return the bill to the Senate, in which House it originated, for the

further consideration of Congress which the Constitution prescribes.

Experience, I think, has shown that it is the easiest, as it is also

the most attractive, of studies to frame constitutions for the

self-government of free states and nations; but I think that experience

has equally shown that it is the most difficult of all political labors

to preserve and maintain such free constitutions of self-government when

once happily established."

The veto message was a very able document. In all official papers of

importance the President appeared at his best. He had the inestimable

advantage of Mr. Seward's calm temper and of his attractive and

forcible statement of the proper argument. Few among the public men

of the United States have rivaled Mr. Seward in the dignity, felicity,

and vigor which he imparted to an official paper. No one ever

surpassed him. In the veto message under consideration his hand was

evident in every paragraph; and if it had been President Johnson's good

fortune to go down to posterity on this single issue with Congress, he

might confidently have anticipated the verdict of history in his favor.

The delicate, almost humourous sarcasm in the closing words above

quoted from the message, afford a good specimen of Mr. Seward's

facility of stating the gravest of organic propositions in a form

attractive to the general reader. He wrote as one who felt that in

this particular issue with Congress, whatever might be the adverse

votes of the Senate and House, time would be sure to vindicate the

position of the President. But the message did not arrest the action,

indeed scarcely the attention, of Congress, and the bill was promptly,

even hurriedly, passed over the veto,--in the Senate by 35 _ayes_ to

11 _noes;_ in the House by 133 _ayes_ to 37 _noes_.

The bill was not passed, however, without considerable misgiving on

the part of many members of both Houses who voted for it. It was an

extreme proposition,--a new departure from the long-established usage

of the Federal Government, and for that reason, if for no other,

personally degrading to the incumbent of the Presidential office. It

could only have grown out of the abnormal excitement created by the

dissensions between the two great Departments of the Government. The

bitterness engendered resembled that which always distinguishes a

family quarrel. The measure was resorted to as one of self-defense

against the alleged aggressions and the unrestrained power of the

Executive Department. But the history of its operation, and of its

subsequent modification, which practically amounted to its repeal, is

one to which the Republican party cannot recur with any sense of pride

or satisfaction. As matter of fact, a Republican Congress, largely

composed of the same members who had enacted the law, indirectly

confessed two years later that it could not be maintained. Regarded

only in the light of expediency at the time, it could readily be

demonstrated (as was afterwards admitted by candid men among those who

supported it) to be a blunder,--a blunder all the more censurable

because the Act was not needed to uphold the Reconstruction policy of

Congress, in aid of which it was devised. That policy relied for its

vindication upon the judgment and conscience of the loyal people, and

it was an impeachment of their good faith to say that either could be

affected by the removal of one man, or of many men, from official

position under the Federal Government. The Reconstruction policy stood

upon a strong and enduring principle,--as strong and enduring as the

question of human right,--and was sustained with vigor and enthusiasm

by the great party which was responsible for the war measures

that had saved the Union. The same sentiment did not attach to the

Tenure-of-office Law, which indeed was only the cause of subsequent

humiliation to all who had taken part in its enactment.(2)

It was part of the fixed policy of Mr. Lincoln's administration to

increase the number of distinctively free States from that section of

the public domain which had never been in any way contaminated by the

institution of slavery. To this end he was anxious to encourage the

settlement of the Territories already organized west of the Missouri

river. To provide for the still more rapid creation of North-western

States, two additional Territories, Idaho and Montana, were organized

from the area which had been included in Dakota. Mr. Lincoln's evident

motive was to place beyond the calculation, or even the hope of the

disloyal States the possibility of ever again having sufficient

political power to compete in the Senate for the mastery of the

Republic. He was persuaded that the sectional contest would be

fatally pursued as long as the chimerical idea of equality in the

Senate should stimulate Southern ambition. He knew, moreover, that

the war could not close with victory for the Union, without the

proposal of certain changes in the Constitution, and to this end it

was desirable that the loyal States should as early and as nearly as

possible constitute three-fourths of the entire Union. With this

motive, he had towards the close of his first term, somewhat

prematurely it was believed by many, stimulated the desire of the

settlers of Nevada for a State government. He had faith not only in

the justice, but in the popularity, of this policy; for he took pains

to issue the proclamation declaring Nevada a State in the Union only

a week preceding the Presidential election of 1864, when the existence

of his administration was at stake, and when every public measure was

scanned with special scrutiny.

Nebraska had been organized as a Territory in the original Douglas bill

repealing the Missouri Compromise, in 1854; and Colorado was made a

Territory the week preceding Mr. Lincoln's first inauguration. After

Nevada, these Territories offered the earliest promise of becoming

States. They were both parts of the old Louisiana purchase from

France, and had in popular estimation and in the classification of the

earlier geographers been included within the borders of the Great

American Desert. But settlers has swarmed upon the plains of Nebraska,

and the waving fields of grain and the innumerable herds of cattle

browsing on her rich pasture-land soon dispelled that misconception,

and gave promise of the prosperous development which the State has

since attained. Earlier than the farmer or the grazier could reach its

soil, Colorado was settled by an intelligent mining population, whose

industry has extracted from her mountains more than two hundred

millions of the precious metals, contributed in the last quarter of a

century to the wealth of the world. Encouraged by the policy of the

Administration, and especially by the precedent of Nevada, both

Territories sought an enabling Act from Congress in the winter of

1862-63. Neither succeeded at the time; but in the next Congress a

bill "to enable the people of Colorado to form a constitution and State

government, and for the admission of said State into the Union on an

equal footing with the original States," passed both Houses, and was

approved by Mr. Lincoln of the 21st of March, 1864. A month later

(April 19, 1864) a similar bill for Nebraska was signed by the President.

It appeared that the citizens of each Territory who had been forward

in asking an enabling Act from Congress were somewhat in advance of

popular sentiment, for when the question of forming a State

government was submitted to direct vote in Colorado it was rejected,

and the same action was taken in Nebraska. But soon afterward (in the

year 1865) the movement for a State government gained strength in both

Territories. Through duly organized conventions and the formation and

adoption of State constitutions, the people indicated a willingness, if

not an active desire, to be admitted to the Union. In Colorado 5,895

votes were cast when the constitution was submitted, and the majority

in favor of the new State was but 155. William Gilpin was elected

governor, and John Evans and Jerome W. Chaffee were chosen senators of

the United States. But when the new senators reached Washington (early

in the year 1866) they found that the policy of the National

Administration on the subject of new States had changed, and that

instead of a friend in the White House, as Mr. Lincoln had steadily

proved, they had a determined opponent in the person of Mr. Johnson.

Congress with reasonable promptness passed the bill in both Houses for

the admission of Colorado, though it was opposed by the more radical

class of Republicans because negroes were excluded from the right of

suffrage. It is a striking illustration of the rapid change of public

sentiment, that in the winter and early spring of 1866 a bill

containing that provision could pass a Congress in which the

Republicans had more than two-thirds of the membership of each branch,

whereas in less than a year negro suffrage was required as the

condition of re-admission of the Southern States.

The Colorado bill passed the Senate by a vote of nineteen to thirteen,

and the House by eighty-one to fifty-seven. It reached the President

on the fifth day of May and was promptly vetoed. Mr. Johnson did not

believe that the establishment of a state government was necessary to

the welfare of the people of Colorado; "nor was it satisfactorily

established that a majority of the citizens of Colorado desire, or are

prepared for, an exchange of the Territorial for a State government."

He thought that Colorado, instead of increasing, had declined in

population. "At an election for a Territorial Legislature in 1861,

10,580 votes were cast; at an election in 1864 only 6,192 votes were

cast; while at the election of 1865 only 5,905 votes have been cast."

He said, "I regret this apparent decline of population in Colorado,

but it is manifest that it is due to emigration which is going out

from that Territory into other regions of the United States, which

either are in fact, or are believed to be by the citizens of Colorado,

richer in mineral wealth and agricultural resources." The President

commented upon the injustice of creating from so small a population a

State with senatorial strength equal to that of the largest State in

the Union. He thought Colorado did not have a population of more than

twenty thousand persons "whereas one hundred and twenty-seven thousand

are required in other States for a single representative in Congress."

The President did not neglect his one constant theme--the unrepresented

condition of the Southern States. He insisted that "so long as eleven

of the old States remain unrepresented in Congress, no new State should

be prematurely and unnecessarily admitted to a participation in the

political power which the Federal Government wields." The strong

minority which had opposed the Colorado bill gave no hope of overriding

the President's veto, which was simply laid on the table and ordered to

be printed.

The bill for the admission of Nebraska came later in the session, not

being introduced for consideration until the 23d of July. It passed

very promptly by a vote of twenty-four to eighteen in the Senate, and

by sixty-two to fifty-two in the House. As in the case of Colorado the

constitution excluded the negro from the right of suffrage, and for

that reason a very considerable proportion of the Republicans of each

branch voted against the bill. The vote was so close in the House that

but for a frank and persuasive statement made by Mr. Rice of Maine,

from the Committee on Territories, it would have been defeated. He

pictured the many evils that would come to the people of Nebraska, now

more than sixty thousand in number, if they could not do for

themselves, as a State, many things which the National Government would

not do for them as a Territory. Under the influence of his speech a

majority of ten was found for the bill, but Congress adjourned the day

after it was finally passed by both branches, and the President quietly

"pocketed" the bill; and thus the earnest and prolonged effort to

create two new States came to naught for the time.

Nothing daunted by the President's veto of the bill admitting Colorado,

and his pocketing the bill admitting Nebraska, Mr. Wade promptly

introduced both bills anew, at the beginning of the second session of

the Thirty-ninth Congress. The case of Nebraska was, in popular

judgment, stronger than the case of Colorado. The population was

larger, and being devoted to agriculture, was naturally regarded as

more stable than that of Colorado, which was based principally upon the

somewhat fortuitous discovery of mines of the precious metals. But

there was an admitted political embarrassment in regard to both

Territories, the principal debate on which occurred when the bill

admitting Nebraska was under consideration. Congress was, at the time,

engaged in passing the Reconstruction Act for the States lately in

rebellion, and had made it imperative that negroes should be endowed

with suffrage by those States. While insisting on this condition for

the Southern States it was obviously impossible for Congress to admit

two Northern States with constitutions prohibiting suffrage to the

negro. In the months of the Congressional vacation public opinion in

the North had made great strides on this question.

A minority of Republicans were intent on sending the bill back and

having the question of negro suffrage submitted for popular decision,

but in the opinion of the majority of the party this was a needless

postponement of a pressing question, and all propositions looking to

such postponement were rejected. A final compromise of views was

reached, by inserting in the Act of admission an additional section

declaring "that this Act shall not take effect except upon the

fundamental condition that within the State of Nebraska there shall

be no denial of the elective franchise or of any other right to any

person, by reason of race or color, excepting Indians not taxed; and

upon the further fundamental condition that the Legislature of said

State, by a solemn public act, shall declare the assent of said State

to the said fundamental condition and shall transmit to the President

of the United States an authentic copy of said Act." When notified

of this solemn public act by the Legislature, it was made the duty of

the President to announce the fact by proclamation, and thereupon the

admission of the State to the Union, without further proceedings of

Congress, was to be considered complete. The objection to this

compromise by those who opposed it and by others who reluctantly

supported it, was that it did not have the force of Organic Law; that

the proposed act of the Legislature would not be rendered any more

binding by reason of being called a solemn act, and that it might be

repealed by any subsequent Legislature. Much argument was expended

upon this point, but the general judgment was that an act of the

Legislature, made in pursuance of such an understanding with Congress,

was in the nature of a compact which, without discussing the question

of power, would certainly be regarded as binding upon the State. With

this understanding, Congress passed a bill admitting the State, but the

vote in both branches was divided on the line of party.

This action was accomplished late in January (1867), and on the 29th

of that month the President vetoed the bill. He objected especially

to the clause just referred to, because it was an addition to the

enabling Act which Congress had no moral right to make, and because

it required of Nebraska a condition not theretofore required of States,

--contradicting flatly the declaration of the first section of the

bill, in which the State was declared to be "admitted into the Union

upon an equal footing with the original States in all respects

whatever." He argued that the imposition of the condition prescribed

in the bill, and its acceptance by the Legislature, was practically

a change in the organic law of the State without consulting the people,

which he regarded as an innovation upon the safe practice of the

Government. But his arguments fell upon unwilling ears, and the bill

was passed over the veto by a vote of thirty to nine in the Senate,

and in the House by one hundred and twenty to forty-three.

Colorado did not fare so well. The bill was passed by both branches

of Congress, though not with so full a vote nor with so much confidence

in the propriety and necessity of the measure. Precisely the same

condition in regard to suffrage was inserted as in the case of the

Nebraska bill. It met with a prompt veto, more elaborately argued and

presented with more confidence by the President than in the case of

Nebraska. He said, "I cannot perceive and reason for the admission of

Colorado that would not apply with equal force to nearly every other

Territory now organized, and I submit whether, if this bill becomes a

law, it will be possible to resist the logical conclusion that such

Territories as Dakota, Montana, and Idaho must be received as States

whenever they present themselves, without regard to the number of

inhabitants they may respectively contain." He dwelt forcibly upon the

necessity of requiring population enough to secure one representative.

"The plain facts of our history," said he, "will attest that the

leading States admitted since 1845, namely, Iowa, Wisconsin, California,

Minnesota, and Kansas (including Texas, which was admitted in that

year), have all come in with an ample population for one

representative, and some of them with nearly, if not quite, enough for

two."

There were really no facts before Congress tending to prove the

existence of those great resources which have since advanced Colorado

so rapidly in population and prosperity. Little was known of the

Territory. It was several hundred miles beyond the Western border of

continuous settlement, and the men who came from it were regarded as

adventurous pioneers on the very outposts of civilization. Under this

condition of affairs it is not strange that the Senate failed to pass

the bill for the admission of the State over the veto of the President.

Edmunds, Fessenden, Foster, Grimes, Harris, Morgan, and some other

Republicans, less prominent, voted in the negative. The result was

twenty-nine in favor of passing it over the veto, and nineteen against.

Defeated in the Senate the bill did not go to the House, and the

admission of Colorado was by this action postponed for several years.

The President gave specious reasons for his vetoes, especially in the

case of Colorado, but they did not conceal the fact that his position

was radically different from that which Mr. Lincoln had held--radically

different from the position which he would himself had assumed if he

had maintained in good faith the principles he had professed when he

secured the suffrages of the Republican party for the Vice-Presidency.

Having allied himself with the South and compromised his patriotic

record by espousing the cause he had so hotly opposed, he naturally

adopted all its principles and its worst prejudices. For nearly half

a century the leading exponents of Southern sentiment had been envious

of the growth of the free North-West, and so far as lay in their power

they had obstructed it--being unwilling for a long period to admit one

of its giant Territories to the Union until its power could be

politically offset by one of less population and wealth in the South.

Mr. Johnson in his new associations at once adopted this jealous and

ungenerous policy--which had indeed lost something of its significance

by the abolition of slavery, but was still stimulated by partisan

considerations and was invariable hostile to the admission of a

Republican State. The most bitter prejudices could not blind Mr.

Johnson or the Southern leaders to the inevitable growth of free

commonwealths in the North-West, but it seemed to be an object with

both to keep them from participation in the government of the Union so

long as possible, and to accomplish this end by every expedient that

could be adopted.

An Act in relation to the President's power to grant pardon and

amnesty, passed at this session, was more important in its spirit than

in its results. By the thirteenth section of the Confiscation Act of

July 17, 1862, the President was authorized, at any time, by

proclamation, "to extend to any persons who may have participated in

the existing rebellion in any state or part thereof, pardon and

amnesty." Under a suspension of the rules, the House of

Representatives, by a vote of one hundred and twelve to twenty-nine,

repealed this section on the first day of the session (December 3,

1866). There was anxiety on the part of many, under the lead of Mr.

Chandler of Michigan, to repeal it so promptly in the Senate, but it

was referred to the Judiciary Committee and passed after discussion.

Mr. Chandler said, "It is a notorious fact, as notorious as the records

of a court, that pardons have been for sale around this town, for sale

by women--by more than one woman. The records of your court in the

District of Columbia show this. Any senator who desires this

disgraceful business to go on, of course desired that this clause shall

remain."

The repeal of the clause, however, would not take from the President

his constitutional power of pardoning, but in the judgment of Mr.

Trumbull, who had charge of the bill in the Senate, it took from him

the power to pardon by proclamation and confined him to his right of

issuing individual pardons. The difference between pardon and amnesty

was defined by Mr. Trumbull. Pardon is an act of mercy extended to

an individual. It must be by deed. It must be pleaded. According to

Chief Justice Marshall, it is essential to its validity that it be

delivered to the person pardoned. But an amnesty is a general pardon

by proclamation. Mr. Trumbull thought the repeal would be a "valuable

expression of opinion on the part of Congress that general pardons and

restoration of property will not be continued, and if they President

continues to pardon rebels and restore their property by individual

acts under the Constitution, let him do so without having the sanction

of Congress for his act."

Mr. Reverdy Johnson took issue with Mr. Trumbull. He maintained that

the President's powers to grant pardons, as conferred by the

Constitution, had not been affected by the provision of law whose

repeal was now urged. He declared that the power of the President

"to grant reprieves and pardons for offenses against the United

States" was as broad, as general, as unrestricted as language could

make it. He could find no logical ground for the distinction made

by Mr. Trumbull between individual pardons and general amnesties by

proclamation--in illustration of which he said President Washington

had by proclamation pardoned the offenders engaged in the Whiskey

Insurrection. The enactment of the provision had not, in Mr. Johnson's

opinion, enlarged the President's pardoning power, and its repeal

would not restrict it.

It was thought that a majority of the Senate concurred in Mr. Johnson's

interpretation of the Constitution, but they passed the bill as a

rebuke to the scandalous sale of pardons which Mr. Chandler had brought

to the attention of the Senate. This vile practice had no doubt been

pursued to some extent, but only by a class of "middle men" who had

neither honor nor sensibility. They had in some form the opportunity

to secure the interposition of men who could reach the ear of the

President or the Attorney-General. It is hardly necessary to add that

neither of those high officials was in the remotest degree reflected

upon even by their bitterest opponents. However wrong-headed Mr.

Johnson and Mr. Stanbery might have been considered on certain

political issues, the personal integrity of both was unblemished. It

was believed that the nefarious practice was stopped by Mr. Chandler's

action in the Senate. Exposure made public men careful to examine

each application for pardon before they would consent to recommend it

to the President.

The President neither approved the bill nor objected to it, but

allowed it to become a law by the expiration of the Constitutional

limit of ten days. He obviously took the same view that had been

advanced by Mr. Reverdy Johnson, and did not take the trouble to sign

it, much less to veto it. It was _brutum fulmen_, and the President

used his Constitutional power to pardon by proclamation just as freely

after its enactment as before.

[NOTE.--"Pocketing a bill" is the phrase commonly used to describe the

President's course when he permits a bill which reaches him within the

last ten days of the session, to die without action on his part. It

is frequently termed the "pocket veto."]

[(1) The original Reconstruction Act and the several supplementary Acts

are given in full in Appendix A.]

[(2) The full text of the Act to regulate the tenure of certain civil

offices, is given in Appendix B.]