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.
{144}