CHAPTER VII

THE CONGRESSIONAL PLAN (_Completed_)

Negro Suffrage in the District of Columbia--The First Attempts at

Impeachment--Stories of Outrages at the South--The Reconstruction

Bill--Passage of the Bill by the House--The Bill as Finally Agreed

upon--The Condition that the Fourteenth Amendment must be Ratified by a

Sufficient Number of "States" to make it a Part of the

Constitution--The Tenure-of-Office Bill--The Supplementary

Reconstruction Bill--The Assignment of the Commanding Generals to the

Military Districts Created by the Reconstruction Acts--The

Re-establishment of Martial Law in the South--The President's

Instructions to the Generals in Interpretation of the Reconstruction

Acts--The Congressional Interpretation of the Reconstruction Acts--The

President's Veto of the Bill Interpreting the Reconstruction Acts--The

Veto Overridden--The Suspension of Stanton from Office.

[Sidenote: Negro suffrage in the District of Columbia.]

The Congress had but just put itself in working order, when a bill was

introduced and passed extending the suffrage to negroes in the District

of Columbia. The Republicans reasoned that they could not with good

grace force negro suffrage on the South before establishing it in the

District, and that the District was the best place in the country to

try the experiment first. The bill went to the President on the 26th of

December, six days after the adjournment of Congress for the Christmas

vacation, although it had passed the Houses on the 13th and 14th. The

President held it until January 5th, 1867, and then returned it to the

Senate with his veto.

{108} [Sidenote: The President's veto of the bill establishing negro

suffrage in the District of Columbia.]

The Message was a strong paper, and to an impartial mind at this day it

is a convincing paper. There is no question that Congress had the

constitutional power to establish negro suffrage in the District. The

President did not dispute that. He simply argued that in legislating

for the District, Congress stood in a relation to the inhabitants of

the District analogous to that which the legislature of a "State" bore

to the inhabitants of the "State," and that as the legislature of a

"State" would not act in opposition to the expressed will of a large

majority of the voters in the "State," so Congress in legislating for

the District of Columbia ought not to disregard the expressed will of a

large majority of the voters in the District. He then referred to the

vote of the District upon this very subject, taken in December of 1865,

only one year before, when out of a poll of 6,556, one of the largest

votes ever cast in the Capital city, only thirty-five ballots were cast

for negro suffrage, and in Georgetown out of a poll of 813 only one

ballot was cast for negro suffrage. He further argued that Congress

ought not to make the District a place for trying political experiments

of so grave a character as conferring suffrage, the highest privilege

of American citizenship, upon a race of men just emerging from the

ignorance and vice attendant on a condition of slavery. And he finally

asked the Congress to reconsider an act which appeared to him to be the

degradation and possibly the destruction of American suffrage.

There is no gainsaying that this was good reasoning, but Congress was

in no frame of mind to give ear to the counsel of the President. It

took the ground that in legislating for the District it was acting for

the whole United States and not simply for the inhabitants of the

District, and that there was no place in the entire {109} country where

political experiments could be more safely tried than in the District,

since Congress had plenary legislative power in the District and could

discover and correct mistakes and defects in its legislation more

easily and promptly there than anywhere else.

[Sidenote: The first attempts at impeachment.]

Both Houses repassed the bill over the President's veto by the

necessary two-thirds majority, the Senate on the 7th of January and the

House on the 8th, and negro suffrage was established in the District of

Columbia. The President's veto so angered some of the extremists that

resolutions of impeachment were introduced into the House, and a

resolution for the appointment of a committee to inquire whether there

were reasons for impeachment was actually carried, and a committee was

appointed. The committee sought everywhere and in every way for grounds

upon which to arraign the President at the bar of the Senate, but for

the moment it failed.

[Sidenote: Stories of outrages at the South.]

At the same time the halls of Congress were ringing with the most

extravagant tales of outrages against the negroes and loyal men of the

South at the hands of the late rebels, and of the collusion of the

newly established "State" governments with the same. In addition to

this, the other three of the ten newly constructed "State" legislatures

rejected the proposed Fourteenth Amendment, two of them by unanimous

vote, and the other by every vote but one.

[Sidenote: The Fourteenth Amendment as the condition of recognizing the

revival of statehood.]

While, as we have seen, the Congress did not pass the proposition to

make the acceptance of the proposed Fourteenth Amendment by the newly

reconstructed "States" the condition of recognizing them as "States" of

the Union, and admitting the Senators- and Representatives-elect from

them to seats in Congress, yet the popular mind had so conceived the

matter, and the {110} order of events in the case of Tennessee had

given this conception the force of precedent. The Republicans in

Congress and the North could now fairly claim that they had offered to

recognize the President's reconstructed "States," although these bodies

were without constitutional warrant, upon the most moderate terms which

consideration for the necessary consequences of the Civil War and the

victory of the Union would allow, and that their offer had been

rejected in every case, except, of course, that of Tennessee--rejected

by such majorities and in such a manner as to make the rejection amount

to defiance. It was true that logically and constitutionally Congress

had no power to make the acceptance of something not at the time a part

of the Constitution a condition for the admission of the new "States,"

or the readmission of old "States," into the Union; and Congress had

not done this formally. It is also true, both in good logic and in

sound constitutional law, that the proposed Fourteenth Amendment should

not have been submitted at all to bodies that were not conventions of

the people in, or legislatures of, "States" in the Union. Logically and

constitutionally the whole thing was irregular. But it was as it was,

and all understood that the way to cut the knot was for the

legislatures of the reconstructed "States" to adopt the proposed

Fourteenth Amendment, as Tennessee had done. When they refused to do

so, it was natural and it was necessary that Congress should at last

overturn all of the President's proceedings in Reconstruction, and all

of the proceedings made under his guidance, and begin _de novo_, and

upon the true constitutional principle of the exclusive power of

Congress to admit new "States" into the Union, or, more scientifically

expressed, to create new States or control their creation on territory

{111} of the Union in which loyal civil government did not exist.

[Sidenote: The correctness of the Republican view.]

There can be no question in the mind of any sound political scientist

and constitutional lawyer that Congress was in the right, logically,

morally, and legally, in insisting upon brushing aside the results of

executive Reconstruction in the winter of 1867, and beginning the work

itself from the bottom up. It ought to have done so in 1865. It ought

to have created, so soon as armed resistance to the execution of the

laws of the United States ceased, regular Territorial civil governments

throughout the country which had been in insurrection, and then have

admitted these Territories as "States" whenever the conditions

warranting the same should have been attained. The phantom of the

"indestructible State" had too strong an influence over the minds of

all at that moment to admit of such a solution of the question. But

after the experiences of 1865 and 1866, and the discussions in the last

session of the Thirty-ninth Congress, the minds of the Republicans at

least, both in and out of Congress, were prepared to break away from

the influence of this idea and to view the process of Reconstruction as

nothing but the admission of new "States" into the Union, new "States"

founded on territory and including inhabitants that had indeed once

formed "States," but had renounced Statehood in the Union through

disloyalty to the Union, and had been brought back to the position of

territories, civilly unorganized in local instance, but subject to the

exclusive jurisdiction of the central Government. From such a point of

view, the method of procedure was plain. While it is strange that the

Congress did not follow this course in 1865, it is simply astounding

that it made such a mess of it in 1867.

{112} [Sidenote: The Reconstruction bill.]

The Reconstruction bill was presented from the Committee of fifteen on

Reconstruction to the House of Representatives on the 6th of February

by Mr. Stevens. It was a thoroughly drastic measure. Instead of

creating Territorial civil government in the usual manner, with an

electorate designated by Congress, and with powers under the control of

Congress, and sustained, if necessary, by the military of the United

States, which would have been amply sufficient to meet all the real or

proper exigencies of the case, the bill began by declaring that the

pretended "State" governments of the so-called Confederate States did

not protect adequately life or property, but countenanced and

encouraged lawlessness and crime; and that it was necessary that peace

and good order should be enforced in the so-called Confederate States

until loyal "State" governments could be legally established therein;

and then went on to enact that the said so-called Confederate States

should be divided into five military divisions and made subject to the

military authority of the United States, Virginia to constitute the

first division, North Carolina and South Carolina the second, Georgia,

Alabama, and Florida the third, Mississippi and Arkansas the fourth,

and Louisiana and Texas the fifth; that the General of the army should

assign an army officer of not less rank than a brigadier-general to the

command of each of these divisions, and detail sufficient military

forces, and place them under the command of each of said generals, to

enable him to enforce his authority in the district over which he

should be placed; that these commanders might use civil tribunals in

the enforcement of the laws if they should see fit, but that, if these

were not effective they might institute and govern through military

commissions; that no sentence of these commissions should be executed

until approved {113} by the commanding officer of the district; and

finally, that the United States courts and judges should issue no writs

of Habeas Corpus against the proceedings and judgments of these

commissions.

[Sidenote: The bill indefensible from the constitutional point of

view.]

There was hardly a line in the entire bill which would stand the test

of the Constitution. In the first place, the Congress of the United

States, or any other part of the Government of the United States, can

establish martial law in any part of the territory of the United States

only when and where there is armed resistance to the execution of the

laws of the United States, or of some "State" or Territory whose

jurisdiction is being defended by the Government of the United States.

Such was not the condition anywhere in the South. The Executive had

proclaimed that such resistance had ceased everywhere several months

before; that he had appointed civil officers throughout the South for

the execution of the laws of the United States, in many cases with the

advice and consent of the Senate; that these laws were in operation

everywhere; and that the United States courts were open everywhere and

in the unhindered discharge of their functions and duties. It was not

pretended, of course, that there was armed resistance to the execution

of the laws of the reconstructed "States," and that the military of the

United States was to act simply in support of "State" authority. There

were here and there, it is true, some of the remains of the military

authority of the United States, exercised during the period of the

insurrection, but they were a very poor basis upon which to found a

resumption of the reign of martial law throughout the length and

breadth of the South. No sane and just mind can consider for a moment

such a ground as sufficient in policy, morals or constitutional law.

While the people of these districts {114} which had attempted to secede

from the Union had forfeited their rights to the "State" form of local

government, they still had, after they had ceased from armed resistance

to the Government of the United States, the rights guaranteed to the

criminal by the Constitution of the United States--the right to be

presented by a grand jury and tried by a petit jury in the civil

tribunals of the United States, under the ordinary forms and guarantees

of the common law, even though the crime charged should be treason

itself.

[Sidenote: The bill in its attempt to rob the President of his office

of Commander-in-chief.]

In the second place, the bill undertook to rob the President of his

constitutional prerogative of commandership-in-chief over the army, and

vest the same in the General of the army. This was so evident that no

one could fail to see that it was a bill directed as much against the

powers of the President of the United States as against the late

Confederates of the South.

And in the third place, the bill assumed to suspend the writ of Habeas

Corpus, substantially, while the Constitution forbids this to be done

by any part of the Government of the United States, except in time of

war or public danger. There was no war, and to say that there was

public danger of the character meant by the constitutional exception

was to exaggerate the condition of things entirely beyond all fact or

reason.

[Sidenote: The brutality of the measure.]

The bill was the most brutal proposition ever introduced into the

Congress of the United States by a responsible committee, and it would

never have been tolerated except at such a time of partisan excitement

and exaggerated suspicions. Even under such conditions Congress would

not pass it as introduced, but incorporated into it many modifying

provisions, most of which, however, while reflecting the honest

sentiments of the lawmakers, give little {115} evidence of good

political science or sound constitutional law.

[Sidenote: The opposition of conservative Republicans to the bill.]

[Sidenote: Mr. Blaine's proposed changes in the bill.]

The two points in the bill which the conservative Republicans were

unable to accept were, first, the establishment of martial law for an

indefinite period and without any provision tor a way of future escape

from its rigors; and, second, the usurpation of the President's

constitutional prerogative of commandership-in-chief of the army. It

soon became manifest that the bill could not pass without the

introduction of a clause covering the first point and without a change

of the provision in regard to the second. A number of the conservative

Republicans had indicated these things, when Mr. Blaine squarely asked

Mr. Stevens to incorporate an amendment in the bill which should

provide a way of escape from the martial rule which the bill proposed

to establish. Mr. Blaine's amendment held out the promise of the

admission of each of the ten communities now to be thrown into military

divisions to its proper position as a "State" of the Union when it

should adopt the proposed Fourteenth Amendment and conform its

constitution and laws thereto, should provide by its constitution for

universal male suffrage without regard to race, color or previous

condition of servitude, and should adopt a constitution with such a

provision in it by popular vote, and when Congress should approve of

the said constitution.

[Sidenote: Criticism of Mr. Blaine's propositions.]

There is no doubt that all this, while reflecting the good moral

feeling of Mr. Blaine, was bad political science and was the very

contradictory of sound constitutional law. As has been pointed out

several times already, it would have been good constitutional law had

the United States Congress simply delayed the admission or readmission

{116} of these communities as "States" of the Union until after the

proposed Fourteenth Amendment, and any other desirable amendment,

should have been framed and adopted. Their admission then would have

been into the _same_ Union with all the other States. But to demand of

them, as the condition of admission, their acceptance of things not yet

in the Constitution of the United States, things not obligatory on the

"States" already in the Union, was tantamount to the creation of a new

sort of union with another kind of constitution by an Act of Congress.

This question had been thoroughly talked out, fought out, and decided

in 1820, and for nearly fifty years it had been the settled principle

of constitutional law that Congress has no such power. It has been also

pointed out that a sound political science of the federal system of

government teaches the same principle.

[Sidenote: Mr. Stevens's refusal to accept Mr. Blaine's amendment.]

[Sidenote: Passage of the bill by the House.]

Mr. Stevens acted correctly, from the point of view of political

science and constitutional interpretation, when he declined to accept

Mr. Blaine's amendment, or to allow a vote to be taken on it, and the

House of Representatives also acted correctly from the same point of

view when it voted down a proposition from Mr. Blaine to send his

amendment along with the bill to the Judiciary Committee of the House

with instruction to report it back with the bill. But it is not to be

inferred from the debates that either Mr. Stevens or the House was

actuated in this course of conduct by the above mentioned

considerations. The expansion of the powers of government inevitably

consequent upon a long period of war seemed to have made them all very

nearly forget that there was anything but government in our political

system. The chief thought was that one Congress could not bind another

with any such promises as those held {117} out in the Blaine amendment,

and that each Congress must at all times be left to its own discretion

in the determination of every question. The House passed the bill as it

came from the Committee on Reconstruction without change or amendment,

and on the 13th of February it appeared in the Senate.

[Sidenote: The bill in the Senate.]

This more conservative and deliberate body regarded the bill as too

radical, and after considerable debate upon a proposed amendment,

offered first by Senator Williams of Oregon, and then by Senator

Reverdy Johnson, which was in substance the Blaine proposition, laid it

aside by general consent and allowed Senator Sherman to offer a

substitute for it.

[Sidenote: The Sherman substitute.]

This substitute contained the gist of the Blaine amendment, and also

changed the provision which proposed to deprive the President of his

constitutional prerogative of commandership-in-chief of the army. While

the bill was thus made a less brutal measure, and in one respect a less

unconstitutional measure, it still rested upon a very shaky foundation

so far as constitutional law was concerned, and it was opposed by all

the Democratic Senators. It was passed, however, by a large majority,

every Republican who voted voting in favor of it.

[Sidenote: The substitute in the House.]

[Sidenote: The Senate substitute rejected by the House.]

[Sidenote: The bill as finally agreed upon.]

When it was returned to the House of Representatives for concurrence,

the Radical Republicans developed a most hostile opposition to the

changes which had been made by the Senate. They claimed that the Senate

bill proposed to bind future Congresses by pledges which the existing

Congress had no right to make and no power to execute, and that it also

proposed to use the rebel element of the population of the South in the

work of reconstructing loyal "State" {118} governments. After a long

and acrid debate, the House rejected the Senate's substitute by a union

of Democratic votes with the votes of the Radical Republicans. This

result and the manner of its attainment so frightened the Republicans,

however, that they quickly came to an understanding among themselves in

the House, and with their party colleagues in the Senate, and passed

the Senate's substitute, so amended as to prevent disloyal men, as

designated in the proposed Fourteenth Amendment, from voting for

delegates to a reconstruction convention, or being delegates therein,

or being officers in any so-called "State" government before the

admission of the Senators and Representatives from that "State" into

Congress, and so amended further as to pronounce all professed civil

governments existing in any of the late so-called Confederate States,

except of course Tennessee, provisional only, until Senators and

Representatives from the same should be admitted to seats in Congress,

and subject, as provisional governments, to the paramount authority of

the United States which should control them, and might supersede or

abolish them at any time. The Senate also accepted these amendments,

and on the 20th of February the bill was placed in the hands of the

President.

[Sidenote: The contents of the bill as passed.]

It contained the following declarations and provisions. First, the

preamble designated the ten communities reconstructed under the

President's direction as "the rebel States of Virginia, North Carolina,

South Carolina, Georgia," and so on. This was certainly an untruth. If

they were "States" at all, they certainly were not rebel "States." They

might with some appearance of correctness and sincerity have been

termed the late rebel "States," but to be called simply rebel "States"

was, to say the very least, one of the {119} grossest exaggerations to

be found in the wording of the statutes of Congress. It was simply a

play on words whereby to justify a dubious procedure. It was at the

very best, a confounding of the supposed sentiments of the population

of these regions with actual political status. Second, the preamble

declared that no legal "State" governments or adequate protection for

life or property existed in these "rebel States." As a legal

proposition the first part of this declaration was true, and as a

matter of fact the second part was substantially true. It would have

been an unprecedented thing if anything like an adequate protection of

life and property had been re-established, in the short period of two

years, in communities which had been disturbed, demoralized and

destroyed by four years of civil war, especially when the outcome of

the conflict was total defeat and the utter destruction of the basis of

the old social, political, and economic systems. It was, however, a

serious question whether such a situation required drastic measures

rather than mild and soothing measures.

The Republican Congress decided, after much deliberation, that the

former were necessary to the maintenance of peace and good order, and,

therefore, enacted that the "said rebel States" should be divided into

five military districts, as previously described in the original bill;

that the President should assign to the command of each of these an

army officer of not lower rank than brigadier-general, and place under

his command a sufficient force to enable him to perform his duties and

execute his authority in his district; that these commanders should

have the power to govern these districts by martial law in so far as,

in their judgment, the reign of order and the preservation of the

public peace might demand, under the limitations simply that "all

persons put under military arrest {120} by virtue of this act shall be

tried without unnecessary delay, and no cruel or unusual punishment

shall be inflicted, and no sentence of any military commission or

tribunal hereby authorized affecting the life or liberty of any person,

shall be executed until it is approved by the officer in command of the

district--and no sentence of death under the provisions of this act

shall be carried into effect without the approval of the President."

Then came the provision which offered the terms of escape from this new

military régime. They were, first, the exercise of universal manhood

suffrage, that is the suffrage of all male citizens, twenty-one years

of age, without regard to race, color or previous condition of

servitude, who were not disfranchised for participation in rebellion or

for felony at common law, and who had resided for one year in the

so-called "rebel State," in the election of delegates to a

constitutional convention in the so-called "rebel State"; second, the

framing of a "State" constitution by a convention composed of delegates

so elected, and not disqualified by participation in rebellion or by

the commission of felony, which constitution should conform in all

respects to the Constitution of the United States and which should

contain, as a permanent principle, the same law of suffrage as that

prescribed by this Act for the election of the delegates to the

convention; third, the ratification of this constitution by a majority

of the voters, as designated by the law of suffrage for the choice of

delegates to the convention, voting upon the question of ratification;

fourth, the approval by Congress of this constitution; and fifth, and

last, the adoption of the proposed Fourteenth Amendment to the

Constitution of the United States by the legislature created by such

adopted and approved "State" constitution, and by a sufficient number

of the legislatures {121} of other "States" to make it a part of the

Constitution of the United States.

The measure contained, in the last place, a sort of saving clause in

regard to the existing civil governments which had been established in

all these communities under the direction of the President, and which

were now to be displaced. It had been already provided, in section

third, that the military commander of a district might use the existing

civil courts, if he saw fit to do so, so long as the reign of law and

order might be so preserved, and the final section provided that any

civil government which might exist in these districts should be

regarded as provisional, and should be in all respects subject to the

paramount authority of the United States, which should control, and

might abolish, modify, or supersede the same, and that the voters for

the election of the officers of such provisional governments should be

required to have only the qualifications prescribed in this Act for

voters for the delegates to the said "State" convention, and persons

elected to place and office in such provisional governments must not

have the disqualifications prescribed in the proposed Fourteenth

Amendment to the Constitution of the United States. It had evidently

occurred to the Republican leaders that they might have to make use of

some of the machinery of the existing civil governments established

under the direction of the President in these regions in executing

their own plan of Reconstruction.

[Sidenote: The condition that the proposed Fourteenth Amendment be

ratified by a sufficient number of "States" to make it a part of the

Constitution.]

All of the points of the measure have been commented on, except the

provision in the fifth section, which makes the adoption of the

proposed Fourteenth Amendment to the Constitution of the United States

by a number of "States" sufficient to ratify it a condition precedent

to the admission of any one of these so-called "rebel States" to

representation in Congress. The {122} adoption of the proposed

amendment by the particular "rebel State" seeking representation was

not sufficient. It must be ratified by at least three-fourths of all

the "States." No matter how speedily and sincerely the legislature of

Virginia might ratify the proposed Amendment, and fulfil all the other

conditions required by the Act, Virginia must remain under military

despotism until a very large number of the Northern "State"

legislatures had pleased to ratify the proposed Amendment. This was

certainly a pretty hard condition, and it was not a very fair way of

forcing the legislatures of the Northern States to adopt the proposed

Amendment. It was, however, an efficient weapon, and Congress had the

legal power to use it. It was unconscionable, though it was one of the

things about this measure which was constitutional.

[Sidenote: The Tenure-of-Office bill.]

Hand in hand with this bill went another measure, the purpose of which

was to limit the customary power of the President, if not his

constitutional power, over the civil official system, the so-called

Tenure-of-Office bill. On the first day of the session, December 3d,

1866, Mr. Williams of Oregon introduced this bill in the Senate, while

at the same moment a bill was introduced and passed in the House

repealing that section of the Confiscation Act of July 17th, 1862,

which authorized the President to extend pardon and amnesty by

proclamation to persons participating in the rebellion. The Senate

passed the latter bill or resolution on the 8th of January, 1867, and

the President, not considering that the Congress could either give or

take away his power to pardon secured to him by the Constitution,

simply pocketed the resolution, and it became a law on and from the

21st of January, having been presented to the President on the 9th.

{123} The propositions contained in the Tenure-of-Office bill were,

however, of a very different significance. There was no clause in the

Constitution which by express literal grant vested the power to dismiss

from office in the President, but the clause which made the President

solely responsible for the execution of the laws was interpreted by the

first Congress as doing so. Madison took the ground that the President

must have this power in order to secure the necessary obedience in his

subordinates, and declared that the convention which framed the

Constitution so understood it and so intended it. This is certainly

sound political science and correct constitutional interpretation. It

had also been the practice of the Government from the beginning. The

Whigs had undertaken to reverse it in their contest with Jackson, and

Webster had given his opinion that good political science required that

dismissal from office should be treated as an incident of appointment,

and should be effected in the same manner as appointment, i.e., with

the concurrence of the Senate, and that the decision of 1789 on this

subject was, in his opinion, erroneous from the point of view of a

proper interpretation of the Constitution as well. But the Whigs did

not succeed, as we have seen, in their attempt to break down

Presidential prerogative and introduce parliamentary government, and

the practice of the Government on this subject remained, after, as

before, the fourth decade of the century, the same.

[Sidenote: The reasons for the Tenure-of-Office bill.]

During the experiences of the years 1865 and 1866 the Republicans

feared that the President would use this great power of dismissal from

office in order to make the entire official system solid with himself

on the subject of Reconstruction, and toward the end of 1866 they

suspected and asserted that he was dismissing officers {124} from their

positions simply on the ground of a difference of opinion with himself

on this subject, and they professed to believe that he would make a

clean sweep of all such as soon as Congress should adjourn. There is

little doubt that excessive partisan feeling made them exaggerate

greatly what the President had done and what he intended to do. The

President was guided by Mr. Seward in all public matters except his

imprudent speeches, and Seward's conservative and diplomatic

disposition and methods were all against any such radical and reckless

procedure. Besides, it was the constitutional right of the President to

require obedience in their official acts from his subordinates, and to

dismiss them when in his opinion their views of policy interfered with

the discharge of their official duties as he required them to be

discharged. The Thirty-ninth Congress, however, resolved to disregard

the precedents set by all of its predecessors and to dispute the

President's prerogative of control over the tenure of his subordinates.

[Sidenote: The contents of the bill.]

The bill drafted for this purpose made the removal of all officers,

appointed by and with the consent of the Senate, except only members of

the President's Cabinet, subject to the consent of the Senate. This

consent might be given in the form of a ratification of the nomination

of a successor to any officer. It allowed the President, during a

recess of the Senate, the power of suspension for misconduct in office,

crime, legal disqualification or incapacity, and of making appointment

of a suitable person to discharge temporarily the duties of such

suspended officer, but it required of the President a report of all

such suspensions to the Senate within the first twenty days of the next

meeting of the Senate, with the reasons therefor, and reinstated the

suspended officer in case the Senate {125} should not concur in the

suspension. If the Senate should concur, the President must remove the

officer, and appoint, with the advice and consent of the Senate,

another person in his place.

[Sidenote: Discussion of the bill.]

From the point of view of the present this would seem, in all

conscience, to have been a sufficient usurpation of the President's

constitutional powers to have satisfied the most radical and reckless

interpretation of the organic law. But the bill had hardly come under

discussion when Senator Howe moved to strike out the clause excepting

the Cabinet officers from its operation, and although the Senate

refused to pass this amendment, the House of Representatives did so

when the bill came before it. The Senate, however, refused to concur on

the ground, of course, that the intimate and confidential relations

which should exist between the President and the members of his Cabinet

made it necessary that the President should have only the men of his

own choice in these positions. The strenuous insistence of the House,

however, forced the Senate to a compromise upon the subject, and the

bill was finally made to provide that the members of the Cabinet should

"hold their offices, respectively, for and during the term of the

President by whom they have been appointed, and for one month

thereafter, subject to removal by and with the consent of the Senate."

That is, that a Cabinet officer might hold his position against the

will of the President who appointed him during the entire term of the

President and for one month of the term of his successor unless the

Senate should agree to such officer's removal either directly or by

ratification of the nomination of a successor.

[Sidenote: The provisions for enforcing the measure.]

The bill as finally enacted contained, moreover, the most stringent

provisions for its enforcement. It made {126} the acceptance or

exercise of any office or the attempt to exercise any office contrary

to the Act a high misdemeanor, punishable by a maximum fine of ten

thousand dollars or a maximum imprisonment of five years, or both in

the discretion of the court; and it made the removal, appointment, or

employment of any officer contrary to the provisions of the Act, or the

preparation, signing, sealing, countersigning or issuing of any

commission of office or letter of authority in respect to any such

appointment or employment high misdemeanors, punishable with the same

extreme penalties. Lastly, it forbade the officers of the Treasury and

all officers of the United States to pay any money, salary or

compensation to any person claiming to hold any office or employment

contrary to the provisions of this Act, and made the violation of this

order a high misdemeanor, punishable with the same extreme penalties as

in the other cases.

[Sidenote: The President's vetoes of these bills.]

This monstrous measure went to the President on the same day with the

Reconstruction bill, the 20th of February. It is not to be wondered at

that he felt that the Republican chiefs were offering him intentional

personal insult, as well as that the legislative department of the

Government was attempting an unwarranted encroachment upon the

constitutional prerogatives of the Executive. It is rather to be

wondered at that, in his message to Congress on these subjects, he

succeeded so well in ignoring the personal affronts intended by

Congress, and in confining himself so closely to a discussion of the

public questions and considerations involved in the measures.

The vetoes of these bills were sent to Congress on the same day, March

2d. To the publicist and historian of this day they are masterpieces of

political logic, constitutional interpretation, and official style. If

not {127} written by Mr. Seward, they must have been edited and revised

by him. These documents showed most convincingly, both from

constitutional provisions, opinions of contemporaries, statutes of

Congress, judicial decisions, and the uniform practices of the

Government, that Congress had no power to establish or re-establish

martial law anywhere in the country, except when and where war or armed

rebellion existed as a fact, a condition which did not then exist

anywhere in the length and breadth of the land; and that Congress had

no power to force the President to retain agents and subordinates in

office against his judgment and will. No good political scientist and

no sound constitutional lawyer will, at this day, disagree with the

contention of the President upon these two points, and it is very

difficult to understand how the great leaders of the Republican party

could, at that day, have differed with him.

[Sidenote: Republican motives in Reconstruction.]

Undoubtedly, in some of the baser minds among them, the determination

to create Republican party "States" in the South was a very weighty

consideration, but just as undoubtedly the consideration with the

majority of them was the conviction that the work of the four years of

war might have to be done all over again unless a new political people,

a new body of suffrage holders, should be created at the South, whose

members had never been disloyal. But even from this point of view

again, it is difficult to understand how they could have failed to see

that the Constitution required that this should be done through the

forms of Territorial civil government, instead of through the forms of

martial law. Put the best light upon their conduct that is possible,

there is still left the conviction that the fanaticism of extreme

partisanship had an undue influence over them all. {128} The contest

with the President had blinded their perceptions as to the morality,

legality and propriety of the means they were willing to employ in

securing the victory over him.

[Sidenote: Congressional encroachment on the President's military

prerogatives.]

As this contest developed it dwarfed, to say the least, all other

considerations. Even as late as when the Reconstruction bill was

passed, the majority of the Republicans refused to vote to take the

President's military prerogatives from him. In less than a fortnight

from this time, however, they voted, in a section of the Army

Appropriation bill, "that the head-quarters of the General of the army

of the United States shall be at the city of Washington, and all orders

and instructions relating to military operations issued by the

President or Secretary of War shall be issued through the General of

the army, and, in case of his inability, through the next in rank. The

General of the army shall not be removed, suspended, or relieved from

command, or assigned to duty elsewhere than at said head-quarters,

except at his own request, without the previous approval of the Senate;

and any orders or instructions relating to military operations issued

contrary to the requirements of this section shall be null and void;

and any officer who shall issue orders or instructions contrary to the

provisions of this section shall be deemed guilty of a misdemeanor in

office; and any officer of the army who shall transmit, convey, or obey

any orders or instructions so issued contrary to the provisions of this

section, knowing that such orders were so issued, shall be liable to

imprisonment for not less than two nor more than twenty years, upon

conviction in any court of competent jurisdiction."

To the mind of any unprejudiced constitutional lawyer, at the present

day, this act must appear as a gross {129} usurpation by Congress of

the President's military powers conferred upon him by the Constitution.

The Constitution makes the President the Commander-in-Chief of the army

and navy, and gives Congress no power whatsoever over the methods or

channels by, and through, which he may issue his military commands.

Neither does the Constitution give Congress any power to assign any of

the officers or troops of the army to any particular position. These

are all functions of the commandership-in-chief, and, unless expressly

granted by the Constitution to some other department of the Government,

belong to the President.

It was not only a usurpation by Congress to pass such an act, but it

was a mean thing to do it as a section of an appropriation bill; and

there is no escaping the suspicion that it had a sinister purpose,

namely, to entrap the President in the commission of what Congress had

made a high misdemeanor, and open the way for his impeachment and

expulsion from office. The President signed this bill, however, in

order to save the appropriations for the support of the army, although

he protested strongly against the seizure of his constitutional powers

by the Congress.

[Sidenote: The supplementary Reconstruction bill.]

On the same day that the vetoes of the Reconstruction bill and the

Tenure-of-Office bill were sent to Congress, this body passed a bill

supplementary to the first measure. It was in the nature of an

administrative measure for the purpose of carrying out the new plan of

Reconstruction. It ordered the commanding generals of the respective

districts to cause a registration to be made before September 1st next

following of all male citizens of the United States, twenty-one years

of age and over, resident in each county or parish in the "State" or

"States" included in their respective districts, who were qualified as

{130} prescribed by the Reconstruction Act to vote for delegates to a

constitutional convention, and who had taken an oath asserting

citizenship and residence, and freedom from disfranchisement on account

of participation in rebellion or the commission of felony, and had

sworn that they had never engaged in insurrection or rebellion against

the United States, or given aid and comfort to the enemies of the

United States after having been members of Congress or of a "State"

legislature, or officers of the United States or of a "State" of the

Union, and that they would henceforth faithfully support the

Constitution and obey the laws of the United States and encourage

others to do so.

It next made it the duty of the commanding generals to order elections,

at such times after the completion of the registrations and at such

places as they might choose, for delegates to constitutional

conventions in the "States" comprised in their respective districts. It

required them to give thirty days' notice of the elections, and it

fixed the number of delegates to each convention at the number of

members in the lower House of the legislature of the "State" concerned

in the year 1860, except in the case of Virginia, where, on account of

the separation of West Virginia from the old Commonwealth, the number

of deputies to the Virginia convention was made to correspond with the

number of members in the lower House of the legislature of 1860,

representing the territory not included in West Virginia. The bill

further directed the commanding generals to distribute the

representation in the conventions among the districts, counties and

parishes of the "States" in accordance with the number of registered

voters in each.

The bill then provided that at the elections for delegates, the voters

should vote on the question as to {131} whether there should be a

constitutional convention or not, and that such convention should be

held only when a majority of the inscribed electors voted upon this

question, and a majority of those voting voted in the affirmative. It

then ordered the commanding generals, in case the voters did so decide

for conventions and elect delegates thereto, to call such within sixty

days from the date of the elections, and to notify the delegates to

assemble at a given time and place, and frame constitutions according

to the provisions of the bill and of the former Act to which it was

supplementary, and, when framed, to submit the same to the registered

voters for ratification with a notice of thirty days.

The bill then further provided, that if, at such elections, a majority

of the registered voters voted upon the question of ratification, and a

majority of those voting voted in favor of ratification, the presidents

of the respective conventions should transmit copies of the respective

constitutions to the President of the United States, who should

transmit them to Congress, and that Congress should declare the

respective "States," whose conventions had framed these constitutions

and whose voters had adopted them, entitled to representation in

Congress, provided Congress was satisfied that there had been perfectly

free elections, and that no force, fraud or intimidation had been

perpetrated at them, and that the constitutions presented met the

approval of a majority of the qualified electors and were in conformity

with the requirements of the Reconstruction Act.

Finally, the bill put into the hands of the commanding generals the

appointment of the officers of the elections, and the control of the

machinery of the elections, only requiring them to hold the elections

by {132} ballot, and to proclaim the results of the elections in

accordance with the returns made to them by their boards of

registration.

[Sidenote: Congress in permanence.]

Congress had passed a resolution ordering the assembly of the Fortieth

Congress so soon as the Thirty-ninth expired, and in accordance

therewith the newly elected Congress opened its session on the 4th of

March, 1867, instead of on the first Monday of the following December.

The Congress was, therefore, in position to deal at once with a veto of

the supplemental bill to the Reconstruction Act, in case one should be

sent in.

[Sidenote: The veto of the supplemental Reconstruction bill.]

On the 23d of March the veto appeared. The President argued that the

oath required by the bill from every person before his name could be

admitted to registration, viz., "that he had not been disfranchised for

participation in any rebellion or civil war against the United States,"

was so entirely uncertain in its meaning that it would prove a most

terrible means of oppression in the hands of the military officers and

their appointed agents, and declared he could never approve of an

election law whose plain and manifest purpose was to disfranchise the

great body of respectable white people, and create a new electorate on

the basis of universal negro suffrage. He contended that the existing

constitutions of the ten "States" to be re-reconstructed conformed to

the long-established standards of loyalty and Republicanism, and that

the new test of these qualities now set up by Congress, viz., universal

negro suffrage, was a gross exaggeration, and would make many of the

Northern "States" themselves unrepublican. The President did not

expressly say that this bill was unconstitutional, but he quite

distinctly implied it. In this, however, he was wrong, unless his

doctrine that the rebellious {133} communities remained "States" of the

Union throughout the rebellion, or had been reconstructed by his plan,

was true, that is, unless these communities were "States" of the Union

at the time Congress passed this bill.

[Sidenote: Criticism of the veto.]

On the other hand, from the point of view of the correct legal

principle in regard to this subject, the principle which holds that the

result of general rebellion within a "State" against the Constitution

and laws of the United States is the loss of the "State" form of local

government, and brings the territory and population of the former

"State" under the exclusive jurisdiction of the central Government,

Congress certainly had, and has, the power to create the electorate in

such territory at its own discretion, Congress was referred, and is

referred, in such a case, only to its own sense of right and policy.

[Sidenote: Criticism of the Reconstruction Acts.]

But there is no question, now, that Congress did a monstrous thing, and

committed a great political error, if not a sin, in the creation of

this new electorate. It was a great wrong to civilization to put the

white race of the South under the domination of the negro race. The

claim that there is nothing in the color of the skin from the point of

view of political ethics is a great sophism. A black skin means

membership in a race of men which has never of itself succeeded in

subjecting passion to reason, has never, therefore, created any

civilization of any kind. To put such a race of men in possession of a

"State" government in a system of federal government is to trust them

with the development of political and legal civilization upon the most

important subjects of human life, and to do this in communities with a

large white population is simply to establish barbarism in power over

civilization. The supposed disloyalty, or even the actual disloyalty,

of {134} the white population will not justify this. It will justify

the indefinite withholding of the "State" form of local government. It

will justify the throwing of a "State" of the Union back under the form

of a Territory of the Union. It will even justify the establishment of

martial law. But it is not to be cured, nor is the welfare of the whole

land, or any part of it, to be promoted, by the subjection of the white

race to the black race in politics and government. It was a great wrong

to the negroes themselves. It made the white men among whom they must

live their most bitter enemies, when they most needed them for friends,

and it made the negroes trifling and corrupt politicians, when they

should have been devoting themselves exclusively to the acquirement of

property and education. It was argued, as will be well remembered, that

they could not acquire property and education without the ballot. But

this is another sophism. The mainstay of property is the courts; and

under a Territorial form of local government Congress could have

established a system of free schools. It was not at all necessary to

have recourse to negro suffrage and negro "State" governments in order

to secure the negroes in their personal liberty, and the possession of

property, and to aid them in the acquirement of education.

There was another alternative, and a better one. In fact, there were

two other conceivable ways of doing these things, either of which would

have been better than the one chosen. The one was, as has been already

suggested, to establish Territorial civil governments in the late

rebellious region and maintain them there until the civil relations

between the two races became settled and fixed. The other was to so

amend the Constitution of the United States, before the readmission of

the "States" which had renounced the "State" form of local {135}

government under the Union, as to give Congress and the national

judiciary the power to define and defend the fundamental principles of

civil liberty. Neither of these methods would have demanded martial law

or universal negro suffrage. It is entirely surprising, from the point

of view of to-day, that one or the other of these methods or a

combination of both was not resorted to, instead of the monstrous plan

that was carried out. There is no way to explain this sufficiently,

except upon the reflection that the passions of the men of that day had

become so inflamed and so completely dominating that they obscured

reason, drowned the voice of prudence, and even dulled the sense of

decency. There were a few who favored universal negro suffrage from an

exalted and exaggerated humanitarianism, but the mass of the

Republicans sustained it as a punishment to the late rebellious whites,

and as a means of establishing Republican party "State" governments in

the South. Many claimed, indeed, that it was the only alternative to

long-continued martial law rule, but they were either very ignorant or

very insincere.

[Sidenote: The assignment of the commanding generals to the military

districts created by the Reconstruction Acts.]

In prompt obedience to the requirements of the two Reconstruction Acts,

the President issued his general order through the Adjutant-General's

office, on March 11th, assigning General Schofield to the command of

the first military district, as created by these Acts, with his

head-quarters at Richmond, Virginia; General Sickles to that of the

second, with his head-quarters at Columbia, South Carolina; General

Thomas to that of the third, with his head-quarters at Montgomery,

Alabama; General Ord to that of the fourth, with his head-quarters at

Vicksburg, Mississippi; and General Sheridan to that of the fifth, with

his head-quarters at New {136} Orleans, Louisiana. On the 15th this

order was so modified as to change the assignment of General Thomas

from the command of the third district to that of the Department of the

Cumberland, and to substitute General Pope for him in the command of

the third district.

[Sidenote: The re-establishment of martial law in the South.]

These officers betook themselves at once, with the forces attached to

their several commands, to their respective stations, and assumed the

government of their respective districts by martial law. No opposition

whatever was made to any of them by the populations thus made subject

to their despotic rule.

[Sidenote: The President's instructions to the generals in

interpretation of the Reconstruction Acts.]

Very soon, however, the generals found great difficulty in interpreting

the Reconstruction Acts, especially in respect to the oath required for

enfranchisement, both as to the persons who might take it and as to its

consequences, and in respect to the powers of the boards appointed to

superintend the elections. They applied to the President for

information upon these points. The President submitted their

application to his Attorney-General and to his Cabinet, and with the

full concurrence of all the members thereof, except only Mr. Stanton,

issued through the Adjutant-General's office in the War Department, on

the 20th of June, the following instructions:

First: That the oath prescribed in the second Act defined all the

qualifications required for suffrage, and that any person who could

take that oath should have his name entered on the list of voters; that

the boards of registration provided in that Act could not require any

other, or any additional, oath from the person applying for

registration, nor "administer an oath to any other person touching the

qualification of the applicant or {137} the falsity of the oath taken

by him," but that the person taking the oath must be registered as a

voter, and if it could be afterward proved that he had sworn falsely,

he could be punished for perjury.

Second: That an unnaturalized alien could not take the oath, but a

naturalized alien could, and that no other proof of naturalization

could be required of him.

Third: That "actual participation in rebellion or the actual commission

of a felony" did not amount to disfranchisement, but there must be a

law made by competent authority declaring disfranchisement, or a

judicial sentence inflicting it, and that no law of the United States

had declared the penalty of disfranchisement for participating in

rebellion alone.

Fourth: That a person who had engaged in rebellion, but had not

theretofore held an office under a "State" or the United States, or not

been a member of a "State" legislature or of Congress, and not taken,

as such, an oath to support the Constitution of the United States, was

not disfranchised or disqualified from voting.

Fifth: That persons who were militia officers in any "State" prior to

the rebellion were not disfranchised by participating in the rebellion.

Sixth: That "an act to fix upon the person the offence of engaging in

rebellion under this law must be an overt and voluntary act, done with

the intent of aiding or furthering the common unlawful purpose," and

that "a person forced into the rebel service by conscription or under a

paramount authority which he could not safely disobey, and who would

not have entered such service if left to the free exercise of his own

will," was not disfranchised or disqualified from voting.

And lastly: That disloyal sentiments, opinions or sympathies, or

anything said or written which fell short {138} of an incitement to

others to engage in rebellion, did not disfranchise or disqualify from

voting.

Some other instructions were given which were concurred in by the

entire Cabinet, Mr. Stanton included, but the recital of them is not

essential to this narrative. It must be added, however, that the

President's view of the relation of the military commanders to the

"State" governments created under his direction and with his aid was

one which gave these governments a more independent and permanent

character than the language of the Reconstruction Acts seemed to

warrant.

[Sidenote: The Congressional interpretation of the Reconstruction

Acts.]

When, then, the instructions of June 20th to the generals became known,

another bill was introduced into Congress and passed which put the

Congressional interpretation upon the Reconstruction Acts.

It declared that the true intent and meaning of these Acts was that the

civil governments then existing in the "rebel States" of Virginia,

North Carolina, etc., were not legal "State governments," and that, if

thereafter they should be allowed to continue to exist at all, they

must be subject in all respects to the will of the military commanders

of the respective districts, and to the paramount authority of

Congress; and it provided that the generals in command of the

respective districts might suspend or remove any person from any office

under these illegal and pretended governments, and detail or appoint

some other person to discharge the duties and exercise the powers said

to pertain to such office. The acts of the district commanders in

regard to these things were made subject to the disapproval of the

General of the army, but not to that of the President, and stood until

so disapproved. The same powers in regard to these matters were vested,

by this bill, in the General of the army as in the district commanders,

{139} but were not accorded by it to the President; and it was made the

duty of the General of the army and the district commanders to remove

from such pretended offices "all persons who were disloyal to the

United States, or who used their official influence in any manner to

hinder, delay, prevent, or obstruct the due and proper administration

of the Reconstruction Acts."

The bill, furthermore, provided that the boards of registration should

have the power, and that it should be their duty, to ascertain the fact

as to whether a person applying for registration as a voter was

entitled to registration under the Reconstruction Acts, and to refuse

registration, if in their judgment he was not, and that the fact that

he was willing to take the oath prescribed in the Reconstruction Acts,

or had taken it, was not conclusive upon the registration boards in

making their inquiries and forming their decisions. And it, finally,

declared that the true intent and meaning of the oath prescribed in the

Reconstruction Acts for persons who had held office under a "State"

government or membership in a "State" legislature, before the

rebellion, was that whether such persons were holding such positions at

the time of the commencement of the rebellion or at some time prior to

the same, and whether they had taken an oath to support the

Constitution of the United States or not, they were disqualified from

registration and were disfranchised, if, after holding such positions,

they had "engaged in insurrection or rebellion against the United

States, or given aid or comfort to the enemies thereof"; and it gave to

the commanders of the districts the power to extend, in their

discretion, the time for completing the original registration of the

voters, as provided for in the Reconstruction Acts, to October 1st

following, and to the boards of registration the power, and imposed

upon them the {140} duty, to revise, during the first five of the last

fourteen days before any election under the Reconstruction Acts, the

registration lists and to strike off any name from said lists which, in

their judgment, ought not to be there, and to add any name, which, in

their judgment, ought to be there, and required them to disregard any

Executive pardon or amnesty as relieving the disability of any person

for registration, if such person had committed any act which without

such pardon or amnesty would disqualify him.

This bill, it will be readily seen, was a wholesale repudiation of all

the instructions given by the President to the generals in command of

the districts from which, in the Cabinet council, Mr. Stanton had

dissented. The President immediately realized this, of course, and it

increased his distrust of Stanton immensely. From that moment forward

he regarded him as the spy of Congress upon all his official acts, and

he was resolved to remove him upon the first opportunity, that is, so

soon as Congress should adjourn.

[Sidenote: The President's veto of the bill interpreting the

Reconstruction Acts.]

The bill passed the Houses on the 13th of July, was presented to the

President for his signature on the 14th, and on the 19th he returned it

with a veto message to the House of Representatives. The President

contended in his argument that this new measure was not simply an

interpretation of the existing Reconstruction Acts, but was in many

respects a large advance upon them. The existing Acts, he contended,

made the reconstructed "State" governments at the South subject to

absolute military authority in many important respects, but not in all

respects, while the new measure proposed to extend the despotism of the

military commanders over everything. Against such a measure, in time of

peace, he protested as being in violation of every guaranty of {141}

individual liberty contained in the Constitution. He dwelt upon the

unfitness of military officers to discharge the duties and exercise the

powers pertaining naturally to civil office, and he pointed out the

inconsistency, as he thought, of the declaration of Congress that the

ten "State" governments at the South were illegal with the attempt of

Congress to carry on these _illegal_ "State" governments by "Federal

agency," when Congress had no power to carry on a _legal_ "State"

government through "Federal agency"; and he stopped, as he thought, the

way of escape from this argument by pointing out that the entire

legislation of Congress down to the passage of the Reconstruction Acts

distinctly involved the recognition of the ten communities now to be

put under absolute military rule in all respects as "States" of the

Union.

But the most vigorous and unanswerable part of the message was the

protest against the robbery of the constitutional powers of the

Executive by the attempt of Congress, in this measure, to confer some

of those powers upon other persons. The President expressed himself so

warmly upon this point, that the Republicans began to whisper around

their suspicions of sinister purposes on his part, just as if such a

declaration to Congress itself was not proof to the contrary. He said:

"Whilst I hold the chief executive authority of the United States,

whilst the obligation rests upon me to see that all the 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.

If this executive trust, vested by the Constitution in the President,

is to be taken from him {142} and vested in a subordinate officer, the

responsibility will be with Congress in clothing the subordinate with

unconstitutional power and with the officer who assumes its exercise."

[Sidenote: Ideas and suspicions about the meaning of the message.]

The radical Republicans interpreted this language, at once, as meaning

that the President proposed to so interfere with the execution of the

Reconstruction Acts as to avoid their intent and destroy their effect.

And the talk about impeachment was again revived. The President,

however, meant nothing of the kind, and but for exaggerated suspicion

and party hatred the language of the message would have been held to

mean only an appeal to Congress to desist from its unlawful attempt to

rob the Executive of his constitutional powers, and to the people to

elect men to Congress who would obey the principles of the Constitution

in their legislative acts.

[Sidenote: The veto overridden.]

The Houses passed the bill over the President's veto immediately, by an

overwhelming majority, and almost in a spirit of derision. The next

day, July 20th, Congress adjourned to the 21st of the following

November.

[Sidenote: The suspension of Stanton from office.]

The unfortunate relations of Mr. Stanton with the President, and with

the other members of the Cabinet were the thing which was destined to

produce the catastrophe. He had become unbearable to the President, and

to the most of his colleagues. He ought in all decency to have resigned

his portfolio as Speed and Harlan and Dennison had done the year

before. The President asked him to resign in a note of the 5th of

August. Stanton, feeling sure of the support of the large majority in

Congress, contemptuously refused. The President could now in the recess

of Congress suspend him without violating the provisions of the

Tenure-of-Office Act, or raising the {143} question of its

constitutionality. The President at last resolved to take the matter

into his own hands and rid himself of Stanton's presence in his

confidential counsels. On the 12th of August he sent an executive order

to Stanton suspending him from the office of Secretary of War, and

another to General Grant authorizing and empowering him to act as

Secretary of War _ad interim_. Stanton yielded to this order under

protest. He wrote the President that he could not legally suspend him

from office and declared that he submitted only to superior physical

force. Grant accepted the appointment, although he had, four days

before, advised the President against disturbing Stanton. Grant entered

upon the duties of the office at once, and Stanton went off to New

England to recuperate health, spirits and courage for his battle with

the President which was bound to come unless the President should yield

and take him back again, so soon as Congress should assemble.

[Sidenote: Changes among the commanders of the military districts.]

By a series of orders issued during the same month (August) General

Hancock was substituted for General Sheridan in the command of the

fifth military district and General Canby for General Sickles in the

command of the second district. Both of the generals thus relieved were

great favorites at the North, especially Sheridan. The President felt

that they were too much imbued with the military spirit to make good

administrators of civil affairs. But the people of the North saw in

these changes only the purpose of the President to place his political

friends among the army officers in command of the military districts,

and through them to modify the intent of the Reconstruction Acts in the

course of their execution.

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