The Fortieth Congress met at the very moment the Thirty-ninth
closed--on the fourth day of March, 1867. The valedictory words of the
presiding officers in both branches were followed immediately by the
calling to order of the succeeding bodies. The contest between the
President and Congress had grown so violent, the mutual distrust had
become so complete, that the latter was unwilling to have its power
suspended for the customary vacation of nine months between the 4th of
March and the first Monday of the ensuing December; and therefore at
the preceding session a law had been passed directing that each
Congress should be organized immediately after the existence of its
predecessor had closed. The Republican leaders felt that without the
supervising and counteracting power of Congress, full force and effect
might not be given to the Reconstruction laws by the President; that
they might possibly be neutralized by hostile action from the office
of the Attorney-General, and that for this reason it would be well,
nay, it was imperatively demanded, that the legislative power should be
kept ready to interpose with fresh enactments, the very moment those
already in force should be dulled by adverse construction, or haltingly
administered by Executive agents not in sympathy with the policy of
Congress.
The membership of the Fortieth Congress was changed in some important
respects in both branches. Simon Cameron, at sixty-eight years of
age, returned from Pennsylvania as the successor of Edgar Cowan in the
Senate. It was the third time he had entered that body, and now, as
it proved, for a longer period than ever before.--Roscoe Conkling, who
had been steadily growing in strength, with the Republican party of
New York, was transferred from the House and took the seat of Ira
Harris.--Justin S. Morrill of Vermont, after twelve years of useful
and honorable service in the House, was now promoted to the Senate for
a still longer and equally honorable and useful service in that
body.--Oliver P. Morton, bearing his great reputation as the War Governor
of Indiana, now took the seat of Henry S. Lane, whom, six years before,
he had succeeded in the gubernatorial chair of his State.--James W.
Patterson of New Hampshire had grown rapidly in favor by four years'
service in the House and now entered the Senate as the successor of
Daniel Clark.--Orris S. Ferry, who but for physical disability would
have acquired wider fame, succeeded Lafayette S. Foster as senator from
Connecticut.--James Harlan returned from Iowa after a somewhat
extraordinary experience with the President during his two years'
absence.--Charles D. Drake, fresh from bitter political controversies,
entered from Missouri as the successor of B. Gratz Brown.--Cornelius
Cole, who had already served in the House, came from California.--Henry
W. Corbett, a successful merchant, came from Oregon. The Senate on the
whole had received valuable accessions. Some of the men who entered
that day became prominent and influential in the public councils for
many years.
The House also received some noteworthy additions among the new
members. Two marked men from the North-West, who had served as
representatives in opposing parties, before the Rebellion, now returned
as members of the same political organization, having in the four
intervening years acquired great distinction in the war for the Union
--John A. Logan of Illinois, and Cadwalader C. Washburn of
Wisconsin.--Grenville M. Dodge, who had attained high rank in the
volunteer service, entered from Iowa.--Norman B. Judd, who had gained
much influence by his long membership of the State Senate of Illinois
between 1844 and 1860, and by his service as minister to Berlin under
Mr. Lincoln, now came from one of the Chicago districts.
The New-York delegation was strengthened by the advent of some new men.
--Dennis McCarthy, an enterprising and successful merchant, with wide
knowledge of public affairs, entered from the Syracuse district. He
proved a most intelligent and useful member of the House, as he already
had of the Legislature of New York. His ability, his industry, and his
broadly liberal views have given him a high standing among the people
of his State.--William H. Robertson entered at the same time from the
Westchester district. He was a member of the House for only a single
term, but he left a clear imprint of the high character which has since
been put to severe tests and was never found wanting. Able and frank,
conscientious and careful in the discharge of every trust, Mr.
Robertson has established a reputation without spot or blemish.--Orange
Ferriss, since of honorable repute as one of the Auditors in the
Treasury Department, John C. Churchill, who had already attained a good
standing at the Bar, and Addison H. Laflin, afterwards appointed to an
important customs office in the city of New York, all entered at this
session.
John Coburn, who had made a good record in the war, came from the
State of Indiana. Firm and tenacious in his opinions, even to the
point of obstinacy, he was for years an active and useful
representative of the people. He could not be deflected from what he
regarded as the line of duty and he soon acquired the respect of both
sides of the House.--Morton C. Hunter, who had done good service in the
Army of the Tennessee, as Colonel of an Indiana regiment, and
afterwards commanded a brigade in Sherman's Atlanta campaign, now
entered from the Bloomington district.--Austin Blair, who had won
great praise as Governor of Michigan during the war, now entered as
representative from the Jackson district. He exhibited talent in
debate, was distinguished for industry in the work of the House and
for inflexible integrity in all his duties. He was not a party man in
the ordinary sense of the word, but was inclined rather to independence
of thought and action. This habit separated him from many friends who
had wished to promote his political ambition, and estranged him for a
time from the Republican party. But it never lost him the confidence
of his neighbors and friends, and did not impair the good reputation
he had earned in his public career.--George A. Halsey, a successful
manufacturer and a most intelligent, worthy man, entered from the
Newark district of New Jersey, bringing to the House a thorough and
valuable knowledge of the trade relations of the country, both domestic
and foreign.--The New-Hampshire delegation, not present at the
organization of the House, had been entirely changed by the late
election. Aaron F. Stevens, a lawyer of high standing, Jacob H. Ela,
afterwards for many years an Auditor in the Treasury Department, and
Jacob Benton, well known in the politics of his State, were the new
members.--Worthington C. Smith, an experienced man of affairs, entered
from Vermont as the successor Justin S. Morrill.--Henry L. Cake, an
enthusiastic representative of the Pennsylvania Germans and of the
anthracite-coal minters, came from the Schuylkill district.--Green
B. Raum, afterward for a considerable period Commissioner of Internal
Revenue, entered from Illinois.--William A. Pile and Carman A. Newcomb,
two active and earnest young Republicans, came as representatives of
the city of St. Louis.
Benjamin F. Butler now took his seat in Congress for the first time.
He was sent from a Massachusetts district of which he was not a
resident, thus breaking a long established and approved custom.
Though his military career had been the subject of adverse and bitter
criticism, it had been marked by certain features which pleased the
people, and he came out of the war with an extraordinary popularity in
the loyal States. He engaged at once in political strife. During the
canvass against the President's policy in 1866 he went through the
country, it may with truth be said, at the head of a triumphal
procession. He was received everywhere with a remarkable display of
enthusiasm, and was fortunate in commending himself to the good will of
the most radical section of the Republican party. He naturally
affiliated with that side because it never was General Butler's habit
to be moderate in the advocacy of any public policy. When he was a
Democrat he sustained the extreme Southern wing of the party with all
his force and zeal; and when the course of his political associates
pointed to a disruption of the Government he turned upon them with
savage hostility, declared without hesitation for the support of the
Union, offered his services as a soldier, and was constantly in the
vanguard of those who demanded the most aggressive and most destructive
measures in the prosecution of the war. He entered Congress,
therefore, with apparent advantages and in the full maturity of his
powers, at forty-nine years of age.
--General Butler had long been regarded as a powerful antagonist at the
bar and he fully maintained his reputation in the parliamentary
conflicts in which he became at once involved. He exhibited an
extraordinary capacity for agitation, possessing in a high degree what
John Randolph described as the "talent for turbulence." His mind was
never at rest. While not appearing to seek controversies, he possessed
a singular power of throwing the House into turmoil and disputation.
The stormier the scene, the greater his apparent enjoyment and the
more striking the display of his peculiar ability. His readiness of
repartee, his great resources of information, his familiarity with all
the expedients and subtleties of logical and illogical discussion,
contributed to make him not only prominent but formidable in the House
for many years. He was distinguished by habits of industry, had the
patience and the power required for thorough investigation, and seemed
to possess a keen insight into the personal defects, the motives, and
the weaknesses of his rivals. He was audacious in assault, apparently
reckless in his modes of defense, and in all respects a debater of
strong and notable characteristics. Usually merciless in his
treatment of an aggressive adversary, he not infrequently displayed
generous and even magnanimous traits. He had the faculty of attaching
to himself, almost as a personal following, those members of the House
who never came in conflict with him, while he regarded his intellectual
peers of both political parties as natural foes whom he was destined
at some time to meet in combat, and for whose overthrow he seemed to
be in constant preparation.
Another marked character came from New England,--John A. Peters of
Maine,--a graduate of Yale, a man of ability, of humor, of learning
in the law. He had enjoyed the advantage of a successful career at
the bar and was by long training and indeed by instinct devoted to
his profession. In his six years' service in the House he acquired
among his fellow-members a personal popularity and personal influence
rarely surpassed in Congressional experience. He made no long speeches
and was not frequently on the floor, but when he rose he spoke
forcibly, aptly, attractively, and with that unerring sense of justice
which always carried him to the right side of a question, with
unmistakable influence upon the best judgment of the House. Since
his retirement from Congress his career on the Supreme Bench of Maine,
and more recently as its Chief Justice, has given roundness and
completeness to a character whose integrity, generosity, and candor
have attracted not only the confidence and respect of an entire State,
but the devoted attachment of a continually enlarging circle of friends.
James B. Beck took his seat for the first time as representative from
the Ashland District of Kentucky. He was born in Scotland in 1822, and
though he came to the United States while yet a lad, he has retained
in strength and freshness all the characteristics and peculiarities
of his race. He has a strong mind in a strong body. Well grounded in
the rudiments of education in his native land, he completed his
intellectual training in Kentucky and bears the diploma of Transylvania
University--in whose list of graduates may be found many of the ablest
men of the South-West. Originally a Whig, Mr. Beck followed John C.
Breckinridge into the Democratic party at a period when the pro-slavery
crusaders had gone mad and were commanding, indeed morally coercing,
the services of a great majority of the able and ambitious young men
of the South. He became the law partner of Breckinridge, and was
zealously and devoted attached to him to the end. Had Beck been a
native of the South he would undoubtedly followed Breckinridge hastily
and hot-headedly into the rebellion. He was saved from that fate by
the abundant caution and the sound sense which he inherited with his
Scotch blood.
--But Mr. Beck had all the sympathy with the Rebellion which was
necessary to secure popular support in Kentucky--without which, indeed,
a Democrat in that State has had no chance for promotion since the war
closed. He has grown steadily in Congress from the day of his
entrance. He is honest-minded, straightforward, extreme in his views
on many public questions, and though a decided partisan of Southern
interests has always had the tact and the good fortune to maintain kindly
relations with his political opponents--a desirable end to which his
generous gift of Scotch humor has essentially aided him. It is among
the singular revolutions of political opinion and political power in
this country, that the State and the very city made memorable by Mr.
Clay's impassioned devotion to the National Union and his prolonged
advocacy of protection, should be represented in Congress by a disciple
of the extreme State-rights school and by a radical defender of free trade.
As soon as the Clerk of the House finished the calling of the roll and
announced that a quorum had answered to their names, Mr. Brooks of New
York rose and called attention to the fact that there were seventeen
absent States, ten of which, belonging to the late Confederacy, were
not called at all, and the remaining seven--New Hampshire, Rhode
Island, Connecticut, Kentucky, Tennessee, Nebraska, and California--had
presented no credentials of members, inasmuch as under their respective
laws, Representatives to the Fortieth Congress had not yet been chosen.
Among the absent were seven of the "old thirteen"--an absolute majority
of the States which founded the Republic. The absentees in all
amounted to eighty members; and on behalf of his political associates
Mr. Brooks presented a formal protest, signed by every Democratic
member present, "against any and every action tending to the
organization of this House until the absent States be more fully
represented." He asked that it be entered upon the Journal as the
protest of the minority of the House. Under the rules the Clerk
refused to receive or submit the paper for consideration, and the House
immediately proceeded to the election of Speaker. Mr. Colfax was
chosen for the third and last time. He received one hundred and
twenty-seven votes against thirty cast for Mr. Samuel S. Marshall, a
highly respectable Democrat member from Illinois. As before, Mr.
Colfax, in his remarks when he took the chair, sought to present an
embodiment of Republican policy on the current issues. He declared
that "the freeman's hands should wield the freeman's ballot;" that
"none but loyal men should govern a land which loyal sacrifices have
saved;" that "there can be no safe or loyal reconstruction on a
foundation of unrepentant treason or disloyalty."
The principal business of the session was to provide supplementary
legislation to the Reconstruction Act which had been passed over the
President's veto only two days before the new Congress assembled.
That Act, from a variety of circumstances, had been forced through at
the last under whip and spur. Upon close examination by the leading
Republicans of both Senate and house it was found to be defective in
many important respects, and especially to lack the detail necessary
to give life and vigor to proceedings looking to the practical
reconstruction of the Southern States. The two Houses therefore
addressed themselves promptly to the task of supplying the necessary
amendments and additions. On the 19th of March they sent to the
President an Act prescribing in detail the mode for the registering of
voters in the insurrectionary States, and for the summoning of a
convention to frame a constitution preparatory to the re-admission of
each State to representation. The Act declared that "if the
constitution shall be ratified by a majority of the votes of the
registered electors qualified to vote, at least one-half of all the
registered voters voting upon the question, a copy of the same, duly
certified, shall be transmitted to the President of the United States,
who shall forthwith transmit the same to Congress and if it shall
appear to Congress that the election was one at which all the
registered and qualified electors in the State had an opportunity to
vote freely and without restraint, fear, or the influence of fraud,
and if Congress shall be satisfied that such constitution merits the
approval of a majority of all the qualified electors in the State,
and if the said constitution shall be declared by Congress to be in
conformity with the provisions of the Act to which this is
supplementary, and the other provisions of said Act shall have been
complied with, and the said constitution shall be approved by Congress,
the State shall be declared entitled to representation, and senators
and representatives shall be admitted therefrom as therein provided."
The President promptly vetoed the bill. Among various objections he
said, "This supplemental bill superadds an oath to be taken by every
person, before his name can be admitted upon the registration, that
he 'has not been disfranchised for participation in any rebellion or
civil war against the United States.' It thus imposes upon every
person the necessity and responsibility of deciding for himself, under
the penalty of punishment by a military commission if he makes a
mistake, what works disfranchisement by participation in rebellion and
what amounts to such participation. . . . The question with the citizen
to whom this oath is to be proposed must be a fearful one, for while
the bill does not declare that perjury may be assigned for such false
swearing nor fix any penalty for the offense, we must not forget that
martial law prevails and that every person is answerable to a military
commission, without previous presentment by a grand jury, for any
charge that may be made against him, and that the supreme authority of
the military commander determines the question as to what is an offense
and what is to be the measure of punishment. . . . I do not deem it
necessary further to investigate the details of this bill. No
consideration could induce me to give my approval to such an election
law for any purpose, and especially for the great purpose of framing
the constitution of a State. If ever the American citizen should be
left to the free exercise of his own judgment, it is when he is
engaged in the work of forming the fundamental law under which he is
to live. That is his work and it cannot properly be taken out of his
hands."
The whole issue presented by this bill was but another of the countless
phases of that prolonged and fundamental contest between those who
believed that guarantees should be exacted from the rebel States, and
those who believed that these States should be freely admitted, without
condition and without restraint, to all the privileges which they had
recklessly thrown away in their mad effort to destroy the Government.
The strength of each side had again been well stated in the debates of
the Senate and House and in the veto-message of the President, and no
change of opinion was expected by either party from the reasoning or
the protest of the other. The President's argument was therefore met
by a prompt vote passing the bill over his veto, in the House by 114
_ayes_ to 25 _noes_, and in the Senate by 40 _ayes_ to 7 _noes_. The
resistance was very slight, and the fruit of the great Republican
victory of 1866 was now realized in the formidable strength which the
President's opponents exhibited in both branches.
The session lasted until the thirtieth day of March, and though
Congress had then completed all the business pressing upon its
attention the Republican leaders would not permit an adjournment _sine
die_. They decided to meet again in midsummer. The same necessity
that had induced them to convene in March persuaded them that the
President should not be allowed to have control of events for eight
months without the supervision of the legislative branch of the
Government. It was resolved therefore that Congress should meet on
Wednesday, July 3d. The vigilance and determination evinced by this
action did not prove useless or go unrewarded. Only a few weeks after
Congress had taken its recess the danger anticipated by the Republican
leaders, from hostile interpretation of the Reconstruction Acts by the
Attorney-General, was made fully apparent. On the 24th of May and the
12th of June Mr. Stanbery gave two opinions to the President, which in
many respects neutralized the force both of the original and
supplementary acts of Reconstruction. His adverse views were
elaborately and skilfully presented, and tended to embarrass the
military commanders of the Southern districts in the administration of
law, and to hinder the registration of voters and the holding of
elections for constitutional conventions. Republican leaders therefore
felt not only justified in the precautions they had taken to keep the
power of Congress alive, but esteemed it peculiarly fortunate that
they could so promptly prevent the evil effects which might otherwise
flow from the unfriendly constructions of the Attorney-General. The
principal business of the July session was to provide a second
supplementary Act which effectually remedied all the objections and
obstructions which Mr. Stanbery's acute legal knowledge had suggested.
The bill passed both branches by the 13th of July and reached the
President on the 14th--meeting at his hands the same fate that its
predecessors had incurred. On the 19th he vetoed it--rehearsing the
objections he had repeatedly stated on the same issues.
The President complained that within less than a year Congress had
attempted to strip the Executive Department of the Government of some
of its essential powers. "The military commander," said he, "is, as to
the power of appointment, made to take the place of the President, and
the General of the Army the place of the Senate, and any attempt on
the part of the President to assert his own Constitutional power may,
under pretense of law, be met by official insubordination. It is to
be feared that these military officers, looking to the authority given
by these laws, rather than to the letter of the Constitution, will
recognize no authority but the commander of the district or the General
of the Army. . . . If there were no other objection than this to the
proposed legislation it would be sufficient. While I hold the chief
executive authority of the United States, while the obligations rests
upon me to see that all laws are faithfully executed, I can never
willingly surrender that trust or the powers given for its execution.
I can never give my assent to be made responsible for the faithful
execution of laws, and at the same time surrender that trust and the
powers which accompany it to any other executive officer, high or low,
or to any number of executive officers."
Many of those who kept closest watch of the controversy between the
President and Congress saw in the foregoing words something ominous.
In their apprehensions of evil they construed it as a threat that the
President would exercise his power as Commander-in-Chief of the Army
and Navy with which he was fully invested by the Constitution, to
change the assignment of military officers at will. Should he
stubbornly or capriciously assert this power he might seriously
embarrass the entire administration of the Reconstruction Acts in the
approaching registrations and elections in the Southern States. A
change of officers at a single point might frustrate all the
preparations for the reconstruction of a State, and a general change
might produce chaos in the South and possibly develop a spirit of
violence of which no man could measure the effect. The President's
words made a deep impression on Congress. Mr. Boutwell saw in them a
deadly intent "which provokes and demands the exercise of the highest
and gravest duty of this House"--meaning that the President should be
impeached. Mr. Randall of Pennsylvania taunted Mr. Boutwell with the
declaration that all the talk of impeachment was "mere bluster;" while
Mr. Thaddeus Stevens, though believing that Mr. Johnson deserved
impeachment, considered it "a vain and futile thing." "There are,"
said he, "unseen agencies at work, invisible powers operating
everywhere in the country, which will protect a man like Johnson when
called upon." Debate, however, was very brief, and the House passed
the bill over the veto by _ayes_ 108, _noes_ 25. In the Senate there
was no discussion whatever on the President's message, that body being
content to pass the bill against his objections by 30 _ayes_ to 6 _noes_.
The Senate and the House were both ready to adjourn on the 20th of
July, but Mr. Sumner, Mr. Howard of Michigan, and others of the most
radical type in both branches, desired that Congress might remain in
session for the summer and autumn, or at least have such short
vacations as would practically amount to a continuous session. Their
object was to keep constant watch of the course of the Administration
and be at all times ready to neutralize its evil purpose. Aside from
the great personal inconvenience which this would occasion to many
members, the judgment of the majority was against so radical a step.
The more conservative members of the Republican party feared that a
continuous session of Congress would seriously increase the uneasiness
and excitement in the country by creating the impression that the
Senate and House were sitting as a committee of public safety, in the
apprehension of a civil revolution. The reply of those who opposed
the adjournment was that the condition of public affairs did actually
tend to revolution, and that instead of fanning the popular excitement
by remaining in session, Congress would be thus most wisely allaying
the fears which had entered the minds of so large a number of the
people. But this argument did not prevail, and the conservative view
secured a majority in both Houses. The vote in the Senate however
was very close, there being only one more Republican in the affirmative
that in the negative, leaving to Democratic votes, really, the decision
of the question. A very inconvenient compromise was made by an
adjournment to the 21st of November--only a fortnight before Congress
would convene in regular annual session on the first Monday of
December. No good reason was assigned for so extraordinary a step, and
no benefit resulted from it.
The Reconstruction Acts, both original and supplementary, were now in
full operation throughout the South. The President did not interpose
serious objection to the assignment of the Army officers whose names
were suggested by General Grant, and the ten insurrectionary States not
yet re-admitted to representation were remanded to military government
with apparent quiet and order. General Schofield was directed to take
charge of the district of Virginia; General Sickles was placed in
command of the district of North Carolina and South Carolina; General
John Pope was assigned to the district of Georgia, Alabama, and
Florida; General Ord to the district of Mississippi and Arkansas; and
General Sheridan to the district of Louisiana and Texas. These
assignments were made with due promptness after the enactment of the
laws, and the several commanders at once proceeded to their novel and
responsible duties.(1)
Under the enlargements of suffrage in the direction of loyalty, and its
restrictions in the direction of disloyalty, the Southern States once
more turned their attention to the question of Reconstruction. They
saw, as the law intended them to see, that military government would
exist until the loyal inhabitants of those States should present
themselves before Congress with a constitution adapted to the
changed circumstances resulting from the war, and to the necessities
superinduced by the abolition of slavery. The Southern men who had
defiantly rejected the Fourteenth Amendment, and had with confidence
relied upon the power of President Johnson to vindicate their position,
now discovered their mistake, and were reluctantly but completely
convinced that the only road to representation in Congress for their
States was through submission to the conditions imposed by the Acts
of Reconstruction,--conditions far more exacting than those which had
been required by the preceding Congress and which they had so unwisely
refused to accept.
The assignments of Army officers to the Southern districts were made
early in the spring of 1867. From that time onward it was hoped that
the preservation of order would be secured in the South, and that the
rights of all classes would be adequately protected. But
notwithstanding the anticipation of this desirable result, there
was throughout the summer and autumn of 1867 a feeling of great
anxiety concerning the condition of the Southern States,--a constant
apprehension that some outbreak similar to that in New Orleans the
preceding year might lead to deplorable consequences, among the least
of which would be the postponement of the organization of State
governments. The cause of this solicitude among Northern people was
the novel experiment in the South of allowing loyal men regardless of
race or color to share in the suffrage and to participate in the
administration of the Government. Under any less authoritative mandate
than that which is conveyed in a military order with the requisite
force behind it, the Southern communities would never have accepted
or submitted to the conditions thus imposed. But the sympathy which
their condition under other circumstances might have evoked in the
North, was stifled by the pertinent consideration that they had
refused other forms of Reconstruction, and had wilfully drawn upon
themselves all that was unwelcome in the one now about to be enforced.
It was to be noted moreover that the feature which was most unwelcome
--impartial suffrage--was the one especially founded upon justice,
abstract as well as practical.
Conventions were held successively in all the States, the elections
being conducted in good order, while every man entitled to vote was
fully secured in his suffrage. The conventions were duly assembled,
constitutions formed, submitted in due time, and approved by popular
vote. State governments were promptly organized under these organic
laws, Legislatures were elected, and the Fourteenth Amendment ratified
in each of the States with as hearty a unanimity as in the preceding
winter it has been rejected by the same communities. The proceedings
were approximately uniform in all the States, and the constitutions,
with such minor differences and adaptations as circumstances required,
were in all essential points the same. All were ordained in the spirit
of liberty, all prohibited the existence of any form of slavery, and
all heartily recognized the supreme sovereignty of the National
Government as having been indisputably established by the overthrow of
the Rebellion which was undertaken to confirm the adverse theory of
State-rights.
These proceedings in the South were in full progress when the second or
long session of the Fortieth Congress began, on the first Monday of
December, 1867. While President Johnson had not interposed any
obstructions to the working of the Reconstruction Act which had not
been effectively cured by the two supplementary Acts, he had neither
concealed nor abated his utter hostility to the policy of Congress,--a
form of hostility that grew in rancor in proportion as he had been
thwarted and rendered powerless by the enactment of the laws over his
veto. When Congress came together he seemed to have gathered all his
strength for a final assault upon its Reconstruction work and for a
final vindication of his own policy. His message was laden with every
form of attack which ingenuity could devise to throw discredit upon
Congress, and if possible to affright the people by the dismal
consequences destined in his judgment to follow the flagrant violation
of the Constitution which he saw in the Reconstruction policy. He
appealed to the people on the ground of patriotism, public safety, and
personal interest. He pictured anew the advantage and the grandeur of
having the old Union fully restored; he warned the people of the danger
of sowing the seeds of another rebellion by allowing continued
maltreatment of the Southern people; and he appealed to the commercial
and financial interests of the country by pointing out how every form
of property was endangered by the chaotic conditions of affairs to
which, in his belief, the policy of Congress was steadily tending.
Beyond these considerations he endeavored to arouse among the people
all possible prejudice against negro suffrage. He declared that "of
all the dangers which our Nation has yet encountered, none are equal
to those which must result from the success of the effort now making
to Africanize the half of our country." "We must not," said he,
"delude ourselves. It will require a strong standing army, and
probably more than two hundred millions per annum, to maintain the
supremacy of negro governments after they are established,--a sum
thus thrown away which would, if properly used, form a sinking-fund
large enough to pay the whole National debt in less than fifteen years."
The argument of the President however was not merely a twice-told tale.
It had been repeated many times and though never more artfully stated
than now, it fell upon unlistening ears, making no impression whatever
upon Congress and very little upon the country. The process of
Reconstruction went on, and its first fruit was the presentation of a
constitution from Arkansas, framed in exact accordance with the
requirements prescribed by Congress, and accompanied by proof that the
State had ratified the Fourteenth Amendment to the Constitution. A
bill was introduced in the House by Mr. Stevens, on the 7th of May
(1868), to admit the State of Arkansas to representation in Congress.
The question of Reconstruction had been debated so elaborately and for
so long a period of time that there was little disposition now to open
the subject afresh, and with far less resistance than had been
anticipated the Arkansas bill was passed in both branches, and the
State declared entitled to all those rights in the Union which she,
with her sisters in rebellion, had so flippantly thrown aside in 1861.
A fundamental condition was attached to the admission, declaring "that
the Constitution of Arkansas shall never be so amended or changed as
to deprive any citizen or class of citizens of the United States of the
right to vote, who are entitled to vote by the Constitution herein
recognized, except as a punishment for such crimes as are now felonies
at common law, whereof they shall have been duly convicted under laws
equally applicable to all the inhabitants of said State."
The Act re-admitting Arkansas to the right of representation was
followed immediately by one of the same general scope with respect to
the States of North Carolina, South Carolina, Louisiana, Georgia,
Alabama, and Florida. The same fundamental condition already cited
as imposed on Arkansas was imposed on all these States, and the further
condition was exacted from Georgia that certain provisions in her
Constitution should be a solemn Act of her Legislature be declared null
and void. The provision to be thus annulled related to the collection
of debts, and their spirit and intent may be inferred from the opening
declaration that "no court in the State shall have jurisdiction to try
or determine any suit against any resident of this State upon any
contract or agreement made or implied prior to the first day of June,
1865, or upon any contract made in renewal of any debt existing prior
to the date named." The provision as the Georgia convention had framed
it would have wrought great injury to a large number of creditors in
the North. It was a complete outlawry of thousands of dollars legally
and equitably due to honest creditors, and Georgia was compelled to
agree to its nullification before her senators and representatives
could be admitted to seats in Congress.
The bills admitting these States to representation did not secure
Executive approval. On the 20th of June (1868) the President sent a
message to the House of Representatives with his objections to the
Arkansas bill. "The approval of this bill," said he, "would be an
admission on the part of the Executive that the Act for the more
efficient government of the rebel States, passed March 2, 1867, and the
Act supplementary thereto, were proper and constitutional. My opinion
however in reference to these measures has undergone no change, but
on the contrary has been strengthened by the results which have
attended their execution." He then proceeded to state his objections
as he had so often done before, with no variation of argument, without
the production of new facts.--Five days later, on the 25th of June,
the President communicated his objections to the bill admitting the
other Southern States to representation. He had apparently become
fatigued with the reiteration of his arguments, and he frankly stated
that he would not "undertake at this time to re-open the discussion
upon the grave Constitutional question involved in the Reconstruction
Acts." He declared that "the bill assumed authority over the States
which has never been delegated to Congress," and "imposes conditions
which are in derogation of equal rights." The vetoes did not evoke
long debate in either House, and both bills were promptly passed over
the objections of the President by a party vote, amounting indeed to
more than three to one in both Senate and House.
In the arguments which the President had found such frequent occasion
to submit, he quietly ignored the facts of secession, the crime of
rebellion, the ruthless sundering of Constitutional bonds which these
States had attempted. He took no note of the immense losses both of
life and property which they had inflicted upon the Nation, and gave
no consideration to the suffering which they had causelessly brought
upon the people. If the President's logic should be accepted as
indicting the true measure of Constitutional obligation imposed on the
different members of the Union, then any State might rebel at any
time, seize and destroy the National property, levy war, form alliances
with hostile nations, and thus subject the Republic to great peril and
great outlay, her citizens to murder and to pillage. If the rebellious
State be finally subdued, the National Government must not attach the
slightest condition to her re-admission to the Union; must not impose
discipline or even administer reproof. The fact that the rebellion
fails is the full warrant for its guilty authors to be at once
repossessed of all the rights and all the privileges which in the
frenzy of anger and disobedience they had thrown away. Such was in
effect the argument of the President throughout the Reconstruction
contest; such was the demand of the leaders of the Rebellion; such was
the concession which the Democratic party constantly urged in Congress,
through the press, and in all the channels through which its great
power was exerted.
The position of the Republicans was steadily the opposite of that
described. They held that the States which had rushed into a rebellion
so wicked, so causeless, and so destructive, should not be allowed to
resume their places of authority in the Union except under such
conditions as would guard, so far as human foresight could avail,
against the outbreak of another insurrection. They should return to
the Union on precisely the same terms as those on which the loyal
States held their places; they should have the same privileges and be
subjected to the same conditions. As slavery had been the chief
inciting cause of disunion, slavery should die. As the vicious theory
of State-rights had been constantly at enmity with the true spirit of
Nationality, the Organic Law of the Republic should be so amended that
no standing-room for the heresy would be left. As the basis of
representation in the Constitution has always given the slave States an
advantage, these States, now that slavery was abolished, should not be
permitted to oppress the negro population and use them merely for an
enlarged Congressional power to the white men who had precipitated the
rebellion. As the war to maintain Union and Liberty had cost a vast
treasure and sacrificed countless lives, the States that had forced
the bloody contest should agree by solemn amendment to the
Constitution that the National debt and the pension to the soldier
should be secured. Those conditions--applying to all the States alike,
to the loyal and the disloyal in the same measure--must be honorably
agreed to by the States that had gone into Disunion before they should
be permitted to resume and enjoy the blessings of Union. History and
the just judgment of mankind will vindicate the wisdom and the
righteousness of the Republican policy, and that vindication will
always carry with it the condemnation of Andrew Johnson.
The long contest over Reconstruction, so far as it involved the
re-admission of the States to representation, was practically ended.
Eight of the eleven Confederate States, at the close of June 1868,
had their senators and representatives in Congress. Three--Virginia,
Mississippi, and Texas--were prevented by self-imposed obstacles from
enjoying the same privilege until after President Johnson had retired
from office. Of the representatives on the floor of the Fortieth
Congress from the eight states lately in rebellion, only two were
Democrats. The senators were unanimously Republican. Of the aggregate
number about one-half were natives of the South. The war upon the
"Carpet-bagger" had not yet reached the era of savage atrocity, but the
indignation pervading the governing classes of the South, as they were
termed, was poured forth in unstinted measure upon the heads of all
native Southerners who consented to accept offices conferred by negro
votes. It was evident that the admission of the States to
representation was to be taken as the signal for a new contest in the
South--embittered in its character and sanguinary in its results. The
men who had been foremost in plunging their States into the vortex of
rebellion were determined to rule them--their determination being of
that type which disregards the restraint of law and considers that the
end justifies the means.
With all the advantages of old association and in numberless instances
of kindly relation with the colored race, the former masters showed
themselves singularly deficient in the tact and management necessary
to win the negroes and bind them closely to their interest, in the
new conditions which emancipation had created. Of the evil results
that flowed from the contest now about to ensue--a contest that had
many elements of provocation and of wrong on both sides--one of the
most remarkable features was the complete control which the white men
from the North, entire strangers to the negro, to his habits and to
his prejudices, so readily obtained over him. The late slave-masters
did not adapt themselves to the new situation. They gave way to
repining and regretting, to sulking and to anger, to resentment and
revenge, and thereby lost a great opportunity for binding together the
two races in those ties of sympathy and confidence which must be
maintained as an indispensable condition of prosperity, or even of
domestic order and the reign of law, in the Southern States. The lack
of moral courage among the physically brave men of the South has
already been indicated and illustrated. It was something of this
same defect that held back the slave-masters from the condescension, as
they esteemed it, of establishing any relation whatever with the negro
in his new condition of freedom. Such action was frowned upon by the
public opinion of this class throughout the South, and for lack of
bold leadership at the critical period, for lack of that consideration
which in many subsequent instances has been lavished upon the colored
man, the current of fatal prejudice was set strongly against the old
master in the mind of his former slave. Events, as they developed in
the stirring and sorrowful years that followed, were but a continual
proof of that form of original blunder on the part of the Southern
whites, which in affairs of civil administration is worse than a crime.
In excuse, or at least in explanation, of this unfortunate blunder on
the part of Southern men, the obstinacy and wrong-headed course of
President Johnson must be pleaded. It was his causeless, voluntary,
unpardonable quarrel with his party which misled Southern men at the
time when they most needed lessons of wisdom and moderation. The
different result which we may well conceive might have followed in the
South under the considerate and kindly spirit which Mr. Lincoln would
have brought to the problem, gives us by contrast some faint
appreciation of the enormity of Johnson's conduct and of the evil
effects flowing from it. At the very moment when the President should
have stood as a generous mediator, calming the irritation of the South
--an irritation inevitably incident to defeat--and restraining
somewhat, at least in the manner of preferring them, the demands and
requirements which the Government in its hour of victory was justified
in making, Johnson committed the grievous fault of espousing the
Southern cause and quarreling with the party which had confided to him
the power he was abusing.
Under the patronage and protection of the President, Southern men
would have been more or less than human if they had not grown arrogant
and defiant towards the men of the North. The chivalric sympathy which
always moves the magnanimous in their treatment of a fallen foe, was
therefore drowned in the indignation to which Northern men were
naturally moved by provocations as unexpected as they were
extraordinary. Stimulated by the protection of the President and
encouraged by his contumacious quarrel with Congress, the South was
driven from one unwise step to another, until the entire situation
became hopelessly entangled, and every movement affected by anger
and passion;--the North resolving more and more to insist on the fruits
of victory, the South resolving more and more to act as though they
had conquered in the contest. It was not unnatural, under the
anxieties and discouragements of the crisis, that the South should
have clung to Mr. Johnson for protection; but in the calm review
which the lapse of twenty years affords, the most ardent Southern
partisan must see that the President's policy was at enmity with the
interest and happiness of his section.
It is not to be forgotten, however, that Mr. Johnson's course was
marked by the inherent qualities of his mind. He had two signal
defects, either of which would impair his fitness for Executive duty;
united they rendered him incapable of efficient administration:--he
was conceited and he was obstinate. Conceit without obstinacy may be
overcome by the advice of judicious counselors; united with obstinacy
it carries its possessor beyond the bounds of prudence, almost beyond
the control of reason. Obstinacy united with good judgment is softened
into the virtue of firmness. It has often been said that self-made
men, as they are termed, are necessarily conceited. Like all
aphorisms, this must be taken with numberless exceptions, but it was
singularly applicable to Johnson, who was in all respects a self-made
man. His great career was never absent from his thoughts, and he was
always looking at himself as he fancied he would appear in history. He
came to regard himself as the hero upon a remarkable stage of action,
and naturally made the reflection that if he could have had in his
early years the advantages which so many possess without improving,
he would have made strides in life which would have left him without
rivals. It would be impossible to gain a full and correct apprehension
of Mr. Johnson's character without taking into account these qualities
--qualities which were both the remote and immediate cause of his
extraordinary career as Chief Magistrate.
The earlier Presidents, filled with the spirit of the convention that
formed the Constitution, were extremely careful in the use of the
veto-power. In eight years Washington used it but twice. Neither John
Adams nor Thomas Jefferson used it even once. Madison resorted to it
three times, Monroe only once, John Quincy Adams in not a single
instance. Under the first six Presidents, the veto-power had been used
but six times in all; unless there should be included some private
bills sent back for correction and not in any sense furnishing matter
of contest between parties. The country had thus been educated by the
sages of the era of the Constitution in the belief that only an
extraordinary occasion justified a resort to what, in the popular
dislike of its character, had received the name of "the one-man power."
President Jackson, therefore, surprised the country and shocked
conservative citizens by his frequent employment of this great
prerogative. During his term he thwarted the wish and the expressed
resolve of Congress no less than eleven times on measures of great
public consequence. Seven of these vetoes were of the kind which,
during his Presidency, received the name of "pocket-vetoes."
In Madison's administration a bill which reached the President during
the last ten days of the session failed by accident or inadvertence
to receive the President's signature, and did not become a law. Mr.
Webster is authority for saying that there was not a single instance
prior to the administration of General Jackson in which the President
by design omitted to sign a bill and yet did not return it to Congress.
"The silent veto," said he, "is the executive adoption of the present
administration." There had been instances in which, during a session
of Congress, a President, unwilling to approve and yet not prepared
to veto a measure, suffered it to become a law by the lapse of the
Constitutional period of ten days; but it was an entirely new device,
to defeat a bill by permitting the period of less than ten days to
expire at the close of the session--defeat it without action, without
expression of opinion, without the responsibility which justly attaches
to the Executive office. Commenting with great power, at the time,
upon the new use of the veto-power in all its forms by President
Jackson, Mr. Webster declared its tendency was "to disturb the harmony
which ought always to exist between Congress and the Executive, and to
turn that which the Constitution intended only as an extraordinary
remedy for extraordinary cases, into a common means of making Executive
discretion paramount to the discretion of Congress in the enactment of
laws." It was literally making the extreme medicine of the
Constitution its daily bread.
An example set by so strong a ruler as Jackson, especially in the
establishment of a practice so congenial to man's natural love of
power, was certain to be followed by other Presidents. It was
followed so vigorously indeed that the forty years succeeding Jackson's
advent to power presented a strong contrast with the forty years that
preceded it. The one began with Washington, the other ended with
Andrew Johnson. Mr. Van Buren, though in all respects a lineal heir
to the principles of Jackson, did not imitate him in the frequent use
of the veto-power. But Mr. Tyler on nine different occasions ran
counter to the action of Congress by the interposition of his veto.
Mr. Polk resorted to it in three signal instances, but neither General
Taylor nor Mr. Fillmore came in conflict with Congress on a single
measure. President Pierce almost rivaled General Jackson in the ten
vetoes with which he emphasized his own views as distinct from those of
Congress. Mr. Buchanan used his arbitrary power on four occasions
during his term. Mr. Lincoln permitted one bill to be defeated, as
already noted in these pages, by expiration of Congress, and arrested
the passage of another by direct use of his veto. President Johnson,
who in many features of his career has been suspected of an attempted
imitation of Jackson, far surpassed his great prototype in the use of
the veto-power, employing it directly in no less than twenty-one
instances, besides pocketing at least two bills of public importance.
The aggregate number of vetoes, therefore, in the forty years that
followed General Jackson's first election exceeded fifty, as against
six for the forty years preceding it.
It will not escape observation that the most frequent resort to the
veto has been by those Presidents who were chosen by the political
organization which has always declared its hostility to Executive
power. The Democratic party had its origin and its early growth in
the cry against the overshadowing influence of the Presidential office
--going so far in their denunciations as to declare that it was
aping royalty in its manners and copying monarchy in its prerogatives.
The men who made this outcry defeated John Quincy Adams who never used
the veto, and installed Jackson who resorted to it on all occasions
when his judgment differed from the conclusion of a majority of
Congress. Neither Taylor nor Fillmore--both reared in the Whig school
--ever attempted to defeat the will of Congress, though each wielded
Executive power at a time when questions even more exciting than
those of Jackson's era engaged public attention. Mr. Lincoln
presents a strong contrast with his predecessors,--Pierce and
Buchanan,--illustrating afresh the contradiction that the party
declaiming most loudly against Executive power has constantly abused
it. Mr. Tyler and Mr. Johnson were both chosen by the opponents of
the Democracy, but they were both reared in that school, and both
returned to it--exhibiting in their apostasy the readiness with which
the Democratic mind turns to the tyranny of the veto.
The success of reconstruction in the South carried with it the
ratification of the Fourteenth Amendment by the requisite number of
States. The result was duly certified by Mr. Seward as Secretary of
State, on the twenty-eighth day of July, 1868, and the Amendment was
thenceforward a part of the organic law of the nation. It had been
carried, from first to last, as a party measure--unanimously supported
by the Republicans, unanimously opposed by the Democrats. Its grand
and beneficent provisions failed to attract the vote of a single
Democratic member in any State Legislature in the whole Union.
Wherever the Democrats were in majority the Legislature rejected it,
and in every Legislature where the Republicans had control the
Democrats in minority voted against it. Not only was this true, but
the States of Ohio and New Jersey, which had ratified it in 1866-67
when their Legislatures were Republican, formally voted in 1868, when
the Democrats had come into power, to recall their assent to the
Amendment and to record their opposition to its adoption. It is very
seldom in the history of political issues, even when partisan feeling
is most deeply developed, that so absolute a division is found as was
recorded upon the question of adopting the Fourteenth Amendment. It
has not been easy in succeeding years to comprehend the deep-seated,
all-pervading hostility of the Democratic party to this great measure.
Even on the Thirteenth Amendment, containing the far more radical
proposition to abolish slavery, a few Democrats, moved by philanthropic
motives, broke from the restraint of party and honored themselves by
recording their votes on the side of humanity and justice; but on the
Fourteenth Amendment the line of Democratic hostility in Nation and
in State was absolutely unbroken.
It seems incredible that Democrats can be satisfied with the record
made by their party on this most grave and important question. Every
one of the many objects aimed at in the Fourteenth Amendment is
founded upon a basis of justice, of liberty, of an enlarged and
enlightened nationality. Its minor provisions might be regarded as
temporary in their nature, but its leading provisions are permanent
and are essential to the vitality of a true republic. Even those which
may be held as temporary deeply affect more than one generation of
American citizens, and are of themselves sufficiently important to
justify a great struggle for their adoption.
It was certainly of inestimable concern to the honor of the country
that those who had shed their blood and those who had given their
treasure for its defense, should have their claims upon the national
justice placed beyond the whim, or the caprice, or the malice of an
accidental majority in Congress. Nor would it have been wise to leave
open to those who in the conflict of arms had lost their slaves, the
temptation to besiege Congress and the Legislatures of their States
for compensation. Such an opportunity would have been a menace to the
public credit, and would have proved a constant source of corruption.
The Republican therefore said, "We shall incorporate the right of the
soldier to repayment, in the very Constitution of the Republic; and
shall in the same solemn manner decree that as slavery instigated the
drawing of the sword against the life of the nation, and justly
perished by the sword, its assumed value shall not be placed upon the
free people of the United States as a mortgage whose payment may be
exacted from their property and their toil." Against these just
provisions, which in their nature are limited as to time, the Democrats
in Congress and in every Legislature of the Union recorded an
absolutely unanimous vote.
Another provision of the Fourteenth Amendment, temporary in its
application, indeed necessarily limited to the existing generation,
was demanded by the Republicans. The great mass of those engaged in
the Rebellion were pardoned the moment their arms were laid down. But
the leaders who, in official position before the war, had solemnly
sworn to support the Constitution, were held to be far more guilty
than the multitude who followed them. They deliberately rebelled
against a government to which, on their consciences and on their oaths,
they had given their personal pledge of fidelity. The Republicans did
not propose to visit even these chief offenders with pains and
penalties; but they resolved to place in the Constitution a prohibition
upon their holding office under the National government until after
two-thirds of both branches of Congress, satisfied of their good
intentions, should remove their disabilities. The Democrats
unanimously voted against even this mild discipline to those who
precipitated the desperate war, thereby declaring their willingness,
if not their desire, that the most guilty should fare as well as the
innocent; that for example Mr. Toombs might resume his seat as a
senator from Georgia, Mr. Breckinridge as a senator from Kentucky, Mr.
Benjamin as a senator from Louisiana, Mr. Jefferson Davis as a senator
from Mississippi.
Still another provision of the Amendment which might prove temporary
in its application, or might prove permanent, as the South should
decide, was that relating to representation in Congress. On this point
the Republicans held, as has been so often repeated, that the negro
should not be included in the basis of representation until he was
admitted to suffrage. There is such absolute justice and fair dealing
in this proposition, that no reply which deserves to be called an
argument has ever been made to it. The original provision in the
Constitution by which three-fifths of the slaves were enumerated in
the basis of representation, agreed to originally as a compromise in
connection with the subject of direct taxation, had lost its relevancy
by reason of emancipation as decreed in the Thirteenth Amendment. The
question now before Congress was therefore a new one. It affected the
rights of States and the equality of citizens. To concede four and a
half millions of negroes to the basis of Southern representation, and
at the same time to confine the suffrage to the whites, was not merely
a harsh injustice to the colored race, but it was an insulting
discrimination against Northern white men. It gave, as was well said
at the time, a far greater influence in National affairs to the vote of
the Confederate solider in the South than to the vote of the Union
soldier in the North. In Congressional districts where the colored
race constituted one-half of the total population (and in many
instances the proportion was even larger), the vote of one white man
offset the vote of two in a Northern district where suffrage was
impartial. This ratio of influence went into the Electoral College,
and gave to the white men of South Carolina, Mississippi and Louisiana
double the power of that enjoyed by white men in New York, Illinois
and California. The loss of Representatives to the Northern States, or
more properly speaking the gain to the Southern States on existing
numbers, would be nearly one-eighth of the entire House, and fully
one-quarter of those likely to occupy seats on the Democratic side of
the chamber. In the Electoral College, the loss to the North and the
gain to the South would be nearly in the same ratio. In the rapid
increase of the negro race the offensive discrimination against the
North would be continually enlarging in its proportions. The
corrective provision in the Fourteenth Amendment was designed to
prevent this grave injustice both to the negro and to the white
man--but every Democrat in Congress and in the State Legislatures
voted against it through all the stages of its enactment and its
ratification, and thereby expressed a willingness to give an unfair
advantage to the Southern white man, and to establish an unfair
discrimination against the Northern white man.
Important and essential as are the provisions of the Fourteenth
Amendment just cited, indispensable as they have proved in the system
of Southern Reconstruction, they are relatively of small consequence
when compared with that great provision which is for all time:--that
provision which establishes American citizenship upon a permanent
foundation, which gives to the humblest man in the Republic ample
protection against any abridgment of his privileges and immunities by
State law, which secures to him and his descendants the equal
protection of the law in all that relates to his life, his liberty,
and his property. The first section of the Constitutional amendment
which includes these invaluable provisions is in fact a new charter
of liberty to the citizens of the United States; is the utter
destruction of the pestilent heresy of State-rights, which constantly
menaced the prosperity and even the existence of the Republic; and is
the formal bestowment of Nationality upon the wise Federal system
which was the outgrowth of our successful Revolution against Great
Britain.
Before the adoption of this Amendment citizenship of the United States
was inferred from citizenship of some one of the States, for there was
nothing in the Constitution defining or even implying National
citizenship as distinct from its origination in or derivation from a
State. It was declared in Article IV, Section 2, of the Federal
Constitution, that "Citizens of each State shall be entitled to all
the privileges and immunities of citizens in the several States;" but
nothing was better known than that this provision was a dead letter
from its very origin. A colored man who was a citizen of a Northern
State was certain to be placed under the surveillance of the police if
he ventured south of the Potomac or the Ohio, destined probably to be
sold into slavery under State law, or permitted as a special favor to
return at once to his home. A foreign-born citizen, with his
certificate of naturalization in his possession, had prior to the war
no guarantee or protection against any form of discrimination or
indignity, or even persecution, to which State law might subject him,
as has been painfully demonstrated at least twice in our history. But
this rank injustice and this hurtful inequality were removed by the
Fourteenth Amendment. Its opening section settled all conflicts and
contradiction on this question by a comprehensive declaration which
defined National citizenship and gave to it precedence of the
citizenship of a State. "_All persons born or naturalized in the
United States and subject to the jurisdiction thereof are citizens of
the United States and of the States wherein they reside_." These
pregnant words distinctly reversed the origin and character of
American citizenship. Instead of a man being a citizen of the United
States because he was a citizen of one of the States, he was now made
a citizen of any State in which he might choose to reside, because he
was antecedently a citizen of the United States.
The consequences that flowed from this radical change in the basis of
citizenship were numerous and weighty. Nor were those consequences
left subject to construction or speculation. They were incorporated
in the same section of the Amendment. The abuses which were formerly
heaped on the citizens of one State by the legislative and judicial
authority of another State were rendered thenceforth impossible. The
language of the Fourteenth Amendment is authoritative and mandatory:
"_No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty or property without due
process of law, nor deny to any person within its jurisdiction the
equal protection of the laws_." Under the force of these weighty
inhibitions, the citizen of foreign birth cannot be persecuted by
discriminating statutes, nor can the citizen of dark complexion be
deprived of a single privilege or immunity which belong to the white
man. Nor can the Catholic, or the Protestant, or the Jew be placed
under ban or subjected to any deprivation of personal or religious
right. The provision is comprehensive and absolute, and sweeps away
at once every form of oppression and every denial of justice. It
abolishes _caste_ and enlarges the scope of human freedom. It
increases the power of the Republic to do equal and exact justice to
all its citizens, and curtails the power of the States to shelter the
wrong-doer or to authorize crime by a statute. To Congress is
committed the authority to enforce every provision of the Fourteenth
Amendment, and the humblest man who is denied the equal protection
of the laws of a State can have his wrongs redressed before the
Supreme Judiciary of the Nation.
It is perhaps not strange that the Democrats of the South were hostile
to the great results wrought for freedom, for justice, and for popular
rights by the Fourteenth Amendment. Their education, their prejudices,
their personal interests had all been in the opposite direction, and it
was doubtless too much to hope that all these would be overcome by a
victory for the Union--a victory which carried to their minds a sense
of personal humiliation and of remediless ruin. If their course was
unwise it is not altogether unintelligible. But the action of the
Northern Democrats cannot be accounted for and cannot be excused. They
stood stubbornly, solidly, without reason, without justification,
against a great enlargement of popular rights. It is a matter of
wonder that a political organization which claims Jefferson for its
founder and Jackson for its exemplar, should have surrendered to its
rival the sole glory of an achievement which may well be compared with
that increase of liberty attained by our ancestors, when the dependence
of Colonies was exchanged for the independence of States.
Two eminent judges of the Supreme Court who died after the close of the
war are entitled to the admiration and gratitude of the loyal citizens
of the United States. When Mr. Lincoln was inaugurated there were
three judges on the Supreme Bench from the States which afterwards
formed the Confederacy,--James M. Wayne of Georgia, John Catron of
Tennessee, and John A. Campbell of Alabama. The last-named was placed
upon the bench in 1853, and was undoubtedly the choice of Jefferson
Davis, who as the leading Southern member of President Pierce's Cabinet
exerted large influence, if not absolute control, over appointments
from the slave-holding States. The personal and political associations
of Judge Campbell led him to resign his position on the Supreme Bench,
and to give the weight of his name and his learning to the Confederate
cause.
Judge Wayne was appointed by President Jackson in 1835, and Judge
Catron by President Van Buren immediately after his inauguration in
1837, under a bill enlarging the Court, which had been approved by
General Jackson. Judge Catron had long been a favorite of General
Jackson in Tennessee, and it was understood that in appointing him
to the Bench Mr. Van Buren was carrying out the expressed wishes of his
predecessor. Both judges came from that earlier and better school of
Southern Democracy which resisted the injurious heresies of State-rights
and Nullification, sustained the Force Bill under President Jackson,
and stood loyally by the Union of the States. They were allied
to the South by birth, by education, and by the associations of
a lifetime. Their friends, their kindred, even members of their own
families, joined in the Rebellion. But these patriotic men, one of
whom was born during the Revolutionary war and the other during the
first term of Washington's Presidency, maintained their judicial
positions and were unshaken in their loyalty to the Union. Their
example was followed by few officials from the states that seceded,
but the steadfastness of their faith was a striking illustration of the
difference between the South of Jefferson and Jackson and the South of
Calhoun and Davis. They sat on the Bench throughout the entire civil
struggle,--Judge Catron dying in May, 1865, in the eighty-seventh year
of his age, and Judge Wayne in July, 1867, in his seventy-eighth year.
The conduct of these venerable judges is all the more to be praised
because they did not personally sympathize in any degree with the
Republican leaders. They did not believe in the creed or the policies
of the party, and feared the result of its administration of the
National Government. Their views in regard to the Constitutional
rights of the slave-holders were the same as those held by the
Confederate chieftains. They had both concurred with Chief Justice
Taney in the Dred Scott decision. But it was enough for them now to
know that Mr. Lincoln had been Constitutionally chosen President of the
United States, and had been Constitutionally installed in his great
office. It was not for them as Justices of the Supreme Court to know
any thing of his Executive acts, except as they might properly come
for review before their high tribunal. They illustrated the honorable
line of duty for a Judge under the Government of the United States.
Off the Bench, his right to political opinions is no more to be
questioned than that of any other citizen. On the Bench, he falls
short of the full measure of his exalted duty if by any way or any
expression he discloses his sympathy with one political party or his
prejudice against another.
It is a tribute of honor to the Supreme Court that through all the
mutations of its existence only a single Justice has proved unfaithful
to the Union of the States; and prior to the war three-fifths of all
the Justices were appointed from the South. Southern men in all other
departments of the Public Service--those eminent in our Congressional
annals, in the Army, in the Navy, in the field of Diplomacy, and even
one who had occupied the Presidential chair--followed the lead of their
States in rebellion against the Union; or rather it may with truth be
said, they led their States into rebellion against the Union. Judge
Campbell, in furnishing the sole exception to the record of judicial
loyalty, did not yield without a struggle. He was surrounded with
peculiar embarrassments, and was not strong enough to overcome them.
He realized his position, and did what he could to avert war; but when
war was inevitable, he upheld the Confederate cause and became one of
its directing minds. In contrast with the fall from his high estate
and over against all the evil influences which forced Judge Campbell
to his fate, the names of Catron and Wayne will shine in history as
examples of the just judge and the incorruptible patriot.
[(1) The President's personal hostility to some of the officers thus
assigned was well known, and surprise was expressed that he did not
countermand or qualify the order of General Grant when first issued.
He was especially unfriendly to General Sheridan, and late in the
summer of 1867 relieved him from his command. General Hancock was
gazetted as Sheridan's successor, but he did not reach his post until
late in November, the district meanwhile being under the command,
first, of General Charles Griffin, and, second, of General Joseph A.
Mower. General Hancock's order assuming command, issued on the 29th
of November, had a certain political significance. He expressed
gratification "that peace and quiet reign in the Department," and that
in his purpose to preserve this condition of things, he regarded "the
maintenance of the civil authorities in the faithful execution of the
laws as the most efficient under existing circumstances." He said
that when insurrectionary force had been overthrown and peace
established, "the military power should cease to lead, and the civil
administration resume its natural and rightful dominion." "Solemnly
impressed with these views," the General announced that "the great
principles of American liberty are still the lawful inheritance of
the people and ever should be. The right of trial by jury, the
_habeas corpus_, the liberty of the press, the freedom of speech, the
natural rights of persons, and the rights of property, must be
preserved."
General Sheridan had issued an order defining the qualifications of
those who might sit on juries during the period of Reconstruction. One
of the first acts of General Hancock was to annul this order. He
declared "that the determination of who shall and who shall not be
jurors appertains to the legislative power," and he indicated his
intention of carrying out the existing law of Louisiana in regard to
the selection of juries. General Sheridan had distributed certain
memoranda of disqualification, together with questions to be proposed,
for the registrars. Their effect in substance was to disqualify all
persons who, having acted, prior to January 26, 1861, as _United-States
senators and representatives, electors, officers of the Army and Navy,
civil officers of the United States_, and State officers provided for
by the Constitution of the State, had afterwards engaged in the
Rebellion; and also all those who in 1862 and 1864 claimed the
protection of foreign powers. General Hancock set aside this action,
declaring that he dissented from the construction given to the
Reconstruction laws therein, and ordered the registrars to be guided
by their own interpretation of the laws and of the Fourteenth
Amendment. It was the popular understanding that General Hancock, in
these successive steps, was acting in full sympathy with the wishes
and designs of the Administration, in all of which he readily concurred
as a Democrat.
The appointment of General Pope for the District of Georgia, Alabama,
and Florida, had not been agreeable to the President. General Pope's
political convictions were of a very positive character, and they were
not at all in sympathy with the National Administration. He
administered the Reconstruction laws, therefore, in their full spirit
and with an entire belief in their justice and equity. He insisted on
fair dealing, and suppressed all interference with voters by violence
or threats of violence on the part of the late rebels. He would not
permit the menace of military organizations, and expressly refused to
allow any parading of armed men, except of United-States troops. It
was General Pope's opinion that the South had seen quite enough of
men in arms within the past four years, and he believed that safety
and order would be best maintained by having no uniform worn except
that of the Army of the United States, and no other flag shown than
the flag of the Union. Holding these pronounced views, aggressively
loyal in every thought and action, General Pope was naturally in
antagonism with the policy of the President. Towards the close of the
year he was relieved of his command and General Meade ordered to take
his place.
General Sickles, of the District of North Carolina and South Carolina,
was relieved of his command early in September (1867), and General
E. R. S. Canby appointed as his successor. General Sickles had been
very energetic in the administration of affairs in his department, and
had shown remarkable aptitude and efficiency in the discharge of his
peculiar duties,--exhibiting in his administration the very qualities
most likely to prove offensive to the President. He had perhaps the
most difficult command of any of the generals on duty in the South,
as the State of South Carolina had from the beginning of the Rebellion
presented certain phases of disobedience to Federal authority peculiar
to her population and naturally arising from her antecedent history.
General Sickles had some trouble with Attorney-General Stanbery, and
asked for a court of inquiry, that he might vindicate himself from the
accusations of that official.
General Schofield and General Ord alone of the original commanders in
the Southern military districts were left to carry through the work of
Reconstruction. They both discharged their duties with intelligence
and fidelity. Nor was the work of Reconstruction essentially hindered
by the changed in other departments. It is the trained habit of the
officers of the United-States Army to carry out their orders with
implicit faith, and there is seldom a conflict as to the line of duty
to be followed. If there was any exception, it was in regard to
the course pursued by General Hancock. His conduct became a subject
of controversy, and the popular division respecting its merits was on
the political line. The National Administration and the Democratic
party, both North and South, applauded every thing which General
Hancock said and did in Louisiana. The Republican party throughout
the country, and the General commanding the army, who was about to be
nominated for the Presidency, united in strong disapproval of his
course. But General Hancock's construction of the laws under which he
was acting was the same as that held by the Attorney-General of the
United States, and he thus felt abundantly justified and fortified in
his position. He disobeyed no specific order of the General
commanding the army, and, even if there had been a difference between
them, General Hancock was sure of the sympathy and support of their
common superior--the President of the United States.
It was however the subsequent opinion of General Grant that much of the
disorder and bloodshed in the State of Louisiana during the national
election of 1868 had resulted from the military government of General
Hancock. It was not his belief that General Hancock had the slightest
desire or design to produce such results, but that they were the
outgrowth of the encouragement which the rebels of Louisiana received
from the changes which General Hancock inaugurated in the manner of
administering the Reconstruction Laws. Aside however from the conduct
of General Hancock, the removal of General Sheridan from the Louisiana
District was unqualifiedly offensive to General Grant in a personal
sense, and contrary to his best judgment on ground of public policy
and safety. His attachment to Sheridan was very strong, and a wrong
against the latter was sooner or later sure to be resented by General
Grant. His feelings of the question were promptly and significantly
shown when he became President. Inaugurated on the 4th of March, he
caused an army order to be issued on the morning of the 5th, restoring
General Sheridan to his former command in Louisiana, and ordering
General Hancock to the remote and peaceful Department of Dakota.]